text:
    A89A2048.
    HORTON v. THE STATE.
    (392 SE2d 259)
   Birdsong, Judge.

Horton appeals his conviction of possession of cocaine with intent to distribute. Held:

1. Horton enumerates as error the denial of his motions for a directed verdict and for a new trial because there was no evidence supporting his conviction that he possessed cocaine with the intention to distribute and also enumerates as error the trial court charging the jury he could be convicted of that offense when allegedly there was no evidence supporting the charge.

The evidence shows that three police officers were patrolling an area near some “crack houses” which they patrol regularly and usually arrest someone for dealing cocaine every third or fourth time they go there. They saw Horton standing about fifteen feet from a group of three or four men and women. When Horton saw the police approaching, he threw an object which landed a few feet away, went over to a bench, and sat down. One of the officers retrieved the object and found a matchbox containing five rocks of crack cocaine.

Horton was searched, and the police found a number of matches, a wallet, and the usual things one carries, but found no drugs, no contraband, no weapons, no drug trade paraphernalia, and apparently no money. The arresting officer testified the cocaine was of such a small quantity that he did not weigh it, but other witnesses testified that the cocaine weighed .7 grams and that the five rocks of crack cocaine weighed less than one/twenty-eighth of an ounce.

a. Horton’s motion for a directed verdict contended that the evidence set out above was not sufficient to prove any intent to distribute and asked the trial court “to either grant a directed verdict or to find that the charge not be with the intent to distribute. . . .” Thus, the motion was for the trial court to direct a verdict of acquittal or to grant a directed verdict on the issue of intent to distribute and submit the case to the jury on the lesser included offense of possession of cocaine.

A directed verdict of acquittal is authorized only “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ as to the entire offense or to some particular count or offense. . . .” OCGA § 17-9-1 (a); see also Taylor v. State, 252 Ga. 125, 127 (312 SE2d 311). The intent to distribute can be proven by circumstantial as well as direct evidence (Hunter v. State, 190 Ga. App. 52, 54 (378 SE2d 338)), and this court will not reverse the denial of such a motion when “[w]e cannot say that there was ‘no conflict in the evidence and the evidence . . . demand(ed) a verdict of acquittal.’ ” Conger v. State, 250 Ga. 867, 870 (301 SE2d 878). Accordingly, the trial court did not err by denying Horton’s motion.

b. On the denial of Horton’s motion for a new trial, the issue is similar, but the test is different.

When the jury is authorized to find the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Jones v. State, 165 Ga. App. 36, 38 (299 SE2d 576). In this regard, a conviction on circumstantial evidence is authorized if the “proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “Whether this burden has been met is a question for the jury. . . .” Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546). Moreover, while “ ‘mere possession of contraband without more will not serve as the basis for a conviction for [possession of cocaine with intent to distribute]. . (id.), the State’s evidence consisted of more than evidence of mere possession. In this case, Horton had multiple rocks of crack cocaine and he was waiting in an area near several “crack houses” where arrests for drug dealing were frequently made. To support the verdict, circumstantial evidence need only exclude reasonable hypotheses, not every inference or hypothesis except that of Horton’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence in a light most favorable to the verdict (Watts v. State, 186 Ga. App. 358 (366 SE2d 849)), we conclude that the jury rationally could have found from this circumstantial evidence that it excluded every reasonable hypothesis except that Horton possessed the cocaine with the intent to distribute. Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which “[a]ny rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of possession of cocaine with intent to distribute as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Walton v. State, 194 Ga. App. 490 (_SE2d _) (1990).

c. Under the circumstances, a charge to the jury on possession with the intent to distribute cocaine was authorized.

2. Horton also asserts that the trial court erroneously denied his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) alleging the prosecutor exercised his jury strikes in a racially discriminatory manner. Although we have some question whether Horton made a prima facie showing of discrimination (see Williams v. State, 258 Ga. 80, 82 (365 SE2d 408) and Aldridge v. State, 258 Ga. 75, 76 (365 SE2d 111)), the record supports the trial court’s decision that the prosecutor did not use his peremptory challenges in a racially discriminatory manner. Lee v. State, 258 Ga. 481, 482-483 (371 SE2d 389); Henderson v. State, 257 Ga. 434, 436 (360 SE2d 263). Not only were racially neutral reasons given for the exercise of the four challenges made against members of Horton’s racial group, but the prosecutor did not use all of his challenges before accepting a jury with five black members. See Mincey v. State, 257 Ga. 500, 503 (360 SE2d 578). This enumeration of error is without merit.

3. Horton enumerates as error the admission in evidence over his objection of a photograph showing the area of the crime scene. The photograph was properly authenticated before it was admitted (see McCoy v. State, 190 Ga. App. 258, 262 (378 SE2d 888)), and decisions on admission of evidence are within the discretion of the trial judge which will not be reversed absent an abuse of discretion. Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38). We find no such abuse, and further, the law favors admission of evidence. See Whisnant v. State, 178 Ga. App. 742 (344 SE2d 536).

4. Horton enumerates as error the trial court’s refusal to give certain defense requests to charge. Review of the trial court’s charge shows that, with one exception, the substance of the requested charges was given in legally sufficient and correct terminology. This is all that is required since a defendant has no right to have the trial court charge in the exact language of his requests. Ortiz v. State, 188 Ga. App. 532 (374 SE2d 92); Skinner v. State, 188 Ga. App. 458 (373 SE2d 271); accord Kelly v. State, 241 Ga. 190 (243 SE2d 857).

Decided February 23, 1990

Rehearing denied March 12, 1990

T. Lee Bishop, Jr., for appellant.

Britt R. Priddy, District Attorney, L. Earl Jones, Johnnie Graham, Assistant District Attorneys, for appellee.

The requested charge not given would have instructed the jurors not to surrender honestly held convictions merely to be congenial or to reach a verdict merely because of the opinions of other jurors. Horton cites no authority requiring this charge, and although this charge could be given without causing error and, in certain circumstances might be required, this plainly was not one of those cases. The transcript shows that the jury retired at 11:12 a.m. and returned with its verdict at 11:45 a.m. Under these circumstances, it cannot be persuasively argued that Horton was prejudiced by the failure to give this charge even if the failure to do so could possibly be construed as error.

5. Horton also contends the trial court erroneously charged on joint possession when it was not raised by the evidence and gave a burden shifting charge on inferences which could be drawn from circumstantial evidence. Since there was some evidence from which an issue of joint possession could arise, the trial court did not err by giving the charge. Fredericks v. State, 172 Ga. App. 379, 380 (323 SE2d 265).

Further the charge on inferences, that Horton alleges was burden shifting, merely defined circumstantial evidence. This charge did not create a Sandstrom issue since it did not instruct the jury that any inference or presumption existed, and the charge, considered as a whole, properly instructed the jury on their duties in considering the evidence. Ward v. State, 238 Ga. 367, 370-371 (233 SE2d 175). There was no error.

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A89A2359.
    KIRK v. THE STATE.
    (392 SE2d 249)
   Beasley, Judge.

Kirk appeals the denial of her plea in bar to an indictment charging a felony and a misdemeanor, based on an alleged violation of OCGA § 17-7-170. There are four terms of superior court in Meriwether County, beginning on the third Mondays in November, February, May and August. OCGA § 15-6-3 (14) (D). Meriwether County has no local legislation limiting the terms, so each term continues until the commencement of the next. OCGA § 15-6-19.

An indictment was returned during the November term, charging possession of more than 28 grams of cocaine, OCGA § 16-13-31 (a), and less than an ounce of marijuana, OCGA § 16-13-30, and a motion to inspect and test the physical evidence was filed.

The following January, after the jury panels used in the regular November term had been excused, a “Special Term Jury Trial Calendar” was issued with Kirk’s case listed, and at least 42 jurors were summoned for January 30. A jury was struck for a murder trial commencing that day and continuing to February 1. After that jury of twelve plus two alternates were sworn on January 30, the remaining prospective jurors were “dismissed,” in the words of the clerk, and “excused for the term,” in the words of the court, and paid. Shortly before noon on January 31, 1989, and while 14 jurors were serving in the murder trial, a “Demand for Jury Trial” specifically invoking Section 17-7-170 was filed.

Because the original indictment charged actual possession and the evidence showed, if anything, only constructive possession, a new indictment was returned on the first day of the February term, the 20th. Nolle prosequi was entered on the earlier one on February 27, on which date Kirk filed motions to inspect and test the substance and to suppress evidence and statements, under the new indictment. The motion to suppress was denied on March 27. There were criminal jury panels available during the week of March 6 but defendant’s case was not reached, although she and her attorney were ordered to appear on Monday, March 13, for trial. They did, but neither the judge nor jurors were present.

A Plea in Bar was filed in the May term on the ground that defendant had been entitled to trial by the end of the February term. Kirk contends that, since fourteen jurors were qualified and impanel-led on January 31 when her demand was filed, this term counted.

The court found that there were not “juries impaneled and qualified to try [her]” when her demand was filed, making the last term for trial the May term. It also found that the January trials were conducted in a special session of the November term, not in a separately called special term, OCGA § 15-6-20, and that is correct.

When the demand was made, the prerequisites for the demand to have effect were not present. The fourteen jurors who were serving in the murder case, who would have been available for further service in that November term, were insufficient to constitute a panel to serve as prospective jurors in Kirk’s case. Thus there was not even one panel, and her case could not have been tried in that term at or after she filed her demand near its conclusion. We do not reach the question as to whether the reference to “juries” in OCGA § 17-7-170 (b) would require more than one in order for the term to qualify in calculating the provision of a statutory speedy trial.

Nor do we reach the question whether the demand was void altogether or simply ineffective until the February term. If it was valid for the February term, the plea in bar was made and ruled on in the second term thereafter, when the time for trial had not expired. We note, however, that the statute states on its face that the demand is to be filed in a qualifying term. See in this connection Adams v. State, 65 Ga. 516 (1880), which states: “A demand for trial, with the right of discharge under it, involves the impaneling of two traverse juries qualified to try the defendant, one when it is made, the other at the next succeeding term.” A more recent opinion explains: “In order to trigger the statute, the defendant must make his demand at a time that a traverse jury is impaneled and qualified to try him.” State v. McDonald, 242 Ga. 487, 488 (249 SE2d 212) (1978).

Black’s Law Dictionary, 5th ed., defines “jury panel” as “[t]he group of prospective jurors who are summoned to appear on a stated day and from which a grand jury or petit jury is chosen.” The same source states that “impanel” means “[t]he act of the clerk of the court in making up a list of the jurors who have been selected for the trial of a particular cause. All the steps of ascertaining who shall be the proper jurors to sit in the trial of a particular case up to the final formation.”

The clerk impanels the jury but does not select or choose it; that act of winnowing is up to the parties. The statute provides for juries “impaneled,” not juries or a jury merely “qualified to try him.” As said in Campbell v. State, 6 Ga. App. 539, 541 (65 SE 307) (1909): “for felony cases pending in the superior court it would take the presence of a panel of forty-eight to fulfill the requirements of the statute;

Accord DeKrasner v. State, 54 Ga. App. 41 (1) (187 SE 402) (1936).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.

Decided February 5, 1990

Rehearing denied March 12, 1990.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.

        Campbell erroneously quotes the Code as using the word “jurors,” but the word then as now is “juries.”


author: Pope, Judge.

text:
    A89A1686.
    ANNANDALE AT SUWANEE, INC. v. WEATHERLY.
    (392 SE2d 27)
   Pope, Judge.

We granted this interlocutory appeal to consider whether the trial court properly applied the law of privilege relating to certain medical and clinical records in the possession of appellant Annandale at Suwanee, Inc. (Annandale). Appellee Weatherly (hereinafter “plaintiff”) sued Annandale on behalf of the estate of Sarah Charles Mitchell who died in a fire on the Annandale campus. Annandale is a boarding institution for mentally handicapped patients. The fire was allegedly set by another boarder, Harold Manown. Manown is an incompetent adult who is deaf and without speech. Plaintiff alleges that Annandale was negligent in supervising Manown and that it knew of Manown’s dangerous propensities. Manown is a ward of the State of Maryland, which arranged for his boarding at Annandale. At issue in this appeal are medical and clinical records pertaining to Manown compiled by Maryland and sent to Annandale in connection with Manown’s placement in Annandale. Plaintiff filed a request to produce asking for all medical, psychiatric and psychologist reports and any other documents referring to Manown obtained by Annandale from any source. After Annandale objected on the basis of psychiatrist/psychologist-patient privilege, plaintiff sought an order to compel production. The trial court reviewed the records in camera and ordered production of all the records. Held:

The psychiatrist/patient privilege is codified in OCGA § 24-9-21 (5): “There are certain admissions and communications excluded on grounds of public policy. Among these are: (5) Communications between psychiatrist and patient.” OCGA § 43-39-16 provides that: “The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.”

Although the law provides an absolute privilege against disclosure of communications between a patient and his psychiatrist or psychologist, courts have narrowly interpreted the privilege. “While it is arguable that disclosures made in confidence to mental health professionals other than psychiatrists and psychologists ought to be privileged, the Legislature has not seen to make them so; and the mere fact that a communication is made in confidence is generally considered insufficient to entitle it to a privilege unless the parties bear to each other one of the specific relations recognized as privileged by statute. [Cit.]” Lipsey v. State, 170 Ga. App. 770, 772 (318 SE2d 184) (1984) . “OCGA § 37-3-166 (a) (8) provides that a clinical record of a mental health patient shall be maintained in confidentiality, but that ‘(t)he record shall be produced in response to a valid subpoena or order of any court of competent jurisdiction, except for matters privileged under the laws of this state. . . .’ [Communications between a psychiatrist and a patient are privileged. This privilege, however, does not extend to any communications made to nurses or attendants unless it is shown that they were the agents of the attending psychiatrist. [Cit.]” Weksler v. Weksler, 173 Ga. App. 250 (325 SE2d 874) (1985) (court ordered production of clinical record from psychiatric hospital with privileged portions deleted).

The situation before us is akin to that in Weksler, supra. Our in camera inspection of the record in issue reveals many documents reflecting medical treatment and evaluation and treatment by mental health professionals, but only three reports that were made by a psychiatrist or a psychologist involving communications between Manown and the doctor. Even though the reports themselves indicate that communication between doctor and patient was limited and frustrating to the doctor due to Manown’s profound physical limitations and mental deficiencies, nevertheless it is clear that a “communication” did occur and those portions of the reports are privileged. The report of Michael R. Baum, psychologist, dated 11/10/82, a portion of page 2 of the report of Vernon McCay, psychologist, dated 1/18/82 and a portion of page 3 of a report of Barry Mendelsohn, M.D., psychiatrist, dated 4/7/82 contain privileged material and are not to be produced. The remainder of the documents in question are to be produced. We have separated the privileged material from the rest, marked it and sealed it.

Although Annandale argues eloquently that we should make an exception and expand the privilege in cases involving the “deaf and dumb,” such action is not for the courts, but rather for the legislature. Even though the trial court’s order below did not articulate its reasoning and even though we find that the trial court erred in ordering production of all documents, we are certain, contrary to Annandale’s stated fear, that the trial court did consider Manown’s special status as a “deaf and dumb,” physically and mentally handicapped person before rendering its decision. However, as we have stated, that status does not change the result.

Decided March 12, 1990.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Joseph B. Atkins, for appellant.

Cathey & Strain, Dennis T. Cathey, for appellee.

Judgment affirmed in part; reversed in part.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1836.
    AETNA CASUALTY & SURETY COMPANY v. RIDGEVIEW INSTITUTE, INC. et al.
    (392 SE2d 286)
   Pope, Judge.

We granted this interlocutory appeal to determine whether certain medical and psychiatric records in the possession of appellee Ridgeview Institute, Inc. (Ridgeview) should be produced in connection with a civil suit for damages brought by plaintiff Dr. Jose A. Rosell. Dr. Rosell was injured in an auto accident in Atlanta in November 1984. Aetna Casualty & Surety Company (Aetna), appellant here, was Dr. RoselFs uninsured motorist carrier and is a party defendant in Dr. RoselFs suit for personal injuries. At the time of the accident, Dr. Rosell was completing a treatment program for alcoholism at Ridgeview. Before this accident, Dr. Rosell had practiced family medicine in Norman, Oklahoma. Dr. Rosell claims in the suit that the injuries he received in the accident have made family practice too difficult to continue and he has been forced to switch to the less physically demanding specialty of psychiatry. However, in deposition, in response to cross-examination, he admitted that his treatment at Ridgeview had caused him to consider psychiatry instead of family practice as a specialty. Aetna sought production of Dr. RoselFs medical records at Ridgeview to discover whether Dr. RoselFs decision to switch to psychiatry predated the accident. Ridgeview refused to produce the records, citing privilege pursuant to state law and prohibition from disclosure by federal law. The trial court refused to order production, but certified the issue for immediate review. Held:

1. Because Ridgeview is an institution for the treatment of drug and alcohol abuse that receives financial assistance from the federal government, it is subject to the provisions of 42 USC §§ 290dd-3, 290ee-3 and 42 CFR, Part II (1987). These provisions severely restrict the production of patient records by an institution receiving such federal financial assistance. Absent written consent from the patient (42 USC §§ 290dd-3 (b) (1); 290ee-3 (b) (1); 42 CFR § 2.31 (1987)), disclosure is permitted only in case of medical emergency, for purposes of research or program evaluation, or if authorized by order of a court of competent jurisdiction upon a showing of good cause. 42 USC §§ 290dd-3 (b) (2); 290ee-3 (b) (2). In this case, we are concerned with the “good cause” exception. In determining “good cause,” a court must “weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.” 42 §§ USC 290dd-3 (b) (2) (C); 290ee-3 (b) (2) (C). Further, the regulations provide: “(a) A court order under these regulations may authorize disclosure of confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral for treatment only if: . . . (3) The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.” 42 CFR § 2.63. In addition, the federal regulations make it clear that even if disclosure is allowed under federal law, if state law prohibits disclosure, federal law may not be construed to allow disclosure contrary to the state law. 42 CFR § 2.20.

In examining the case before us, we conclude that the trial court erred in not authorizing disclosure of the record to itself for an in-camera inspection. We agree with Aetna that Dr. Rosell has placed in issue the reason for his switch from family practice to psychiatry by virtue of his claim of damages as a result of that switch and his deposition testimony that he was considering the move as a result of his stay at Ridgeview. However, the trial court’s inspection and decision must be carried out bearing in mind the privilege against disclosure of communications between psychiatrist and patient found in OCGA § 24-9-21 (5). Even though Aetna argues that the decision of Bobo v. State, 256 Ga. 357 (349 SE2d 690) (1986), mandates that the patient/ psychiatrist privilege must give way to its need to defend its civil claim, we do not agree. Although the Supreme Court set up a balancing test to determine those rare instances when the privilege must yield to a fundamental constitutional right, the present civil dispute does not fall within the purview of that decision. See Bobo, supra, Division 2 at 358. To the extent that the records in question disclose information or communications made between Dr. Rosell and persons other than a psychiatrist or the psychiatrist’s agent and such communications are relevant to Aetna’s defense, they would be discoverable under Georgia law. Lipsey v. State, 170 Ga. App. 770 (2) (318 SE2d 184) (1984). Under Georgia law, the non-privileged portions of Ridgeview’s clinical records on Dr. Rosell would be subject to discovery. Weksler v. Weksler, 173 Ga. App. 250 (325 SE2d 874) (1985).

Decided March 12, 1990.

Love & Willingham, Allen Willingham, Robert P. Monyak, for appellant.

Alembik, Fine & Callner, Harry J. Winograd, Troutman, Sanders, Lockerman & Ashmore, Rutledge Q. Hutson, Elizabeth Obenshain, Powell, Goldstein, Frazer & Murphy, H. Worthington Lewis, Jenkins, Bergman & Darroch, Robert M. Darroch, for appellees.

We hold that the trial court must issue an order to Ridge view authorizing and compelling release of its records pertaining to Dr. Rosell to the trial court for an in-camera inspection to determine if such records contain any non-privileged information relevant to Aetna’s defense of the claim of damages by Dr. Rosell relating to his switch of specialties and to the loss of consortium claim. If it finds relevant material, the trial court may then fashion an order of disclosure restricting access or use of the material to the narrowest manner possible to preserve as far as practicable the goal of confidentiality mandated by federal law. See 42 CFR § 2.64.

2. By brief, Aetna raises a constitutional attack on the application of federal law not raised below. We cannot consider this enumeration. Blackston v. Ga. Dept. Natural Resources, 255 Ga. 15 (1) (334 SE2d 679) (1985).

Judgment reversed with direction.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1851.
    DON SWANN SALES CORPORATION et al. v. EDWARD.
    (392 SE2d 29)
   Pope, Judge.

Plaintiffs Sandra L. Edward and Glenda L. Edward brought suit against defendant Don Swann Sales Corporation (hereinafter “Don Swann”) and James L. Manning seeking damages for injuries allegedly sustained when they were rear-ended by a tractor-trailer rig owned by Don Swann and driven by Manning. The jury returned a verdict awarding Sandra Edward $14,000 for pain and suffering and $9,000 punitive damages; the jury also awarded Glenda Edward $9,000 in punitive damages but subsequently reduced that amount to zero after the trial court instructed them that punitive damages were not proper unless compensatory damages were also awarded. This appeal follows the trial court’s denial of defendants’ motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial. Held:

Decided March 12, 1990.

Saveli & Williams, Michael Jablonski, Jennifer H. Chapin, for appellants.

1. Defendants first contend that the verdict awarding plaintiff Sandra Edward $14,000 for pain and suffering was not authorized by the evidence. “ ‘The evidence was conflicting, and did not demand a verdict in [defendants’] favor. “Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and this case was not so plain and indisputable as to justify invading the jury’s province. (Cit.) There being some evidence to support the jury’s verdict, we will uphold the judgment. (Cit.)” (Cit.) This court considers only the sufficiency of the evidence, not its weight. (Cit.)’ Parr v. Pinson, 182 Ga. App. 707 (1) (356 SE2d 740) (1987). The evidence was sufficient to support the verdict.” Mathis v. Watson, 187 Ga. App. 100, 101 (4) (369 SE2d 291) (1988), rev’d on other grounds, 259 Ga. 13 (376 SE2d 660) (1989).

2. Defendants also enumerate as error the trial court’s charge to the jury on aggravation of a pre-existing injury. We agree that this was reversible error under the facts of this case. Upon defendants’ request, the trial court charged the jury that plaintiff Sandra Edward was not entitled to recover for any complaints or disabilities which were proximately caused by a medical condition or disability which existed prior to the incident forming the basis of the complaint against them. However, the trial court also charged as follows: “If you should find that [Sandra Edward] received an injury as a result of the negligence of the defendant, and that the injury resulted in any aggravation of a condition already pending, then she could recover damages for aggravation of the pre-existing injury.” The record shows that Sandra Edward testified that although she had suffered from cerebral palsy since birth, her condition was not made worse by the accident and that the injuries for which she was seeking recovery were wholly independent of her disability. “An instruction is erroneous which, although correct as an abstract principle of law, is not supported by evidence. [Cit.] Thus, the instruction on [aggravation of a pre-existing injury] which was not authorized by the evidence was reversible error. [Cits.]” Atlanta Gas Light Co. v. Redding, 189 Ga. App. 190, 191 (3) (375 SE2d 142) (1988). Cf. Jackson Atlantic, Inc. v. Wright, 129 Ga. App. 857 (6) (201 SE2d 634) (1973).

Judgment reversed.

Banke, P. J., and Sognier, J., concur.

McAllister & Roberts, J. Dunham McAllister, for appellee.


author: Carley, Chief Judge.

text:
    A89A1917.
    BURKS v. THE STATE.
    (392 SE2d 300)
    Decided March 12, 1990.

      Thomas R. Eason, L. Clark Landrum, for appellant.

      David E. Perry, District Attorney, A. Douglas Newsome, Assistant District Attorney, for appellee.
   Carley, Chief Judge.

Appellant was brought to trial on an indictment which charged him with having committed the offense of manufacturing cocaine on June 5, 1988. This date was made a material allegation of the indictment. After the jury had been impaneled and sworn, the State realized that the June 5, 1988, date was incorrect and a motion for dismissal was made. Upon ascertaining that appellant had no objection, the trial court consented to the entry of a nol. pros. Subsequently, appellant was indicted for having committed the offense of manufacturing cocaine on July 5, 1988, and the date was again made a material allegation .of the indictment. Appellant filed a plea of double jeopardy and he appeals from the trial court’s denial of that plea.

Appellant relies only upon OCGA § 16-1-8. In order for a subsequent prosecution to be barred under either OCGA § 16-1-8 (a) or (b), the former prosecution must be shown either to have resulted in a conviction or acquittal or to have been improperly terminated. Appellant’s prosecution under the original indictment was ended by the entry of a nol. pros, and not by a judgment of conviction. Although the nol. pros, was entered after the case had been submitted to the jury, this was not tantamount to an acquittal because appellant had consented thereto. See Doyal v. State, 70 Ga. 134 (3) (1883). Likewise, appellant’s consent to the entry of the nol. pros, shows that the original prosecution was not improperly terminated. Compare Franklin v. State, 85 Ga. 570 (11 SE 876) (1890); Jones v. State, 55 Ga. 625 (1876). It follows that the trial court did not err in denying appellant’s double jeopardy plea. Termination of a prosecution is not improper if “[t]he accused consents to the termination. . . .” OCGA § 16-1-8 (e) (1).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A2151.
    SMITH v. THE STATE.
    (392 SE2d 288)
   Pope, Judge.

Defendant Victor Tyrone Smith was convicted of three counts of selling cocaine in violation of the Georgia Controlled Substances Act. On appeal he contends that he was “forced” to proceed pro se, and that the trial court “erred by failing to insure that [he] knowingly and voluntarily waived his right to counsel.” Held:

The record shows that defendant was originally represented by retained counsel who filed a motion to withdraw based on defendant’s failure to pay him his retainer. The trial court granted defendant’s attorney’s motion on November 11, 1988. The trial was first set to commence on November 28, 1988; however, at that time defendant indicated he had not been able to obtain an attorney because of the holidays and the trial court agreed to continue the case to allow defendant to talk to the public defender’s office or, if he was not eligible to have an appointed attorney, to retain counsel. Trial was subsequently rescheduled for January 17, 1989. The transcript from that proceeding shows that defendant had been denied court appointed counsel and that he had met with other counsel but decided not to retain him because he felt he would just be “throwing money away” because the State would not agree to another continuance to allow counsel time to prepare for trial.

“Defendants in criminal cases have both a federal and a state constitutional right to be represented by counsel or in the alternative, to represent themselves. However, it is only indigent defendants for whom the trial court must appoint counsel. For a non-indigent defendant, such as appellant, the constitutional right to counsel only entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services. (Emphasis in original.) Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983).

“The constitutional right to counsel may be waived. Since no defendant has the right to simultaneous representation by counsel and self-representation, his election of the latter right is necessarily a waiver of the former. When waiver of the right to counsel rests upon the defendant’s election of his alternative right of self-representation, the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel. (Emphasis supplied.) Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981). A defendant’s voluntary election of the alternative right of self-representation is not, however, the only circumstances in which the waiver of the right to counsel may arise. Notwithstanding a defendant’s present verbal insistence upon his right not to be tried without counsel, his own past actions may nevertheless demonstrate that the right has been waived. Since a non-indigent defendant’s right to counsel is predicated upon his own diligence, a failure on his part to retain counsel may constitute a waiver of the right to counsel. [Cits.] Thus, when presented with a non-indigent defendant who has appeared for trial without retained counsel, the trial judge has a duty to delay the proceedings long enough to ascertain whether the defendant has acted with reasonable diligence in obtaining an attorney’s services and whether the absence of an attorney is attributable to reasons beyond the defendant’s control. Shaw v. State, supra at 112.” (Punctuation omitted.) Burnett v. State, 182 Ga. App. 539, 540 (356 SE2d 231) (1987).

Decided March 12, 1990.

Kenneth L. Chalker, Jr., for appellant.

Thomas J. Charron, District Attorney, Barry E. Morgan, Nancy I. Jordan, Assistant District Attorneys, for appellee.

The record in the case at bar shows that the trial court informed defendant when he continued the trial of the case from November 28, 1988, to January 17, 1989, that he must either take the steps necessary to secure appointed counsel or must retain counsel at his own expense. Here the trial court ascertained that defendant had met with counsel during the week prior to trial but decided not to retain him because he did not want to “throw away” his money. Under these circumstances we agree that “[t]he trial court was clearly authorized to find that the lack of representation was entirely attributable to [defendant’s] lack of diligence in retaining counsel.” Burnett, supra at 541. Consequently, there is no merit to defendant’s sole enumeration of error on appeal.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A2236.
    GRAY v. THE STATE.
    (392 SE2d 290)
   Pope, Judge.

Defendant Jeff Gray appeals his conviction of driving under the influence on the ground that the trial court erred in denying his motion to suppress the results of the intoximeter test administered by the arresting officer. Defendant argues the results should be suppressed because he was not permitted to obtain an additional independent test of his own choosing.

The testimony presented at the bench trial shows the intoximeter test was administered at the jail at 1:35 a.m. Defendant requested the opportunity for an independent test. The jailer called the local hospital and determined that payment for an alcohol level test must be made in cash. Defendant did not have sufficient cash to pay for the test but was permitted to make a telephone call to an individual who agreed to bring him cash for the test. Defendant told the arresting officer the individual would arrive in thirty minutes. The officer waited for at least thirty minutes but the individual did not arrive. The officer testified he told the jailer that when the individual arrived to make sure he had sufficient cash to pay for the test and, if so, to call for a deputy sheriff to transport defendant to the hospital. The individual who came to assist defendant testified he arrived at the jail by 2:35 a.m., forty-five to fifty minutes after receiving defendant’s call. He informed the jailer he had brought money for defendant’s blood test. However, the jailer refused to release defendant because the jailer told him the arresting officer had instructed him not to allow the test if it was to be given over an hour from the time of the intoximeter test. The jailer, on the other hand, testified the individual who came to defendant’s assistance did not arrive until at least two hours after defendant had been locked up. The jailer testified the individual asked only if he could make bond for defendant; the jailer did not recall the individual ever making a request for a blood test. Because it was the jailer’s opinion that defendant was still intoxicated and had been belligerent and uncooperative when locked up, he did not release defendant on bail.

OCGA § 40-6-392 (a) (3) permits a person tested for alcohol level by a law enforcement officer to obtain an additional test by a qualified person of his own choosing. However, “[t]he justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. . . .” Id. The law enforcement authority has the duty not to prevent a defendant from exercising his right to an independent test but not the duty to insure the performance of such a test. Grizzle v. State, 153 Ga. App. 364 (2) (265 SE2d 324) (1980). Here, there was conflicting testimony on whether the jailer prevented the individual who came to defendant’s assistance from obtaining the independent test for defendant. The credibility of witnesses is a question for the trier of fact. Sufficient evidence was presented from which the trial court could rightly conclude that a reasonable effort was made to accommodate the defendant’s request for an independent test and that he was not prevented by any action on the part of the law enforcement authority from obtaining the test. Cf. State v. Buffington, 189 Ga. App. 800 (377 SE2d 548) (1989).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided March 12, 1990.

Robert S. Reeves, for appellant.

David Pittman, Solicitor, for appellee.


text:
    A89A2245.
    DEPARTMENT OF TRANSPORTATION v. MORRIS et al.
    (392 SE2d 291)
   Pope, Judge.

This is an appeal from a jury verdict and judgment against the Department of Transportation (DOT) in favor of Harold L. Morris and Kathleen W. Morris in the amount of $127,900 and in favor of Amoco Oil Company (Amoco) in the amount of $277,300.

1. Although its notice of appeal included the judgment in favor of the Morrises, DOT has not enumerated any error in connection with that judgment, nor argued anything in its brief in connection with that judgment. We deem it abandoned pursuant to Court of Appeals Rule 15 (c) (2).

2. DOT argues that it should be granted a new trial because there is no evidence that Amoco did business on the property.

The property condemned contained a service station. The Morrises were the fee simple owners and Amoco had a leasehold interest. Amoco was the owner of all the improvements and also owned the pumps, storage tanks and other equipment used in the business of the service station. Amoco paid the taxes on the property. DOT argues that the evidence shows only that Amoco was a wholesaler selling products to an independent dealer on the site and thus had no business actually operating on the site. We do not agree. The dealership was operated under a contract that, in effect, created a joint venture between Amoco and the dealer for sale of gasoline on the site. Under the contract, Amoco supplied the gasoline and actually retained ownership of it until it was pumped into a customer’s vehicle. The dealer reported the amount of gasoline sold and paid for that amount. Amoco derived a profit only when the gasoline was purchased by a customer. Regarding other products, such as tires, batteries, and the like, Amoco had the traditional relationship of a wholesaler selling to an independent dealer. Amoco further presented testimony that it monitored and evaluated station sites by the potential for gasoline sales. Our examination of the record convinces us that Amoco was conducting business at the site and that it was not simply a wholesale-to-retail transaction.

Next, DOT argues that there is insufficient evidence in the record to show any lost profits. DOT argues that the evidence regarding profits merely shows “paper transactions” between separate divisions of Amoco. We disagree. Richard Joiner testified that Amoco’s marketing division purchased gasoline either from Amoco’s own refineries or from other refineries at the same price, called “Gulf Coast Wholesale” and then transported the gasoline to Atlanta for distribution to stations. Joiner also testified about the margin of profit per gallon and stated that the margin was the same whether the gasoline was purchased from outside refineries or from Amoco refineries. He then gave testimony that the station in question was profitable and testified regarding the amount of profit Amoco derived from the site. From this evidence, one can conclude that Amoco lost profits by the loss of the opportunity to sell gasoline to the motoring public at this station. Thus, Amoco produced evidence of the unique nature of the site, its profitability and the loss suffered as a result of the taking. This is sufficient under our law. See Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. 229 (264 SE2d 174) (1980). We are not persuaded that Georgia’s settled law should be changed by DOT’s reliance on a Florida case, Texaco v. Dept. of Transp., 537 S2d 92 (Fla. 1989). As pointed out by Amoco, that decision turns on Florida statutory law and the fact that Texaco apparently had a traditional wholesale-retail relationship with its dealer as evidenced by the court’s statement that “a wholesaler of products for resale would be entitled to business damages only if it were conducting its wholesale business and generating its profits from that business on the condemned property.” Texaco, supra at 94. In the present case, Amoco demonstrated that it did generate profits from wholesale activity on the condemned site.

3. There is no merit to DOT’s argument that the trial court erred in admitting DOT’s Exhibit 8 only with deletions (by masking those portions of the document) of references to other stations operated by Amoco in the same marketing territory. DOT argues that it shows that this site was not unique. We disagree. Regardless of how this site measured against other stations, it does not change the uniqueness of the particular station condemned here. Amoco presented evidence to show demographically what the customer base for the site was and that it would be lost if a site within that area did not replace the condemned station. Evidence of the return on investment at other stations was not relevant.

4. Finally, we find no error by the trial court in holding that Amoco had a right to appeal the condemnation award. The trial court’s reliance on Knight v. Dept. of Transp., 134 Ga. App. 332 (214 SE2d 418) (1975) was not misplaced. See Dept. of Transp. v. Morris, 186 Ga. App. 673 (368 SE2d 155) (1988).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided March 12, 1990.

Evans & Flournoy, Charles A. Evans, Michael J. Bowers, Attorney General, for appellant.

G. Robert Howard, for appellees.


text:
    A89A2260.
    MIDDLETON v. THE STATE.
    (392 SE2d 293)
   Pope, Judge.

Defendant Charles Middleton was convicted of child molestation and appeals.

1. This case was tried prior to the 1989 amendment to OCGA § 24-9-5 permitting all child victims to testify and have their credibility judged by the jury. At the time this case was tried, the statute left the issue of the child’s competency to testify to the discretion of the trial judge. The victim was four years old at the time the incident occurred and five and one-half years old when she testified at trial. Defendant argues the trial court erred in ruling the victim was competent to testify.

“[T]he standard of intelligence required to qualify a child as a witness is not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court.” Smith v. State, 247 Ga. 511, 511-512 (277 SE2d 53) (1981). See also Jones v. State, 219 Ga. 245 (132 SE2d 648) (1963). In cases where the child witness indicated an understanding of the difference between telling the truth and lying and that it was right to tell the truth but wrong to tell a lie and that the child would tell the truth in court, but yet was unable to demonstrate an awareness of any consequences which might result from lying, this court has held the trial court erred in finding a child competent to testify. See Arnold v. State, 167 Ga. App. 720, 722 (307 SE2d 526) (1983); Pace v. State, 157 Ga. App. 442 (1) (278 SE2d 90) (1981). In this case, although the child did not indicate an understanding of the meaning of the word “oath,” she did indicate not only an understanding of the difference between the truth and a “story,” that it was wrong to tell a lie, that she would tell the truth in court, but also an understanding that she would be punished by her parents for telling a story. Thus, her responses were sufficient to permit the trial court, in its discretion, to declare her competent to testify. See Adams v. State, 166 Ga. App. 807 (1) (305 SE2d 651) (1983). “[Even if] on the cold record the testimony of the [child] does not inspire confidence, we are unable to see the child as did the trial court and we are unable to evaluate the child’s demeanor or candor. We will not substitute our judgment for that of the trial court nor do we find a manifest abuse of discretion.” Herron v. State, 155 Ga. App. 791, 792 (272 SE2d 756) (1980). See also Lancaster v. State, 250 Ga. 871 (2) (301 SE2d 882) (1983).

Decided March 12, 1990.

Raymond A. Majors, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, David C. Walker, Assistant District Attorneys, for appellee.

2. Although the defendant attempted to impeach the credibility of the child witness, her credibility was an issue for jury determination. The evidence was sufficient to permit the jury to find defendant guilty beyond a reasonable doubt.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A2297.
    WHITE v. MILLER.
    (392 SE2d 30)
   Pope, Judge.

Plaintiff Carter Van White sued defendant Glenda Miller for property damage to his 1978 Ford automobile sustained in an automobile collision. Testimony showed that the car was a total loss. Evidence was presented from which the jury could have found the defendant to be liable for plaintiff’s damages. However, the trial court granted a directed verdict to defendant on the ground that plaintiff failed to present sufficient evidence for the jury to determine an award of damages.

1. We hold the trial court did not err in striking the testimony of an adjuster for plaintiff’s automobile insurance company as to the book value of the car. The witness testified he did not inspect the car but relied on notations made by one who did. The witness testified as to the book value of the make and model of the automobile but offered no foundation for his assumption that the particular automobile in question should be valued at the book value. The owner subsequently testified that the car was in excellent condition but the adjuster did not indicate what assumption or knowledge of condition he used in arriving at the conclusion that the car was valued at a certain book value. “It is difficult to lay down any exact rule in respect to the amount of knowledge a witness must possess, and the determination of this matter rests largely in the discretion of the trial judge. In view of the testimony of the witness as a whole, it cannot be said as a matter of law that the trial judge manifestly abused his discretion in excluding this testimony.” (Citations and punctuation omitted.) Williams v. Colonial Pipeline Co., 110 Ga. App. 824, 826 (140 SE2d 150) (1964).

Decided March 12, 1990.

Murray, Donovan & Nabors, Donald R. Donovan, for appellant.

Jack F. Witcher, for appellee.

2. Neither did the trial court err in refusing to allow the plaintiff to testify as to his opinion of the value of the automobile. “One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.” OCGA § 24-9-66. However, “mere ownership of property does not authorize the owner to testify as to its value without giving facts on which he bases his opinion. However, ... a showing that the witness had some knowledge, experience, or familiarity as to the value of the item is the requisite foundation.” Johnson v. Rooks, 116 Ga. App. 394, 396 (157 SE2d 527) (1967). Here the plaintiff did not demonstrate any foundation of knowledge, experience or familiarity on which an opinion of value could properly be based. Cf. Ricker v. Hopkins Chevrolet, 147 Ga. App. 358 (248 SE2d 720) (1978).

3. The plaintiff did testify, however, as to the car’s purchase price, its age at the time of purchase, the length of time he had owned the car, its mileage, a description of the equipment on the car and its condition. “[A]s to everyday objects, such as automobiles, [the jurors] may draw from their own experience in forming estimates of market value.” Atlantic Coast Line R. Co. v. Clements, 92 Ga. App. 451, 455 (88 SE2d 809) (1955). As to items of a common nature, the plaintiff need not offer any opinion evidence as to value and so long as the evidence contains facts upon which the jury may legitimately exercise their own knowledge and ideas, the question of value is properly left to the jury. Atlanta Commercial Bldrs. v. Polinsky, 148 Ga. App. 181 (1) (250 SE2d 781) (1978). Thus, we hold the trial court erred in not allowing the question of damages to go to the jury.

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


author: Deen, Presiding Judge.

text:
    A90A0078.
    SIKES & SWANSON PONTIAC-GMC TRUCK, INC. v. CANTRELL.
    (392 SE2d 36)
    Decided March 12, 1990.

      Macklyn A. Smith, Sr., for appellant.
   Deen, Presiding Judge.

The appellant, Sikes & Swanson Pontiac-GMC Truck, Inc., sold a vehicle to the appellee in January 1987. The sale was financed by the First National Bank of Atlanta, and the appellant signed a recourse guaranty with that bank. In January 1988 the appellee left the car with the appellant for repair work and later decided to leave it there and allow repossession by the bank. The appellee notified the bank of her intentions; on January 20, 1988, the bank acknowledged that notification and informed the appellee that the bank was giving her the opportunity to reconsider by not placing the account into “repo status” until January 30, 1988.

The bank did not actually retrieve the car until March 17, 1988, and made its first attempt to satisfy the notice requirements of OCGA § 10-1-36 on the following day. (A second notice of repossession, right to redeem, and intention to pursue deficiency was sent on September 16, 1988.) There was a deficiency when the bank resold the car, and the appellant paid the deficiency pursuant to the recourse guaranty.

The appellant then commenced this action against the appellee to recover the amount of the deficiency. This appeal follows the trial court’s grant of summary judgment for the appellee. Held:

OCGA § 10-1-36 provides that when a motor vehicle has been repossessed, the seller or holder cannot recover a deficiency against the buyer unless within 10 days of the repossession he notifies the buyer by registered or certified mail of the intent to pursue a deficiency. Compliance with this Code section is a condition precedent to recovery of any deficiency. Doughty v. Assoc. Commercial Corp., 152 Ga. App. 575 (263 SE2d 493) (1979).

In the instant case, the trial court concluded that the repossession occurred in January 1988, not when the bank physically removed the car from the appellant’s premises, and that the bank therefore had not complied with the 10-day notice requirements of OCGA § 10-1-36. We agree. Accordingly, since the bank could not have pursued a deficiency against the appellee, neither could the appellant, whose rights were derivative of the bank’s.

Judgment affirmed.

Pope and Beasley, JJ., concur.

John E. Stell, Jr., for appellee.


author: Banke, Presiding Judge.

text:
    A90A0104.
    WAUSAU INSURANCE COMPANIES v. LIGHTNIN’ TRUCK RENTAL, INC.
    (392 SE2d 32)
   Banke, Presiding Judge.

The appellant, Wausau Insurance Companies (“Wausau”), issued a “Business Auto Policy” to William Ray Sarratt, Inc., providing motor vehicle liability insurance coverage to that company for accidents involving its employees. During the period this policy was in force, one such employee, George Lawrence, was involved in an accident while driving a truck leased from the appellee, Lightnin’ Truck Rental, Inc. (“Lightnin’ ”), which operated as a qualified self-insurer with respect to its rental vehicles. Wausau paid out $12,180.91 to various claimants as compensation for bodily injury and/or property damage sustained as a result of the accident and then filed the present action against Lightnin’ for contribution and indemnity, based on the following language contained in its (Wausau’s) policy: “1. For any covered auto you own this policy provides primary insurance. For any covered auto you do not own, the insurance provided by this policy is excess over any other collectible insurance. ... 2. When two or more policies cover on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the limit of our policy bears to the total of the limits of all the policies covering on the same basis.”

Lightnin’ denies that it has any liability under the circumstances, relying on a provision in its rental agreement specifying that its self-insurance certificate “provides coverage . . . only if no other valid and collectable insurance whether . . . primary, excess or contingent is available to renter.” The trial court granted summary judgment to Lightnin’ and denied a motion for summary judgment filed by Wausau, concluding (1) that Lightnin’ could not be liable to Wausau for contribution and indemnity because it was not alleged to be a tortfeasor and (2) that Wausau had “the primary responsibility to provide liability insurance coverage” under OCGA § 40-9-102. That Code section provides, in pertinent part, that “[a]ny person who rents motor vehicles from a U-drive-it owner is required to provide his own insurance. ...” This appeal followed. Held:

1. “[T]he right to contribution relates only to joint tortfeasors and where the proposed . . . defendant cannot be made liable as a joint tortfeasor the . . . complaint does not state a claim.” Southern R. Co. v. Brewer, 122 Ga. App. 292, 293 (176 SE2d 665) (1970). See generally OCGA § 51-12-32. There being no suggestion that the appellee incurred any tort liability as a result of the motor vehicle accident at issue in this case, the trial court correctly concluded that the appellant had no claim against it for contribution and indemnity.

Decided March 12, 1990.

Swift, Currie, McGhee & Hiers, Guy R. Taylor, for appellant.

J. Wayne Moulton, for appellee.

2. In view of the foregoing, we do not reach the issue of whether, because of its insured’s status as the lessee of a U-drive-it vehicle, the appellant was properly treated by the trial court as the primary carrier.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Birdsong, Judge.

text:
    A90A0121.
    TENNEY v. THE STATE.
    (392 SE2d 294)
   Birdsong, Judge.

Appellant, Larry William Tenney, appeals pro se his sentence and conviction of the offenses of possession of a firearm by a convicted felon, two counts of theft by conversion, and two counts of theft by taking. See generally OCGA §§ 5-6-34; 42-8-64. Held:

1. The record reflects that appellant entered a plea of guilty to the offenses for which indicted. Neither at trial nor on appeal does appellant assert that his plea should be withdrawn. As appellant has filed no enumerations of error or brief in his behalf, we have carefully examined the record and find appellant’s guilty pleas to have been knowingly, intelligently, and voluntarily made. See generally Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274).

2. Review of the trial record and transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt, from appellant’s knowing, intelligent, and voluntary plea of guilty, that appellant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Boykin, supra at 242 (valid plea of guilty is itself a conviction); Morgan v. State, 191 Ga. App. 367 (2) (381 SE2d 583) (valid guilty plea is a waiver of all defenses).

3. Appellant was sentenced on each of the five counts of the indictment of which he had been found guilty. Count 3 was for theft by conversion of four video cassette tapes, with a value less than $500. Count 4 was for theft by taking of $500. The record reflects that, as to Count 3, appellant was sentenced to confinement for a period of five years to serve consecutively to the sentence imposed under Count 1; and, “[t]hat the above sentence may be served on probation.” As to Count 4, appellant was sentenced to confinement for a period of five years to serve consecutively to the sentence imposed under Count 3; and, “[t]hat the above sentence may be served on probation.” Both sentences contained, inter alia, the following probation condition, “[i]f such probation is revoked, the [c]ourt may order the execution of the sentence which was originally imposed or any portion thereof in the manner provided by law. . . .” (Emphasis supplied.)

OCGA § 16-8-12 (a) pertinently provides that a person convicted of theft by taking (OCGA § 16-8-2) or theft by conversion (OCGA § 16-8-4) shall be punished as for a misdemeanor, subject to certain exceptions (including a conviction for a theft exceeding $500 in value) not here applicable. The maximum permissible punishment to confinement for misdemeanor and high misdemeanors is twelve months. OCGA §§ 17-10-3; 17-10-4.

Moreover, assuming arguendo, appellant had been eligible for sentencing as a repeat offender, under the provisions of OCGA § 17-10-7 (a), the maximum period of confinement authorized for misdemeanor Counts 3 and 4 remains at a period of twelve months as to each misdemeanor offense of which he stands convicted.

In this instance, the trial judge expressly sentenced appellant to five years confinement for both Counts 3 and 4. This period of confinement exceeded the sentence authorized by law for these two particular offenses. OCGA § 16-8-12 (a). The fact that the offenses were probated does not render this error harmless. OCGA § 42-8-34 (c) provides that “[t]he period of probation or suspension shall not exceed the maximum sentence of confinement which could be imposed on the defendant.” (Emphasis supplied.) Acker v. State, 184 Ga. App. 321 (361 SE2d 509); Entrekin v. State, 147 Ga. App. 724 (2) (250 SE2d 177). We believe it was the intent of the legislature that the period of probated confinement imposed for a particular offense would not exceed the maximum sentence of confinement authorized to be adjudged for that same offense, even though the defendant may also have been convicted of other offenses in the same indictment warranting greater periods of punishment. “The total period of probation and confinement (if any) may not exceed the maximum time provided as punishment for the crime.” (Emphasis supplied.) Ga. Crim. Trial Prac. (1989 ed.), 21, 26-18, p. 697. Any other interpretation would enable the trial court to conditionally impose a period of confinement for a particular offense greater than that authorized by law merely by probating it after imposition.

Although, as a general rule, “[t]he judge imposing the sentence is granted power and authority to suspend or probate the sentence under such rules and regulations as he deems proper” (OCGA § 17-10-1 (a)), once service of a sentence begins to run either by incar ceration or probation it cannot exceed the maximum sentence of confinement which could have been imposed. See Turnipseed v. State, 147 Ga. App. 735 (250 SE2d 186). Moreover, to retain jurisdiction by imposing probated confinement which exceeds the term of maximum authorized confinement “would be to increase the sentence, which of course would exceed the trial court’s powers” in the absence of express statutory authority to the contrary. See Strickland v. State, 165 Ga. App. 197, 200 (2) (300 SE2d 537).

Decided March 12, 1990.

Larry Tenney, pro se.

Thomas J. Charron, District Attorney, Frank Cox, Assistant District Attorney, for appellee.

In this instance, as to Counts 3 and 4, the trial court has imposed probated confinement for a period of five years when the maximum period of confinement which could be imposed was for a term of one year. We cannot say this error was harmless, particularly as both sentences run consecutively and one of the conditions of the probation was, that in the event probation was revoked, the trial court could order the execution of the sentence originally imposed, which in this case would be confinement for five years as to both Counts 3 and 4.

Accordingly, the period of probation authorized for these two counts exceeds that authorized by statute and must be corrected. Thus, the sentence imposed as to Counts 3 and 4, only, is reversed, and the matter is remanded to the trial court for resentencing with direction that the offending portion of the sentence be eliminated.

The record and transcript reveal no other errors prejudicial to the substantive rights of the appellant.

Judgment affirmed, but with direction that the sentence be remanded to the trial court for correction as pointed out in Division 3 above.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0249.
    WILLIAMS v. THE STATE.
    (392 SE2d 297)
   Birdsong, Judge.

Appellant, Kevin Williams, appeals his sentence and judgment of conviction of robbery, robbery by snatching, aggravated assault, and obstruction of an officer. Appellant asserts that the trial court erred by ruling that evidence of his prior robbery was admissible as a similar transaction, and that the admission of appellant’s prior misconduct, as a similar transaction, constituted an impermissible attack upon his character. Held:

Decided March 12, 1990.

G. Scott Sampson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, A. Thomas Jones, Assistant District Attorneys, for appellee.

“Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct outweighs its prejudicial impact. ‘However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.’ [Cit.]” Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455). Applying this test to the circumstances surrounding the prior robbery, we find that the evidence of similar transaction was admissible. Compare Howard v. State, 187 Ga. App. 74 (2) (369 SE2d 271); see also Maggard v. State, 259 Ga. 291 (2) (380 SE2d 259) (similar transaction evidence admissible to prove intent or lack of mistake although two crimes differed in some respects).

Appellant argues, inter alia, that the prior transaction was approximately two years old. “Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. [Cit.] Rather, lapse of time is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.” Oller, supra at 820. We find, as a matter of law, that the potentially prejudicial impact of the similar transaction evidence did not outweigh its probative value. After examining the record in its entirety, we are satisfied that the trial court did not abuse its discretion in admitting this evidence. Roney v. State, 192 Ga. App. 760, 763 (386 SE2d 412).

Appellant further argues that it was error to admit evidence of a similar robbery transaction when he had admitted his guilt to that offense in judicio. In a criminal case the burden of proof rests with the State “ ‘at all times down to the moment of [appellant’s] conviction to prove that he was guilty as charged.’ ” Lipham v. State, 68 Ga. App. 174, 178 (3) (22 SE2d 532). An appellant cannot preclude the State from presenting evidence otherwise admissible merely by announcing in advance of the State’s case-in-chief that he will admit his guilt and by subsequently making an admission in judicio to that effect. Accordingly, we find appellant’s enumerations of error to be without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0288.
    COTTON STATES MUTUAL INSURANCE COMPANY v. BOGAN.
    (392 SE2d 33)
   Birdsong, Judge.

This is an interlocutory appeal of the trial court’s order denying appellant’s motion to dismiss the uninsured motorist carrier, or in the alternative, motion for summary judgment.

Appellant’s motion alleged insufficient service of process upon the uninsured motorist and itself as uninsured motorist carrier.

Appellee’s suit was for injuries sustained at some point during two successive automobile collisions. On April 7, 1986, appellee’s car was struck by uninsured motorist Tate. While appellee and Tate were discussing the accident, a car driven by defendant Owen struck appellee.

Appellee initiated suit on April 6, 1988; one day before the two-year statute of limitation expired. On April 11, 1988, appellee obtained personal service of process on Owen. However, Tate apparently had departed the area and could not be found. An affidavit in the record reflects that appellee employed a private investigator to locate Tate, but that as of July 13, 1989, investigative efforts had not been successful. The affidavit, although listing certain action taken by the investigators and asserting that appellee’s attorneys have made inquiry as to whether the investigator has located Tate, fails to list the dates or the frequencies of such actions and inquiries.

In denying the motion, the trial court entered certain findings of fact and conclusions of law on July 14, 1989. Among those pertinent findings of fact were that Tate had never been personally served and has never been served by publication; that appellant was served on April 28, 1988; and, that appellee filed an affidavit from the investigator who generally stated he had tried to find Tate without success and that investigation continues. The trial court, inter alia, reached the legal conclusions that the failure of appellee to serve defendant Tate within 463 days after the expiration of the statute of limitation, either personally or by publication, does not require dismissal of either the defendant Tate or the uninsured motorist carrier; and, that “[l]ack of service to this date [July 14, 1989] does not matter.” Held:

The trial record reveals that the trial court apparently was laboring under the misapprehension that lack of service on the uninsured motorist was not required as of the date of its order, on the basis that service on the uninsured motorist was not a condition precedent to maintaining a suit against the uninsured motorist carrier.

We disagree and find that at the time the order denying appellant’s motion to dismiss was entered, appellee had not fulfilled the statutory condition precedent of perfected service against the missing uninsured motorist tortfeasor Tate.

Clearly appellee could have proceeded to seek the trial court’s authorization to serve the missing tortfeasor by publication. See generally OCGA § 33-7-11 (e); Wentworth v. Fireman’s Fund &c. Ins. Co., 147 Ga. App. 854, 855 (250 SE2d 543). “Such service does not serve as the foundation for an in personam judgment against the tortfeasor, but it does serve as a condition precedent for recovery against the uninsured motorist carrier.” Id. at 855; compare Smith v. Phillips, 172 Ga. App. 459 (1) (323 SE2d 669) and Norman v. Daniels, 142 Ga. App. 456 (236 SE2d 121).

In Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697 (1) (377 SE2d 210), the majority of this court held that the Uninsured Motorist Act “requires that, as a condition precedent to initiation of a suit against the uninsured motorist carrier, the insured first pursues an action against the uninsured motorist to judgment. If that judgment is void on its face for insufficient service, it is subject to collateral attack by the uninsured motorist carrier. If, however, the underlying judgment shows on its [face] that service was perfected, whether by personal service on the uninsured motorist or by authorized publication, it is not subject to collateral attack for insufficient service.” (First and last emphasis supplied.)

In a four-judge special concurrence, in Chitwood, it was further noted that although the plaintiffs were aware that personal service on the uninsured motorist was inadequate, they did not initiate service by publication as set forth in OCGA § 33-7-11 (e). Id. at 702. The concurring judges then concluded that “[djespite the unavailability of the known tortfeasor, the insured cannot proceed directly against the insurer but instead, in order to pursue his claim against his own insurer, must obtain a nominal judgment either by a John Doe proceeding or by means of service by publication, so as to fulfill the statutory condition precedent.” (Emphasis supplied.) Id. at 703.

Moreover, “the filing of an answer [and motion to dismiss, or in the alternative, a motion for summary judgment] by Cotton States in its own name did not by itself eliminate the requirement that a judgment first be obtained against [the uninsured motorist].” See Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66, 68-69 (363 SE2d 303). Obviously, the requirement that judgment be obtained as a condition precedent presupposes that such judgment will be valid and that jurisdiction was obtained over the uninsured motorist by perfected service of process.

Accordingly, we conclude that the trial court erred in holding that lack of service of process upon the uninsured motorist did not matter.

Decided March 12, 1990.

Van Gerpen, Shigley & Hoffman, Kenneth L. Shigley, Kevin 0. Skedsvold, for appellant.

McNally, Fox, Mahler & Cameron, Randall K. Coggin, Cham bers, Mabry, McClelland & Brooks, Wilbur C. Brooks, for appellee.

Appellee, however, argues that since it finally obtained personal service of process on the uninsured motorist on July 24, 1989, it no longer was required to effect service by publication. We agree that an uninsured motorist need not be both personally served and served by publication. However, “[w]here service is made after the expiration of the . . . statute of limitation, the timely filing of the complaint tolls the statute only if ‘the plaintiff (shows) that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.’ ” (Emphasis supplied.) Forsyth v. Brazil, 169 Ga. App. 438 (313 SE2d 138).

Appellee argues that the trial court held that she acted with due diligence in attempting to perfect service. We disagree. Review of the trial court’s order reflects that it made no express finding that appellee acted diligently. Rather, the trial court predicated its ruling on its erroneous determination that no service of process was necessary.

Appellee’s brief makes reference to an affidavit that is attached thereto as Exhibit “A.” No such document is attached. But, in any event, a brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. Johnson v. Wade, 184 Ga. App. 675 (1) (362 SE2d 469). “ ‘ “We must take our evidence from the record and not from the brief of either party.” ’ ” Id. at 676.

From a cursory examination of the state of the record before us, it would appear that appellee currently has failed to meet its burden of establishing that it has acted reasonably and with due diligence in this matter — particularly, in view of the lapse of time involved in this case and the very general nature of the affidavit of the investigator employed by appellee which fails to establish the dates and frequencies of the acts taken to find Tate. Compare Deal v. Rust Engineering Co., 169 Ga. App. 60 (311 SE2d 499) and Freemon u. Dubroca, 177 Ga. App. 745 (341 SE2d 276). However, as the trial court has not had an adequate opportunity to address this issue, we will not wrest it from the bosom of that court, but instead will remand this case for a resolution of whether appellee, under the totality of the circumstances, has acted reasonably and with due diligence in its attempt to perfect service on the uninsured motorist.

Judgment reversed and case remanded with direction.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0341.
    FULBRIGHT v. THE STATE.
    (392 SE2d 298)
   Banke, Presiding Judge.

The appellant was convicted of two counts of child molestation, both involving his five-year-old daughter. He brings this appeal from the denial of his motion for new trial.

After the appellant and the child’s mother were divorced, the child revealed to her mother that the appellant had engaged in certain physical contact of a sexual nature with her while she was visiting in his home. The mother notified the district attorney, who advised her not to permit the appellant further visitation with the child. The appellant then brought a contempt action against his former wife, and in connection with that case he, she, and the child all underwent court-ordered psychiatric evaluations. These evaluations were performed by Dr. Robert Alpern, a child psychiatrist retained by the appellant. The contempt action culminated in the termination of appellant’s visitation privileges and was followed by the present criminal prosecution. Held:

1. The appellant filed a pre-trial motion in limine seeking to exclude Dr. Alpern’s testimony on the basis of the psychiatrist-patient privilege. See generally OCGA § 24-9-21 (5). However, before the psychiatrist-patient privilege may be invoked, a relationship of psychiatrist and patient must exist, “to the extent that treatment was given or contemplated.” Massey v. State, 226 Ga. 703 (177 SE2d 79) (1970). In Rachals v. State, 184 Ga. App. 420 (361 SE2d 671) (1987),' aff’d 258 Ga. 48 (364 SE2d 867) (1988), we held that no psychiatrist-patient relationship existed where, “(1) the appellant. . . was not seeking out psychiatric care in the usual sense of the term; and (2) no real treatment was given or contemplated.” Id. 184 Ga. App. at 421. It is apparent in the present case that the appellant retained Dr. Alpern and paid his fee for the purpose of obtaining his testimony for use in the contempt action rather than for the purpose of obtaining psychiatric treatment or counseling. We accordingly hold that no psychiatrist-patient relationship existed within the contemplation of OCGA § 24-9-21 (5), with the result that the appellant’s motion in limine was properly denied.

2. During direct examination by the state concerning his evaluation of the appellant, Dr. Alpern testified as follows: “He [the appellant] said that he lost his job with the police force because he had altered prescriptions and pleaded nolo contendere which is why he didn’t go to prison, but he did lose that job because of it. . . .” No contemporaneous objection was made to this testimony; however, the appellant later moved for mistrial on the ground that the state had impermissibly introduced his character into evidence. The trial judge instructed the jury to disregard any testimony concerning prior offenses and questioned the jury to satisfy himself that they could follow that instruction. The appellant raised no further objection. “If a motion for a mistrial is overruled but corrective instructions are given by the court and thereafter counsel fails to request further instructions or renews his motion for a mistrial, the overruling of the motion is not regarded as error. [Cits.]” Harris v. State, 190 Ga. App. 343, 346 (378 SE2d 912) (1989). Thus, even pretermitting the issue of whether the appellant’s objection and motion for mistrial were timely, this enumeration of error presents no ground for reversal.

3. The appellant contends that Dr. Alpern was erroneously permitted to state his opinion regarding the child’s credibility. Dr. Alpern was questioned concerning the manner in which he had evaluated the child and was asked his opinion as to “whether or not this child has been molested.” During the course of a somewhat lengthy response to this question, he stated: “It is my firm contention that [the child] was telling the truth when she said that her father molested her basically in the way she described. ...” No objection was made to this testimony, nor to any of the doctor’s subsequent testimony to the same effect, on the ground that it constituted an improper expression of opinion concerning the credibility of a witness or an ultimate issue of fact. See generally Allison v. State, 256 Ga. 851 (5) (353 SE2d 805) (1987). Rather, the only objection interposed by the appellant was to certain statements of opinion which he contended were based on supposition. “[A]ppellate courts exist for the correction of trial error, where proper objection is taken. (Cit.)” Stokely v. State, 188 Ga. App. 489, 490 (373 SE2d 230) (1988). “ ‘ “[T]his court will review and correct only such error as was made in the trial court and only on the specific basis on which it was presented to the trial court.” ’ [Cit.]” Shy v. State, 190 Ga. App. 370, 371 (378 SE2d 920) (1989). Under the circumstances, this enumeration of error presents nothing for review.

4. The appellant contends that the trial court erred in refusing to declare a mistrial based on the state’s failure to furnish certain exculpatory material in response to a pre-trial discovery motion which he had filed pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). While Dr. Alpern was testifying, the appellant’s counsel was provided for the first time with a transcript of an interview between a Department of Family & Children Services caseworker and the child. The appellant asserts on appeal that this document contained exculpatory material in that it revealed inconsistencies in the child’s story and contained allegations that her paternal grandparents had also molested her. However, “[i]f it is defendant’s contention that additional time for investigation would have enhanced his defense, the proper motion would have been for an adequate recess, not mistrial.” Wallin v. State, 248 Ga. 29, 33 (279 SE2d 687) (1981). Accordingly, this enumeration of error is without merit.

Decided March 12, 1990.

Daniel J. Parker, for appellant.

Lindsay A. Tise, Jr., District Attorney, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A89A1678.
    JET AIR, INC. et al. v. EPPS AIR SERVICE, INC.
    (392 SE2d 245)
   Pope, Judge.

Plaintiff Jet Air, Inc., doing business through a company known as Planes, Inc., was in the business of chartering airplanes. Defendant Epps Air Service, Inc., was in the air transport business. In January 1983, when one of Epps’ airplanes was out of service, Epps leased a certain Learjet aircraft from Planes, Inc. Planes, Inc., did not usually lease airplanes but, instead, chartered them to fly cargo or passengers using their own employees as pilots. However, Planes, Inc., agreed to lease the Learjet to Epps on the condition that one of its employees, Don Toth, a licensed co-pilot and aircraft mechanic, accompany the aircraft on all flights during the term of the lease. According to plaintiff Larry Block, owner and president of Jet Air, Inc., Toth was sent along with the aircraft “[j]ust to insure proper operation, and frankly an honest reporting of all use, so there wouldn’t be any question about its needs, its maintenance, use, how much it flew, or anything else. Just to verify things that were going on.”

Toth was utilized as co-pilot for the flights taken in the aircraft by Epps. On several instances during the first week of use by Epps the nose wheel steering system of the aircraft malfunctioned. Toth observed the malfunctions, discussed them with the Epps pilot and indicated he was aware of previous malfunctions of the nose wheel steering on that aircraft. The pilot failed to note the malfunctions in the aircraft’s log book, as required by federal law, but explained that he did not think it was necessary to make a written record of the problem since a mechanic employed by the owner of the aircraft had observed the problem and because he believed Epps was going to return the aircraft to its owner at the end of the week. In fact, Epps extended its lease for the following week and a different Epps pilot was assigned to the aircraft. The second pilot did not review the aircraft log book but relied on Toth, who had co-piloted the aircraft the previous week, and who told him the aircraft was fine. On January 26, 1983, as the aircraft was landing at Burke-Lakefront Airport in Cleveland, Ohio, it veered off the runway and sustained extensive damage when rocks and turf were thrown into the engines. The pilot testified the nose wheel steering mechanism locked to the left, causing the aircraft to leave the runway.

Plaintiffs sued Epps alleging it was liable for damage to the aircraft either in tort or pursuant to the law of bailment. The jury returned a defendant’s verdict along with a statement, delivered by the foreman, that they found that both parties had been “very negligent” in failing to follow the applicable regulations and guidelines and in failing to take corrective action in regard to the mechanical problems which occurred during the period of the contract. Plaintiffs appeal.

1. Plaintiffs first argue the trial court erred in denying their motion for directed verdict. When a plaintiff presents a prima facie case for judgment, then whether the trial court erred in refusing to direct a verdict depends on whether the defendant presented evidence to support its defenses. General Motors Acceptance Corp. v. Bowen Motors, 167 Ga. App. 463 (1) (306 SE2d 675) (1983). “In all cases of bailment, after proof of loss by the bailor, the burden of proof is on the bailee to show proper diligence.” OCGA § 44-12-44. Plaintiffs argue that because they presented evidence of bailment and property loss and the evidence showed lack of proper diligence by the bailee they are thereby entitled to judgment. However, performance is a condition precedent to a recovery on a contract. “Performance, to be effectual . . . must be substantially in compliance with the spirit and the letter of the contract. ...” OCGA § 13-4-20. “The law imposes upon persons performing . . . professional and skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which generally is taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by their respective professions.” (Citations and punctuation omitted.) Elkins v. Willett Lincoln-Mercury, 141 Ga. App. 458, 459 (233 SE2d 851) (1977). Defendant in this case presented evidence that plaintiffs had knowledge that the nose wheel steering mechanism had malfunctioned on previous occasions. This evidence created an issue as to whether plaintiffs had failed to keep the aircraft in suitable order and repair for leasing to defendant. In regard to plaintiffs’ claim of liability for negligence, this evidence created an issue for jury determination as to plaintiffs’ contributory negligence. Moreover, plaintiff Larry Block’s testimony provided evidence from which the jury could determine that Don Toth, co-pilot of the jet, was acting as plaintiffs’ agent. Evidence was presented from which the jury could find Toth was negligent and that his negligence was thus imputable to plaintiffs. The trial court did not err in denying plaintiffs’ motion for directed verdict.

2. As noted above in Division 1, sufficient evidence was presented from which the jury could determine that Don Toth, plaintiffs’ employee, was acting at all times relevant to this action as plaintiffs’ agent. Thus, the trial court did not err in charging the law of OCGA § 44-12-62 (b). (“If the bailor sends his own agents with the thing bailed, the hirer shall not be liable for the acts of such agents but shall only be liable either to the bailor or to third persons for the consequences of his own directions and for gross neglect.”) Neither did the court err in charging the jury on the law of contributory negligence nor in failing to grant plaintiffs’ motion in limine requesting the trial court to rule inadmissible any evidence that the co-pilot was an agent of plaintiffs.

3. For purposes of seeking additional damages because, plaintiffs allege, the aircraft was not repaired within a reasonable period of time, the plaintiffs sought to submit admissions of the defendant that its insurance adjuster contracted for the repair of the aircraft. The defendant originally admitted plaintiffs’ requests for admission that its agent contracted for the repair. However, based upon the subsequent deposition testimony of the insurance adjuster, defendant served an amended response in which it denied the request for admission. At a pre-trial conference the trial judge ruled to permit the amendment to defendant’s response. Plaintiffs argue the trial court erred in allowing the amendment because the defendant did not properly file a written motion for amendment at least five days before the hearing on the motion as required by OCGA § 9-11-6 (d). However, even if the trial court erred the error is harmless in this case because the evidence in question relates solely to the issue of damages, an issue the jury did not reach because it found defendant was not liable.

4. Plaintiffs submitted into evidence defendant’s response to ten of plaintiffs’ requests for admission. Plaintiffs argue the court erred in charging the jury that any matter admitted by a party is conclusively established unless the court permits amendment of the admissions and that the court did allow defendant to amend its admissions in this case. However, the record shows that defendant’s response to one of the ten requests for admission was amended and the amendment to the admission was read to the jury. We reject plaintiffs’ argument that the trial court’s charge was misleading or was an improper comment on the evidence.

5. We reject plaintiffs’ argument that the trial court improperly restricted their right to present rebuttal testimony and to compel the attendance of a witness. The record shows one of the witnesses subpoenaed by plaintiffs was an attorney who, at the time of this trial, was compelled to attend the trial of his own client’s case in another county. Thus, pursuant to OCGA § 9-11-32 (a) (3) (B), (D) and (E), the trial court did not err in ruling that the witness was unavailable to appear at trial and in permitting his testimony to be presented by deposition. We have examined the transcript of the trial conference in which plaintiffs argue the trial court improperly restricted their right to present rebuttal evidence and find no error. Plaintiffs were allowed to present witnesses in rebuttal. Moreover, throughout the plaintiffs’ portion of the trial, plaintiffs’ counsel posed questions to witnesses attempting to negate defendant’s defense of due care.

6. Plaintiffs submitted into evidence certain portions of the report on the incident prepared by the National Transportation Safety Board. Plaintiffs argue the trial court erred in refusing to admit a certain page of the report which contained the entry “None” after the heading “Part Failure/Malfunction.” Whether the incident was caused by mechanical malfunction was one of the issues presented to the jury. We agree with the trial court that, despite the fact that the page in question was entitled “Factual Report,” the notation concerning the mechanical malfunction reflected an opinion or conclusion of the person who prepared the report and thus the page was inadmissible without qualifying the preparer as an expert. See Cassano v. Pilgreen’s, Inc., 117 Ga. App. 260 (2) (160 SE2d 439) (1968). The information at issue here is distinguishable from that at issue in American Airlines v. United States, 418 F2d 180 (5th Cir. 1969), in which the federal appeals court ruled that exhibits to an official report, which merely set forth data derived from the flight recorder foil, were admissible.

7. No error is shown by the refusal of the trial court to permit the co-pilot to testify about statements made by the pilot to a federal investigator. Plaintiffs’ counsel examined the pilot, himself, as to statements he made to the investigator. Thus, no error is shown by the trial court’s exclusion of the written statement as an exhibit.

8. The trial court did not err in sustaining the objection to the question by plaintiffs’ counsel to plaintiffs’ expert witness on re-direct examination concerning the duty of a pilot to ground an aircraft after discovery of a mechanical malfunction. The record shows plaintiffs’ counsel had extensively questioned the witness on the respective duties of the owner and the operator of an aircraft on direct examination.

9. We find no reversible error in the trial court’s refusal to strike the remark of defendant’s owner that the malfunctions experienced during the first week of the lease were reported to the co-pilot “who represented [plaintiffs] who [were] responsible for the maintenance of the airplane.” Ample evidence was presented that the co-pilot did represent plaintiffs during the lease of the aircraft to defendant and that plaintiffs, as owners, were responsible for its maintenance.

Decided January 29, 1990

Rehearing denied March 13, 1990

Robert M. Goldberg, Alan Z. Eisenstein, for appellants.

Gray, Gilliland & Gold, T. Cullen Gilliland, Lori E. Kirschner, for appellee.

10. At the conference on charges to the jury plaintiffs’ counsel admitted that its request to charge number 24 was essentially repetitive of its request number 23. The record shows the jury was properly charged on the defendant’s burden of proof in a bailment case to show diligence where the plaintiff has shown proof of loss. Thus, the trial court did not err in refusing to give the specific request.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.