author: Carley, Judge.

text:
    A90A1615.
    FERRELL v. THE STATE.
    (401 SE2d 301)
   Carley, Judge.

Appellant was tried before a jury and found guilty of two counts of armed robbery and one count of aggravated assault upon a peace officer. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The trial court’s denial of appellant’s motion to suppress evidence seized from his home pursuant to a search warrant is enumerated as error.

Appellant contends that material and exculpatory information was omitted from the affidhvit upon which the search warrant was issued. “We have previously intimated that exculpatory material is not required to be included in an ex parte application for a search warrant if no misconduct on the affiant’s part has occurred. [Cit.]” Redding v. State, 192 Ga. App. 87, 88 (383 SE2d 640) (1989). “Undoubtedly, not all omissions, even if intentional, are sufficient to invalidate an affidavit. [Cits.] . . . The defendant must show that the information omitted was material to the determination of probable cause and that it was omitted for the purpose of misleading the magistrate.” People v. Stewart, 473 NE2d 840, 851 (9) (111. 1984). See also United States v. Van Horn, 789 F2d 1492, 1500 (11th Cir. 1986). “There is a presumption of validity with respect to an affidavit supporting a search warrant. [Cit.] In order to force an evidentiary hearing on the accuracy of the affidavit, the aggrieved party must present more than mere conclusions. There must be allegations of deliberate falsehood or reckless disregard for the truth, and these allegations must be accompanied by evidence or an offer of proof of such evidence. . . . Mere allegations of negligence or mistake of fact are not sufficient. [Cit.]” Ross v. State, 169 Ga. App. 655, 657 (314 SE2d 674) (1984). In the instant case, there was neither an allegation nor proof of deliberate misrepresentation or reckless disregard for the truth on the part of the affiant. The most that appellant may have shown was the affiant’s omission of facts which were neither inculpatory nor exculpatory and which were, therefore, irrelevant to the existence or non-existence of probable cause. It follows that the trial court did not err in denying the motion to suppress on this ground.

Appellant further contends that the motion to suppress should have been granted on the ground that the affidavit contained stale information. However, this contention was not raised in appellant’s motion, and was not supported by any evidence adduced at the hearing on the motion. Nevertheless, even if the point had been properly raised, a magistrate could certainly have made a common-sense decision that there was a fair probability that the items sought, which were of enduring utility to their holder, would still be present in appellant’s residence when the warrant was sought 13 days after his arrest. See Tuzman v. State, 145 Ga. App. 761, 765 (2A) (244 SE2d 882) (1978); Thomas v. State, 183 Ga. App. 819, 821 (1) (360 SE2d 75) (1987); Bowen v. State, 194 Ga. App. 80-81 (1) (389 SE2d 516) (1989).

Appellant’s final contention is that the affidavit contained nothing concerning the reliability and credibility of the informant. “In this case, regardless of any possible deficiency in the showing of the informant’s veracity, reliability, or basis of knowledge, the tip was corroborated by [the affiant’s comparison of the informant’s story with the known facts of the crime and by the photographic identification of appellant by the police officer upon whom the aggravated assault was committed. This corroboration] was sufficient to support the magistrate’s issuance of the search warrant.” Curry v. State, 255 Ga. 215, 217 (1) (336 SE2d 762) (1985). See also Williams v. State, 193 Ga. App. 677, 680 (388 SE2d 893) (1989); Whitten v. State, 174 Ga. App. 867, 868 (1) (331 SE2d 912) (1985); Thomas v. State, 173 Ga. App. 481, 482 (1) (326 SE2d 840) (1985).

It follows that the trial court did not err in denying appellant’s motions to suppress. Reeves v. State, 197 Ga. App. 107 (1) (397 SE2d 601) (1990).

2. Hair samples from appellant’s person were taken pursuant to a search warrant. Appellant’s motion to suppress this evidence was denied and he enumerates that ruling as error.

There is some question whether a search warrant was even required. The “courts are undecided as to whether the involuntary removal of hair samples constitutes a search and seizure under the Fourth Amendment. [Cits.] The resolution of this question apparently depends on whether a hair sample is more akin to a blood sample or to voice and handwriting exemplars. [Cits.] However, we need not resolve that issue here because the [State] established probable cause for its request of the hair sample.” United States v. De Parias, 805 F2d 1447, 1456 (11th Cir. 1986). The warrant was sought after probable cause to arrest appellant had already otherwise been established and he had, in fact, been arrested. There was probable cause to believe that hair which the affidavit stated had been found in a stocking mask abandoned at the scene of one of the robberies by the perpetrator would match a sample of appellant’s hair.

Decided January 7, 1991.

Dwight L. Thomas, for appellant.

Robert E. Wilson, District Attorney, Thomas S. Clegg, Robert M. Coker, Assistant District Attorneys, for appellee.

3. Over objection, a witness for the State was allowed to testify that, while he and appellant were in jail, appellant had made incriminating statements to him. Appellant urges that any testimony regarding his presence in jail impermissibly placed his character into issue and should have been excluded. “However, evidence that an accused has been confined in jail in connection with the case at issue does not place his character in evidence. [Cits.] This enumeration is without merit.” Jackson v. State, 180 Ga. App. 363, 364 (3) (349 SE2d 252) (1986). See also Johnson v. State, 191 Ga. App. 845, 846 (2) (383 SE2d 346) (1989).

4. Appellant relied upon the defense of mistaken identity. Accordingly, the trial court correctly refused to give appellant’s requested charges on lesser included offenses. Johnson v. State, 164 Ga. App. 429 (1) (296 SE2d 775) (1982).

Judgments affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A90A1686.
    CONEY v. THE STATE.
    (401 SE2d 304)
   Carley, Judge.

After a jury trial, appellant was found guilty of two counts of rape and one count of robbery by force. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. On the night of the rapes, an officer, who had a warrant for appellant’s arrest on an unrelated crime, heard a police report that appellant was being sought as a rape suspect. The officer thereafter saw appellant and asked him to “come here for a moment.” Appellant fled and the officer gave chase. After catching appellant, the officer stated that he had a warrant for appellant’s arrest. At that point, appellant made a statement which incriminated him as the perpetrator of the rapes. The admission into evidence of this incriminating statement is enumerated as error. The contention is that it was a custodial statement which should have been furnished to appellant pursuant to his request under OCGA § 17-7-210.

“Although a defendant’s statement need not be a product of custodial interrogation to be discoverable pursuant to OCGA § 17-7-210, it must have been made while in police custody. [Cit.]” (Emphasis in original.) McCoy v. State, 174 Ga. App. 621, 624 (4) (330 SE2d 746) (1985). The fact that the officer “caught” appellant and told him of the arrest warrant indicates that appellant was indeed in police custody. Thus, OCGA § 17-7-210 would be applicable and the State’s failure to comply with the mandate of that discovery provision would render the statement inadmissible. See McKenzie v. State, 187 Ga. App. 840, 848 (11) (371 SE2d 869) (1988). Compare Hudgins u. State, 176 Ga. App. 719 (1) (337 SE2d 378) (1985); Webb v. State, 179 Ga. App. 101 (345 SE2d 648) (1986). “Nonetheless, we find it highly probable that the admission of this evidence did not contribute to the verdict because the evidence against appellant was overwhelming. [Cit.]” Gilbert u. State, 193 Ga. App. 283, 285 (1) (388 SE2d 18) (1989). The two rapes occurred in close proximity to each other on the same night. Appellant was positively identified by both victims, one of whom already knew his name, and by an eyewitness at the scene of the second rape. “ ‘This is a plain and simple case of the evidence of the appellant’s guilt, exclusive of the custodial statement, being overwhelming. Accordingly, the (S)tate’s failure to (timely) provide the appellant with a (written copy of his) ... in-custody statement was harmless error.’ [Cits.]” Russell v. State, 183 Ga. App. 209, 210 (1) (358 SE2d 631) (1987).

2. “As for appellant’s contention that the trial court violated OCGA § 17-8-57 when he propounded questions concerning [one of the rapes], ‘ “[t]he question of whether (OCGA § 17-8-57) has been violated is not reached unless an objection or motion for mistrial is made.” (Cit.)’ [Cit.] Neither was made in the case at bar.” Mathis v. State, 194 Ga. App. 498, 499-500 (3) (391 SE2d 130) (1990).

3. In related enumerations of error, appellant contends that references to the officer’s possession of an arrest warrant in an unrelated case impermissibly placed his character in evidence.

“The [reference] to the ‘warrant’ . . . [was] part of . . . the circumstances surrounding the accused’s arrest. . . . [A] 11 circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. [Cits.]” Fuqua v. State, 183 Ga. App. 414, 419-20 (1c) (359 SE2d 165) (1987). “Where evidence may incidentally put character in issue or be prejudicial it may be admitted if otherwise relevant. [Cits.]” Ivester v. State, 252 Ga. 333, 336 (2) (313 SE2d 674) (1984). The warrant, as a circumstance of the arrest, was “ ‘certainly “relevant to the issues on trial” as required by Momon (v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982)). (Cits.)’ [Cit.]” Duren v. State, 177 Ga. App. 421, 424 (3) (339 SE2d 394) (1986). See also Cheney v. State, 167 Ga. App. 757, 758 (2) (307 SE2d 288) (1983).

Decided January 7, 1991.

Walters, Davis, Smith, Meeks & Pittman, Thomas H. Pittman, for appellant.

David E. Perry, District Attorney, Diane L. Perry, A. Douglas Newsome, Assistant District Attorneys, for appellee.

Judgments affirmed.

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


author: Sognier, Chief Judge.

text:
    A90A1691.
    LANDOR CONDOMINIUM CONSULTANTS, INC. et al. v. BANKERS FIRST FEDERAL SAVINGS & LOAN ASSOCIATION.
    (401 SE2d 305)
   Sognier, Chief Judge.

Bankers First Federal Savings & Loan Association (“the Bank”) brought dispossessory proceedings against Landor Condominium Consultants, Inc. (“Landor”), D. Landrum Harrison, and Doris Bird Harrison to recover possession of portions of a condominium development the Bank had acquired by foreclosure, consisting of undeveloped land, 19 unfinished condominium units, and three finished units, two of which were occupied by the defendants and used as Landor’s office and the Harrisons’ home. The defendants answered and counterclaimed, and the trial court granted the Bank’s motion to compel payment of rent into court pending resolution of the dispossessory proceedings. The defendants failed to pay rent and a writ of possession was issued on March 8, 1989. Before enforcement of the writ, however, the defendants obtained a stay from the trial court effective until further order, dismissed their counterclaim, and filed a notice of appeal. On April 21, 1989, after a hearing, the trial court granted the Bank’s motion to lift the stay and ordered payment of rent into court. When the defendants failed to pay rent on all but the two condominium units they were occupying, the writ of possession was enforced as to the rest of the parcels, and when they stopped paying rent on the unit used as their office, the writ was enforced as to that unit, leaving them in possession only of the unit used as the Harrisons’ home, for which they continue to pay rent.

The record reveals that the premises in question in this appeal were part of the Colony Place condominium development in Richmond County. The Colony Place Company, the original developer of Colony Place, was declared bankrupt, and Landor claims title to the property under a deed from the Colony Place Company. The Harrisons claim entitlement to possession through Landor.

Appellants have appealed directly from the grant of the writ of possession pursuant to OCGA § 44-7-56. That Code section, however, provides no special rights of direct appeal, but makes appeals taken in dispossessory proceedings subject to “Chapters 2, 3, 6, and 7 of Title 5” of the Code, as applicable. Whiddon v. Stargell, 192 Ga. App. 826, 827 (386 SE2d 884) (1989). OCGA § 5-6-34 (a) (1) provides that direct appeals may be taken to this court from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35 [which provides for discretionary appeals].” The other seven instances enumerated in OCGA § 5-6-34 (a) in which a direct appeal may be taken are obviously not applicable here. Accordingly, if the grant of writ of possession as to the undeveloped units, the unfinished units, and the finished units other than the ones occupied by the Harrisons as their home is not a “final judgment” within the meaning of OCGA § 5-6-34 (a) (1), this court is without jurisdiction to entertain this appeal.

Appellee presented claims for possession of several premises in this action. While the grant and execution of the writ of possession as to certain units are clearly final in the sense that appellants have lost possession of those units pending final resolution of the case, it is undisputed that appellants continue to be in possession of one unit and are paying rent on that unit until the resolution of the dispute on its merits, which is still pending below. OCGA § 9-11-54 (b) directs that “[w]hen more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims . . . shall not terminate the action as to any of the claims . . ., and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” (Emphasis supplied.)

The record reveals no determination by the trial court that there is no just reason for delay and no express direction for the entry of judgment. We are thus constrained to hold that no appealable final judgment exists. Moreover, appellants have not applied to this court for interlocutory review. See OCGA § 5-6-34 (b). While appellants understandably wish to have certain questions decided sooner rather than later, in the absence of either a final judgment or authorization for interlocutory review, the appeal is premature, and this court, lacking jurisdiction, must dismiss the appeal. See generally Bowers v. Price, 168 Ga. App. 125, 126 (308 SE2d 420) (1983).

Decided January 7, 1991.

D. Landrum Harrison, pro se.

Doris B. Harrison, pro se.

Lawton Jordan, Jr., David E. Hudson, for appellee.

Appeal dismissed.

McMurray, P. J., and Parley, J., concur.


text:
    A90A1716.
    TATE v. THE STATE.
    (401 SE2d 549)
   Sognier, Chief Judge.

Allen Eldridge Tate, Jr. appeals from his conviction of aggravated assault on a police officer, two counts of providing alcohol to minors, and maintaining a disorderly house.

Construed to support the jury’s verdict, the pertinent evidence adduced at trial showed that on May 14, 1988, off-duty Calhoun Police Officer Jerry Sapp was working as a security guard for a hamburger restaurant and was in the restaurant’s parking lot when he noticed a car being driven recklessly. The car was spinning around doing “donuts,” squealing its tires and almost turning over. Sapp waved his hands and a flashlight, hoping to stop the car, but the vehicle accelerated and headed straight toward Sapp, who was forced to jump out of the way to avoid being hit.

Jimmy Harris, who was 17 at the time of the incident, testified that he was a passenger in the car which almost ran down Sapp, and that appellant was the driver. Two 14-year-old girls, Harris’ sister and a friend, were also in the car. Appellant was drinking beer in the car, and when the foursome went to appellant’s apartment after the incident with Sapp, appellant offered the three minors beer, which was accepted by the girls. In his testimony, Harris described other evenings at appellant’s apartment, during which appellant had offered beer to him and other minors.

1. Appellant contends the trial court erred by denying his motion for a mistrial based on juror misconduct. During its deliberations, the jury asked the court for a recharge on the assault count, indicating some confusion as to possible lesser included offenses. The trial court recharged the jury as to aggravated assault on a peace officer, aggravated assault, and simple assault. After the recharge, during the noon recess, one juror found a dictionary and looked up definitions for the words “aggravate” and “assault.” When the trial judge learned about the juror’s action he questioned the juror, who indicated that he had not communicated the information gleaned from the dictionary to any of the other jurors; that he could set aside what he had read in the dictionary; and that what he had read had not caused him to arrive at any conclusions regarding the case. Additionally, after the jury returned its verdict, the trial court questioned each juror individually and confirmed that no definitions had been communicated to any of them other than those given by the trial court in its charge.

The fact that the dictionary definitions were not communicated to the other jurors distinguishes this case from Moore v. State, 172 Ga. App. 844 (324 SE2d 760) (1984), cited by appellant. In Moore, a juror consulted a book entitled You and the Law during an overnight recess, and then discussed what he had read with the other jurors. Although we have found no Georgia case dealing specifically with the issue of whether it is misconduct for a juror to use a standard dictionary, even assuming such conduct is improper the ultimate question here, as in Moore, supra, is whether the misconduct was “ ‘so prejudicial that the verdict must be deemed “inherently lacking in due process.” ’ [Cit.]” Id. at 846. Given that in the case at bar the dictionary definitions were not communicated to the other jurors, and the juror who consulted a dictionary stated unequivocally that the definitions he found had not influenced his verdict, we find that the juror’s conduct was not sufficiently prejudicial to warrant reversal under the standard set forth in Moore. Accordingly, the trial court did not err by denying appellant’s motion for a mistrial.

2. Appellant maintains that since furnishing alcohol to the minors also constituted the predicate offenses for charging him with maintaining a disorderly house, his conviction for both offenses was violative of OCGA § 16-1-7 (a) (2) because furnishing alcohol to the minors, OCGA § 3-3-23 (a) (1), was simply a more specific example of the general prohibition against maintaining a disorderly house. OCGA § 16-11-44. See generally State v. Estevez, 232 Ga. 316, 319-320 (1) (206 SE2d 475) (1974). We do not agree. Although evidence that appellant encouraged drinking was necessary to prove both offenses, it was necessary in proving violations of OCGA § 3-3-23 (a) (1) to establish that appellant personally furnished alcoholic beverages to people under the legal drinking age. That was not a required element in proving a violation of OCGA § 16-11-44, which required proof that the accused kept and maintained premises which are “common, ill-governed, and disorderly . . ., to the encouragement of . . . drinking.” Thus, because each of the offenses has elements not required by the other, each prohibits “a distinct type of criminal conduct different in both gravamen and societal norm from the other [charge],” State v. Evans, 192 Ga. App. 216, 221 (I) (384 SE2d 404) (1989), and the offenses do not fit the requirements for merger under OCGA § 16-1-7 (a) (2).

3. We find no merit in appellant’s contention that the trial court erroneously denied his motion for a directed verdict of acquittal made on the ground that the State had not proved that his house was a “drinking” house. In rejecting a constitutional challenge to OCGA § 16-11-44, the Supreme Court held in Hubbard v. State, 256 Ga. 637, 638 (352 SE2d 383) (1987) that prosecution under that statute required a showing of “ ‘not casual occurrences but general, customary habits of the house.’ ” The evidence in this case showed that appellant had encouraged at least four different minors to drink alcoholic beverages in his home on at least three different occasions. Although it is possible that a different jury might have reached a contrary verdict on this charge based on the evidence presented, we find this evidence in keeping with the direction in Hubbard, supra, and thus sufficient to authorize the jury to convict appellant of violating OCGA § 16-11-44 under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Compare Palfus v. State, 36 Ga. 280, 284-285 (1867).

4. Appellant enumerates error in the trial court’s charge on aggravated assault of a police officer, arguing that the trial court failed to follow the Supreme Court’s holding in Bundren v. State, 247 Ga. 180 (274 SE2d 455) (1981). In Bundren, the Supreme Court held that knowledge that the victim was a police officer is an essential element of the crime of aggravated assault on a police officer (OCGA § 16-5-21 (c)). Bundren, supra at 181-182 (2). In Duncan v. State, 163 Ga. App. 148 (1) (294 SE2d 365) (1982), this court held that even while “moonlighting” as a private security guard, a uniformed police officer was performing “official duties” when he took action to enforce the law and maintain the peace because all law enforcement officers are charged with the duty to do so at all times. In the case at bar, the transcript reveals that the trial court instructed the jury fully on assault, giving sequentially the statutory definitions of simple assault, aggravated assault, and aggravated assault on a police officer. Following that, the trial court specifically charged the jury that “the State has the burden of proof that [appellant] knew that. . . Sapp was, in fact, a police officer at the time of the alleged assault, and also the State has the burden of proving that at the time of the alleged assault . . . Sapp was engaged in official duties as a peace officer, and if you should find that [appellant] did not know that he was a police officer or if you find that he was not engaged in the performance of his official duties, then it would be your duty to acquit [appellant.]” Drawing on this court’s language in Duncan, supra, the trial court then instructed the jury that “in addition to specified duties all law enforcement officers have the general duty to enforce the law and maintain the peace. They carry this duty twenty-four hours a day on duty and off duty,” and followed that with the instruction that a warrant-less arrest may be made by a police officer if he has probable cause to believe an offense is being committed in his presence, and the definition of probable cause.

Decided January 7, 1991.

Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, Sharon A. Moyer, Assistant District Attorney, for appellee.

As best we can understand it, appellant’s argument is that the trial court did not properly link its definition of probable cause with an explanation to the jury that it should consider whether probable cause existed in conjunction with deciding whether Sapp was engaged in the performance of official duties. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). The charge given here, taken as a whole, clearly instructed the jury of the factors it was to consider in its deliberations, including the issue raised by appellant, and consequently we find no error. See generally Sharp v. State, 192 Ga. App. 353, 354-355 (2) (385 SE2d 23) (1989).

Judgment affirmed.

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


text:
    A90A1920.
    GATSON v. THE STATE.
    (401 SE2d 71)
   Carley, Judge.

Appellant was tried before a jury and found guilty of cruelty to her 22-month-old child in violation of OCGA § 16-5-70 (b). She appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The record shows that the victim had second-degree burns which, in the expert medical opinion of her attending physician, demonstrated that she had been dipped into hot water. Appellant gave two conflicting stories as to how the victim had received these burns. The physician testified that neither version was consistent with the victim’s injuries. We hold that “there is sufficient probative evidence to enable any rational trier of fact to find [appellant guilty] of [cruelty to a child] beyond a reasonable doubt. [Cit.]” Howell v. State, 180 Ga. App. 749, 750 (1) (350 SE2d 473) (1986). See also House v. State, 170 Ga. App. 53, 54 (1) (316 SE2d 36) (1984).

Decided January 7, 1991.

2. The trial court’s admission into evidence of a statement given by appellant to the investigating officer is enumerated as error.

Following a Jackson-Denno hearing, the trial court found that the statement had been voluntarily made by appellant. This determination is supported by the evidence presented at the hearing. “In the absence of any evidence that the finding in said hearing that the statement was voluntary was clearly erroneous, we will not look behind the finding of the trial judge. [Cits.]” Anderson v. State, 258 Ga. 70, 72 (7) (365 SE2d 421) (1988). See also Truitt v. State, 174 Ga. App. 687, 688 (1) (331 SE2d 64) (1985); House v. State, supra at 55-56 (6).

3. The admission into evidence of photographs of the victim, showing her injuries, is enumerated as error.

The photographs were admitted over an objection that the investigating officer, who authenticated them, had not been present when they were taken. There was no merit to this objection and such other objections to the admission of the photographs as are raised for the first time on appeal have been waived and will not be considered. Williams v. State, 255. Ga. 97, 100 (4) (335 SE2d 553) (1985).

4. An enumeration of error wherein appellant urges that she was, in effect, denied her right to move for a directed verdict of acquittal is totally without merit. The record shows that the State made a clear statement that it was resting its case and that, at no point thereafter, was a motion for a directed verdict of acquittal made. Moreover, even if a motion for a directed verdict had been made, it would not have been error to overrule it for the reasons discussed in Division 1.

5. In connection with several of her enumerations of error, appellant argues in her brief the ineffectiveness of her trial counsel. However, the ineffectiveness of her trial counsel is not enumerated as error and need not be addressed. Moreover, the record shows that appellant “filed an amended motion for new trial on [May 17, 1990], through new counsel who represents [her] in this appeal. Since [she] has new counsel who did not raise ineffective assistance at the time of the amended motion for new trial, the issue is deemed waived.” Porter v. State, 258 Ga. 94, 96 (2) (365 SE2d 438) (1988).

Judgment affirmed.

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

Macklyn A. Smith, for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johstono, Jr., Debra K. Turner, Assistant District Attorneys, for appellee.


text:
    A90A1926.
    SLACK et al. v. SUPERIOR INSURANCE COMPANY.
    (401 SE2d 307)
   Sognier, Chief Judge.

William Slack, Jr., the minor child of William Slack and Ronda Wright, was injured while a pedestrian when struck by a car driven by Amelia Baker, and incurred medical expenses in excess of $5,000. Baker was insured by Allstate Insurance Company, which paid $2,500, the full medical coverage provided under Baker’s policy. At the time of the accident, Slack had a personal automobile insurance policy with Superior Insurance Company. Slack, Jr., through his parents, made claim upon Superior for an additional $2,500 in medical benefits, which was refused. Superior then filed a declaratory judgment action to determine its obligations under the Slack policy. The trial court granted Superior’s motion for summary judgment, and this appeal ensued.

Prior to the decision of the Supreme Court in Cannon v. Lardner, 258 Ga. 332 (368 SE2d 730) (1988), appellants would have been entitled to “stack” the basic PIP benefits under their own personal auto policy onto those paid by Baker’s carrier. In Cannon, the Supreme Court held that “OCGA § 33-34-4 (c) authorizes the cumulation of coverages (‘stacking’) up to a total sum of $5,000. However, [the claimant] cannot cumulate coverage under any policy without being an ‘insured’ under that policy, as defined by OCGA § 33-34-4 (c). Because [the claimant] was not an ‘insured’ under her father’s policy with respect to this collision, she is eligible for no economic benefits under it.” (Footnote omitted.) Id. at 334 (4). Similarly, in the case sub judice, appellant Slack, Jr. is not an “insured” under his father’s policy because the vehicle which struck him was covered under Baker’s policy and was thus “similarly insured” under the construction of OCGA § 33-34-4 (c) given in Cannon, supra at 333-334 (3). Accordingly, the trial court did not err by granting summary judgment in favor of appellee.

We find no merit in appellants’ argument that the Supreme Court’s holding in Cannon did not overrule National Gen. Ins. Co. v. Meeks, 145 Ga. App. 830 (4) (244 SE2d 920) (1978) or Georgia Cas. &c. Co. v. Waters, 146 Ga. App. 149 (246 SE2d 202) (1978) in this regard. See Georgia Am. Ins. Co. v. Burnsed, 196 Ga. App. 626, 627 (396 SE2d 793) (1990).

Judgment affirmed.

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

Decided January 7, 1991.

McCorkle, Pedigo, Hunter & Johnson, Thomas M. Hunter, for appellants.

Brennan, Harris & Rominger, Richard A. Rominger, G. Mason White, for appellee.


text:
    A90A1946.
    CLARK v. SAFEWAY INSURANCE COMPANY.
    (401 SE2d 72)
   Sognier, Chief Judge.

On August 19, 1988, Luvenia Clark filed suit against Randy Baker to recover damages for injuries allegedly arising from an automobile collision that occurred on August 23, 1986. The DeKalb County Marshal was unable to perfect service on Baker because he no longer resided at the address designated on the summons. On November 14, 1989, service was perfected on Safeway Insurance Company, Clark’s uninsured motorist carrier (the “UMC”). The trial court granted Safeway’s motion to dismiss because of Clark’s failure to perfect service within the statute of limitation, and Clark filed this appeal.

1. We affirm. In Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976), the Supreme Court held that a UMC must be served within the time required by law for service on the defendant in the tort action. This court has applied that holding to affirm the dismissal of the UMC for failure to be served within the applicable limitation period. Bohannon v. Futrell, 189 Ga. App. 340, 341 (375 SE2d 637) (1988). “ ‘Where service is made after the expiration of the applicable 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.’” [Cits.]” Johnson v. Shield Ins. Co., 189 Ga. App. 333 (375 SE2d 510) (1988). Here, appellant has made no showing that the 15-month delay in perfecting service on appellee was excusable. See id. at 333-334. Further, her argument that the time for service on the UMC should not begin to run until the date it is legally determined that the tortfeasor did not ‘have sufficient insurance coverage was rejected by this court in Bohannon, supra at 341-342, and the Supreme Court affirmed that holding in Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162, 163 (377 SE2d 853) (1989).

2. Appellee’s motion for damages for frivolous appeal is denied.

Judgment affirmed.

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

Decided January 7, 1991.

Repasky & Bates, Alexander J. Repasky, Fred R. White, for appellant.

Crim & Bassler, Thomas S. Bechtel, for appellee.


text:
    A90A1957.
    RUTHERFORD v. THE STATE.
    (401 SE2d 308)
   Carley, Judge.

Appellant was tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The evidence in the instant case showed that appellant and two others robbed a motel in metropolitan Atlanta at night by use of a sawed-off shotgun. Over objection as to similarity, the trial court admitted evidence of appellant’s prior convictions for possession of a sawed-off shotgun, affixing a license plate with intent to conceal, driving with a suspended license and loitering or prowling. Testimony as to the underlying facts of the prior convictions revealed that appellant and two others, one of whom was also charged in the instant case, parked some distance from and walked to a motel. They became aware of the presence of a uniformed security guard at an adjacent building, but continued walking to the motel. Upon their return to the car, they placed something in the trunk and fled when confronted by the guard. When police stopped the car, which had a license plate registered to another car, a sawed-off shotgun and a revolver were discovered in the trunk. This incident occurred in metropolitan Atlanta at night 45 days prior to the robbery charged in the instant case.

This evidence tended to show that, on a previous occasion, appellant was foiled in a plan to commit an armed robbery identical to that which he subsequently perpetrated, and it “was properly admitted at trial. The evidence shows the identity of the accused, similarity of plan, scheme, design and conduct. It also directly connects the appellant, in a similarly suspicious circumstance, with a suspect [charged with the same robbery], and in fact ‘throw(s) a flood of light’ on the evidence concerning the . . . robbery [in the instant case]. [Cits.]” Wilkes v. State, 166 Ga. App. 771, 772-773 (2) (305 SE2d 388) (1983). See also Worthy v. State, 180 Ga. App. 506, 508 (3) (349 SE2d 529) (1986).

2. In the absence of objection raised in the trial court, this court will not consider appellant’s contention that the State violated Uniform Superior Court Rule 31.1 by failing to give ten days’ notice of its intent to present evidence of the similar transactions. Fancher v. State, 190 Ga. App. 438, 439 (1) (378 SE2d 923) (1989).

Decided January 7, 1991.

Walter J. Clarke, for appellant.

Thomas C. Lawler III, District Attorney, for appellee.

3. The victim had identified both appellant and his co-indictee based upon separate photographic line-ups shown to her. Appellant objected to the admission of this identification evidence on the ground that his photograph and that of his co-indictee had both been positioned as the second photograph in the respective line-ups. The failure to sustain this objection is enumerated as error.

The two line-ups had differing numbers of photographs and there was no evidence of which line-up was shown to the victim first. Indeed, nothing in the “record suggests] that the display [containing the co-indictee’s photograph] influenced the identification of [appellant’s] photograph from the [entirely separate] display shown to the victim.” Johnson v. State, 160 Ga. App. 590 (1) (287 SE2d 629) (1981). The display containing appellant’s photograph consisted of head-and-shoulder photographs of eight other men of the same general age and with the same general physical characteristics. “The trial court found that there was no impermissible suggestiveness in [this display] and the evidence of record supports this conclusion.” Denegal v. State, 193 Ga. App. 238 (1) (387 SE2d 434) (1989). See also Johnson v. State, supra at 591 (2).

Judgment affirmed.

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


text:
    A90A1973.
    KITCHENS v. THE STATE.
    (401 SE2d 552)
   Carley, Judge.

After a mistrial, appellant was again tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Shortly after the trial began, appellant expressed a desire to represent himself. The trial court made appellant aware of his right to counsel and advised him of the dangers of proceeding without counsel. The trial court also emphasized the hazards arising from an ignorance of the rules of evidence, the gravity of the situation, and the possible results. Nevertheless, appellant again expressed his desire to represent himself. On appeal, however, he urges that there was no knowing, voluntary, and intelligent waiver of counsel.

The record does in fact show a knowing and intelligent waiver of counsel which satisfies the standard established in Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981). See Shavers v. State, 179 Ga. App. 45, 46 (1) (345 SE2d 134) (1986). The contention that the trial court failed to make the requisite determination that appellant had validly chosen to proceed pro se is without merit. Singleton v. State, 176 Ga. App. 733 (337 SE2d 350) (1985). See also Lazenby v. State, 181 Ga. App. 854 (1) (354 SE2d 196) (1987). Moreover, any error would be harmless in light of the continuing availability and utilization of counsel by appellant, the strength and straightforward nature of the State’s evidence, and the credible fashion in which appellant presented his defense. See Williams v. State, 192 Ga. App. 317, 318-19 (2) (384 SE2d 877) (1989); McCook v. State, 178 Ga. App. 276, 277-78 (342 SE2d 757) (1986); Dickerson v. State, 161 Ga. App. 178, 179 (2) (288 SE2d 131) (1982). Compare Strozier v. State, 187 Ga. App. 16, 17 (1) (369 SE2d 504) (1988).

2. The victims are Koreans and, over appellant’s objection, the trial court permitted their daughter to act as their interpreter.

“The use of an interpreter, and the extent to which he may be used in the examination of a witness, must necessarily lie within the sound discretion of the trial judge. [Cit.]” LaCount v. State, 237 Ga. 181, 183 (2) (227 SE2d 31) (1976). The only objection raised below was that the victims had operated a grocery store for ten years and knew some English. “[T]he record is clear that the witnesses] . . . [were] from [Korea] and [Korean] is [their] native language. . . . The record further shows that [they] only ‘[understand] some English.’ Under those circumstances, the use of an interpreter was not error.” Williams v. State, supra at 319. See also McFarland v. Kim, 156 Ga. App. 781, 784 (4) (275 SE2d 364) (1980).

3. Although appellant’s confession had been ruled inadmissible in the prior trial which had ended in a mistrial, it was admitted into evidence in the instant trial. This evidentiary ruling is enumerated as error.

Appellant has cited no authority for the proposition that a confession must be excluded from evidence simply because it was ruled inadmissible in the context of a prior trial which did not proceed to verdict and judgment. Applicable authority is to the contrary. “When proceedings of the former trial have been set aside, a new trial proceeds de novo. [Cit.]” Bramblett v. State, 139 Ga. App. 745, 750 (5) (229 SE2d 484) (1976), aff’d 239 Ga. 336 (236 SE2d 580) (1977). Appellant’s reliance upon Cook v. State, 141 Ga. App. 241 (233 SE2d 60) (1977) is misplaced. That case involved suppression of tangible evidence and the holding therein is premised upon the language of OCGA § 17-5-30 (b): “If the motion is granted the property . . . shall not be admissible in evidence against the movant in any trial.” (Emphasis supplied.) The instant case involves a confession, not tangible evidence, and the provisions of § 17-5-30 are not applicable. Moreover, in Cook, unlike the instant case, the prior proceedings wherein the evidentiary ruling had been made were not subsequently set aside.

The record here shows that a Jackson-Denno hearing was held, and that, in its order denying appellant’s motion for new trial, the trial court found that the confession had been freely and voluntarily given. See Ward v. State, 239 Ga. 205 (1) (236 SE2d 365) (1977). After a review of the hearing transcript, “[w]e cannot say that the trial court’s ruling in favor of admissibility was erroneous here.” Holcomb v. State, 254 Ga. 124, 126 (1) (326 SE2d 760) (1985).

4. “As for appellant’s contention that the trial court violated OCGA § 17-8-57 when [it responded to an objection], ‘ “[t]he question of whether (OCGA § 17-8-57) has been violated is not reached unless an objection or motion for mistrial is made.” (Cit.)’ [Cit.] Neither was made in the case at bar.” Mathis v. State, 194 Ga. App. 498, 499-500 (3) (391 SE2d 130) (1990). Moreover, even if the issue had been preserved for appellate review, there was no error. OCGA § 17-8-57 “ ‘does not generally extend to colloquies . . . regarding the admissibility of evidence. (Cits.)’ [Cit.]” Kinsman v. State, 259 Ga. 89, 93 (13) (376 SE2d 845) (1989).

5. The admission of the actual written confession as a jury exhibit is enumerated as error.

“ ‘ “Appellant’s . . . objection against admission of this evidence did not reach the question of its going out with the jury . . . (Cits.)” (Cit.)’ [Cit.]. . . . [T]he transcript demonstrates that [appellant] raised no such specific objection in the trial court. ‘An enumeration of error complaining of admission of evidence or of documents going out with the jury presents nothing for decision by this court where no objection was made at the trial. (Cits.)’ [Cit.] Accordingly, we find this enumeration of error to be without merit. [Cit.]” Miller Distrib. Co. v. Rollins, 163 Ga. App. 635, 636 (1) (295 SE2d 187) (1982). See also Gribble v. State, 248 Ga. 567, 572 (7) (284 SE2d 277) (1981); Stidem v. State, 246 Ga. 637, 639 (3) (272 SE2d 338) (1980).

“We note, in addition, that there is nothing in the record to substantiate the appellant’s argument that this did in fact occur.” Stidem v. State, supra at 639 (3). Indeed, in its order denying appellant’s motion for new trial, the trial court found “from its recollection that [appellant’s] written confession did not go out with the jury during deliberation.”

6. The trial court allowed the prior sworn testimony of a witness for the State to be read into the record. Appellant enumerates this as error, urging that the State did not show that the witness was inaccessible.

Decided January 7, 1991

Peter D. Johnson, for appellant.

Michael C. Eubanks, District Attorney, for appellee.

Appellant’s statutory and constitutional arguments have been waived by his lack of objection to the admission of the testimony. See Fleming v. State, 243 Ga. 120, 123 (6) (252 SE2d 609) (1979); Harbin v. State, 193 Ga. App. 248, 249 (1) (387 SE2d 367) (1989).

Judgment affirmed.

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


text:
    A89A2078.
    LOCKRIDGE v. THE STATE.
    (402 SE2d 373)
    Decided January 7, 1991.

      Cook & Palmour, Bobby Lee Cook, Lloyd D. Murray, Jack E. Carney, Jr., for appellant.

      Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.
   Sognier, Chief Judge.

In accordance with the decision of the Supreme Court in Lockridge v. State, 260 Ga. 528 (397 SE2d 695) (1990), the previous decision of this court in the present case, reported at 194 Ga. App. 487 (390 SE2d 853) (1990), is hereby vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is reversed.

Judgment reversed.

McMurray, P. J., Banke, P. J., Birdsong, P. J., Carley, Pope, Beasley, Cooper and Andrews, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A1536.
    LAWRENCE v. THE STATE.
    (401 SE2d 275)
   McMurray, Presiding Judge.

Phillip Lawrence was convicted of two counts of armed robbery, from which he appeals.

The evidence presented at trial showed that at about 3:00 p.m. Oscar Barton’s pawn shop was entered by two males. The first man was described as approximately six feet tall, weighing about 150 pounds, and brandishing a pistol which he aimed at Barton. The second man was considerably larger than the first, and was unarmed. The first man took a large quantity of gold jewelry from the display cases and $120. from Barton, while the larger man grabbed Barton’s wife from the front of the store, physically subdued her and took her to a back room where he tied her up. Two necklaces were also taken from Mrs. Barton’s person and some money was stolen from her purse.

While the robbery was in progress, John Fagans II, a passenger in his father’s car which was stopped for a traffic light, saw the larger man seize Mrs. Barton. He reported this to his father, who drove immediately to the Rossville Police Department just down the street to make a report. A dispatch was broadcast over the radio that there was a “fight” at the pawn shop, and the first to answer this call was Jamie Hood, a part-time, off-duty Rossville police officer, who arrived in his personal vehicle just as the larger man was walking back to the getaway car. Hood asked him if he had been in the pawn shop and seen any disturbance, to which he responded that he had observed no disturbance while in the pawn shop. The man agreed to talk to Officer Hood and sat there in his car chatting with Hood. When the other robber arrived at the car, the larger man struck Hood in the stomach, jumped back in the car and started it. When Officer Hood grabbed the door of the getaway car the smaller robber pulled a gun and Hood dropped to the ground as the two robbers drove away. Officer Carter of the Rossville Police Department reached the scene in time to see Officer Hood assaulted by the robbers and gave chase, but lost the getaway car.

That afternoon, Mr. and Mrs. Barton, Officers Hood and Carter looked at individual mug shots without identifying any suspect. A physical lineup of suspects, not including appellant, held later that evening, also produced no identifications. Two months later, the Rossville Police Department asked an expert in the LaFayette Police Department to prepare a photographic lineup. The lineup prepared consisted of six photographs, including pictures of appellant and another suspect named Demond Jackson. Neither Officer Carter nor Mrs. Barton could identify any of the photographs as the robbers. Mr. Barton and the Fagans identified both appellant and Jackson, and Officer Hood identified appellant as the man who struck him. Prior to trial at a hearing on appellant’s motion to suppress this identification, Barton, Hood and the Fagans made in-court identifications of appellant. At trial, Mrs. Barton and Carter were still unable to identify appellant, but Barton, Hood and the Fagans again positively identified him as the larger robber.

Appellant testified that he was not present in Rossville on the day of the robbery and introduced in evidence a time card from his place of employment, which was located about an hour and 20 minutes to an hour and 45 minutes drive from Rossville, showing that he had clocked in at exactly 4:00 p.m. that day. His supervisor testified that there was no doubt in his mind that appellant had been present at the plant at 4:00 p.m. No physical evidence linking appellant to the crime was presented, as the police apparently never recovered the gun, nor any of the stolen jewelry, the getaway car, any fingerprints or the clothes the robbers were described as wearing, or obtained any statements from the suspects. Held:

1. Appellant contends that the photographic lineup was impermissibly suggestive based on the totality of the circumstances, resulting in his misidentification by the witnesses, and should not have been allowed in evidence. He complains that some of the backgrounds in the color photographs were different, that some of the subjects in the photographs had facial hair while his did not, and that some of the photographs contained height scales, which his did not. However, the witnesses who picked appellant’s photograph stated that their identifications were based solely on their observation of him at the suppression hearing. “Accordingly, the trial court did not err in denying the motion to suppress the witnesses]’ in-court testimony. ‘Even if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. (Cit.) Under the facts of this case we need only determine that the record supports the trial court’s determination that the in-court identification was based on an independent origin rather than any irregularity in the pretrial identification procedures. (Cit.) As the record supports that determination, the in-court identification was admissible.’ [Cits.]” Zackery v. State, 195 Ga. App. 870 (395 SE2d 71). See also Payne v. State, 233 Ga. 294, 297 (II) (210 SE2d 775); Lynch v. State, 158 Ga. App. 643 (281 SE2d 640).

2. For the same reasons, appellant’s assertion that the trial court erred in denying his pretrial motion to order the witnesses to participate in a physical lineup is also without merit. “A line-up identification, or identification from a group of photographs, is not a prerequisite to every in-court identification. [Cits.] The test is whether the identification confrontation staged by the law enforcement authorities, judged by the ‘totality of the circumstances surrounding it,’ is ‘so unnecessarily suggestive and conducive to irreparable mistaken identification’ as to constitute a denial of due process of law. [Cits.] Stated conversely, a conviction based upon an in-court identification following a pre-trial identification will be set aside on that ground only if the pre-trial identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Cit.] . . . Even if the pre-trial identification is ‘tainted,’ the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an ‘independent origin’ [Cits.], such as where the witness discussed with defendant the possible sale of an automobile for about ten minutes before the automobile was stolen. [Cit.] Finally, the principle is clear . . . that undue suggestion does not arise merely from the fact that the authorities suspect and now accuse a certain individual. [Cit.]” Moye v. State, 122 Ga. App. 14, 16 (1), 17-18 (176 SE2d 180).

Decided January 8, 1991.

William P. Slack, for appellant.

Ralph Van Pelt, Jr., District Attorney, for appellee.

3. Appellant contends that the trial court erred in failing to grant his motion for directed verdict of acquittal on the count of armed robbery of Mrs. Barton. He argues that Mr. Barton owned the pawn shop, that Mrs. Barton did not have any interest in the shop, did not work there and was not in possession of any of the items taken other than her personal jewelry which was not included in the indictment; and that thus there was only one robbery. We do not agree. The indictment accuses the appellant of committing the offenses by taking the same jewelry and cash from the person and immediate presence of each of the Bartons, and there was testimony that the Bartons operated the shop together. “ ‘Robbery is a crime against possession, and is not affected by concepts of ownership.’ [Cit.] That being so, the fact that the property may have been jointly owned does not preclude the appellant from being convicted of two counts of armed robbery. See, e.g., Painter v. State, 237 Ga. 30 (226 SE2d 578), where defendant, having robbed a husband and a wife, was convicted of two counts of armed robbery. The court did not err in denying appellant’s motion for directed verdict.” Carter v. State, 156 Ga. App. 633 (3), 634 (275 SE2d 716).

4. Appellant argues that the verdict was not supported by the evidence because his alibi defense, which was unrebutted by the State, showed that it was impossible for him to have been in Rossville at 3:10 p.m. and also be at work at exactly 4:00 p.m. The defense of alibi was fully and correctly charged to the jury. “However, the jury was ‘not bound to accept the evidence introduced of alibi as true; the jury determines the credibility of the witnesses and weight to be given their testimony. OCGA § 24-9-80; [cit.]’ [Cit.]” Champion v. State, 192 Ga. App. 43 (1) (383 SE2d 565). Accord Argo v. State, 192 Ga. App. 794 (1) (386 SE2d 545). We find no grounds for reversal.

Judgment affirmed.

Sognier, C. J., and Car ley, J., concur.


author: Birdsong, Presiding Judge.

text:
    A90A1570.
    RANDOLPH v. THE STATE.
    (401 SE2d 310)
   Birdsong, Presiding Judge.

Donald Sampson Randolph appeals his conviction for possession and sale of cocaine. He contends the trial court erred in admitting evidence of a similar transaction wherein he sold cocaine to an undercover agent, inasmuch as the State’s prosecution for that other sale resulted in a hung jury and mistrial and because that sale was not sufficiently similar to this incident. He also contends the trial court erred in refusing to sever his trial from the trial of his co-defendant, and erred in refusing to grant him a directed verdict for insufficiency of evidence to convict. Held:

1. Appellant was not entitled to a directed verdict for insufficiency of the evidence to convict.

A directed verdict in a criminal case is warranted only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of not guilty, that is, where an acquittal is the only legal finding possible. OCGA § 17-9-1; Summers v. State, 99 Ga, App. 183 (108 SE2d 140). The evidence shows appellant was arrested after he accompanied the confidential informant outside co-defendant Butler’s house to deliver $2,000 worth of cocaine to the undercover agent; when the agent asked appellant if the amount of cocaine tendered was $2,000 worth, appellant said to the agent, “sure, big daddy.” The State presented evidence that the confidential informant and the agent went to Butler’s house to buy cocaine; the informant went inside the house and, in appellant’s presence, asked for powder cocaine, which Butler did not have. After consulting the agent, the informant agreed to accept “rock” cocaine. Appellant was present while Butler packaged the cocaine and engaged in a discussion with the informant about whether he or the informant would carry it to the agent and return with the money, and he accompanied the informant to the agent’s car to ensure that the informant received the money and turned it over to Butler.

Appellant contended the evidence showed at best mere presence at the scene of a crime, and that he never touched the cocaine and never touched the money. However, this evidence shows more than mere presence at the scene of a crime; it shows active participation in the sale and delivery of cocaine. Viewing the evidence in the light most favorable to the verdict, we find the evidence and all reasonable deductions are such as to enable a rational trier of fact to find the elements of the offense beyond a reasonable doubt, according to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Therefore, on appeal it cannot be said that appellant was entitled to a directed verdict of acquittal. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436).

2. Appellant urges us to hold that evidence of a “similar transaction” cannot be admitted where the State has prosecuted the defendant for that transaction as a criminal offense and the trial resulted in a hung jury, or mistrial. This is not the law. It is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible. Johnson v. State, 193 Ga. App. 618, 620 (388 SE2d 866); Henderson v. State, 182 Ga. App. 513, 516 (356 SE2d 241), rev’d on other grounds, 257 Ga. 618 (362 SE2d 346). Although a prosecution may fall short of proving a criminal offense, evidence as to certain conduct may nevertheless be admissible in a trial of another offense if the State shows the defendant was the perpetrator of the conduct and the conduct or transaction is similar to or has a logical connection to the offense being tried. That a prosecution for the other conduct results in an acquittal of criminal conduct is not grounds to exclude evidence of other conduct as a similar transaction (Johnson, supra); there is therefore even less reason to exclude such evidence of a similar transaction where a prosecution of it as a criminal offense results in a hung jury. See Williams v. State, 178 Ga. App. 581 (344 SE2d 247). Anything indicated to the contrary in Lucas v. State, 178 Ga. App. 150 (342 SE2d 377) is not controlling, for that case is physical precedent only. See Court of Appeals Rule 35 (b).

The evidence of similar transaction was to the effect that appellant had previously sold cocaine to another undercover agent on the same street near where the crime occurred in this case. There may be obvious sufficient similarity, generally, in the sale of a drug identical to the drug sold in the incident being prosecuted, so as to warrant admission of such evidence in the trial of another sale of the drug. See Robinson v. State, 192 Ga. App. 32, 34 (383 SE2d 593). There is no “per se” rule of admissibility of drug activity in Robinson, but appellant is correct in contending that “drug cases are no different from any other case” in which the State seeks to admit evidence of a similar transaction (State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321)); therefore, the evidence admitted in this case does meet the general requirements for admission of similar transaction evidence. See Meier v. State, 190 Ga. App. 625 (379 SE2d 588); Felker v. State, 252 Ga. 351, 359 (314 SE2d 621); Williams v. State, 251 Ga. 749, 784 (4) (312 SE2d 40).

3. The refusal of the trial court to sever the trials of the co-defendants was not error. There were only two defendants and the allegations against each were clearly distinguished, so that there could be no confusion for the jury as to the charge against each defendant; there were no confusing or complex issues; and there was no prevailing danger that evidence admitted against co-defendant Butler would be considered against appellant despite admonition from the trial judge. See Price v. State, 155 Ga. App. 844 (273 SE2d 225). Appellant argues that evidence admitted against his co-defendant Butler showed Butler had engaged in a number of drug activities of almost “biblical proportions,” and that this “toxic spillover” could not help but prejudice appellant’s rights. However, aside from this general complaint, appellant suggests no instance where such evidence might in fact have confused the jury; the evidence admitted against Butler was clearly distinguished from the evidence against appellant. It is not sufficient for appellant merely to allege that some evidence against one defendant might have confused the jury; appellant has the burden to prove error affirmatively by the record. Appellant has not borne his burden to prove error by the record, and to show an abuse of the trial court’s discretion in ruling on a motion to sever.

Decided January 8, 1991.

Chandelle T. Summer, for appellant.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A2047.
    WOOTEN v. McDONALD.
    (401 SE2d 314)
   McMurray, Presiding Judge.

Plaintiff Wooten filed this suit on a note against defendant McDonald. Defendant answered and filed his counterclaim predicated on theories of interference with contractual relations and conversion. Upon the trial of the case, a jury returned a verdict in favor of defendant as to both the claims stated in plaintiff’s complaint and in defendant’s counterclaim.

Plaintiff appeals. The sole enumeration of error complains of the trial court allowing certain testimony. Held:

“A party cannot ignore during trial that which he considers to be an injustice during trial of the case in hopes of obtaining a favorable verdict and then enumerate that alleged injustice as error on appeal when the verdict proves to be adverse to him. [Cits.] Since the issue plaintiff now enumerates as error was raised for the first time on [appeal], nothing is presented for review by this court. [Cits.]” Neiman-Marcus v. Gammage, 191 Ga. App. 510, 511 (382 SE2d 208).

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.

Decided January 8, 1991.

Wilkes, Johnson & Smith, Ken W. Smith, for appellant.

Mills & Chasteen, Robert W. Chasteen, Jr., for appellee.


text:
    A90A2210.
    WEBB v. CITY OF ROSSVILLE.
    (401 SE2d 312)
   Birdsong, Presiding Judge.

John Webb sought declaratory judgment to determine whether certain video poker game machines which he furnishes to businesses in Walker County, Georgia, are “gambling devices” according to OCGA § 16-12-20 and thus subject to confiscation under state law. The City of Rossville received a complaint that a minor had operated one of the machines at a service station and was paid in quarter dollars by the store proprietor for receiving a winning hand from the machine. The City of Rossville proposed to confiscate all the video poker machines distributed by Webb, whether any money had been paid out on a winning play, i.e., whether it was actually used for gambling purposes.

The trial court found that according to Monte Carlo Parties v. Webb, 253 Ga. 508, 510 (3) (322 SE2d 246), “under the actual use test some types of equipment must only be shown to have been used to be subject to confiscation, such as a slot machine, whereas with other equipment, such as a backgammon board, it would be necessary to show not only that the board was used but that it was actually used for gambling purposes. . . . Ignoring for the moment the evidence of actual use of [Webb’s] video poker machine for gambling, where does the video poker machine lie in the spectrum between the slot machine and the backgammon board? While the video poker machine does not generate an immediate payment of money for a win such as a slot machine [does], the historical view of the game of poker is associated so closely with that of gambling and the winning and losing of money, that its mere use would make it a gambling device, irrespective of any warnings by the owner or qualifications that the machine is designed for amusement purposes only. ...” Whereupon, after finding importantly that while these video poker machines do not generate “an immediate payment of money” upon the winning of a hand, the player may win a free game which has been held under Georgia law to be a thing of value (Heath Sales Co. v. Bloodworth, 221 Ga. 567 (146 SE2d 275)), the trial court found as a matter of fact and law that “the use of a video poker machine such as the ones owned by [Webb] would make the machine a gambling device and subject to confiscation.” Webb appeals. Held:

The trial court erred in its interpretation of the language and meaning of Monte Carlo Parties, supra, and in finding that the decision in Heath requires a finding here that the award of a “thing of value” (a free hand) is conclusive that these video machines are gambling devices.

In Monte Carlo Parties, the Supreme Court rejected a “functional use” test for determining whether a machine is a gambling device; the functional use test would “only require a showing that the equipment could be used for gambling purposes to establish that [it is] subject to confiscation.” (Emphasis supplied.) The Supreme Court held that the proper test was the “actual use” test, which requires a determination that the machines are actually used for gambling.

Although indicating that it was employing the actual use test, in fact the trial court in this case used the functional use test, declaring that “historically,” poker card games are associated with gambling, ergo, these video games are gambling devices regardless whether they are actually used for gambling in a particular case. However, to reason that a machine is a gambling device merely because it mimics a card game that “historically” had been used for gambling, is much the same as saying the machine is a gambling device because it could be used for gambling purposes, whether it is actually so used or not. This is the functional use test rejected in Monte Carlo Parties, and, for the reasons given in that case, it was error to use the functional use test to find that all these machines are gambling devices in violation of OCGA § 16-12-20. See also OCGA § 16-12-35 (c).

Additionally, a determination whether a “thing of value” is awarded such as a free playing hand (see Heath, supra), is no longer a proper conclusive standard in these cases. The fact that the user of the video poker machine might win a free hand from the machine does not require a conclusion that the machine is a gambling device. OCGA § 16-12-35 (b) now sets standards for determining whether and to what extent a “free replay” or “free replays” might render a device a gambling device.

In deciding this case, the trial court should address whether the machines distributed by Webb are actually used for gambling. The fact that one machine had been used for gambling purposes indicates only that the machines could be used for gambling; whether all such machines are used for gambling or are intended to be used for gambling is a question of fact in the circumstances. Although apparently the machines do not themselves “pay off” so as to be a gambling device, the trial court should make a determination as to all of the machines under consideration, upon specific findings of fact as to precisely how the machines are played, including whether the machines accept such a denomination of money as to suggest the encouragement or inducement to play for money so as to amount to gambling purposes by actual use, and/or whether the particular machines “react” to more than 15 free replays in violation of OCGA § 16-12-35 (b).

Decided January 8, 1991.

Amy A. Petulla, for appellant.

Gleason & Davis, John W. Davis, Jr., David J. Dunn, Jr., for appellee.

The case is remanded for proper determination of fact consistent with this actual use test as established in Monte Carlo Parties, and not according to the analysis used by the trial court in this case.

Judgment reversed and case remanded.

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


text:
    A90A1596.
    ACORD et al. v. MAYNARD.
    (401 SE2d 315)
   Sognier, Chief Judge.

Barbara Maynard brought a personal injury action against Lillie Acord and Wilford Acord. The trial court denied the Acords’ motion for summary judgment, and we granted their application for interlocutory appeal.

We reverse the trial court’s denial of appellants’ motion. Appellee filed suit against appellants on October 25, 1988 seeking damages for injuries she incurred in an automobile accident on October 27, 1986. The record reflects that a non est return was filed on November 1, 1988, due to the absence of an apartment-number on the address in the complaint, and that the November 29, 1988 return was based on notorious service, a copy of the action and summons having been delivered to an unidentified person (whom both parties agree was a woman), described in the return as being about 35 years old, 130 pounds, and five feet six inches in height. Appellants filed a special answer controverting the sufficiency of the service on them and moved to dismiss the complaint. Appellants averred in affidavits attached to the motion that they have resided alone at the referenced address for more than three years, that their only neighbor is a woman in her seventies, and that on November 29, 1988 they returned home to discover the complaint and summons left inside the screen door of their home by someone unknown to them.

In response, appellee filed the affidavit of Clifford Alexander, her attorney, who averred that he was contacted on December 1, 1988 by a woman who identified herself as Charlotte Acord, the daughter of appellants. He averred that the woman told him “she had received the papers from the [deputy] at her parentsf’] residence and given them to her mother and father.” Thereafter, appellants filed the affidavit of Charlotte Acord, in which the affiant averred that she was the daughter-in-law of appellants; that she did not reside with them but lived elsewhere; that she did not receive copies of the summons and complaint at appellants’ residence because she was at work that day (and attached her timecard); and that while she had contacted Alexander, she never represented herself as appellants’ daughter and had not told him she had received papers on their behalf.

Decided January 9, 1991.

Swift, Currie, McGhee & Hiers, William P. Claxton, for appellants.

Clifford E. Alexander, for appellee.

The trial court denied appellants’ motion to dismiss and their subsequent motion for summary judgment, which was filed October 3, 1989 on the basis of Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). Bible abolished the “substantial compliance” rule in regard to service of process and overruled the cases promulgating that rule, Brim v. Pruitt, 178 Ga. App. 321 (342 SE2d 690) (1986) and Sanders v. Johnson, 181 Ga. App. 39 (351 SE2d 216) (1986). In view of that controlling authority, even construing the evidence in favor of appellee as the respondent on motion for summary judgment, see generally Gresham v. Atlanta Gas Light Co., 193 Ga. App. 841, 843 (1) (389 SE2d 502) (1989), and assuming that the woman who received the service papers was Charlotte Acord, the evidence is uncontroverted that Charlotte Acord was not residing at appellants’ home. Thus, the alternative service made at appellants’ residence upon a person not residing therein was improper because contrary to the requirement of OCGA § 9-11-4 (d) (7); Bible, supra, and the trial court erred by denying appellants’ motion.

Judgment reversed.

McMurray, P. J., and Car ley, J., concur.


text:
    A90A1710.
    BENTLEY v. TSAI.
    (401 SE2d 316)
   Sognier, Chief Judge.

Paul Tsai brought suit against Carol Bentley and Howard Bentley seeking to recover, inter alia, damages for the breach of a noncom-petition provision in a contract executed by the parties. After a bench trial, judgment was entered awarding Tsai nothing from Howard Bentley and $7,908 from Carol Bentley. She appeals.

On August 19, 1988, appellant and her husband sold the assets of the business known as the Hair Croppers Beauty Salon (the “beauty salon”) to appellee. Paragraph 11 of the agreement they executed provided that “Sellers hereby agree not to compete with Purchaser in any business which competes with the [beauty salon] in any material form [for a set time within a certain geographical location] except for a barber shoppe [sic] located at 1039 Alpharetta Street, Roswell, Georgia, which is presently owned by Seller. It is agreed that this location shall not become a beauty salon. Sellers shall not compete in any Business form ... or in any manner in which Seller [s] shall receive compensation, either currently or deferred.” Appellee presented evidence that before the contract was executed, appellant told most of her clients that she would be working at the barbershop and handed out cards with the barbershop’s address on it, and that after appellant left the beauty salon, most if not all of her clientele followed her to the barbershop.

The trial court ruled in favor of appellee on the basis that appellant did compete with appellee by working at the barbershop and performing or providing beauty salon services at the barbershop. We reverse.

First, the plain and unambiguous language of paragraph 11 entitled appellant, while at the barbershop, to compete with appellee’s beauty salon so long as the barbershop did not become a beauty salon. The sole issue was thus whether the barbershop “became” a beauty salon. On that issue, the record is devoid of any evidence that the words “barbershop” and “beauty salon” have any technical definition or known and established usage in the hairdressing industry. Uncontroverted evidence was introduced that the barbershop in issue here had both men and women clients prior to the sale of the beauty salon. Appellant refers this court to the definitions of barbering and barbershop in OGGA § 43-7-3 (3) and (5) and beautician, cosmetologist, and beauty salon in OCGA § 43-10-1 (1), (2), and (4). Under these statutes, the operations of both barbershops and beauty salons involve cutting, dressing, singeing, shampooing, dyeing, or permanently waving the hair of a client. Further, these statutes do not restrict the use of barbershops or beauty salons to one specific gender. We note the opinion of the attorney general that a cosmetologist/ beautician can perform the above services on a man’s hair, but cannot cut or trim a man’s beard, services for which only barbers are licensed. 1971 Op. Att’y Gen. No. 71-54. At trial, appellant established that none of the services which under OCGA § 43-10-1 are exclusively within the licenses of cosmetologists/beauticians (e.g., manicures and pedicures) was offered by appellant at the barbershop.

“[W]hen parties contract, the terms thereof include applicable statutes. ‘ “The laws which exist at the time and place of the making of a contract, enter into and form a part of it” (Cits.); and the parties must be presumed to have contracted with reference to such laws and their effect on the subject matter. . . [.]’ [Cit.]” Freeman v. Decatur Loan &c. Corp., 140 Ga. App. 682, 684 (3) (231 SE2d 409) (1976). However, even if the statutory definitions of barbershop and beauty salon were not foremost in the minds of the parties when they executed paragraph 11, looking to the usual and ordinary meaning of these words, OCGA § 13-2-2 (2); Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334 (1) (380 SE2d 686) (1989), as defined in Webster’s New International Dictionary (3rd ed.), see generally Henderson v. Henderson, 152 Ga. App. 846, 847 (264 SE2d 299) (1979), it appears that beauty shops and beauty parlors (which we take to be synonymous with beauty salons) are establishments “where hairdressing, facials, and manicures are done,” while barbershops are establishments where barbers engage in “cutting and dressing hair, shaving and trimming beards, and performing related services.” It thus appears that the common, ordinary meanings of these terms are similar to the statutory definitions, in that the major differences in services are the cutting and trimming of beards at barbershops and the performing of manicures at beauty salons.

Decided January 9, 1991.

Harris, Phillips & Harris, R. Britt Harris, Jr., for appellant.

Theodore A. Speaker, for appellee.

Although there was some testimony by appellee that he thought barbershops served only men and beauty salons served only women (testimony which the trial court itself discounted), there is no suggestion in the record that this mistake, if there was one, was anything other than unilateral on the part of appellee, and thus does not provide a basis for reforming the contract. OCGA §§ 23-2-22; 23-2-30.

Viewing the evidence adduced at trial in light of these definitions, it appears that although many of appellant’s beauty salon clients sought out her services at the barbershop, all the services appellant provided to these clients were services normally available to clients at barbershops, and none of the services was of the type available to clients solely at beauty salons. Appellant thus established uncontrovertedly that her work at the barbershop did not breach the provision in paragraph 11 of the agreement. Accordingly, the trial court erred by finding in favor of appellee and entering judgment against appellant.

Judgment reversed.

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


author: Sognier, Chief judge.

text:
    A90A1779.
    WHITNER v. THE STATE.
    (401 SE2d 318)
   Sognier, Chief judge.

Roy Lee Whitner was convicted and sentenced for the crimes of rape, aggravated sodomy, two counts of armed robbery, two counts of aggravated battery, two counts of burglary, and possession of a knife during the commission of various felonies, and he appeals.

Appellant originally filed a pro se appeal which was timely but not technically correct. His second attempt was dismissed by the trial court as untimely. Appellant’s trial counsel then submitted an affidavit to the trial court in which he averred that he had timely informed the trial court that appellant could not afford to retain counsel for the appeal and had requested that the court appoint appellate counsel but the trial court had not done so. Counsel for appellant was then appointed and the trial court permitted this out-of-time appeal.

The evidence adduced at trial, construed to support the jury’s verdict, showed that on the evening of June 18, 1988, a man forced his way into the home of the victims, a husband and wife over the age of 65. The intruder, wielding a butcher knife, grabbed the husband from behind and pressed the knife to his throat. A struggle ensued, and the intruder struck the husband on the head with a ceramic piece from a nearby table, stunning him and causing his grip on the intruder’s arm to shift. The knife slashed the husband’s hand, cutting all the nerves. When the wife, hearing her husband’s call, entered the room, the intruder grabbed her by the neck, hit her in the nose, slashed her face, and cut off her clothing. He then put the husband in the trunk of the victims’ car and led the wife back into the house, where he raped and sodomized her and took $40 from her purse. The husband was released from the trunk to locate and hand over $1,200 in one-hundred dollar bills which had been hidden, and the victims were again forced back to the carport at knifepoint where, after being ordered to reenter the trunk, the husband managed to locate a tire tool and hit the intruder, who wrested the tool away from the husband and fled. The victims then sought assistance. The husband’s head wound was severe, requiring 19 stitches. The hand injury resulted in a permanent partial disability.

Patent fingerprints found in dried blood on the trunk of the car were later identified as matching those of appellant. Pubic and head hairs taken from various sources on the victims matched those of the appellant. Most of the blood from the crime scene was consistent with the victims’ blood type, but one small sample matched appellant’s blood type. Sperm present in the vaginal swabbings taken from the wife were forwarded to Lifecodes Corporation in Valhalla, New York, a properly equipped laboratory for DNA testing.

Lorah McNally, a Lifecodes employee, testified that she performed DNA testing on the sperm from the vaginal swabbings and a sample of appellant’s blood sent to her. After testifying generally about DNA testing and the procedures used at Lifecodes, she testified that the DNA patterns identified in the sperm from the swabbings and appellant’s blood sample were identical and that the likelihood these patterns existed in the population in general was 1 in 94 million.

1. Appellant contends the trial court erroneously permitted him to be convicted of and sentenced for both aggravated battery and armed robbery. The offense of aggravated battery involves “maliciously caus[ing] bodily harm to anothér by depriving him of a member of his body, by rendering a member of his body useless, or by seriously disfiguring his body or a member thereof.” OCGA § 16-5-24 (a). Armed robbery does not require physical contact of any kind. It is committed “when, with intent to commit theft, [one] takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). However, in cases when, the defendant has committed armed robbery and “in the course of the commission of the offense intentionally, with an offensive weapon . . . inflicted serious bodily injury on a person,” such fact must be charged in the indictment and the penalty for armed robbery is increased. OCGA § 16-8-41 (b). Pursuant to that Code section, the indictments for armed robbery in this case charged that appellant, “unlawfully and with force and arms, and with intent to commit theft, did take United States currency, the property of [the victims], from the person and immediate presence of [the victims], by the use of a knife, an offensive weapon, and, in the course of the commission of said armed robbery, [appellant] did intentionally inflict serious bodily injury on the person of [the victims], with said knife.” The aggravated battery indictments were drawn to charge the same serious bodily harm inflicted by the knife, and thus the same facts necessary to prove the aggravated battery charges were used up in proving the armed robbery charge. Accordingly, in this case the offenses merged as a matter of fact, and the convictions and sentences for aggravated battery must be vacated. See generally Kelly v. State, 188 Ga. App. 362, 363 (3) (373 SE2d 63) (1988).

2. Appellant also asserts that his trial counsel was ineffective. Appellant bases this enumeration on trial counsel’s failure to object to the introduction of the DNA test evidence which, at the time of trial, had not been ruled admissible in this State. Because this issue is raised for the first time here and has never been heard in the trial court, no motion for new trial having been filed and present counsel having been appointed only on appeal, under the holding of Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986), we must remand for an evidentiary hearing in the trial court. We note that although in Caldwell v. State, 260 Ga. 278 (393 SE2d 436) (1990), the Supreme Court has held that DNA test evidence is sufficiently scientifically reliable to be admitted into evidence in the courts of this State, in that case the Court pointed out that the specific protocol used by Lifecodes may be subject to criticism on several grounds, none of which was addressed in the case at bar. Accordingly, we remand to the trial court for an evidentiary hearing and determination on the issue of ineffective assistance of trial counsel. Smith, supra at 656.

Decided January 9, 1991.

Caleb B. Banks, for appellant.

Robert F. Mumford, District Attorney, for appellee.

Judgment affirmed in part, vacated in part, and remanded with direction.

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


text:
    A90A1874.
    NEASE v. BUELVAS et al.
    (401 SE2d 320)
   Sognier, Chief Judge.

Tracy Nease brought a medical malpractice action against Raul Buelvas, M.D., and Orthopedic Center, P.C. The jury returned a verdict in favor of the defendants, and Nease appeals.

Appellant contends in her sole enumeration of error that the trial court abused its discretion by failing to allow her to amend the pretrial order to add Elias Sedlin, M.D., as an additional expert witness, and erroneously excluding the testimony of Dr. Sedlin at trial. In its order on appellant’s motion for leave to amend the pretrial order, the trial court found that appellant had originally filed suit against appellees in 1982 based on an alleged malpractice occurring in November 1980. That action was voluntarily dismissed without prejudice in January 1987. Appellant refiled the same action in June 1987, voluntarily dismissed it without prejudice, and then filed the instant suit in November 1987. Discovery in the case continued until August 1989 and in August 1989 the case was placed on the pretrial conference calendar. The pretrial order signed September 14, 1989 reveals that Dr. Sedlin was not listed as a witness appellant might or would have present at trial. Nor was Dr. Sedlin named as an expert witness in appellant’s response to pertinent interrogatories filed by appellees. The trial court noted that the case was placed on the trial calendar in January 1990 but was continued at appellant’s request. After one continuance based on a request by appellees, on February 26, 1990 the case was placed on the trial docket for trial to begin March 26, 1990.

Decided January 9, 1991.

Joseph B. Bergen, for appellant.

Oliver, Maner & Gray, Thomas A. Withers, Wendy W. Williamson, William P. Franklin, Jr., for appellees.

On March 7, 1990 appellant filed amendments to the pretrial order and her answer to appellees’ interrogatories so as to include Dr. Sedlin as an expert witness she would present at trial, in addition to Dr. Jonathan Spicehandler, the expert witness named in appellant’s response to appellees’ interrogatories and listed in the pretrial order. After appellees moved to strike appellant’s amendment to the pretrial order, appellant filed her motion for leave to amend the pretrial order. Based on the parties’ briefs and oral argument, the trial court denied appellant’s motion and at trial excluded Dr. Sedlin’s testimony both in appellant’s case-in-chief and in rebuttal. A review of the proffered testimony of Dr. Sedlin reveals that it significantly tracked the trial testimony of Dr. Spicehandler.

“ ‘The (pretrial) order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.’ OCGA § 9-11-16 (b).” Horne v. City of Cordele, 254 Ga. 346, 347 (1) (329 SE2d 134) (1985). The decision whether to allow a party to introduce at trial (either in the case-in-chief or in rebuttal) the testimony of a witness not named in the pretrial order is a matter within the discretion of the trial court. Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 587-588 (6) (227 SE2d 77) (1976). In view of the chronology of this case and the redundant nature of the testimony appellant sought to introduce, we find no clear abuse of the trial court’s discretion and therefore conclude that this enumeration of error is without merit. See Klemme Cattle Co. v. Westwind Cattle Co., 156 Ga. App. 353, 355 (1) (274 SE2d 738) (1980).

Judgment affirmed.

McMurray, P. J., and Car ley, J., concur.


text:
    A90A2044.
    JONES v. THE STATE.
    (401 SE2d 322)
   McMurray, Presiding Judge.

Defendant was convicted of several counts of burglary of the dwelling houses of Helen Camesas (Count 1), Roy Register (Count 2), Gary and Nancy Beasley (Count 4), Jay Giddens (Count 5), Byron Ahrens (Count 6) and Tammy C. Watson (Count 7). The evidence adduced at a jury trial disclosed the following:

During May and June of 1989, there were over 20 unsolved residential burglaries within a small geographical area of downtown Milledgeville, Georgia. The majority of the crimes involved forced entry through “pried windows” and the theft of easily movable objects. The victims named in the several counts were all subjects of this rash of crimes.

On the morning of May 7, 1989, Helen J. Camesas awoke and discovered a bathroom window of her downtown Milledgeville apartment forced open. She also discovered small household items and jewelry missing.

On May 10, 1989, Bennie Roy Register returned to his downtown Milledgeville house and discovered his bedroom window “pried” open and items of jewelry missing.

On May 29, 1989, David Glen Beasley returned to his downtown Milledgeville apartment and discovered the dining room window “pried” open. Beasley also discovered several items of jewelry and a camera missing. Officers uncovered fingerprints on the screen of the “pried” window.

On June 4, 1989, Byron Ahrens returned to his downtown Milledgeville house and discovered a “back window in the bedroom . . . ajar.” He also found his “VCR” out-of-place, “in a plastic garbage bag, sitting in the floor of the living room.” Mr. Ahrens then “noticed that there was [an unfamiliar] red bicycle in the middle of the driveway.” The police discovered fingerprints on the bicycle and the “VCR.”

On the morning of June 6, 1989, Tammy Carol Watson awoke at a downtown Milledgeville sorority house and discovered several items of jewelry missing from her room. Other residents of the sorority house discovered that they had also been the victims of theft. It was later observed that “[s]omeone had pried . . . open” a window of the sorority house breakfast room.

During the weekend of June 7, 1989, Jay Giddens returned to his downtown Milledgeville home and discovered “pry marks all over . . .” two exterior windows. The kitchen window was “open and some things spilled out of the window sill where someone had been.” Law enforcement officers found fingerprints on a pried window, located inside a screened-in porch.

On April 10, 1989, .defendant was observed by a Milledgeville police officer riding a red bicycle. The bicycle defendant had been seen riding was identical to the bicycle found abandoned at the scene of the Ahrens burglary. Defendant’s fingerprints matched the fingerprints found on the abandoned bicycle. Defendant’s fingerprints also matched the fingerprints found at the Ahrens home, the Beasley home and the Giddens home. A search warrant was obtained for defendant’s residence and items taken during the Camesas burglary, the Register burglary and the Watson burglary were found in defendant’s bedroom. This appeal followed the denial of defendant’s motion for new trial. Held,'.

1. In his first and fourth enumerations, defendant challenges the sufficiency of the evidence, arguing that the only evidence linking him to the Camesas burglary (Count 1), the Register burglary (Count 2) and the Watson burglary (Count 7) was testimony that items taken during these burglaries were found in defendant’s bedroom. More specifically, defendant contends that the State’s evidence is insufficient to prove that he was in actual possession of the stolen goods and insufficient to overcome testimony that others had equal access to his bedroom.

“ ‘Whether the evidence of equal access was sufficient to rebut the presumption of possession arising from the discovery of [stolen items] in [defendant’s] bedroom . . . was a question properly left to the jury.’ Kelly v. State, 184 Ga. App. 337, 340 (361 SE2d 659) (1987).” Rush v. State, 188 Ga. App. 520 (1), 521 (373 SE2d 377). The testimony that stolen goods from the Camesas, Register and Watson homes were found in defendant’s bedroom and the evidence showing that defendant was the perpetrator of three other similar and contemporaneous burglaries in the downtown Milledgeville area, the Beasley burglary, the Giddens burglary and the Ahrens burglary, was sufficient to sustain the jury’s finding that defendant was guilty, beyond a reasonable doubt, of committing the Camesas burglary (Count 1), the Register burglary (Count 2) and the Watson burglary (Count 7). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The trial court did not err in denying defendant’s motions for directed verdict and for a new trial. See Collins v. State, 176 Ga. App. 634, 635 (1) (337 SE2d 415).

2. Next, defendant enumerates error on the admission of State’s Exhibits 1, 2 and 3, items found in defendant’s bedroom and allegedly taken during the Camesas burglary and the Register burglary. Defendant contends that these items were never properly “authenticated,” i.e., identified as items actually taken during the burglaries.

“[A]n object which is to be introduced as real evidence must be identified, and this should be done before it is offered. The trial judge’s function is to determine whether there is sufficient evidence of this connection for the object to go to the jury.” (Notes omitted.) Green, Ga. Law of Evidence (3d ed.), § 88, p. 171.

In the case sub judice, Bennie Roy Register testified and identified State’s Exhibit 1 as his “Lorus” watch. Mr. Register stated that he recognized the watch because he is familiar with the “broke” band and the missing “pin.” This identification testimony was sufficient to authorize a finding that State’s Exhibit 1 belonged to Mr. Register. Consequently, the trial court did not err in allowing the jury to pass on the authenticity of State’s Exhibit 1 as an item taken during the burglary of the Register home. See Dill v. State, 106 Ga. 683, 686 (3) (32 SE 660).

Decided January 9, 1991.

Waddell, Emerson, George & Buice, E. Angela Emerson, for appellant.

Joseph H. Briley, District Attorney, Al C. Martinez, Assistant District Attorney, for appellee.

Helen J. Camesas testified and identified State’s Exhibit 2 as a photograph of her “silver bracelet” and “two silver chains.” She then identified State’s Exhibit 3 as her silver bracelet. She supported her identification testimony, giving the lengths of the stolen chains and pointing to the unique design of the bracelet identified as State’s Exhibit 3. This evidence was sufficient to sustain the trial court’s decision to allow the jury to determine the authenticity of State’s Exhibits 2 and 3. See Yawn v. State, 94 Ga. App. 400, 401 (1) (94 SE2d 769). This enumeration is without merit.

3. In his third enumeration, defendant contends the trial court erred in accepting three law enforcement officers as expert fingerprint analysts. Defendant contends that “none of the detectives demonstrated sufficient training to be qualified as experts.”

“ ‘Generally, nothing more is required to qualify an expert than that he has been educated in a particular trade or profession. This special knowledge may be derived from experience as well as study. (Cits.)’ Martin v. Newton, 129 Ga. App. 735, 736 (201 SE2d 31). See also Redd v. State, 240 Ga. 753 (2) (243 SE2d 16). . . . ‘Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed.’ Hogan v. Olivera, 141 Ga. App. 399, 401 (233 SE2d 428). See also Redd v. State, supra.” Morris v. State, 159 Ga. App. 600 (1), 601 (284 SE2d 103).

In the case sub judice, the three law enforcement officers defendant contends were unqualified as experts in the field of fingerprint analysis testified that they had extensive experience in “lifting,” identifying and comparing fingerprints. Two of the officers testified that they had advanced training in fingerprint analysis. This testimony authorized the trial court’s recognition and acceptance of the officers as experts in the field of fingerprint comparison and analysis. There was therefore no abuse of discretion in allowing the officers to testify as expert fingerprint analysts. This enumeration is without merit.

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.