text:
    A91A1298.
    WINN EXPRESS COMPANY et al. v. HALL.
    (413 SE2d 505)
   Pope, Judge.

The claimant in this workers’ compensation case, Clinton J. Hall, Sr., was an independent contractor for the employer Winn Express Company, Inc. Workers’ compensation insurance was purchased to cover him so, pursuant to OCGA § 34-9-124, he is entitled to the same benefits as a regular employee. The claimant owned his own tractor and leased it to the employer. As an independent contractor, he could decline any job the employer offered to him. He usually commenced his work by picking up the tractor at the employer’s terminal in Morrow and returning it at the end of the workday. On occasion, however, he was permitted to drive the tractor to his home in Greensboro and commence the next day’s work from there if, for example, his first job of the day was nearer his home than the employer’s terminal. He was also permitted to drive the tractor home without reporting back to the terminal if that was more convenient for him so long as he sent his daily paper work back to the terminal by another driver. Where he started or ended his trip had no effect on his pay since he was paid a percentage of the customer’s fee for hauling the load and was not paid by the mile or the hour. The claimant had purchased his own insurance to cover the tractor during those times he was not driving for the employer.

On the day of the claimant’s injury he was required to drive the tractor to and from work because his personal vehicle was out of order. After making his delivery he called in to the dispatcher and was offered no further jobs for the day. Although the claimant testified he was usually told to call back before 5:00 p.m., he did not remember whether the dispatcher instructed him to call back on this particular day. He told the dispatcher he would send his paper work back with another driver and that he was going home. Within a couple of blocks from the place of his delivery, at about 2:30 p.m., his tractor was struck by an automobile and he sustained injuries to his lower back and right leg. He received benefit payments for his injuries from his personal insurance policy.

The claimant also filed a claim for workers’ compensation benefits. Citing Corbin v. Liberty Mut. Ins. Co., 117 Ga. App. 823 (162 SE2d 226) (1968), the Administrative Law Judge (ALJ) denied the claim, finding his injuries did not arise out of his employment because he was on his way home in his own vehicle, was not paid for his transportation and was not performing any activity for the employer while en route to or from his home. The board affirmed and made the award of the ALJ its own. The superior court, however, found the facts of the case were not governed by Corbin and found the injuries did arise out of the claimant’s employment because he was an independent contractor “with ill-defined parameters of employment,” because he was permitted to begin and end his work day from his home, which benefitted the employer as well as the claimant, and because he was still on call at the time of the accident, even though there was no further assignment for him at the time of the injury.

The employer argues the superior court erred in holding independent contractors are not subject to the same limitations upon compensability as are regular employees and by reversing a determination of the board which was supported by the any evidence rule. The claimant argues the issue at hand is not evidentiary and that the any evidence rule does not apply. Instead, he argues the board made an error of law and the superior court merely applied the correct law to the facts of the case. We hold that the superior court erred both in law and in findings of fact. The superior court found the claimant was on call at the time of his injuries. The board, however, found that he was not under the direction or control of the employer at the time of the accident because there was no further work for the claimant to do that day and, in any event, he could have rejected any jobs offered him by the dispatcher. While the evidence did not demand the finding made by the board, the evidence was nevertheless sufficient to support it. Consequently, even if the evidence could reasonably be interpreted as the superior court did, the any evidence rule authorized the award. See Handcrafted Furniture v. Black, 182 Ga. App. 115 (1) (354 SE2d 696) (1987); see also Cooper v. Lumbermen’s Mut. Cas. Co., 179 Ga. 256 (175 SE 577) (1934).

Decided November 22, 1991.

Drew, Eckl & Farnham, H. Michael Bagley, Willace D. Magee, for appellants.

The superior court also erred in ruling that the case was not governed by the general rule that injuries sustained while going to or from work are not compensable, as set forth in Corbin, because the rule does not apply to independent contractors “with ill-defined parameters of employment.” Even if the claimant was sometimes requested or permitted to drive the tractor to his home for the mutual benefit of the claimant and his employer and even if he were sometimes requested to remain on call for further assignments, and assuming that these factors would affect the compensability of the claimant’s injuries (see United States Fire Ins. Co. v. Phillips, 124 Ga. App. 7 (183 SE2d 13) (1971)), the record shows neither of these factors existed on the day in question. On this day, he had been given no further instructions (and, in any event, he could have refused any additional jobs) and he was driving the tractor home not because of his destination on the following morning but because he did not have the use of his own vehicle. In Travelers Ins. Co. v. Purcell, 152 Ga. App. 279 (262 SE2d 566) (1979), this court held that while there was evidence that the claimant, a Head Start teacher, was sometimes required to use her personal automobile for after-school duties, there was “no evidence that the car was being used for school purposes on the trip which resulted in this accident. Thus, the most that can be said of the evidence is that it presented an issue of fact which did not demand a conclusion in either direction. That being so it was beyond the power of the superior court to reverse the award of the full board affirming [the denial of benefits by] the administrative law judge.” Id. at 280 (3). Likewise, in this case, the superior court erred in reversing the board’s denial of benefits.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.

Morgan & Silver, Lee P. Morgan, Elizabeth G. Marlowe, for appellee.


source: Caselaw Access Project

author: Judge Arnold Shulman.

license: Public Domain

text:
    A91A1318.
    CUMMINS et al. v. HUDSON & MARSHALL, INC.
    (413 SE2d 240)
   Judge Arnold Shulman.

The appellants, Robert and Shelia Cummins, brought suit against the appellee seeking to recover damages for fraud and for alleged violations of the Fair Business Practices Act (FBPA) (OCGA § 10-1-390 et seq.) and the Uniform Deceptive Trade Practices Act (UDTPA) (OCGA § 10-1-370 et seq.) stemming from their purchase of five duplexes. The trial court granted summary judgment to the appellee, and this appeal followed.

The appellee was retained to sell at auction certain assets belonging to Bevins, including a group of duplexes known as Township Square Apartments. Mr. and Mrs. Cummins learned of the auction from a newspaper ad run by the appellee the weekend before the auction took place. This ad provided in part as follows: “[Property numbers 101-131; model open weekdays from 9 a.m. — 5 p.m. and Sunday 1 p.m. — 5 p.m.” Three days before the auction, Mr. Cummins went to Township Square Apartments, where he met with Bevins and obtained a sales brochure prepared by the appellee which contained the following language: “BUYERS NOTE: The sellers reserve the right to add or delete any property from this auction at any time. Personal on-site inspection of each property is recommended. All property sold ‘as is — where is’ with no warranties either express or implied. . . . Appliances or other personal property missing at closing will not be replaced by the seller. Information was gathered from reliable sources and is believed to be correct; however, it is not guaranteed. All announcements made at the auction take precedence over all other advertising. There is no minimum starting bid for any unit.”

Bevins allowed Mr. Cummins to inspect two of the units, one of which was being used as an office, but informed him that he could not inspect the other units because they were occupied. Mr. Cummins testified in his deposition that he was prepared to purchase several units from among eight which he had selected based on their anticipated rental income as shown on the. sales brochure. At the auction, which took place February 3, 1988, he purchased five duplexes which he had not previously inspected for an aggregate price of $154,500. The sales brochure showed that all of the units were occupied; however, during the closing on the units, Bevins informed Mr. Cummins that four of the ten units in question were vacant.

The appellee’s motion for summary judgment was supported by the affidavit of the auctioneer, who was one of the appellee’s corporate officers. He averred that he had announced that the units were being sold “as is — where is,” with no warranties as to condition, that the appellee was making no representations of any kind as to the correctness of the information included in the sales brochure, and that occupancy information was subject to change. Mr. Cummins acknowledged that the auctioneer had informed the audience that there had been some changes in occupancy and that some units might be vacant which were not listed as vacant on the sales brochure. He also acknowledged that he was later able to determine the actual occupancy of the units from utility records on file at city hall. The appellants’ sole contention on appeal is that material issues of fact remain with respect to their claim for relief for fraud.

Decided November 22, 1991.

Grantham & Peterson, William M. Peterson, for appellants.

Westmoreland, Patterson & Moseley, Stewart R. Brown, for appellee.

“An action for misrepresentation requires proof of five elements: ‘ “(1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.” (Cit.)’ [Cit.]” Ekstedt v. Charter Med. Corp., 192 Ga. App. 248 (1) (384 SE2d 276) (1989).

There is no evidence in this case that the. appellee made any knowingly false representations to the appellants concerning the occupancy of the units, or that it made any representation to them with the intent of deceiving them. Although the appellants contend that the sales brochure furnished to them by the appellee contained misrepresentations concerning occupancy, Mr. Cummins acknowledged that at the time of the auction the auctioneer warned that some of the units might then be vacant which were not shown to be vacant in the brochure. Moreover, the appellants were apprised of the occupancy status of the units by the owner prior to completion of the closing and could have acted on the information at that time. For these reasons, we hold that the trial court did not err in granting summary judgment to the appellee. Accord First of Ga. Ins. Co. v. Josey, 129 Ga. App. 14 (3) (198 SE2d 381) (1973).

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A91A1382.
    KILGO v. DEPARTMENT OF CORRECTIONS et al.
    (413 SE2d 507)
   Pope, Judge.

Plaintiff Ronald Jerry Kilgo, acting pro se, brought this civil action against the Department of Corrections and others alleging defendants were improperly denying him necessary medical and mental health treatment while he was incarcerated at the Valdosta Correctional Institution. The action is, in essence, a claim for damages for deprivation of his civil rights pursuant to 42 USC § 1983. Plaintiff also alleges the acts complained of are a violation of his Eighth Amendment rights.

Defendants answered and moved to dismiss plaintiff’s complaint on the ground the claims were barred by the statute of limitation and because the defendants are immune from suit pursuant to the sovereign immunity provisions of the Georgia Constitution, Art. I, Sec. II, Par. IX. Plaintiff filed unsworn copies of his medical records and certain records from the prison, such as his written requests for treatment and the prison officials’ responses to those requests. A brief hearing was conducted on March 13, 1991 at which time plaintiff presented no evidence except for his own brief statement and requested a continuance, which was granted. On April 9, however, plaintiff moved for judgment in his favor based on the record and the hearing. The trial court responded with an order denying plaintiff’s motion. Plaintiff appeals.

The order does not reveal the grounds on which the motion for judgment was denied. We reject the defenses raised in defendants’ motion to dismiss. The acts alleged in plaintiff’s complaint are continuing in nature and, therefore, the statute of limitation defense is not valid. Neither is the defense of sovereign immunity. Sovereign immunity is not a bar to an action alleging violation of a constitutional right (Smith v. Floyd County, 85 Ga. 420 (2) (11 SE 850) (1890)) or an action brought pursuant to 42 USC § 1983. See City of Cave Spring v. Mason, 252 Ga. 3 (310 SE2d 892) (1984); Davis v. City of Roswell, 250 Ga. 8 (1) (295 SE2d 317) (1982). However, in order to prevail in such an action, the plaintiff must prove the acts complained of are the result of an intentional policy adopted or ratified by the governing body of a public agency. “What is required to be proved, directly or circumstantially, is that a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate.” City of Cave Spring v. Mason, supra at 5. Here, “[t]he record is barren of any evidence of implementation of an . . . intentionally corrupt or impermissible policy so as to find a cause of action under 42 USC § 1983.” (Citation and punctuation omitted.) Pinkston v. City of Albany, 196 Ga. App. 43, 47 (2) (395 SE2d 587) (1990). Consequently, the trial court did not err in denying plaintiff’s motion for judgment.

Decided November 22, 1991.

Ronald Kilgo, pro se.

Michael J. Bowers, Attorney General, John C. Jones, Senior Assistant Attorney General, for appellees.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       The order denying plaintiff’s motion for judgment was signed April 24 and filed April 25, 1991. Attached to plaintiff’s appellate brief, however, is an identical order dated April 4 with the proper case name but bearing a civil action number for an unrelated habeas corpus action previously filed by plaintiff. Plaintiff argues the order improperly denies his motion on the ground the complaint did not state a claim for habeas corpus relief. To the contrary, neither order gives the ground for denial of plaintiff’s motion. We are informed by the clerk of the trial court that the April 4 order was subsequently vacated and we assume it was mistakenly filed under the wrong civil action number. In any event, the order at issue in this appeal is the order filed April 25 in the case now before us on appeal, Lowndes County Superior Court Civil Action No. 91-CV-28.


text:
    A91A1456.
    WELDON v. THE STATE.
    (413 SE2d 229)
   Pope, Judge.

Defendant Ronnie Weldon was convicted of selling a controlled substance, cocaine, to an undercover officer and sentenced as a recidivist. He appeals, acting pro se. Although defendant’s pro se enumerations and brief, filed as one document, attempts to set forth numerous alleged errors, we will address only those which, in our opinion, have arguable merit.

1. First, we have reviewed the evidence and hold that sufficient evidence of each and every element of the crime charged was presented so that a rational trier of fact could reasonably find defendant guilty beyond a reasonable doubt.

2. Contrary to defendant’s argument, the trial court did not err in admitting evidence of two prior convictions for drug-related offenses. The evidence was admitted pursuant to a pre-trial hearing at which the State made the requisite showings of a proper purpose for admitting the evidence, that the defendant actually committed the independent acts and a sufficient similarity between the independent acts and the crime charged. See Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). The evidence in question consisted of a conviction in 1982 for the offense of selling marijuana to an undercover police officer and a guilty plea in 1985 to the charges of possessing marijuana and cocaine. The sale of the marijuana to the undercover police officer occurred at the same location as the sale of cocaine in the current case. Even though the sale involved a different controlled substance, the similarity of the acts is self-evident. As to the possession offenses, “[although a possession offense may not be identical to a sale offense, this does not preclude the admission of evidence of the former in a trial for the latter, particularly where, as here, identity is in issue.” Wilson v. State, 194 Ga. App. 261, 262 (2) (390 SE2d 609) (1990). That defendant committed the acts is established by the conviction and guilty plea. These independent acts were properly admitted for the purpose of establishing identity, motive, scheme, bent of mind and course of conduct. The State, in its presentation to the jury, presented “evidence establishing both that the accused committed an independent offense or act and that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the later.” Williams, supra at 642.

Decided November 22, 1991.

Ronnie Weldon, pro se.

Douglas C. Pullen, District Attorney, Edward C. Carter, Assistant District Attorney, for appellee.

3. The trial court properly instructed the jury that the State bore the burden of proving defendant’s guilt beyond a reasonable doubt. It did not err in instructing the jury that the State is not required to prove guilt “beyond all doubt or to a mathematical certainty.” Cf. Whitt v. State, 257 Ga. 8 (3) (354 SE2d 116) (1987) (in which a charge that the State was not required to prove guilt beyond all reasonable doubt but only beyond a reasonable doubt was held to be error but not reversible error because the charge as a whole correctly informed the jury of the State’s burden of proof). We have examined the entire charge to the jury and conclude that defendant’s remaining enumerations of error concerning the charge are meritless.

4. We have reviewed the entire record in light of the issues raised in defendant’s brief and enumerations of error and conclude that the remaining assertions of error are meritless.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A1866.
    GOODRUM v. ENSIGN BANK et al.
    (413 SE2d 230)
   McMurray, Presiding Judge.

Plaintiff Ensign Bank, F.S.B., assignee of J.D.S. Vendor Services, Inc., brought suit against defendant Leon Goodrum seeking $11,830.01 plus interest and attorney fees pursuant to a written contract of guaranty. Defendant answered the complaint, denied liability, and filed a third-party claim against Microwave Express, Inc., the party which executed the contract guaranteed by defendant.

Plaintiff moved for summary judgment against defendant. The trial court granted the motion and defendant appeals. Held:

1. The motion to dismiss the appeal is denied.

2. Defendant contends the attorney fee demand letter was insufficient because it failed to identify the contract underlying defendant’s indebtedness with sufficient specificity. See generally Pippin v. Brigadier Indus. Corp., 150 Ga. App. 401, 403 (3b) (258 SE2d 18). In this regard, defendant points out that he executed a guaranty in favor of NMI, Inc. and the demand letter simply refers to a “contract” which defendant “executed ... in favor of Ensign Bank. . . .”

“The purpose of the law relating to the giving of ten days’ notice to the debtor of the creditor’s intention to enforce the provision for attorney fees in a contract is to allow the debtor to pay the principal and interest on the contract within ten days from receipt of the notice and relieve himself of the liability to pay attorney fees. Dixie Const. Co. of Ga. v. Griffin, 104 Ga. App. 457 (1) (121 SE2d 926).” Gresham v. Rogers, 147 Ga. App. 189, 191 (2) (248 SE2d 225). This purpose cannot be served unless the notice “states the note upon which attorney’s fees will be claimed. . . .” Rylee v. Bank of Statham, 7 Ga. App. 489, 493 (3), 495 (67 SE 383). In our view, the demand letter failed to comply with this requirement. It did not identify the underlying basis of defendant’s indebtedness with sufficient specificity. Compare Pippin v. Brigadier Indus. Corp., 150 Ga. App. 401, 403, supra.

We are not unmindful of the fact that, in order to recover attorney fees, a creditor need only comply substantially with the provisions of OCGA § 13-1-11. General Elec. Credit Corp. of Ga. v. Brooks, 242 Ga. 109 (249 SE2d 596). Try as we might, we cannot find substantial compliance in this case. It follows that the trial court erred in granting plaintiff’s motion for summary judgment insofar as plaintiff sought the award of attorney fees pursuant to OCGA § 13-1-11.

3. Defendant’s contention that plaintiff failed to demonstrate that it is the real party in interest is utterly devoid of merit. Plaintiff clearly demonstrated that NMI, Inc. assigned the contract to J.D.S. Vendor Services, Inc., and that that entity assigned the contract to plaintiff. Besides, the guaranty expressly obligates defendant to NMI, Inc., “it’s successors and assigns.”

Decided November 22, 1991.

Thomas, Kennedy, Sampson & Patterson, Paul L. Howard, Jr., for appellant.

Stokes, Lazarus & Carmichael, Marion B. Stokes III, Richard J. Joseph, for appellees.

4. It is not inappropriate for a trial court to enter summary judgment against a defendant simply because a third-party claim remains pending. Summary judgment can be entered with regard to all or any part of a case. See OCGA § 9-11-56.

Judgment affirmed in part and reversed in part.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A2117.
    HENDRIX v. THE STATE.
    (413 SE2d 232)
   McMurray, Presiding Judge.

Defendant was convicted of knowingly obstructing a law enforcement officer in the lawful discharge of his official duties, a misdemeanor. This appeal comes after the denial of defendant’s motion for a new trial. Held:

1. Following a fatal shooting in East Newnan, Georgia, by a Coweta County deputy sheriff, the Coweta County Sheriff’s Department attempted to secure the scene of the shooting. A large crowd, including relatives of the deceased, made their way to the scene, shouting obscenities at the officers. Defendant, a cousin of the deceased, arrived and, along with several others, “continued to stir the crowd up.” Defendant was told by several deputy sheriffs to leave the scene on several occasions.

One deputy, Lt. Kinsey, testified that his efforts to seal off the scene were hindered by defendant and the crowd. He warned defendant that he would be arrested if he did not leave. Defendant would leave, only to return again. When defendant returned to the scene for the third time, he was arrested.

“ ‘In order to prove obstruction of an officer, there must be some evidence of forcible resistance or opposition to the officer in the performance of his duties.’ Samples v. State, 151 Ga. App. 179 (259 SE2d 178) (1979). Whether the actions of a defendant actually had the effect of hindering or impeding the officer is a decision for the trier of fact. Sapp v. State, 179 Ga. App. 614 (1) (347 SE2d 354) (1986). We hold that the evidence in the present case was sufficient to enable a rational trier of fact to find [defendant] guilty beyond a reasonable doubt of the offense of obstructing an officer. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Patterson v. State, 191 Ga. App. 359 (381 SE2d 754).

2. Defendant contends the trial court should have granted a motion for mistrial which was made in the midst of the solicitor’s opening argument. In this connection, defendant asserts the solicitor told the jury that he would not be prosecuting defendant if he did not have enough evidence to sustain a conviction. We find this contention to be without merit inasmuch as it is not supported by the record.

3. Defendant contends the trial court erred in permitting the deputies to give “hearsay” testimony regarding the sheriff’s orders to disperse. Even if it can be said that the testimony constituted hearsay, but see OCGA § 24-3-3 and Waller v. State, 80 Ga. App. 488, 491 (56 SE2d 491), the deputies themselves testified that they ordered the crowd and defendant to leave the scene. Accordingly, we find no harmful error. “[T]he admission of evidence, even if erroneous, is not harmful where substantially similar facts are shown either by the defendant ... or by other evidence, unobjected to. [Cits.]” Waters v. State, 122 Ga. App. 808, 809 (3), 810 (178 SE2d 770).

4. During direct examination, Lt. Kinsey testified that another person arrested at the scene “plead guilty in this . . .” When defendant moved for a mistrial, the trial court admonished the jury: “Ladies and gentlemen, Officer Kinsey stated or made a reference to the fact that one or two others plead guilty to a similar offense. I’m going to instruct you not to consider what happened to somebody else or what somebody else might have done as far as any charge against them. So I’ll instruct you not to consider that in your deliberations in this case.” Thereupon, the motion for a mistrial was renewed and overruled. Defendant contends the trial court erred in overruling his motion for a mistrial. We disagree.

We recognize that “a guilty plea of a joint offender is not admissible in evidence at the trial of another joint offender. Gray v. State, 13 Ga. App. 374, 375 (79 SE 223) (1913); Hayes v. State, 136 Ga. App. 746 (1) (222 SE2d 193) (1975); Neal v. State, 160 Ga. App. 834, 837 (3) (228 SE2d 241) (1982); Foster v. State, 178 Ga. App. 478, 479 (1) (343 SE2d 745) (1986). As pointed out in Foster, the cases which apply this rule of inadmissibility rely upon [OCGA] § 24-3-52 and . . . upon the consequent irrelevancy or incompetency of that guilty plea as proof of the guilt of the defendant on trial, and hold that the plea cannot be used as substantive evidence against him.” Mindock v. State, 187 Ga. App. 508, 509 (370 SE2d 670). Accord Boatwright v. State, 193 Ga. App. 141, 142 (2) (387 SE2d 386). Reversal is not required, however, where a joint offender’s guilty plea is admitted with instructions that it is not to be used as evidence of defendant’s guilt. Greer v. State, 188 Ga. App. 808 (374 SE2d 337); Foster v. State, supra.

Decided November 22, 1991.

Glover & Davis, R. Keith Prater, for appellant.

John H. Cranford, Solicitor, for appellee.

“The trial court has broad discretion in fashioning a remedy to alleviate a problem created by the utterance of inadmissible evidence, and its exercise may not be reversed unless abused.” Whiteley v. State, 188 Ga. App. 129, 130 (372 SE2d 296). Responding to defendant’s motion for a mistrial, the trial court unequivocally instructed the jury that it was not to consider evidence of a joint offender’s guilty plea.

“The trial court’s role, in considering a mistrial, is to determine if such ‘is essential to the preservation of the right to a fair trial, . . .’ [Cits.]” Whiteley v. State, 188 Ga. App. 129, 131, supra. Was the trial court’s curative instruction sufficient to provide defendant with a fair trial?

“We cannot say that, as a matter of law, the curative instructions were insufficient in this case to ameliorate the making of the statement which was promptly expelled from evidence. We do not assume that the jury could not or did not abide by the judge’s instructions. They were given immediately after the gratuitous statement was made by the witness. . .

“While we agree that any law enforcement officer . . . should be apprised and apprise himself of the rules in connection with his testimony and abide by them, the law does not require a mistrial when one is breached. Whether it was a deliberate and conscious disregard in this case was not found by the trial judge, and on review we cannot make original findings or assume facts. We cannot ascertain from the record the manner in which it was said or the inflections and other facets of the excised communication. . . .

“Even if it was uttered with a sinister motive, a mistrial would not be required, because the question is one of fair trial. . . .” Whiteley v. State, 188 Ga. App. 129, 131, supra. It cannot be said the trial court abused its discretion in the case sub judice by fashioning a remedy short of a mistrial.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A2254.
    HOLMAN v. THE STATE.
    (413 SE2d 234)
   McMurray, Presiding Judge.

Defendant Holman appeals his conviction of three counts of child molestation. Held:

1. Defendant’s first enumeration of error contends that the trial court erred in denying his motion to suppress and his motion in limine which sought to prevent the State introducing evidence of his plea of guilty to an earlier charge of child molestation. The guilty plea at issue occurred in 1986 in the Superior Court of Gwinnett County. Defendant argues that evidence of the guilty plea should have been excluded because the Gwinnett Superior Court accepted the guilty plea and entered judgment thereon without complying with the requirements of Uniform Rules 33.9 and 33.11 (c) of the Uniform Rules for the Superior Courts.

Uniform Rule 33.9 provides that: “Notwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy him that there is a factual basis for the plea.” Uniform Rule 33.11 (c) requires that a verbatim record of the inquiry required under Uniform Rule 33.9 should be made and preserved.

The transcript of the plea hearing in the Gwinnett County case shows that the assistant district attorney stated in defendant’s presence that the State’s evidence in that case would include the testimony of twin sisters, both victims, who would testify that on various occasions the defendant had committed the acts charged in the indictment and that the State would have also presented certain similar transaction evidence. The defendant was then asked and acknowledged that he was aware of the evidence that would be admitted against him. This transcript also shows that, subsequently, the defendant’s attorney in that case opined that the State would successfully prove its case and obtain a conviction.

Contrary to defendant’s arguments, Uniform Rule 33.9 does not require that the Superior Court make an express finding upon the record that a factual basis exists for a plea of guilty when there is evidence that the trial court is aware of the factual basis. Golden v. State, 190 Ga. App. 477, 478 (379 SE2d 230); Clark v. State, 186 Ga. App. 106, 107 (2) (366 SE2d 361). Nor is it relevant that defendant later denied his guilt of the Gwinnett County crime, particularly since there is no indication of any attempt to withdraw the plea of guilty or appeal the judgment imposed in that case. Finally, the Gwinnett Superior Court’s reliance upon the representations of the assistant district attorney concerning the evidence in that case was not improper nor did it result in any deficiency under Uniform Rule 33.9. We find that the record shows that the Gwinnett Superior Court sufficiently completed the inquiry required under Uniform Rule 33.9 and that same was recorded and preserved as required under Uniform Rule 33.11 (c). This enumeration of error is without merit.

Decided November 22, 1991.

L. Eddie Benton, Jr., for appellant.

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

2. Defendant also contends that the trial court erred in admitting testimony that defendant possessed videotape pornographic movies and that the witness had watched these movies together with defendant since the movies contained no sexual material relating to children. However, we have consistently held that possession of such items may have a tendency to show bent of mind and lustful disposition, and allowed such items to be admitted into evidence as exhibits upon application of our preference for admission of evidence even where its relevancy or competency is doubtful, when it logically tends to elucidate or throw light upon a material issue. See Stamey v. State, 194 Ga. App. 305, 307 (2) (390 SE2d 409); Worth v. State, 183 Ga. App. 68, 69 (1) (358 SE2d 251); Felker v. State, 144 Ga. App. 458, 459 (2) (241 SE2d 576). While the case sub judice involves oral testimony rather than physical evidence, the same principle is controlling. The witness gave a sufficiently explicit description of the movies’ content of heterosexual intercourse and sodomy between adults to permit a jury to determine whether the testimony tended to prove a disposition or bent of mind towards the acts charged in the case sub judice. It was not necessary, as a prerequisite to the jury’s consideration of the testimony, that the movies involve children. See Stamey, supra at 308. Under the broad discretion of the trial court, the admission of this testimony was not error. Tyler v. State, 176 Ga. App. 96, 99 (2) (335 SE2d 691).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A90A1770.
    TARVESTAD v. THE STATE.
    (413 SE2d 511)
   McMurray, Presiding Judge.

Our prior judgment in Tarvestad v. State, 198 Ga. App. 863 (403 SE2d 446), wherein this Court affirmed the trial court, having been reversed by the Supreme Court of Georgia in Tarvestad v. State, 261 Ga. 605 (409 SE2d 513) (1991), our judgment is vacated and the judgment of the trial court is reversed.

Judgment reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, Andrews, JJ., and Judge Arnold Shulman concur.

Decided November 25, 1991.

Billy L. Spruell, for appellant.

Thomas C. Lawler III, District Attorney, Terry L. Lloyd, Allyson Fritz, Assistant District Attorneys, for appellee.


text:
    A91A0892.
    WOOLFOLK v. THE STATE.
    (413 SE2d 242)
   Pope, Judge.

Defendant Dennis Woolf oik appeals from his conviction for two counts of entering an automobile, burglary, misdemeanor theft by taking and obstruction of an officer. We affirm.

l.(a) Defendant first contends the trial court erred in not giving his written request to charge on mistake of fact based on his testimony that he did not know the items he pawned were stolen, and his testimony that he did not know the arresting officers were police officers. See OCGA § 16-3-5. However, this argument presents no defense to the crimes charged in this case. Defendant was not charged with or convicted of receiving or disposing of stolen property. See OCGA § 16-8-7. Rather, the charges against him related to the actual theft of the goods. Defendant does not contend, nor does the evidence at trial suggest, that defendant somehow mistakenly believed that he had a right to enter automobiles and homes and take items not belonging to him. Rather, defendant denied the charges against him and contended he was at home at the time the crimes were committed. “ ‘(W)hile a trial court is required to charge on a criminal defendant’s sole defense of mistake of fact even absent a request to do so (cits.), such a charge is not required where, as here, it is not authorized by the evidence.’ [Cit.]” Pratt v. State, 167 Ga. App. 819, 821 (3) (307 SE2d 714) (1983). See also Diggs v. State, 170 Ga. App. 48 (1) (316 SE2d 171) (1984).

(b) Defendant likewise was not entitled to a charge concerning mistake of fact on the obstruction offense. Contrary to defendant’s statement in his brief on appeal, he did not testify at trial that he did not know that the arresting officers were police officers. Rather, defendant clearly indicated at trial that he knew the arresting officers were police officers, but stated he did not believe they had a warrant for his arrest. “It is clear from [defendant’s] argument that his concern was whether the officers had the lawful authority to arrest him. This was not a misapprehension of fact as contemplated by OCGA § 16-3-5 but was instead a misapprehension of law. Brown v. State, 163 Ga. App. 209 (3) (294 SE2d 305) (1982). ‘(It) is axiomatic that “(i)gnorance of the law excuses no one.” (Cit.)’ Jenga v. State, 166 Ga. App. 36 (2) (303 SE2d 170) (1983).” Singleton v. State, 194 Ga. App. 423 (2) (390 SE2d 648) (1990). In sum, defendant’s first enumeration of error is without merit.

2. Defendant next contends the trial court erred in refusing to give his charge on honest claim of right. Again we find no merit to this enumeration. As was the case in Division 1, defendant’s argument posited in support of this enumeration pertains to the offense of theft by receiving, not the crimes with which he was charged or convicted. Defendant presented no evidence at trial that he had a right to enter other people’s homes and automobiles and take items not belonging to him. Rather, defendant denied committing these offenses. Consequently, the trial court did not err in refusing to give the requested charge. Cf. Williams v. State, 187 Ga. App. 859, 860 (2) (371 SE2d 673) (1988).

3. (a) Defendant also argues the trial court erred in refusing to give his charge to the effect that, as to the obstruction offense, the State must prove defendant acted with knowledge that the arresting officers were police officers. First we note that we need not consider defendant’s argument and cases cited in support thereof that the trial court committed reversible error by not charging that knowledge is an essential element in convicting a defendant for aggravated assault on a police officer because he was not charged with or convicted of that crime. In this case the trial court sufficiently charged the jury with regards to the elements necessary to prove the obstruction offense. Moreover, inasmuch as defendant testified he knew the arresting officers were police officers, we fail to see how he was harmed by the trial court’s failure to give the requested charge.

(b) Defendant also contends the trial court erred in refusing to give his requested charges on self-defense and the right to resist unlawful force used in effectuating a lawful arrest. As to this issue, the record shows defendant denied using physical force in resisting the officers’ attempts to arrest him, and testified instead that he fell while the officers were trying to arrest him. Defendant further testified that although the officer may have thought he was trying to fight, that was not his intention, as the fall simply resulted from a lack of physical coordination on his part. Under these facts the evidence did not support the requested charges, and it was not error to refuse to give them. See Love v. State, 194 Ga. App. 601 (1 & 2) (391 SE2d 447) (1990).

4. Defendant next contends the trial court erred in admitting evidence of two prior convictions for entering an automobile and in failing to give his request to charge on the use of such prior conviction evidence in evaluating the charges against him at trial. Contrary to defendant’s assertions on appeal, we find the trial court properly admitted evidence of defendant’s prior convictions. Stephens v. State, 261 Ga. 467 (6) (405 SE2d 483) (1991). “ ‘(T)here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.’ [Cit.] We find that the trial court properly admitted into evidence the similar [transactions].” Singleton, supra at 424 (5). See also Rutherford v. State, 198 Ga. App. 283 (401 SE2d 308) (1991).

The remainder of this enumeration, in which defendant contends the trial court erred by failing to give his request to charge on the use of prior offense evidence in evaluating the charges against him at trial, is not supported by citation of authority or argument. Accordingly, it is deemed abandoned pursuant to Rule 15 (c) (2) of this court. Fowler v. State, 188 Ga. App. 873, 874 (3) (374 SE2d 805) (1988). Moreover, the record shows that defendant indicated his agreement with the trial court as to the use of the pattern jury instruction on the similar offense evidence. Consequently, he will not now be heard to complain on this basis.

5. Defendant next contends the trial court erred in denying his motion to sever. “ ‘ “The Supreme Court of Georgia has held that a defendant has a right to severance ‘where the offenses are joined solely on the ground that they are of the same or similar character . . . “because of the great risk of prejudice from a joint disposition of unrelated charges.” ’ (Cits.) However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance ‘lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.’ (Cits.) In determining whether severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense, the ‘court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.’ (Cit.)” [Cits.] Where the modus operandi of the perpetrator is so strikingly alike that it demonstrates and designates the defendant as the common perpetrator, the offenses may be joined, subject to the right of the defendant to a severance in the interests of justice. [Cits.]’ [Cit.]” Woods v. State, 196 Ga. App. 395, 396 (3) (396 SE2d 74) (1990).

In this case the perpetrator entered automobiles parked adjacent to residential dwellings as well as storage areas attached to or adjacent to the dwellings. Similar items were taken from the cars and homes. The crimes all occurred at night within a short distance from each other and a short distance from defendant’s home. The evidence presented as to each offense was simple and “it is highly unlikely that the jury was confused by it. We cannot say the trial court abused its discretion in joining the offenses [relating to the entry of automobiles and burglaries] for trial.” Id. at 397. See also Carroll v. State, 199 Ga. App. 8 (403 SE2d 875) (1991).

Decided November 25, 1991.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

Likewise, we find no error in the denial of the motion as it relates to the obstruction offense, as that offense “stemmed from the [defendant’s] efforts to avoid apprehension for the other offenses.” Tankersley v. State, 155 Ga. App. 917, 919 (3) (273 SE2d 862) (1980).

6. Contrary to defendant’s final enumeration of error the evidence at trial was sufficient to authorize his conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1327.
    AGUILAR v. THE STATE.
    (413 SE2d 245)
   Judge Arnold Shulman.

The appellant was convicted of rape, aggravated assault, and cruelty to children. He contends on appeal that he was denied a fair trial because of the state’s failure to disclose to him prior to trial certain allegedly exculpatory material in the possession of the Clarke County Department of Family & Children’s Services (DFACS).

On the day of arraignment, the appellant filed a motion pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), for discovery of exculpatory information in the state’s file. The trial court thereafter entered an order requiring DFACS to submit all its records pertaining to any sexual or physical abuse of the victim for in camera inspection pursuant to OCGA § 49-5-41 (a) (2) and Pennsylvania v. Ritchie, 480 U. S. 39 (107 SC 989, 94 LE2d 40) (1987). (While DFACS records pertaining to child abuse are deemed confidential under OCGA § 49-5-40 (b), OCGA § 49-5-41 (a) (2) provides that a court may order access to such records if, after in camera inspection, it is determined that public disclosure is necessary for the resolution of an issue before the court.) On the first day of the trial, which occurred approximately two years later, the appellant’s counsel renewed her discovery motion. In response, the trial judge stated that he had previously reviewed the DFACS file and had found nothing therein which he considered discoverable under Pennsylvania v. Ritchie, supra, but that he would review the material again if the evidence so warranted. Opening statements were thereafter given by both counsel, following which the alleged victim testified as the state’s first witness.

Decided November 25, 1991.

Theresa M. Clyne, for appellant.

On the morning of the second day of trial, the trial judge advised counsel that he had reviewed the DFACS file in light of the previous day’s testimony and had determined that disclosure of its contents was warranted. The trial was then recessed to allow counsel an opportunity to review the material. When court reconvened that afternoon, the appellant’s counsel moved for a mistrial on the ground that his client’s defense had been irreparably harmed by the court’s failure to provide the DFACS material in advance of the opening statements and of his cross-examination of the victim. The court denied the motion but offered appellant’s counsel the opportunity to make an additional opening statement and to recall the victim for further cross-examination. These offers were, however, declined.

“The ability to question adverse witnesses, . . . does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. [Cit.] In short, the Confrontation Clause only guarantees ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ [citing Delaware v. Fensterer, 474 U. S. 15, 20 (106 SC 292, 88 LE2d 15) (1985)].” Pennsylvania v. Ritchie, supra, 480 U. S. at 53. “[T]he Confrontation Clause only protects a defendant’s trial rights, and does not compel the pretrial production of information that might be useful in preparing for trial.” Id. at n. 9. See also Sosebee v. State, 190 Ga. App. 746 (3) (380 SE2d 464) (1989). “Moreover, the mandate of Brady is not violated when the ‘material is (made) available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials. (Cits.)’ [Cit.]” Assad v. State, 195 Ga. App. 692, 693 (394 SE2d 617) (1990). Based on these authorities, we hold that the trial court did not err in denying the appellant’s motion for mistrial.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.


author: Carley, Presiding Judge.

text:
    A91A1389.
    STULDIVANT v. THE STATE.
    (413 SE2d 247)
   Carley, Presiding Judge.

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

1. The State called as one of its witnesses the investigating officer to whom appellant had given an inculpatory statement. Before this witness was allowed to testify as to appellant’s statement, a JacksonDenno hearing was held. The trial court ruled that the statement was admissible and, on direct examination, the witness testified to its contents. On cross-examination, appellant’s counsel asked what had been meant by the witness’ testimony that appellant “appeared” to have understood his constitutional rights. The witness responded that appellant had said “that he had been through this before.” Appellant’s counsel moved for a mistrial, urging that the testimony was inadmissible on various grounds. The denial of this motion is enumerated as error.

OCGA § 17-7-210 (c) provides that the State’s failure to provide a copy of a defendant’s in-custody statement serves to preclude the State from using the statement in its case-in-chief or in rebuttal. “The record . . . discloses that the [S]tate did not use the statement here complained of in either its case-in-chief or in rebuttal. Rather, said statement entered the record as a response to a question posed to the [investigating] officer by appellant’s counsel on cross-examination.” Henson v. State, 168 Ga. App. 210, 212 (2) (308 SE2d 555) (1983). See also Adams v. State, 197 Ga. App. 81 (397 SE2d 497) (1990). Appellant suggests that, if his counsel had been provided a copy of the statement attributed to him, she would have known not to ask the question of the witness. However, counsel for the State indicated that he was no more aware of the statement attributed to appellant than was appellant’s counsel and it is undeniable that, prior to eliciting the testimony before the jury, appellant’s counsel had had the opportunity in the Jackson-Denno hearing to pursue the topic of whether appellant had freely and voluntarily given his statement. Under these circumstances, the testimony was not erroneously used by the State in violation of OCGA § 17-7-210, but was inadvertently elicited as the result of a trial tactic employed by appellant’s counsel. “ ‘Counsel asked a question which left the field wide open for a reply such as was given and counsel can not complain of the outcome.’ [Cits.]” Adams v. State, supra at 82.

Decided November 25, 1991.

Allison C. Griffin, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

Likewise, a mistrial was not mandated on the ground that the testimony was otherwise inadmissible. “ ‘ “The ground [here] complaining of the admission of certain testimony of a witness for the State is without merit, since the ground discloses that the testimony was elicited from the witness (. . . on cross-examination) by counsel for the movant. Where counsel on the cross-examination of a witness takes a chance by propounding a dangerous question, he will not be heard to object to the answer, no matter how prejudicial it may be, if the answer is a direct and pertinent response to the question.” (Cits.)’ [Cit.] Since the answer here was responsive to the question propounded by appellant’s counsel, the trial court did not err in denying appellant’s motion for mistrial on this ground. [Cits.]” (Emphasis in original.) Henson v. State, supra at 212 (2).

2. A sales clerk with personal knowledge of the contents of two sales receipts identified carbon copies of those receipts. These carbon copies were correctly introduced into evidence over appellant’s objections. See Millwood v. State, 166 Ga. App. 292, 293-294 (5, 6) (304 SE2d 103) (1983). “ ‘Duplicate or triplicate originals, made with the same stroke of the pen or typewriter as the original, are admissible as primary evidence. (Cits.)’ [Cits.]” Builders Homes of Ga. v. Wallace Pump &c. Co., 128 Ga. App. 779, 782 (4) (197 SE2d 839) (1973).

3. The admission of the entirety of appellant’s in-custody inculpatory statement was not error. “ ‘ “It is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense. [Cits.]” [Cit.]’ [Cit.]” Lee v. State, 154 Ga. App. 562, 564 (2) (269 SE2d 65) (1980).

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Sognier, Chief Judge.

text:
    A91A1769.
    BULLOCK v. THE STATE.
    (413 SE2d 219)
   Sognier, Chief Judge.

Anthony Bullock was convicted by a jury of two counts of aggravated sodomy and one count of child molestation, and he appeals from the judgment and sentence entered thereon.

1. In his first enumeration of error, appellant contends the trial court erred by failing to instruct the jurors that in determining credibility, they should consider the fact that two of the State’s witnesses were children of tender years.

We find no error. Although the trial judge later indicated he did not recall, the transcript does reveal that during the testimony of a law enforcement officer regarding a videotape made of the statement of the child victim, appellant’s counsel made a verbal request that the court instruct the jury “on the charge that this testimony is being given by a child of tender years, at the appropriate time,” and the trial court responded “[a]ll right.” However, appellant thereafter made no written request for this charge. Although Uniform Superior Court Rule 10.3, which requires that all requests to charge be submitted in writing at the commencement of trial, includes an exception for “additional requests to cover unanticipated points which arise thereafter,” it does not provide that such requests may be oral. Moreover, the fact that testimony would be given by children of tender years was not such an unanticipated matter as contemplated by the exception given that appellant was aware that the victim was nine years old. There is no indication in the record that appellant reminded the trial court about its willingness to give the charge, and we will not place the burden on the trial court to remember the oral request. “ ‘[T]his court has held that where there has been no written request to charge, failure to give the charge is not error. (Cits.)’ [Cits.]” Lamb v. State, 196 Ga. App. 665, 667 (3) (396 SE2d 497) (1990). “ ‘If the defense counsel had been misled as to the intended charge his remedy was to request to reargue the facts in the light of the charge given.’ [Cit.]” Fair v. State, 172 Ga. App. 49, 50 (1) (321 SE2d 790) (1984). The transcript reveals no such request to reargue. Accordingly, we find no error in the trial court’s failure to give the charge. See generally Lamb, supra.

2. After charging the jury on the general definition of sodomy, the trial court defined the crime of aggravated sodomy as the commission of sodomy “with force and against the will of the other person.” The trial court then instructed the jury that “an act of sodomy perpetrated upon a child who has not attained the age of thirteen years constitutes aggravated sodomy, because the act done to a child of that age is automatically done with force and against the child’s will.” Appellant maintains the trial court erred in so instructing the jury, apparently on the theory that use of the word “automatically” could have led the jury to believe that a lesser standard of proof was required. We do not agree. In Richardson v. State, 256 Ga. 746, 747 (2) (353 SE2d 342) (1987), the Supreme Court held that “[s]exual acts directed to children are, in law, forcible and against the will. [Cit.]” “It thus appears that the Supreme Court is of the opinion that an act of sodomy perpetrated upon a child who has not attained the age of 13 constitutes aggravated sodomy because the act done to a child of that age is automatically done with force and against the child’s will.” (Emphasis supplied.) Huggins v. State, 192 Ga. App. 820, 821 (1) (386 SE2d 703) (1989). Given the holdings of both the Supreme Court and this court, we find no error in the trial court’s instruction to the jury.

Decided November 13, 1991

Reconsideration denied November 26, 1991.

Bruce & Hentz, William D. Hentz, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0748.
    DEPARTMENT OF TRANSPORTATION v. LIVINGSTON.
    (413 SE2d 249)
   Pope, Judge.

The appellant Department of Transportation (DOT) condemned .306 acres of land located on the corner of Main and Morgan Streets in LaGrange, Georgia. The property was the site of a full service filling station owned and operated by Joe Livingston, Jr. The trial court entered judgment on the jury’s verdict awarding Livingston $391,000 as just and adequate compensation for the property taken and the DOT filed a motion for new trial. The trial court denied the motion for new trial on November 1, 1990 and the DOT filed a timely appeal to this court. Held:

1. DOT first contends the verdict was contrary to law because the evidence failed to show the property taken was unique. We disagree. “In Dept. of Transp. v. 2.734 Acres of Land, [168 Ga. App. 541 (3) (309 SE2d 816) (1983)] this court examined the ‘uniqueness’ rules enunciated in Housing Auth. of Atlanta v. Troncalli, 111 Ga. App. 515 (142 SE2d 93) (1965); City of Gainesville v. Chambers, 118 Ga. App. 25 (2) (162 SE2d 460) (1968), and Department of Transp. v Eastern Oil Co., 149 Ga. App. 504 (1) (254 SE2d 730) (1979), and their progeny, and found that these ‘three general rules regarding the uniqueness of a business in a condemnation proceeding have been merged to include all three concepts as independent criteria under one general rule. Only one of the three criteria need be satisfied in order to authorize recovery of business loss damage. It is up to the jury to decide whether enough evidence exists to support the condemnee’s contention that fair market value (if ascertainable at all), does not afford him just and adequate compensation. (Cit.)’ ” Department of Transp. v. Coley, 184 Ga. App. 206, 209 (4) (360 SE2d 924) (1987).

In this case the evidence presented was sufficient under all three of the rules enunciated in Department of Transp. v. 2.734 Acres, 168 Ga. App. 541 (3) (309 SE2d 816) (1983). The property was located at an important traffic artery in a heavily trafficked area, and one of the first filling stations built in the LaGrange area had been situated on the condemned property. Livingston’s family had owned and operated a full service filling station on the property since 1940 (approximately 50 years). Many of his customers had done business with him for 25 years or longer and a few customers had traded at the station for 40 years. Testimony was presented that one reason for Livingston’s profitability was his long-standing operation in the area which “had produced benefits that other people would not have.” Moreover, the station was located in a heavily commercial area and several of the accounts, which Livingston testified would not follow him to another location, resulted from this geographic proximity to surrounding businesses. Livingston testified he could not duplicate the type of business he had outside of his present location and that he had been unable to purchase a comparable relocation site in the area. Testimony was also presented concerning the lack of comparable sales in the area and the fact that filling stations such as the one owned by Livingston (a “Mom and Pop” type station offering full service to its customers), which were being replaced by convenience-store-type filling stations, in particular were not being bought and sold on the open market. In light of this and other testimony concerning the uniqueness of the condemned property, we find no error in the trial court’s denial of the motion for new trial on the issue of the sufficiency of the evidence to support the award of business losses. See Department of Transp. v. Bales, 197 Ga. App. 862 (4) (400 SE2d 21) (1990); DeKalb County v. Glaze, 189 Ga. App. 1 (2a & b) (375 SE2d 66) (1988); Smiway, Inc. v. Dept. of Transp., 178 Ga. App. 414 (5) (343 SE2d 497) (1986); Department of Transp. v. 19.646 Acres of Land, 178 Ga. App. 287 (1) (342 SE2d 760) (1986).

2. The DOT also argues that the evidence presented by Livingston’s expert had no probative value and thus was insufficient to establish a business loss. “[W]e do not agree with the DOT that [the expert’s] testimony was not sufficient to support the jury’s verdict. . . . [T]he DOT’s objection to [the] testimony is, in actuality, a challenge to the weight of that testimony. On appeal, this court considers the sufficiency of the evidence and not its weight. Hawkins v. Grady County Bd. of Tax Assessors, 192 Ga. App. 416, 417 (2) (385 SE2d 305) (1989).” Department of Transp. v. Bales, supra at 866. The evidence was sufficient to authorize the award of business losses in this case.

Decided November 26, 1991.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, C. Bradford Sears, Jr., for appellant.

Willis, McKenzie & Long, C. Jerry Willis, for appellee.

3. The DOT also contends the jury’s verdict was against the weight of evidence. As stated in Division 2, supra, this court considers the sufficiency of the evidence, not its weight. This enumeration is without merit.

4. In its last two enumerations of error, the DOT contends the trial court erred in charging the jury on peculiar or special value and uniqueness because there was no evidence to support these charges. “Whether property is unique is a jury question, and only slight evidence of uniqueness is required to warrant the submission of the issue to the jury. [Cits.]” DeKalb County v. Glaze, 189 Ga. App. 1, 4 (2b) (375 SE2d 66) (1988). In this case ample evidence was presented to support the charges in question. See Division 1, supra. Consequently, this enumeration is also without merit.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Beasley, Judge. Carley, Presiding Judge,

text:
    A91A0848.
    THE STATE v. LAMB.
    (413 SE2d 511)
   Beasley, Judge.

The State appeals an order granting defendant’s motion to suppress.

At a suppression hearing the trial court is the trier of fact, State v. Watts, 154 Ga. App. 789, 790 (4) (270 SE2d 52) (1980), and on appeal its decision on factual issues and credibility must be accepted unless clearly erroneous. Muff v. State, 254 Ga. 45, 48 (2b) (326 SE2d 454) (1985); Hill v. State, 183 Ga. App. 654, 656 (2) (360 SE2d 4) (1987).

Applying these principles, the evidence shows that on November 15, 1989, Officer Dorner was informed that Detective George planned to make an undercover drug transaction with a suspect driving a blue Camaro. While on patrol Dorner observed defendant’s car, a blue Firebird, exiting Riverdale Plaza. Dorner then observed defendant’s car traveling north on Highway 85 at a speed between 37 and 38 mph and weaving within his lane. The posted speed limit on that part of the highway is 45 mph. Dorner stopped defendant because he “thought [defendant] might be under the influence of alcohol.”

After investigating further, Dorner concluded defendant was not intoxicated but requested his driver’s license and proof of insurance. When defendant could not produce proof of insurance, OCGA § 33-34-12 (a) (l), Dorner arrested defendant for this failure and impounded defendant’s car.

The inventory search of the vehicle produced a .38 caliber pistol and a bottle of pills marked Valium, so the officer also charged defendant with carrying a concealed weapon. He transported defendant to the police station, where a subsequent search of defendant produced bags of suspected cocaine and cocaine paraphernalia.

The superior court concluded that Dorner acted reasonably regarding the initial stop of defendant’s car, despite Dorner’s admission that he was consciously attempting to stop defendant based on the information Detective George provided. We render no ruling in this regard. The court further concluded, however, that Dorner acted improperly in arresting defendant and impounding his car “solely on the grounds of having no proof of insurance”; that Dorner failed to determine whether the vehicle was actually uninsured and whether the vehicle could safely remain in its present location, relying on Attorney General Opinion 83-5 and OCGA § 33-34-12 (a) (3).

The State contends the trial court erred by ruling that Dorner lacked the authority to impound defendant’s vehicle for operating a motor vehicle without proof of insurance.

1. OCGA § 33-34-12 (a) (3) requires; “If the owner or operator of a motor vehicle fails to show proof or evidence of minimum insurance, the arresting officer shall issue a uniform traffic citation for operating a motor vehicle without proof of insurance and shall take possession of the driver’s license and forward it to a court of competent jurisdiction.”

The statute mandates the procedure and precludes the discretion to effect a custodial arrest in lieu of a citation. The violator faces at most a $25 fine, OCGA § 33-34-12 (a) (4). The officer is authorized only to issue a citation, take the driver’s license to assure appearance, and issue a receipt to be used as a temporary license until the court date. Although not expressly mentioned in the statute, cf. OCGA § 17-6-11 (a), this latter step is a necessary corollary to taking the license so as not to summarily impose the penalty of a temporary suspension. Compare United States v. Wilson, 853 F2d 869 (11th Cir. 1988).

Under OCGA § 40-6-206 (d), law enforcement officers may impound vehicles when a person is charged with violating OCGA § 33-34-12 (a) or (b) if the person admits there is no insurance or if the officer “verifies that the proof of insurance ... is fraudulent.” Neither of these conditions was present, so Dorner lacked authority to impound the vehicle under OCGA § 40-6-206 (d).

Nor is there evidence that any other circumstance existed to authorize movement of the vehicle under the strictures of OCGA § 40-6-206. See also Mitchell v. State, 178 Ga. App. 244, 246 (3) (342 SE2d 738) (1986), and cases cited. Compare Baker v. State, 202 Ga. App. 73 (413 SE2d 251) (1991).

We find no error in the trial court’s grant of defendant’s motion to suppress.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur specially.

Carley, Presiding Judge,

concurring specially.

I agree with the majority’s affirmance of the trial court’s grant of the motion to suppress in the instant case. However, I must concur specially so as to explicate what I perceive to be the crucial distinction between the instant case and the whole-court decision in Baker v. State, 202 Ga. App. 73 (413 SE2d 251) (1991).

Title 17, Chapter 4, Article 2 of the OCGA addresses the authority of a law enforcement officer to make an initial arrest. OCGA §. 17-4-23 authorizes, but does not require, an officer to effectuate a noncustodial arrest for certain traffic offenses through issuance of a traffic citation. A custodial arrest for those traffic offenses can, in the officer’s discretion, nevertheless be effectuated pursuant to OCGA § 17-4-20. Brock v. State, 196 Ga. App. 605, 606 (1) (396 SE2d 785) (1990). A custodial arrest necessarily mandates that the arrestee is to be taken into custody by the arresting officer.

Title 17, Chapter 6, Article 1 of the OCGA does not address the authority of an officer to make an initial arrest, but the entirely distinct issue of the arrestee’s subsequent bail and recognizance. OCGA § 17-6-1 provides generally for a judicial determination of bail and recognizance. However, OCGA § 17-6-11 specifically provides that one who has been subjected to a non-custodial arrest for certain traffic offenses through the officer’s discretionary issuance of a citation is not to be held in custody pending a judicial determination of bail and recognizance, but may simply deposit his driver’s license with the arresting officer. A grant of authority to make a non-custodial arrest would be pointless if the officer, having determined to make such a discretionary non-custodial arrest pursuant to OCGA § 17-4-23, was nevertheless required to bring the arrestee into custody for a judicial determination of bail and recognizance pursuant to OCGA § 17-6-1. This anomaly is obviated by the authorization in OCGA § 17-6-11 of a non-judicial determination of bail and recognizance when the officer has determined to effectuate a discretionary non-custodial arrest for certain traffic offenses pursuant to OCGA § 17-4-23. In the case of such a discretionary non-custodial arrest, the officer simply accepts the arrestee’s driver’s license in lieu of a judicial determination of bail and recognizance and then allows the arrestee to drive away.

It would, however, be highly anomalous to hold that an officer, having determined to make a discretionary custodial arrest pursuant to OCGA § 17-4-20 (a), would nevertheless be required to accept the arrestee’s driver’s license in lieu of a judicial determination of bail and recognizance. To allow the arrestee simply to drive away would be antithetical to the concept of a custodial arrest. This would, in effect, mean that the officer has no discretion to make a custodial arrest of a traffic offender pursuant to OCGA § 17-4-20 (a) and that the traffic offender has an absolute right to be subjected to only a non-custodial arrest pursuant to OCGA § 17-4-23. This is clearly not the law of this state. It is the officer, not the arrestee, who makes the determination as to whether the arrest will be custodial or non-custodial. “The language of OCGA § 17-4-23 (a) that an officer ‘may arrest’ for a traffic violation by means of a citation clearly is discretionary. For the convenience of the motoring public and the police, the Code section gives the officer the option of issuing a citation rather than going through the time-consuming ordeal of a custodial arrest. It does not mandate a citation.” Brock v. State, supra at 606 (1). Accordingly, a discretionary custodial arrest necessarily mandates the “time-consuming ordeal” of taking the arrestee into custody for a judicial determination of bail and recognizance, whereas that “time-consuming ordeal” is necessarily obviated only in the event that the officer has determined to effectuate a discretionary non-custodial arrest by means of a traffic citation.

The defendant in Baker v. State, supra, had been subjected to a valid custodial arrest for a traffic offense pursuant to OCGA § 17-4-20, and we rejected the contentions that, under OCGA §§ 17-4-23 and 17-6-11, a defendant had an absolute right to be subjected to only a non-custodial arrest. Since Baker’s custodial arrest was lawful, she was properly taken into custody for a judicial determination of her bail and recognizance. Accordingly, an inventory search of her bag pursuant to her lawful custodial arrest was valid and her motion to suppress was properly denied.

Unlike the defendant in Baker, appellee in the instant case was not subjected to a valid custodial arrest pursuant to OCGA § 17-4-20. He was subjected to an invalid custodial arrest pursuant to former OCGA § 33-34-12 (1) (3). That former statute, unlike OCGA § 17-4-23, did not give the officer any discretion to effectuate a custodial arrest, but specifically mandated a non-custodial arrest for the specific traffic offense which appellant was charged with having committed. Since appellee’s custodial arrest was unlawful, he was illegally taken into custody for a judicial determination of his bail and recognizance. Accordingly, the inventory search of his automobile and person pursuant to his unlawful custodial arrest was invalid and his motion to suppress was properly granted.

Decided November 26, 1991.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellant.

T. Michael Martin, for appellee.

I am authorized to state that Judge Arnold Shulman joins in this special concurrence.

       OCGA § 33-34-12 was repealed effective January 1, 1991, and OCGA § 40-6-10 was substituted.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A0888.
    BAKER v. THE STATE.
    (413 SE2d 251)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of possession of cocaine and of three traffic violations. She appeals from the judgments of conviction entered by the trial court on the jury’s verdicts of guilt.

1. After appellant was stopped for speeding and for running a stop sign, she produced a valid driver’s license. However, she was unable to produce proof of current liability insurance and the registration sticker on the vehicle she was driving had expired. Appellant was taken into custody for the various traffic offenses and booked. During an inventory search of her purse at the police station, a small vial containing a residue of white powder was discovered and seized. This substance tested positive for cocaine and was the basis for appellant’s subsequent indictment for possession of cocaine. Appellant filed a pre-trial motion to suppress any evidence seized as a result of the inventory search of her purse, urging that her arrest had been illegal. The denial of this motion is enumerated as error.

Appellant does not contend that the stopping of her automobile was pretextual. She contends only that, because a traffic citation could have been issued for the relatively minor traffic offenses for which she was validly stopped, the arresting officer had no authority to take her into custody and that the inventory search of her purse was, therefore, conducted pursuant to an invalid custodial arrest. However, insofar as she relies upon the general provisions of OCGA § 17-4-23 (a), appellant’s contention in this regard has previously been rejected. “ ‘OCGA § 17-4-23 (a) gives a police officer the option to issue a citation but does not restrict the power given to police in OCGA § 17-4-20 to make custodial arrests for crimes committed in their presence.’ [Cit.]” Polk v. State, 200 Ga. App. 17 (406 SE2d 548) (1991). “The language of OCGA § 17-4-23 (a) that an officer ‘may arrest’ for a traffic violation by means of a citation clearly is discretionary. For the convenience of the motoring public and the police, the Code section gives the officer the option of issuing a citation rather than going through the time-consuming ordeal of a custodial arrest. It does not mandate a citation.” Brock v. State, 196 Ga. App. 605, 606 (1) (396 SE2d 785) (1990). Compare State v. Lamb, 202 Ga. App. 69 (413 SE2d 511) (1991) (specific provisions of former OCGA § 33-34-12 (a) (3) control over the general provisions of OCGA § 17-4-20).

Appellant also relies upon OCGA § 17-6-11 (a). By its terms, however, OCGA § 17-6-11 (a) does not purport to address the issue of the initial authority of an officer to effectuate an arrest for a traffic violation. Instead, that statute addresses only the issue of post-arrest bond and recognizance for those arrestees who have been “served with the official summons issued by [the] arresting officer. . . .” Thus, OCGA § 17-6-11 (a) clearly applies only to those whom the officer has arrested by issuance of a citation and not to those whom he has subjected to a custodial arrest pursuant to OCGA § 17-4-20. After one has been subjected to a valid non-custodial arrest, he then “may deposit his driver’s license with the apprehending officer in lieu of bail, in lieu of entering into a recognizance for his appearance for trial as set in the . . . summons, or in lieu of being incarcerated by the arresting officer and held for further action by the appropriate judicial officer. . . .” OCGA § 17-6-11 (a). However, an officer is not otherwise required to make a non-custodial arrest pursuant to OCGA § 17-4-23 (a), but is authorized to make a custodial arrest pursuant to OCGA § 17-4-20. Polk v. State, supra; Brock v. State, supra. Compare State v. Lamb, supra (officer must make non-custodial arrest for violation of former OCGA § 33-34-12 (a)). Where, as in the instant case, the arresting officer does not elect to effectuate a non-custodial arrest pursuant to OCGA § 17-4-23 (a), but a valid custodial arrest pursuant to OCGA § 17-4-20, the arrestee has no right under OCGA § 17-6-11 (a) to avoid the usual resulting consequences of his custodial arrest by merely tendering his driver’s license.

Accordingly, appellant’s reliance upon OCGA § 17-6-11 (a) is clearly misplaced. That bond and recognizance statute in no way conflicts with OCGA § 17-4-20 but it merely complements OCGA § 17-4-23 (a) and any other statutory provision which relates to non-custodial arrests for traffic offenses. Since appellant was subjected to an authorized custodial arrest pursuant to OCGA § 17-4-20, however, neither OCGA § 17-4-23 (a) nor OCGA § 17-6-11 (a) has any applicability here. Compare State v. Lamb, supra. Appellant’s custodial arrest for traffic violations being lawful, the inventory search pursuant to that custodial arrest was valid and appellant’s motion to suppress was properly denied. Carl v. State, 160 Ga. App. 464 (287 SE2d 379) (1981). Compare State v. Lamb, supra.

2. Over appellant’s chain-of-custody objection, the plastic bottle in which trace quantities of cocaine were discovered was admitted into evidence. This evidentiary ruling is enumerated as error.

The evidence showed that some drops of water had been added to the bottle, in order to capture the residue for testing. In the expert opinion of the witness from the State Crime Lab, the introduction of this water would not alter the test results for the presence of cocaine. “There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the [bottle which had contained cocaine] into evidence. [Cit.]” Langham v. State, 196 Ga. App. 71, 72 (1) (395 SE2d 345) (1990).

Judgments affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, Andrews, JJ., and Judge Arnold Shulman concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

Although I would concur in Division 2,1 respectfully dissent with respect to Division 1 and would therefore reverse the conviction for possession of cocaine.

Defendant was not given the opportunity to post her valid driver’s license in lieu of bail or deposit of money or formal recognizance or incarceration, which she was entitled to do under OCGA § 17-6-11 (a).

When the law was originally enacted in 1973, it provided that the arrestee “may, upon agreement with the arresting officer deposit his chauffeur’s or driver’s license with the apprehending officer in lieu of” the more severe restrictions. That limitation, which required the agreement of the officer, was eliminated in 1982 when the statute was revised. Ga. L. 1982, pp. 1136, 1138, § 3; p. 1142, § 6. The limitation has not been added back, despite legislative amendment of the section three times since. The title of the 1982 statute reinforces the intention of the legislature to afford this option to persons arrested for certain offenses, for it includes as one of its purposes “to amend an Act permitting driver’s licenses to be deposited as bail on arrest for certain traffic offenses ... so as to authorize driver’s licenses to be deposited in certain cases; . . .” Ga. L. 1982, p. 1136. It appears that the legislature intended to provide a simpler and less invasive and less disruptive procedure for assuring the attendance at court, of those charged with certain vehicle-connected offenses, than full booking at the jail.

The deputy sheriff who searched the purse was the intake officer processing the inmates in. He received all prisoners into the jail. He testified: “We take all their personal property that they have on them . . . When a female is brought in we process them in, fill out the medical screening sheet, fill out the U.C.R. which is just personal information on them. We inventory all the property they have as far as any jewelry, cash, shoe laces, belts, anything the[y] may have in their purse. For security reasons we inventory everything . . . The policy is that we inventory everything that comes through the back door to prevent contraband from going in. Whenever I inventory the property then I am responsible and the County is responsible for whatever that person has on them so we taken an inventory to make sure that any jewelry or money is accounted for . . . And, it’s also to protect the person so that they get their stuff back too.”

With respect to defendant, she “was brought in by (the arresting officer) on (four) traffic citations.” The deputy sheriff inventoried the purse with defendant directly in front of him on the other side of the cage. It was then that he found the suspected cocaine.

Defendant had been arrested at her child’s nursery school some four to five blocks from home. She was driving a borrowed car and was arrested pursuant to OCGA §§ 17-4-20 and 17-4-23 for speeding, expired tag, no proof of insurance, and failure to completely stop at a stop sign. The officer impounded the car, examined defendant’s purse for weapons, took her in handcuffs to the jail and turned her purse over to the custody of the sheriff’s deputy.

No reason is given for processing defendant into jail as a prisoner rather than permitting her to deposit her driver’s license, which the officer had already confirmed was valid. Had she been afforded the option to do so, she would have left with the receipt and there would have been no purpose in, or basis for, searching her purse. In my opinion, the inventory search was the product of a violation of OCGA § 17-6-11, and its fruits should have been suppressed.

The majority writes that OCGA § 17-6-11 applies only to instances when the officer elects to issue a citation instead of effecting a custodial arrest. However, the issuance of a citation, which is authorized by OCGA § 17-4-23 (a), is by its nature non-custodial. A person leaves the scene, and it is only if he or she “fails to appear as specified in the citation” that a custodial arrest is effected, by issuance and enforcement of an arrest warrant. OCGA § 17-4-23 (b).

Consequently, if the permission given to the charged person to deposit his or her driver’s license applied only to persons who received citations, there would be no benefit to the citizen to be gained from such a surrender. The purpose of submitting the license is to avoid being immediately brought before a judicial officer and is in lieu of bail, recognizance, and incarceration. The statute expressly states that it applies to “any person who is arrested by an officer for the violation of” certain laws. It also states that the deposit is “in lieu of being incarcerated by the arresting officer,” and this “arresting officer” must give a receipt.

Decided November 26, 1991.

Smith, White, Sharma & Halpern, Marilymn B. Kelm, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

After the procedure set out in OCGA § 17-6-11 (a) is followed, the officer is authorized by OCGA § 17-6-11 (b) to release the person.

Brock v. State, 196 Ga. App. 605 (396 SE2d 785) (1990), and Polk v. State, 200 Ga. App. 17 (406 SE2d 548) (1991), should be reversed insofar as they are contrary.


text:
    A91A0890, A91A0891.
    ROGERS et al. v. TRAVELERS INDEMNITY COMPANY OF AMERICA (two cases).
    (413 SE2d 254)
   Judge Arnold Shulman.

The appellee, Travelers Indemnity Company of America, brought this declaratory judgment action to determine its obligation to defend appellant Patrick Rogers in an action brought against him by appellants Thurmond and Doris Price and their son, Sonny, to recover for personal injuries sustained by Sonny while occupying a pickup truck being driven by Rogers. Also named as defendants in the personal injury action were Deborah and Stephen Peterson, the owners of the truck in question. Patrick Rogers was 15 years of age at the time of the accident, and the appellee had issued a policy of motor vehicle accident insurance to his father, V. Wayne Rogers, containing the following provision: “You and any relative are insureds while using [a non-owned] car if the use is (or is reasonably believed to be) with the owner’s permission.” The appellee undertook Patrick’s defense in the personal injury action pursuant to a reservation of rights and then filed the present action seeking a judicial declaration that it had no obligation in the matter because Patrick’s use of the truck could not reasonably be considered permissive within the contemplation of this policy provision. The case is before us on appeal from the grant of the appellee’s motion for summary judgment.

Prior to the accident, Patrick had been smoking marijuana and drinking beer at the Petersons’ home along with their son, Jeffrey, and some other youths, including Sonny Price. Mr. and Mrs. Peterson were out of town at the time, and Mr. Peterson had given Jeffrey explicit instructions not to use the pickup truck. However, Jeffrey had nevertheless used the truck earlier that day to retrieve a riding lawn mower from a neighbor’s house. During the festivities at the Peterson home that evening, Sonny Price, who was 16 years old at the time, had obtained the keys to the truck and had taken it for a ride, accompanied by Patrick Rogers. The two youths had then returned to the Peterson home, switched places and set out on a second trip in the truck. The accident occurred during this second trip, while Pat-rick was driving. At the time of the accident, Patrick had a restricted learner’s license which permitted him to operate a motor vehicle only if accompanied by a licensed driver 18 years of age or older. See OCGA § 40-5-24 (a).

Sonny Price could not recall how he had come into possession of the keys to the truck but maintained that Jeffrey Peterson had given him permission to drive it, an assertion which Jeffrey denied. Patrick acknowledged that he was “buzzed” from drinking at the time and that he had not received direct permission from Jeffrey to drive the truck; however, he testified: “I assumed that me and Sonny both had permission to drive it because he came out with the keys, so I figured he had already asked him and everything for the keys — if he could drive and all that.” He further testified: “And we do that all the time down in Douglasville. [T]here’s been people just hop in [my brother’s] convertible . . . and just take off, you know, and drive around in it. It’s common, you know. So I just assumed I had permission.” Jeffrey Peterson testified that he had participated in filing a stolen vehicle report with the police following the accident.

1. We must agree with the trial court that Patrick Rogers could not have entertained a reasonable belief under the circumstances that his use of the vehicle was “with the owner’s permission,” particularly in view of the fact that his learner’s permit did not permit him to drive any vehicle upon the public highways unless accompanied by an adult. Samples v. Southern Guaranty Ins. Co. of Ga., 197 Ga. App. 258, 259 (398 SE2d 220) (1990) (holding that a reasonable belief that one has implied permission to take and drive a friend’s automobile cannot be inferred merely “from the existence of a friendly relationship and from non-permissive access to a set of keys to that automobile”); Johnson v. Blue Ridge Ins. Co., 189 Ga. App. 616 (376 SE2d 703) (1988) (affirming a finding by the trial court that a 12 year old could not have reasonably believed she had the owner’s permission to drive merely because she had been allowed to do so by a friend, who had borrowed the vehicle from the owner). See generally Nationwide Mut. Ins. Co. v. Southern Trust Ins. Co., 174 Ga. App. 513, 514 (1) (330 SE2d 443) (1985); United Svcs. Auto. Assn. v. Lail, 192 Ga. App. 487 (1) (385 SE2d 424) (1989). Compare Safeway Ins. Co. v. Holmes, 194 Ga. App. 160 (2) (390 SE2d 52) (1989) (holding that a 15 year old, although driving in violation of OCGA § 40-5-24 (a), could have entertained a reasonable belief that she had permission to use the vehicle where such permission had been given to her by her father, who had rented it).

Decided November 26, 1991.

Burge & Wettermark, Michael J. Warshauer, Hartley, Rowe & Fowler, G. Michael Hartley, Elizabeth A. Geoffroy, Greer, Klosik & Daugherty, Donald J. Sharp, for appellants.

Irwin, Bladen, Baker & Russell, R. Chris Irwin, for appellee.

2. The appellants additionally contend that the policy provision in question is violative of public policy. This contention is also without merit. “Public policy may justify enlarging an insurer’s risk where acts of the undisputed insured driver are concerned, but not necessarily so where an unauthorized driver who is not an insured under the policy is involved. This court has previously affirmed declaratory judgment for the insurer where such an unauthorized and thus uncovered use of the vehicle occurred. [Cits.]” Johnson v. Blue Ridge Ins. Co., supra, 189 Ga. App. at 616. For these reasons, we hold that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge, Andrews, Judge,

text:
    A91A0917. A91A0918.
    In the Interest of J. H. M., a child. In the Interest of J. L. P., a child.
    (413 SE2d 515)
   McMurray, Presiding Judge.

J. H. M. and J. L. P. were adjudicated delinquent in a joint adjudicatory hearing. The adjudication of delinquency of J. H. M. was predicated on a finding that this child had committed acts which, were he not a juvenile, would constitute three counts of the offense of burglary, two counts of the offense of entering an automobile, and five counts of criminal damage to property in the second degree. The adjudication of delinquency of J. L. P. was predicated on a finding that this child had committed acts which, were he not a juvenile, would constitute five counts of criminal damage to property in the second degree.

The only evidence that either juvenile had committed the acts which, were they not juveniles, would constitute multiple counts of criminal damage to property in the second degree, involving over $11,000 damages to a vandalized cemetery, was the uncorroborated testimony of an alleged accomplice, R. P. The sole enumeration of error raised by both juveniles is the juvenile court’s refusal to grant a directed verdict of acquittal, concerning their alleged acts constituting, were they not juveniles, participation in the commission of five counts of the offense of criminal damage to property in the second degree, based on the lack of corroboration of the accomplice’s testimony. (A motion for dismissal under Uniform Juvenile Court Rule 11.4 is the appropriate procedure and the motion made is treated as such.) Held:

OCGA § 24-4-8 provides that “[t]he testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient.” Under OCGA § 24-1-3, the rules of evidence apply in all courts and in all trials unless otherwise expressly provided by statute.

In T. L. T. v. State of Ga., 133 Ga. App. 895, 897, 899 (2) (212 SE2d 650) (1975), this Court acknowledged the demise of the parens patriae philosophy in juvenile law and recognized that “the juvenile charged with ‘delinquency’ is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial. We must not only furnish the ritual of justice, but we must provide its substance.” Id. at 899. To accomplish this, this Court held the requirement of independent corroboration of an accomplice’s testimony now set forth in OCGA § 24-4-8 to be applicable to a juvenile proceeding. This has become the settled law of Georgia as this rule has been consistently applied. See J. B. L. v. State of Ga., 144 Ga. App. 223 (241 SE2d 40); R. T. M. v. State of Ga., 138 Ga. App. 92 (1) (225 SE2d 510); and D. W. D. v. State of Ga., 136 Ga. App. 304 (221 SE2d 72).

Although not raised by either party, the dissent would overrule T. L. T., supra, and its progeny. We find nothing present in the case sub judice which should compel this Court to alter the settled law of this State.

We find no merit in any reliance the dissent places upon the obfuscation contained in LaFray v. State, 48 Ga. App. 133, 134 (1) (172 SE 115). The rule that a conviction cannot be had upon the uncorroborated testimony of an accomplice is generally viewed as having arisen in English common law. While the federal courts, as well as the courts of many states, have abandoned this rule, a number of states including Georgia continue to apply it. The foundation for the rule is simply “to safeguard against one person falsely maintaining that he and the defendant were accomplices to commit the crime.” Coleman v. State, 227 Ga. 769, 771 (183 SE2d 379).

While neither constitutional principles nor the language of OCGA § 24-4-8 compel its application to juvenile cases, the public policy underlying the decision in T. L. T., supra, remains firmly in place and has been recognized in other states. See Smith v. State of Oklahoma, 525 P2d 1251, 1253 (3). Some states apply other criminal case corroboration requirements to juvenile cases. See In the Matter of L. A. G., 407 A2d 688, 692 (3, 4).

Due to the lack of corroboration of the testimony of the alleged accomplice, R. P., the juvenile court’s finding that these juveniles had committed delinquent acts constituting, were they not juveniles, multiple counts of the offense of criminal damage to property in the second degree was not authorized by the evidence. The adjudications of delinquency being predicated at least in part on these unauthorized findings must be reversed. Our decision does not affect the finding that J. H. M. has committed delinquent acts constituting, were he not a juvenile, three counts of the offense of burglary and two counts of the offense of entering an automobile or preclude an adjudication of delinquency following remand to the juvenile court predicated on these findings.

Judgments reversed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., and Judge Arnold Shulman concur. Beasley and Cooper, JJ., concur specially. Pope and Andrews, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur in the opinion except I do not conclude that there has been a “demise” of the parens patriae philosophy in juvenile law. Rather, there has been a shift in the process so as to embrace within that philosophy an adherence to procedural safeguards afforded in criminal cases.

I am authorized to state that Judge Cooper joins in this special concurrence.

Andrews, Judge,

dissenting.

The sole enumeration of error in both appeals is that the court erred in not directing a verdict of acquittal because the accomplice’s testimony was uncorroborated. I respectfully dissent because I do not believe OCGA § 24-4-8 applies to juvenile cases.

OCGA § 24-4-8 provides that “[t]he testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient.”

Decided November 26, 1991.

Jay W. Bouldin, for appellants.

Robert E. Keller, District Attorney, Gina C. Shuman, Assistant District Attorney, for appellee.

Under OCGA § 15-11-38, an adjudication of delinquency does not result in a conviction of a felony. In the Interest of G. G., 177 Ga. App. 639, 640 (4) (341 SE2d 13) (1986). A felony is defined as “a crime punishable by death, by imprisonment for life, or by imprisonment for more than 12 months.” OCGA § 16-1-3 (5).

In T. L. T. v. State, 133 Ga. App. 895, 898 (2) (212 SE2d 650) (1975), three judges of this court concluded that the principle stated in OCGA § 24-4-8 should apply to juvenile proceedings. The authority cited, however, dealt with adult felony cases. The extension to juvenile cases was made on the premise that a juvenile charged with delinquency “is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial.” Id. at 899. At common law, however, one could be convicted on the uncorroborated testimony of an accomplice. LaFray v. State, 48 Ga. App. 133, 134 (1) (172 SE 115) (1933). Neither is the principle encompassed in § 24-4-8 of constitutional magnitude. Gunter v. Hickman, 256 Ga. 315, 317 (348 SE2d 644) (1986) (Gregory, J., concurring).

Section 24-4-8 is clear and straightforward, requiring no interpretation as the intent of the legislature is clear that it applies only to felony cases, which juvenile adjudications are not. Division 2 of T. L. T., supra, and its progeny should be overruled.

Considering the testimony of R. P., I would find the evidence legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

I am authorized to state that Judge Pope joins in this dissent.

       A motion for dismissal under Uniform Juvenile Court Rule 11.4 is the appropriate procedure and the motion made is treated as such.

        D. W. D. v. State, 136 Ga. App. 304 (221 SE2d 72) (1975); R. T. M. v. State, 138 Ga. App. 92 (1) (225 SE2d 510) (1976); J. B. L. v. State, 144 Ga. App. 223 (241 SE2d 40) (1977).