author: Blackburn, Judge.

text:
    A98A1868.
    COLE v. LIFE INSURANCE COMPANY OF GEORGIA et al.
    (511 SE2d 596)
   Blackburn, Judge.

Mae Elizabeth Cole appeals the trial court’s order granting the defendants’ motion for summary judgment in the underlying action for additional accidental death benefits. The trial court determined that the insurance policy at issue unambiguously provided for accidental death benefits of $10,000 above the face amount of the policy, instead of the $15,000 claimed by Cole. For the reasons set forth below, the trial court erred in granting defendants’ motion for summary judgment.

“When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. The opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.” (Punctuation omitted.) Bodymasters Sports Indus. v. Wimberley, 232 Ga. App. 170 (501 SE2d 556) (1998).

In the present case, Gene Cole owned a life insurance policy as an insured with defendant Southland Life Insurance Company. The first page of the insurance contract contains, under the heading “Insurance Benefits,” an entry stating “ACCIDENTAL DEATH V-k TIMES STANDARD.” The sum insured is listed as $10,000. By the language contained in the accidental death benefit supplementary agreement, Southland agreed to pay “an additional amount equal to the sum insured in the principal policy” in the event the insured died under accidental conditions defined therein. After his death due to an on-the-job accident, Southland paid Cole’s wife, Mae Elizabeth Cole, $10,000 in accidental death benefits. Thereafter, Mae Cole filed the underlying action asserting that pursuant to the insurance contract, she was entitled to accidental death benefits of $15,000.

“Insurance in Georgia is a matter of contract and the parties to the contract of insurance are bound by its plain and unambiguous terms. Richards v. Hanover Ins. Co., 250 Ga. 613 (1) (299 SE2d 561) (1983). However, if a provision of an insurance contract is susceptible of two or more constructions, even when the multiple constructions are all logical and reasonable, it is ambiguous (Lakeshore Marine v. Hartford Accident &c. Co., 164 Ga. App. 417 (2) (a) (296 SE2d 418) (1982)), and the' statutory rules of contract construction will be applied. Pursuant to the rule of construction set forth at OCGA § 13-2-2 (5), the contract will be construed strictly against the insurer/ drafter and in favor of the insured.” Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996). “When two provisions of an insurance contract conflict or are repugnant to each other, the provision most favorable to the insured shall apply.” Home Ins. Co. v. Sunrise Carpet Indus., 229 Ga. App. 268, 271 (1) (493 SE2d 641) (1997).

Decided February 4, 1999.

Burge & Wettermark, F. Tucker Burge, for appellant.

Gorby & Reeves, Martha D. Turner, Mary D. Peters, Daniel E. Turner, for appellees.

Because the language on the first page of the insurance contract at issue can be construed to provide accidental death benefits of $15,000 it conflicts with the later provision providing for only $10,000 in insurance benefits. Therefore, the provision most favorable to the insured must apply. By allowing the provision most favorable to the insurance company to control, the trial court erred in granting the defendants’ motion for summary judgment.

Judgment reversed.

McMurray, P. J., and Eldridge, J, concur.


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A98A1885.
    THE STATE v. GUILLORY.
    (511 SE2d 591)
   Beasley, Presiding Judge.

Joseph Guillory was indicted for false public alarm (OCGA § 16-10-28). OCGA § 5-7-1 (a) (4) permits the State’s appeal of the order granting Guillory’s motion to suppress his confession.

The evidence at the suppression hearing showed that at approximately 12:45 a.m. on October 1, 1997, Alicia Rankine received a telephone call in her dorm room at McAllister Residence Hall at Brew-ton-Parker College. The caller did not identify himself but told her there was a bomb in the building. Authorities were contacted.

GBI Agent Watson arrived on the scene at about 2:30 a.m. after the dormitory had been evacuated. Rankine, Sheriff Sanders and Brewton-Parker security officer Cleve Royal told Watson the details of the bomb threat. Rankine told Watson that she knew only one male student at Brewton-Parker whom she had known prior to college, and that she knew him as “J. C.” She said he lived in the “200 dormitory” of LeRoy Hall and she had not had any problems with him. Rankine explained that she knew from the sequence of the rings that the telephone call was an on-campus call. But she told Watson that it was not “J. C.” who made the threat on the phone.

Royal told Watson that during the evacuation of McAllister Hall, he observed a man wearing blue shorts and a white shirt alone in the area of a nearby male dorm, LeRoy Hall. When Royal shined his flashlight, the man ran into the dorm.

While McAllister Hall was being searched for a bomb, Watson and Sanders went to LeRoy Hall to see if they could locate anyone matching the description given by Royal. The two men entered the main door to the 200 block of LeRoy Hall which was open; the doors to the four individual dorm rooms were on the interior of the building. Watson saw that the door to room 202 was ajar by about two to four inches and he knocked on that door, but not on the other three. Although there was no answer, he heard sound from a television. He continued to “beat” on the door and announce who he was but there was no response. He peeked into the room, saw two men inside each lying on a bed, and opened the door. He let himself in the room and called out to the sleeping men.

The defendant identified himself and Watson said he would like to talk to him. Guillory stood up and put on dark colored shorts and a white tee shirt. Watson testified that he asked Guillory “what he had been doing” and that Guillory said-he had been “playing” on the telephone. Guillory testified that this conversation occurred at the police station. There was some other discussion during which Watson visually examined the room. At some point during the encounter, Guillory was arrested and handcuffed. Sheriff Sanders took him by car to the sheriff’s department. No Miranda warnings were given to Guillory in the dorm room or before he got to the sheriff’s department.

When Watson arrived at the Sheriff’s department at about 4:15 a.m., he joined Guillory in an office where he was being detained and had a brief conversation with him. Guillory testified that Watson asked if he had been “playing” on the phone that night. Guillory said “yes” and told how he had called his girlfriend, Sheree Smith, and pretended to do a routine from the movie “Scream” to scare her. Watson testified that this statement was Guillory’s explanation of his earlier comment about playing on the telephone. Watson then left the office to contact Smith about the story. Sanders, who had come into the office at some point, stayed with Guillory. Guillory testified that Sanders told him he should go ahead and confess and get it over with so he could go on about his business and get back to school. Watson came back into the office and Sanders told him that Guillory wanted to tell what had happened.

Watson testified that he then advised Guillory of his Miranda rights, and Guillory signed the waiver of rights form and a written confession in which he admitted making the bomb threat. Guillory testified that he signed a waiver only after Watson got him to sign the confession. Sanders testified he was not in the room when the rights were given.

The trial court ruled that whether Miranda warnings were given before or after Guillory signed a confession was irrelevant and did not make a finding on that factual issue. The court found instead that Guillory was under arrest at the time he was first questioned in the dormitory and that he began to incriminate himself then. The court concluded that therefore the subsequent statement must be excluded. It did not base its decision on the possible illegality of the arrest.

The trial court’s “findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it,” and “the trial court’s decision with regard to questions of fact and credibility . . . must be accepted unless clearly erroneous.” In essence the court construed the facts against Guillory and still ruled as a matter of law that the confession was not admissible.

The evidence regarding Watson’s entry into Guillory’s room and the subsequent arrest is not in dispute, and “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Guillory argued that the arrest was illegal in his motion' to suppress. Although the issue was not resolved, the pleadings and motion hearing show the matter was thoroughly aired and presented to the court.

The State argues that Guillory was given Miranda warnings before the verbal and written confessions, and even if the statements made at the dormitory room were incriminating, the later confessions must be examined separately and were properly taken. It cites Reinhardt v. State, Andrews v. State, and Moore v. State.

1. We affirm but on different grounds. “The fact that a confession may be voluntary for purposes of the Fifth Amendment is merely a threshold requirement for Fourth Amendment analysis.” In other words, assurance that a person’s Fifth Amendment right against compelled self-incrimination was not violated does not necessarily overcome a failure to protect the person’s right under the Fourth Amendment against unreasonable search and seizure. For the following reasons we hold that even if Guillory’s confession was voluntary, it materialized from an illegal arrest and must be excluded.

“An arrest for a crime may be made by a law enforcement officer either under a warrant or without a warrant if the offense is committed in such officer’s presence or within such officer’s immediate knowledge; if the offender is endeavoring to escape; ... or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant.” “The Supreme Court of the United States has held that, even where probable cause exists, intrusion of a person’s home without a warrant is prohibited by the Fourth Amendment unless such intrusion is preceded by consent or exigent circumstances. Steagald v. United States, 451 U. S. 204, 211 (III) (101 SC 1642, 68 LE2d 38) (1981).”

Guillory was arrested without a warrant. None of the statutory exceptions to the warrant requirement apply. No crime was committed in Watson’s presence or within his immediate knowledge. Guillory was not attempting to flee his dormitory. Assuming Watson could establish probable cause, no reason has been given as to why Watson could not have obtained a warrant before arresting Guillory. There is no suggestion that Guillory consented to Watson’s entry into the room, nor were there exigent circumstances.

“[A]n exigent circumstance which does justify the warrantless entry of a private home is the officer’s reasonable belief that such action is a necessary response on his part tó an emergency situation.” Watson testified he went to LeRoy Hall to interview Guillory to determine if he had been involved in the incident. Watson acknowledged that he did not believe there was a bomb in. Guillory’s room and that he did not search for one there. He offered no other explanation of exigency for entering Guillory’s dormitory room.

Even if Watson had sought a warrant before arresting Guillory, “[a] valid arrest must be supported by probable cause. Dunaway v. New York, 442 U. S. 200 (99 SC 2248, 60 LE2d 824) (1979). An arrest unsupported by probable cause and made solely for the purpose of investigating a crime in the hope that something will turn up as a result of the ensuing investigation, intrudes so severely on the interest protected by the Fourth Amendment that exclusion of the statement is mandated. Dunaway, supra; Brown v. Illinois, 422 U. S. 590 (95 SC 2254, 45 LE2d 416) (1975). If there is a causal connection between an illegal arrest and a custodial statement of confession, then the exclusionary rule must be applied to ensure compliance with the Fourth Amendment. Dunaway, supra; Brown, supra; Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963).” This is so even if a subsequent confession is voluntary.

It is undisputed that Watson and Sanders did not have probable cause to arrest Guillory nor authority to enter his dormitory room. Watson conceded he did not have enough information for probable cause to acquire a warrant before he stepped in. This is consistent with all of his testimony. Prior to entry, Watson only knew the following: (1) a bomb threat had been made by an unidentified caller; (2) the person who received the bomb threat knew one male student from her home town, she knew his name was “J. C.” and she knew he lived in LeRoy Hall; (3) she stated that J. C. had never caused her trouble and, more importantly, he was not the person on the phone who made the threat; (4) a man wearing blue shorts and a white shirt was seen standing near LeRoy Hall observing McAllister Hall being evacuated, and he ran into LeRoy Hall when a light was shone on him.

What Watson did not know shows the prematurity of the entry. Watson did not have any reason to believe the man seen by Royal was J. C. He was not given a description of J. C. He did not know what J. C. had been wearing that day. The only witness to the crime said it was not J. C. who made the call. Watson did not explain any relevance of the fact that Rankine knew J. C. prior to going to college. He did not know that it was J. C.’s room where the door was slightly ajar. He did not know that either person he saw in J. C.’s room was either J. C. or the person Royal saw flee into the dorm. Royal was not there to make the identification. Watson made no effort to determine which room was J. C.’s. These unknowns leave the known facts as insufficient “to warrant a prudent man in believing that [Guillory] had committed or was committing an offense.” “[A] suspicion or strong reason to suspect is an insufficient foundation for a finding of probable cause.”

2. To determine whether the confession is a product of the illegal arrest, “[t]he trial court must determine whether the statements sought to be excluded were obtained by exploitation of the illegality of defendant’s arrest. Thompson v. State, 248 Ga. 343, 344 (2) (285 SE2d 685) (1981). In addition to whether a detainee has been warned of his rights, the factors which should be considered in determining whether a confession has been purged of the taint of an illegal arrest include the temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct. (Cits.) Taylor v. Alabama, 457 U. S. 687, 690 (II) (102 SC 2664, 73 LE2d 314) (1982).”

Decided February 4, 1999.

Timothy G. Vaughn, District Attorney, Karen J. Rice, Assistant District Attorney, for appellant.

John E. Morrison, for appellee.

Guillory’s confession occurred within one and one-half hours of his arrest and there were no intervening circumstances alleviating the taint of the improper arrest. In fact, according to Watson, Guillory’s statements made in his room during the arrest led to further questioning at the Sheriff’s department which resulted in the confession drafted by Watson and signed by Guillory.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       (Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       263 Ga. 113 (428 SE2d 333) (1993).

       222 Ga. App. 129 (473 SE2d 247) (1996).

       263 Ga. 11 (427 SE2d 766) (1993).

        Ryals v. State, 186 Ga. App. 457, 459 (2) (367 SE2d 309) (1988).

       OCGA § 17-4-20.

        Cates v. State, 232 Ga. App. 262, 264 (501 SE2d 262) (1998).

        Coker v. State, 164 Ga. App. 493, 496 (5) (297 SE2d 68) (1982).

        State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988).

        Taylor v. Alabama, 457 U. S. 687, 693 (102 SC 2664, 73 LE2d 314) (1982).

       (Citations and punctuation omitted.) Manzione v. State, 194 Ga. App. 227, 229 (390 SE2d 121) (1990); Johnson v. State, 258 Ga. 506, 507 (2) (371 SE2d 396) (1988) (arresting officer must have “probable cause to believe the accused has committed or is committing an offense”). Compare Gray v. State, 207 Ga. App. 648, 649-652 (2) (428 SE2d 663) (1993).

       (Citations and punctuation omitted.) State v. King, 191 Ga. App. 706, 708 (382 SE2d 613) (1989).

       (Punctuation omitted.) Paradise v. State, 212 Ga. App. 166-167 (1) (441 SE2d 497) (1994).

       Compare Paradise v. State, supra (evidence supports conclusion defendant’s confession was not a product of illegal arrest prior to his confession).


author: Pope, Presiding Judge.

text:
    A98A2205.
    WILCOX v. THE STATE.
    (511 SE2d 597)
   Pope, Presiding Judge.

Brandon Wilcox appeals from the superior court’s order denying his motion to withdraw his guilty plea to one count of armed robbery and two counts of kidnapping. The court sentenced Wilcox to ten years to serve on each count and ran the sentences concurrently. Wilcox argues the court erred in denying his motion because his plea was not voluntary, he was denied effective assistance of counsel at the guilty plea hearing, and the trial court was impermissibly involved in the plea negotiations. Wilcox also argues that his hearing on the motion was rendered fundamentally unfair because the trial court questioned several of his witnesses. For the following reasons, we affirm.

1. In his first enumeration of error, Wilcox argues that during the hearing on his motion to withdraw the guilty plea, the trial court questioned several witnesses in an argumentative manner that put their credibility in issue. Further, Wilcox argues the court, by posing these questions, became an advocate for the state, thereby rendering the proceeding fundamentally unfair.

“It has long been part of Georgia jurisprudence that a trial judge may propound questions to any witness for the purpose of developing fully the truth of the case, and the extent of such an examination is a matter for the trial court’s discretion. [Cit.]” Mullins v. State, 269 Ga. 157, 158-159 (3) (496 SE2d 252) (1998). “The only limitation upon this right is not to express an opinion or intimate to the jury what has or has not been proven.” (Emphasis supplied.) Grayer v. State, 181 Ga. App. 845, 846 (3) (354 SE2d 191) (1987). See also OCGA § 17-8-57. As the Supreme Court explained, the purpose of the limitation “is to prevent the jury from being influenced, not to keep the judge from making up his own mind. [Cit.]” Jones v. State, 250 Ga. 498, 499-500 (4) (299 SE2d 549) (1983). Thus, even if the court’s questions were argumentative or revealed the judge’s opinion about a witness’s credibility, this limitation, clearly, does not apply because the court’s questions were posed in a motion hearing, and not before a jury. See Grayer v. State, 181 Ga. App. at 846.

Finally, while the judge did question Wilcox and his former attorney at length about the details of the guilty plea and other pretrial matters, we do not believe the judge by doing so abandoned her impartiality and became an advocate for the prosecution. The questions posed were all aimed at eliciting the truth, establishing the facts, and making a thorough record for our review. We find no abuse of discretion. See Craft v. State, 234 Ga. App. 305 (506 SE2d 663) (1998).

2. Wilcox asserts the trial court erred in denying his motion to withdraw his plea because the State failed to carry its burden of showing that his plea was knowing and voluntary. We disagree.

“An accused may withdraw a guilty plea at any time before judgment is announced and may then plead not guilty. However, once sentence is pronounced (as occurred in this case), a withdrawal of a plea is within the sound discretion of the court, and this discretion will not be disturbed unless there is a manifest abuse of discretion. After a prisoner raises the question of the validity of his plea of guilty, the burden is on the state to show that the plea was intelligently and voluntarily entered. The state may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Citations and punctuation omitted.) Collins v. State, 163 Ga. App. 403 (294 SE2d 623) (1982).

In this case, the court reviewed Wilcox’s guilty plea transcript and heard testimony from Wilcox, his counsel, and the assistant district attorney. Uniform Superior Court Rule 33.9 requires the trial court to satisfy itself on the record that there is a factual basis for the guilty plea before entering judgment on the plea. This was done. Further, the plea hearing transcript shows sufficient facts from which the trial court could determine that Wilcox knew what he was accused of doing and knew that those acts constituted the crimes with which he was charged. See Towns v. State, 228 Ga. App. 267, 269 (3) (491 SE2d 497) (1997).

The record also reveals that Wilcox was aware of the rights he was waiving and of the consequences of his plea. The trial court asked Wilcox if his lawyer had explained the charges against him, if he understood that he had a right to a jury trial if he pled “not guilty,” and if he understood that he would be giving up this right if he pled guilty. Wilcox answered “yes” to each of those questions. Wilcox was apprised of the mandatory minimum and maximum sentences available for the crimes charged. The court also questioned Wilcox on whether he had a chance to discuss his case thoroughly with his lawyer, whether his lawyer had discussed the facts and law of the case with him and advised him about the case. Wilcox, again, replied “yes” to each of these questions. Wilcox was also aware he would not get the benefit of first offender treatment.

Finally, Wilcox argues that he was not fully advised of the consequences of his plea because his attorney did not inform him of his possible parole eligibility and because the court did not tell him that he would not be eligible for parole under OCGA § 17-10-6.1. “Although criminal defendants are entitled to be informed of the consequences of their pleas, parole eligibility is not so much a direct consequence of a trial court’s acceptance of a bargained plea of guilty, as it is a collateral legislative consequence of the defendant’s own decision to accept a certain sentence in exchange for his guilty plea to a specified crime. Parole eligibility may be a factor which the defendant should consider in bargaining for a recommended sentence, but the trial court is entitled to presume that a defendant has apprised himself of such collateral consequences before agreeing to accept a certain sentence in exchange for his guilty plea.” (Citation and punctuation omitted.) Bess v. State, 235 Ga. App. 372, 373 (508 SE2d 664) (1998).

In this case, Wilcox entered a negotiated guilty plea and received the sentences for which he bargained. As in Smith, from Wilcox’s “point of view, the consequence of receiving the sentence to which he agreed can hardly be deemed unanticipated or adverse.” (Emphasis omitted.) Smith v. State, 174 Ga. App. 238, 240 (329 SE2d 507) (1985). “This case is distinguished from Hutchison v. State, 230 Ga. App. 143 (495 SE2d 618) (1998), in which we concluded that trial counsel rendered ineffective assistance of counsel by failing to advise appellant of the effect of OCGA § 17-10-6.1 on his guilty plea. Hutchison distinguished Smith, supra, on the ground that no allegation was made in Smith that trial counsel rendered ineffective assistance. Id. at 144. Here, too, no such allegation is [properly before the Court], and Smith is controlling.” Bess v. State, supra at 373.

We conclude the State carried its burden of showing that Wilcox was aware of the rights he was waiving and knew the consequences of pleading guilty to the charges. The trial court did not err in finding the plea was voluntarily and intelligently made.

3. Wilcox contends his plea was “judicially coerced” because the trial court “impermissibly injected herself into the plea negotiations.” We do not agree. Wilcox decided to plead guilty to armed robbery and kidnapping after the court rejected the state’s request for the entry of a nolle prosequi order on the offenses of armed robbery and kidnapping and to allow Wilcox to plead to the lesser charges of robbery and false imprisonment. The court considered the motion, reviewed the state’s investigative file, and agreed to accept the nolle prosequi only if Wilcox’s co-defendant exonerated him or accepted primary responsibility for the crimes charged. When the state could not produce this evidence, the court declined to consent to the nolle prosequi and reduce the charges.

It appears from the record before us that the trial court was simply following the statute pertaining to the entry of a nolle prosequi: “After an examination of the case in open court and before it has been submitted to a jury, the prosecuting attorney may enter a nolle prosequi with the consent of the court.” OCGA § 17-8-3. “When a recommendation is made that an indictment be nol-prossed, it is within the discretion of the trial court whether to follow the recommendation. [Cit.]” State v. Davis, 159 Ga. App. 537, 538 (1) (284 SE2d 51) (1981). Wilcox has neither enumerated as error nor argued that the trial court abused its discretion in denying the state’s request to enter the nolle prosequi. Further, the court was not required to accept a plea to a reduced charge simply because the state was so inclined. See Echols v. State, 167 Ga. App. 307 (306 SE2d 324) (1983). Although the court’s decision may have been influential in Wilcox’s decision to plead, we cannot equate it with actual participation in plea negotiations. See Skomer v. State, 183 Ga. App. 308 (358 SE2d 886) (1987).

4. In his final enumeration of error, Wilcox argues the court should have allowed him to withdraw his guilty plea because he would not have entered the plea but for the ineffective assistance of his counsel. Although Wilcox argued in the court below that his attorney failed to fully advise him of the consequences of his plea, that argument was made in support of his claim that his plea was not knowing and voluntary. It was not made in support of a claim of ineffective assistance of counsel. In fact, when the court specifically noted that no ineffective assistance of counsel claim had been made, Wilcox’s new counsel stated: “That’s correct, Your Honor.”

Decided February 4, 1999

Dwight L. Thomas, Caprice J. Small, for appellant.

Robert E. Keller, District Attorney, Verda Andrews-Stroud, Assistant District Attorney, for appellee.

Our Supreme Court has stated that an ineffective assistance of trial counsel claim must be raised at the first practicable moment. Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1991). The Court has further held that a claim of ineffective counsel must be raised before appeal if an opportunity to do so is available. Glover v. State, 266 Ga. 183,184 (2) (465 SE2d 659) (1996). If the opportunity to present such a claim was available, “the failure to seize that opportunity is a procedural bar to raising that issue at a later time.” Id. In this case, Wilcox, through his new counsel, could have raised an ineffectiveness claim at the hearing on his motion to withdraw his guilty plea. However, he chose not to do so. Thus, the issue has been waived. See Cherry v. State, 230 Ga. App. 443 (496 SE2d 764) (1998).

Judgment affirmed.

Beasley, P. J., and Ruffin, J, concur.


text:
    A98A2334.
    STROZIER v. THE STATE.
    (511 SE2d 295)
   Blackburn, Judge.

Patrick Strozier appeals his convictions of involuntary manslaughter and battery, following a jury trial. Strozier was charged with murder, felony murder, aggravated battery, and aggravated assault. On appeal, Strozier contends that the evidence was insufficient to support his conviction and that the trial court erred in allowing hearsay testimony into evidence.

Viewing the evidence in the light most favorable to the verdict, it reveals that one Otis Davis was found face down at 89 Hilliard Street, which is within the Wheat Street Garden Apartment complex. Other evidence indicated that Davis was admitted to the hospital on the night of the incident for surgery on an acute subdural hematoma, a blood clot between the skull and the brain. Davis never regained consciousness and later died from his injuries.

The trial court allowed the investigating officer to testify, over objection, that during the course of canvassing the neighborhood, he came up with the partial name of a suspect, which was “Patrick.” The officer contacted Strozier and told him that his name was given as the suspect in the beating of the victim.

Strozier gave the police a statement which was admitted at trial without objection. Strozier admitted finding someone doing drugs in his car which was parked on the street, and having an altercation with such person after he ordered him out of his car. The identity of that person was never established, and Strozier stated that he did not know the identity of that person. In Strozier’s statement he maintained that the person appeared to have been in a previous fight, stating that his face was swollen and bruised. The officer never asked Strozier directly if Davis was the person with whom he had had an altercation. He did ask Strozier, however, if he knew Davis, and Strozier replied that he did. Given Strozier’s statement that he knew Davis, but did not know the identity of the person with whom he had the altercation, it is clear that Strozier’s position was that Davis was not such person. Strozier never acknowledged that Davis was the person with whom he had the altercation, or that the deceased and the person with whom he had the altercation were the same person. The State presented no other evidence that Davis was the person involved in the altercation with Strozier.

Strozier’s girl friend, Twarna Johnson, testified that she drove him to his mother’s house on Wheat Street, where his car was parked. Johnson testified that she saw a man rise up from the back seat of Strozier’s car. The man exited the vehicle upon Strozier’s demand that he do so. An altercation ensued, in which Strozier struck and kicked the person. Johnson testified that she never saw the person’s face and that she did not know the identity of the person. Strozier and Johnson left in her car as the person walked down the street.

1. Strozier correctly contends that the trial court erred in allowing the officer to testify as to hearsay he obtained during his canvas of the neighborhood. While the trial court allowed the hearsay testimony, that “Patrick” was linked to the incident, there was no necessity for such testimony, as the police are expected to investigate crimes, and no explanation of such fact is needed. What the police are told by those they interview does not become fact by the telling. The officer’s testimony that he heard from an unknown source that “Patrick” was linked to the attack against Davis merely allowed Strozier to be tried based on “rumor, gossip, and speculation.” It also assumes that Strozier is the only “Patrick” who might have committed the crime, and that a crime was indeed committed. See Teague v. State, 252 Ga. 534, 535 (1) (314 SE2d 910) (1984); Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982).

2. Strozier also challenges the sufficiency of the evidence to support his conviction. Strozier contends that there was no evidence introduced which connected him to the death of Davis. We must agree. The officer’s hearsay testimony was the only evidence purporting to link Strozier to Davis. There is no conclusive proof that Davis’ death was the result of a criminal act, rather than an accidental fall or traffic accident, etc. It does not necessarily follow that one who is injured was the victim of a crime. Convictions in criminal cases must be based on facts and evidence, not assumptions and inferences.

Decided February 4, 1999.

Lawrence M. Korn, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Having reviewed the evidence under the Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) standard, there was no evidence presented upon which a rational trier of fact could have found Strozier guilty beyond a reasonable doubt of battery and involuntary manslaughter against Davis.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A2437.
    FARRIS v. THE STATE.
    (511 SE2d 601)
   Blackburn, Judge.

Harold J. Farris, pro se, appeals his conviction by a jury of driving with no proof of insurance and operating a motor vehicle with an expired tag. On appeal, Farris asserts several enumerations of error; however, we are unable to address the merits of his appeal because the record is incomplete. Therefore, we must affirm.

Initially, we note that none of defendant’s enumerations are supported by citations to the record, argument, or citations to authority as required by Court of Appeals Rule 27 (c) (2) and (3), and according to such rule, Farris’s enumerations of error are deemed abandoned. See id. Additionally, Farris has failed to include a transcript of the proceedings below. “It is well-settled law that without a transcript to review, this court must assume as a matter of law that the evidence at trial supported the court’s findings. It is the burden of the complaining party, including pro se appellants, to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.” (Punctuation omitted.) Trevino v. Flanders, 231 Ga. App. 782 (1) (501 SE2d 13) (1998).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

Decided February 4, 1999.

Harold J. Farris, pro se.

Cheryl F. Custer, District Attorney, Robert G. Mikell, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A98A2476.
    WOODARD et al. v. DOTY.
    (511 SE2d 602)
    Decided February 4, 1999.

      Slater, King & Gross, Scott R. King, for appellants.
    Chris Doty, pro se.

   Smith, Judge.

Appellants Jim and Linda Woodard appeal the superior court’s order granting the motion for writ of possession filed by Chris Doty. In particular, they complain of the trial court’s conclusion, after hearing evidence, that the parties did not enter into an accord and satisfaction. But we cannot reach this contention. Appellants have failed to provide a transcript of the hearing, and consideration of their arguments requires examination of the evidence presented to the trial court. “The party asserting error on appeal has the burden to show it affirmatively by the record. The appellant has a duty to provide the appellate court with a transcript where an appeal is taken which draws in question the transcript of the evidence and proceedings. This court is a court for the correction of errors and its decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel. An appeal in which a consideration of the enumeration of errors is dependent upon a consideration of the evidence heard by the trial court will be affirmed if a transcript is not included as a part of the appellate record.” (Citations and punctuation omitted.) McClaskey v. Jiffy Lube, 197 Ga. App. 537-538 (398 SE2d 825) (1990). See also Mike’s Garage Door Co. v. Dews, 220 Ga. App. 648 (469 SE2d 855) (1996).

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.


text:
    A98A2246, A98A2313.
    ETHEREDGE v. KERSEY et al.; and vice versa.
    (510 SE2d 544)
   Blackburn, Judge.

In Case No. A98A2246, plaintiff Robert S. Etheredge appeals the trial court’s order granting summary judgment to defendants Brian and Karen Kersey in this action for personal injury damages sustained by Robert S. Etheredge after he was struck by a car driven by Brian Kersey. In Case No. A98A2313, the Kerseys cross-appeal the trial court’s order striking several of the affidavits submitted in support of their motion for summary judgment.

Case No. A98A2246

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).” (Punctuation omitted.) Hardin v. City Wide Wrecker Svc., 232 Ga. App. 617 (502 SE2d 548) (1998).

The evidence of record reveals that Etheredge, who has no independent memory of the incident, was crossing a six-lane road on foot when he ran in front of Brian Kersey’s Volkswagen Beetle and was struck. Etheredge failed to use the crosswalk, which the investigating officer estimated was 25 to 50 yards away. The depositions of Brian Kersey and his two passengers are consistent in describing the incident. They deposed that Etheredge stepped off the median and into the road while taking a drink from a can of beer. While in a traffic lane, Etheredge stopped and looked down the road then hesitated before he ran in front of Kersey’s automobile. When Kersey saw Etheredge step off the median, he began to slow his car down and changed lanes in an effort to avoid hitting Etheredge. Kersey slammed on his brakes while moving into the far lane when he saw Etheredge dart in front of him. Kersey’s brakes locked, and his car skidded. The investigating officer estimated that 72 feet of skid marks were left prior to impact. The record does not contain the testimony of any other witnesses, and Etheredge has no memory of the incident. Etheredge told the investigating officer that prior to the incident his leg had been treated at the medical center where he was given an unknown medication. Etheredge’s last memory of that evening is of walking across the medical center parking lot.

“A defendant may [prevail at summary judgment under OCGA § 9-11-56] by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a genuine jury issue on at least one essential element of plaintiff’s case. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Punctuation omitted.) Presto v. Charter Peachford Behavioral Health System, 229 Ga. App. 576 (494 SE2d 377) (1997).

In the present case, there is an absence of evidence showing that any of Kersey’s acts or omissions constituted negligence. In fact, the evidence revealed that the defendants had the right of way as the plaintiff proceeded heedlessly from the safety of the center median without using the nearby crosswalk. Accordingly, Kersey was not negligent per se, and Etheredge is not protected by OCGA § 40-6-92 (a).

“OCGA § 24-4-1 places the burden of proof upon the party who is asserting or affirming a fact and to the existence of whose case the proof of such fact is essential. The burden of proof is determined by the pleadings, and a defendant’s denial of the plaintiff’s allegations is notice to the plaintiff that he has the burden to prove them. Carver v. Jones, 166 Ga. App. 197 (1) (303 SE2d 529) (1983). The plaintiff must establish on his part all of the facts necessary to show that the defendant is liable, the defendant not being called on to make any defense until enough testimony has been introduced to show that he owed a duty to the plaintiff, that he negligently failed in his performance, and that in consequence thereof the plaintiff was damaged. Proof of the duty and injury are only parts of the plaintiff’s case. The law raises no presumption whatever as to who was to blame. The burden is on the plaintiff to show that the defendant was negligent. Chenall v. Palmer Brick Co., 117 Ga. 106, 108 (43 SE 443) (1903). Moreover, in the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence. Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 525 (3a) (317 SE2d 853) (1984).” (Citations and punctuation omitted.) Richardson v. Pullen, 175 Ga. App. 305, 306 (333 SE2d 130) (1985).

In a summary judgment analysis, “[o]nce the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in OCGA § 9-ll-56[,] must set forth specific facts showing that there is a genuine issue for trial. OCGA § 9-11-56 (e).” (Punctuation omitted.) Marable v. First Union Nat. Bank, 232 Ga. App. 628 (502 SE2d 557) (1998).

Decided November 17, 1998

Reconsideration denied February 5, 1999

Peter G. Williams, for appellant.

Buchanan & Land, Benjamin A. Land, Clay D. Land, for appellees.

Here, Etheredge has failed to present any evidence which raises a question of fact as to whether Kersey was negligent. “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.” (Citations and punctuation omitted.) Blue Cross &c. of Ga. v. Kell, 227 Ga. App. 266, 271 (3) (488 SE2d 735) (1997). Etheredge’s contentions regarding what might have happened disappear in light of the uncontradicted witness testimony as to what did happen. There is no evidence to support Etheredge’s claim that Kersey negligently caused the accident. Therefore, the trial court correctly granted summary judgment to the Kerseys.

Case No. A98A2313

In Case No. A98A2313, the Kerseys contend that the trial court erred in striking several affidavits which they sought to admit in support of their motion for summary judgment. However, because our decision in Case No. A98A2246 did not require the consideration of these affidavits, the Kerseys’ cross-appeal is moot.

Judgment affirmed.

McMurray, P. J., and Eldridge, J, concur.


text:
    A98A2462.
    ALLEN et al. v. TUCKER FEDERAL BANK.
    (510 SE2d 546)
   Blackburn, Judge.

Ernest T. Allen and Sandra D. Allen (the Allens) appeal the trial court’s order dismissing their claims that Tucker Federal Bank (the Bank) entered into an oral contract with them to “refinance or reinstate” their mortgage following the Bank’s foreclosure on their property. The Allens also contend: (1) that the trial court erred by failing to grant them a jury trial on this issue; (2) that the trial court erred by not transferring their case to superior court to hear their equitable claim; and (3) that the applicable Georgia law regarding dispossessory proceedings infringed their rights under the First Amendment of the United States Constitution. For the reasons discussed below, we affirm.

It is undisputed that the Bank foreclosed on a mortgage it held on the Allens’ property. Following foreclosure, the Allens remained on the property, and the Bank filed for writs of possession against the Allens on June 19, 1998, in the State Court of DeKalb County. On June 30, 1998, the Allens filed an answer and counterclaim to the Bank’s proceedings, contending: (1) that, during the period following the foreclosure and before filing of the writs of possession, the Bank entered into an oral contract with the Allens to “refinance or reinstate” their mortgage; (2) that they were entitled to a jury trial; and (3) that their case should be transferred to superior court because their oral contract claim sounded in equity.

On July 13,1998, the state court granted the Bank’s writs of possession against the Allens, and, on July 28, 1998, it issued an order finding that the Allens raised no triable issues for consideration. Accordingly, the state court denied the Allens’ motions for a jury trial and for transfer of the case.

1. As an initial matter, following foreclosure there would be no mortgage left to “reinstate or refinance” as the Allens contend. Instead, an agreement could be made by the Bank to sell the property back to the Allens, subject to a new mortgage. Any such agreement, however, would have to be in writing. OCGA § 13-5-30 (4) requires that “[a]ny contract for sale of lands, or any interest in, or concerning lands” must be in writing and signed by the party to be bound to be enforceable. Furthermore, OCGA § 13-5-30 (7) requires that “[a]ny commitment to lend money” be in writing as well. Here, any agreement by the Bank, which holds title to the property following foreclosure, to “reinstate or refinance” the Allens’ mortgage would be tantamount to a transfer of an interest in real property subject to OCGA § 13-5-30 (4). As such, the Allens’ claim that the Bank orally agreed to reinstate their mortgage following foreclosure is untenable in the absence of a written agreement.

2. As the Allens’ claims lack merit as a matter of law, the trial court properly denied their motions for a jury trial. “[The Allens] correctly assert [] that the right to trial by jury exists in dispossessory actions. [They are] incorrect, however, in asserting that [they were] deprived of this right by the trial court. The existence of the right does not demand that a jury trial be held in all cases, including those where no issues remain for jury determination.” (Citation omitted.) Hallisy v. Snyder, 219 Ga. App. 128, 129 (3) (464 SE2d 219) (1995).

3. Because the Allens’ claims lack merit as a matter of law, the state court properly refused the Allens’ request to transfer their case to superior court. See Bread of Life Baptist Church v. Price, 194 Ga. App. 693 (392 SE2d 15) (1990).

Decided November 17, 1998

Reconsideration denied February 5, 1999

Ernest T. Allen, pro se.

Sandra D. Allen, pro se.

Womble, Carlyle, Sandridge & Rice, Devereaux F. McClatchey V, Everett W. Gee III, R. Wayne Bond, for appellee.

4. In their final enumeration of error, the Allens argue that the laws in Georgia regarding dispossessory proceedings violate the First Amendment of the United States Constitution. “Except in limited situations, not here pertinent, the Supreme Court [of Georgia] has exclusive jurisdiction of constitutional construction. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). In this instance, the record does not show that the trial court ever ruled on [the Allens’] challenge to the constitutionality of [the dispossessory proceedings against them]. Since there is no ruling on the constitutionality of [such proceedings], the issue is not properly presented for appellate review in this case as it was not explicitly argued and ruled on below.” (Punctuation omitted.) Harris v. State, 230 Ga. App. 842 (497 SE2d 810) (1998).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Andrews, Judge.

text:
    A97A0322.
    WASHINGTON et al. v. SOUTH GEORGIA MEDICAL CENTER.
    (511 SE2d 629)
   Andrews, Judge.

In Washington v. South Ga. Med. Center, 226 Ga. App. 554 (487 SE2d 125) (1997), the Washingtons appealed from the trial court’s order dismissing their action against South Georgia Medical Center (the hospital) on the basis that they wilfully failed to appear for their depositions which were noticed to them by the hospital’s co-defendant, Swindle. We reversed, concluding that the trial court had no authority to grant the hospital’s motion for the sanction of dismissal pursuant to OCGA § 9-11-37 (d) because the depositions were noticed, not by the hospital, but by Swindle. Id. In South Ga. Med. Center v. Washington, 269 Ga. 366 (497 SE2d 793) (1998), the Supreme Court reversed this Court, held the trial court had authority to grant the hospital’s motion for sanctions, and remanded the case to this Court to determine whether the trial court abused its discretion in dismissing the plaintiffs’ claims. Accordingly, the judgment of the Supreme Court is made the judgment of this Court.

Decided February 5, 1999.

Elizabeth Pelypenko, for appellants.

Young, Thagard, Hoffman, Scott & Smith, F. Thomas Young, Elizabeth C. Cleveland, for appellee.

In imposing the sanction of dismissal against the Washingtons pursuant to OCGA § 9-11-37 (d) for failure to appear for their depositions, the trial court found that the failure was conscious or intentional. We find no abuse of discretion in the trial court’s dismissal of the Washingtons’ action against the hospital. Smith v. Mullinax, 122 Ga. App. 833 (178 SE2d 909) (1970).

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Beasley, P. J., Blackburn, Smith, Ruffin, Eldridge and Barnes, JJ, concur.


text:
    A98A1710.
    THE STATE v. TERRY.
    (511 SE2d 608)
   Pope, Presiding Judge.

On the night of March 13, 1997, Officer Carmelita Preston of the Albany Police Department was called to the scene of an accident. Appellant Kellie V. Terry was the driver of one of the vehicles involved. After another officer at the scene told Preston that Terry had admitted that she had had a few drinks before she left work that night, Preston approached Terry and asked her if she had been drinking. Terry stated that she had had a couple of beers before she left her job. Preston observed that Terry’s eyes were red and glassy, and she smelled alcohol on Terry’s breath.

Preston then placed Terry into her patrol car and read her the implied consent notice before calling another officer to administer an aleo-sensor test. No other field sobriety tests were performed due to heavy rain. Terry was arrested based upon the results of the alcosensor test.

Preston drove Terry to the Dougherty County Jail, where she again read her the implied consent notice. Terry then began asking questions of Preston and the Intoxilyzer test operator. This exchange was recorded on videotape and played at the motion hearing. The transcript shows the following colloquy after Preston read the implied consent notice: “Terry: So I can refuse it? Preston: Yes. Terry: So if I refuse it, then, my license will be suspended? Preston: Uh-huh (yes). Terry: But do I still get the DUI if I refuse it? Preston: Yes. You’ll be charged with DUI, like I said, and the burden of proof, it will be written down about your refusal on that part. And then I’ll put in my report what you blew on the scene, and so it’s the burden of the Judge to determine whether or not you were DUI, I mean, the way you were acting — you did cause an accident — so the condition of your driving, plus what you blew at the scene will all be in your report. And then your refusal for testing, the burden of proof is on you. You can leave here and bond out and got to, like I say, and pay for your own — get your own blood or urine testing, if you choose to. Terry: So if I refuse, I can go on and leave. Preston: If you get bonded out. Terry: Is that correct? Test Operator: You’re still, if you refuse, you’re still going to get charged with DUI for refusing. So if you get a bond, and you can bond out, and then if you choose to go somewhere and, you know, and have blood drawn, or urine, or whatever, so that you can take that to Court or do whatever you plan to do. Your refusal here, your license — you’re automatically going to lose your license for one year. Terry: And if I don’t refuse, if I go ahead and take it, what happens? Test Operator: Then she’s got some paperwork that you can fill out and you will have to sign that will give you thirty days to drive until you go to court.”

Following this exchange, Terry refused to submit to an Intoxilyzer test, and she was charged with driving under the influence.

Terry subsequently filed a motion in limine seeking to suppress the evidence of her refusal to submit to the Intoxilyzer test. In her motion, Terry argued that Preston and the test operator incorrectly told her that obtaining bond was a precondition to taking an independent test in contravention of the law. She asserted that this confusion made it impossible for her to make an informed decision and that evidence of her refusal to take the blood test was accordingly inadmissible. The trial court agreed and granted the motion in limine, and the state appeals.

“In cases involving the review of the grant or denial of . . . motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s finding as to disputed facts and credibility must be adopted unless clearly erroneous. [Cits.]” Wells v. State, 227 Ga. App. 521 (489 SE2d 307) (1997). Where the evidence at a hearing on a motion in limine is uncontroverted, and no issue exists regarding the credibility of witnesses, we review the trial court’s ruling “to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review.” (Punctuation omitted.) Buchnowski v. State, 233 Ga. App. 766, 767 (1) (505 SE2d 263) (1998); State v. Leviner, 213 Ga. App. 99 (1) (443 SE2d 688) (1994).

The state argues that the trial court erred in granting the motion in limine because Terry was correctly informed of her rights when the officer read her the implied consent notice. Preston’s later explanations could not be misleading, the state asserts, because Terry had been fully informed of her rights when the notice was read and further Preston did not intend to mislead Terry. We find these arguments to be unpersuasive.

If we were to adopt the state’s position, a police officer could give a defendant false, misleading or confusing information regarding his rights under the implied consent law, so long as the officer at some point read the defendant the complete and correct implied consent notice. Clearly, that cannot be the intended result of the implied consent statute. Further, we do not believe that the officer’s intent with regard to such information is determinative. Even if an officer did not intend to mislead, if the defendant is misled or misinformed as to his rights, his ability to make an informed decision would be impaired.

While it is undisputed that Preston read Terry the implied consent notice, it appears that Terry still had questions about her rights even after the notice was read. And in attempting to respond to those questions, Officer Preston and the Intoxilyzer operator gave Terry extraneous and misleading information. The implied consent notice read to Terry states, “After first submitting to the required state test, you are entitled to additional chemical tests of your blood, breath, urine or other bodily substances at your own expense and from qualified personnel of your own choosing.” See OCGA § 40-5-67.1 (b) (2). The notice is silent as to when an independent test will be administered.

But the responses of Preston and the test operator implied that Terry would be able to obtain an independent test only if she bonded out on the DUI charge. This information was misleading in the context of Terry’s questions. There is no requirement under the law that a suspect bond out before being entitled to an independent test. The only requirement is that the suspect first agree to take a state-administered test or the independent test is waived. And if the suspect does agree to the state-administered test, then the police officer must make “ ‘a reasonable effort to accommodate the accused who seeks an independent test. [Cit.]” State v. Button, 206 Ga. App. 673, 674 (426 SE2d 194) (1992). See State v. Brodie, 216 Ga. App. 198, 199-200 (2) (453 SE2d 786) (1995); State v. Vandervoort, 215 Ga. App. 72, 73 (1) (449 SE2d 617) (1994). Obtaining bond is not a prerequisite to that reasonable accommodation, and the statements by Preston and the test operator were therefore misleading.

While the transcript shows that the statements were made in the context of discussing Terry’s options if she refused the state-administered test, this distinction may not have been clear given the confusing nature of the discussion. Further, this subject is extraneous to matters covered in the implied consent notice (as were the officer’s discussions of the judge’s and defendant’s respective “burdens of proof” at trial). And although it may be hypothetically correct that a suspect could refuse the state-administered test, get bond and obtain his own test, this result is not guaranteed. A suspect may be unable to obtain bond within a reasonable period if, for example, additional charges are pending. Terry, in fact, was not released from custody for nine hours.

Decided February 5, 1999.

Kenneth B. Hodges III, District Attorney, Jennifer Johnson- Green, Assistant District Attorney, for appellant.

The trial judge found that not only was this information misleading, it was relevant to Terry’s decision whether to agree to the state-administered test. Terry received this information prior to making her decision with regard to the state test. And the trial judge noted that if a defendant believes that bond may not be immediately forthcoming and that her right to an independent test is contingent upon obtaining bond, this could affect her decision. We find that there is a substantial basis to support this conclusion as well as the trial court’s “inherent” finding that the information given to Terry “in its totality contained substantial misleading, inaccurate, and extraneous information . . ., and [Terry] was confused thereby as to [her] existing implied consent statutory privileges.” State v. Leviner, 213 Ga. App. at 102 (3) (c). Compare State v. Kirbabas, 232 Ga. App. 474, 479 (1) (c) (502 SE2d 314) (1998) (where officer’s statements following implied consent warning were found not to be false or misleading); Sorrow v. State, 178 Ga. App. 83, 84 (342 SE2d 20) (1986) (where inaccurate information “had nothing to do with the defendant’s options under the Implied Consent Statute”).

The state argues that our decision in Miles v. Wells, 225 Ga. App. 698 (484 SE2d 720) (1997) compels a different result. We find that case distinguishable. The defendant in Miles v. Wells agreed to the state-administered test and requested an independent test but did not specify by whom he wanted the test administered. The officer then stated that he would take the defendant to the local hospital. The defendant moved to suppress the evidence surrounding the state test, arguing that the officer’s statement negated the prior statement in the implied consent notice that the defendant could choose who administered the test. We affirmed the trial court’s denial of the defendant’s motion to suppress. Id. at 699. But unlike this case, the record in Miles contained no evidence that the officer’s statement misled the defendant as to his rights.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.

Brown & Scoccimaro, Ralph O. Scoccimaro, for appellee.


text:
    A98A1864.
    JOHNSON v. THE STATE.
    (511 SE2d 603)
   Pope, Presiding Judge.

Keith Johnson appeals his convictions for armed robbery (OCGA § 16-8-41), aggravated battery (OCGA § 16-5-24), and aggravated assault (OCGA § 16-5-21). We affirm.

The evidence at trial, viewed in the light most favorable to the jury’s verdict, showed that around 9:00 p.m., on December 12, 1993, 64-year-old Peggy Hanley was brutally assaulted and robbed as she withdrew cash from an automatic teller machine at the First Union Bank in the North Springs Shopping Center in Fulton County. Hanley was cut with a knife during the assault, and the wounds left permanent, disfiguring scars across her neck, hands, and arms. Shortly after the attack, a passer-by came to Hanley’s aid and called the police. Though in a state of shock, Hanley was able to give the responding officer a description of her attacker as a “light black male, with short hair, very tall, and without much facial hair.” The next day, following a news account of the attack, a witness came forward with additional information. The witness testified that she had been in the North Springs Shopping Center the night before and had seen a man who appeared “quite nervous,” “fidgeting” and “acting very erratically.” The man was intently watching the bank area. The witness got a good view of the man because he was standing beneath a security light. When the man realized he was being watched, he ran off. The witness was able to add to Hanley’s description, noting that the man had “very heavy eyebrows” and peculiar ears, one which stuck out and the other which appeared curled. The witness worked with the police to develop a composite drawing of the man she had seen.

Detective Hendrix of the Fulton County Police Department supervised the investigation of Hanley’s robbery. A few months after the attack, Detective Hendrix received information about an ATM robbery in Cobb County. He obtained a photograph of the Cobb County suspect and included it in photographic lineups to show Hanley and the witness. Hanley immediately selected Johnson’s photograph and, without hesitation, identified him as her attacker. Hanley also identified Johnson at trial. Detective Hendrix prepared a different lineup for the witness to view. The witness also immediately selected Johnson’s photograph, and she identified him at trial.

After his arrest, Johnson was taken to the Fulton County jail where he was interviewed by Detective Hendrix. Johnson told Detective Hendrix that during the month of December 1993 he was a crack addict, that he was unemployed, and that because of his addiction he had no memory of the events of that month.

The state also presented evidence of the Cobb County robbery as a similar transaction. Shortly after 5:00 p.m. on March 14, 1994, 61-year-old Jack Gibb was robbed while at an ATM at the R. K. Plaza shopping center. Gibb was robbed by a tall man in his mid-20s who was wielding a West German R.G. .22 caliber revolver, a weapon Gibb recognized from his 40 years of buying and trading firearms. The man snatched Gibb’s money and ran to a brown and tan Cadillac parked nearby. Gibb observed the robber get into the back seat of the car. The driver, who was wearing a white shirt, then backed the car toward Gibb, giving him the opportunity to write down the car’s tag number. Gibb also observed a third person in the car. He was not, however, able to identify his attacker.

Late that evening, Cobb County police officers were able to locate the registered owner of the Cadillac from the information Gibb supplied. The officers learned that the car had been recently sold to Clarence Phillips who was buying the car for his nephew, Johnson. The officers went to Johnson’s address in the Linden Club Apartments in College Park. Shortly after they arrived, the officers spotted the Cadillac entering the apartment complex. They followed it until the driver parked the car. The officers turned on their blue lights and initiated a traffic stop. Three men were in the car. After getting these men out of the car, the officers found two handguns on the front passenger floorboard, a .38 caliber revolver and an R.G. .22 caliber revolver. Johnson was driving the car. The man in the passenger seat was wearing a light-colored shirt. Upon patting Johnson down for weapons, the officer discovered a cigarette box containing 11 small bags of crack cocaine.

Johnson told the officers that he had spent the entire day at his girlfriend’s apartment, located in the building in front of which they were standing. He also told the officer that he had loaned his car earlier in the evening to a person he could identify only as “my nigger.” Johnson said he owned the .38 found in the car, but that he had never seen the .22 before. Johnson claimed that the he did not know the man in the front passenger seat of the car and that he was someone they had just picked up. When the officer said he was going to verify that information with the girlfriend, Johnson got very upset and started yelling that the officer could not knock on the door without a search warrant. The officer went to the girlfriend’s apartment and met a woman who identified herself to the officer as Mima White, Johnson’s girlfriend. She informed the officer that Johnson had been away from the apartment since about 5:00 p.m. She also told the officer that the person who was in the front seat of the car with Johnson was his good friend, Marcus Head. Based on this information and the fact that the car was registered to Johnson, the officers arrested Johnson.

1. Johnson raises several enumerations of error related to the admission of similar transaction evidence.

(a) First, Johnson contends the trial court erred in admitting the Cobb County similar transaction because the evidence was insufficient to establish that the defendant committed the independent act and because the independent act was not sufficiently similar to satisfy the requisites of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). We disagree.

A defendant does not have to be positively identified as the perpetrator of a similar transaction. Rather, circumstantial proof may be used to establish his connection to it. Staten v. State, 219 Ga. App. 536, 537 (466 SE2d 20) (1995). And, that connection does not have to be proven beyond a reasonable doubt. Martin v. State, 198 Ga. App. 488-489 (402 SE2d 95) (1991). In this case, we are satisfied that the state offered proof sufficient to show that Johnson was a party to the independent crime. Johnson was stopped within six hours of the robbery driving a Cadillac identified as the getaway car and owned by him. The robbery victim saw three men in the Cadillac and observed that the driver was wearing a white shirt. Johnson was stopped in the company of two other men, one of whom was wearing a light-colored shirt. The unusual handgun used in the robbery was found in the front passenger floorboard, near Johnson. Police also discovered that Johnson, a self-professed crack addict, had a quantity of cocaine in his possession — which a jury could infer was purchased with the proceeds of the robbery.

Also, as we have explained, “[t]he similar transaction does not have to be identical to the crime for which the defendant stands accused. In fact, the admissibility of a similar transaction is not dependent on the number of similarities between the prior act and the crime charged. Rather, admissibility turns on whether the similarities tend to show that the prior act is relevant to a proper issue at trial. [Cits.]” Callaway v. State, 230 Ga. App. 369 (1) (496 SE2d 349) (1998). In this case, the state showed the following similarities between both crimes: the victims were older, a deadly weapon was used in the attacks, the attacks occurred at an outdoor ATM, the attacks occurred after normal business hours when the banks were closed, the attacks occurred in commercial shopping areas, the victims were alone, and the attacker initiated physical contact with the victims after the victims received cash from the ATM. The state offered this evidence to show identity, course of conduct, and bent of mind. We find that the similar transaction was substantially relevant to establish these factors and thus was not admitted simply to malign Johnson’s character. See Freeman v. State, 232 Ga. App. 715, 716 (505 SE2d 836) (1998).

(b) Johnson contends the trial court should have given, sua sponte, a limiting instruction immediately prior to the admission of the State’s similar transaction evidence. However, “[d]efense counsel did not request limiting instructions at [that point] in the trial and, in the absence of a request, a trial court has no obligation to give a contemporaneous limiting instruction on similar transaction evidence.” Smith v. State, 270 Ga. 68, 69-70 (3) (508 SE2d 490) (1998).

(c) Johnson also argues that the trial court should have given, sua sponte, within its similar transaction charge a charge on circumstantial evidence tracking OCGA § 24-4-6. Johnson argues that the court’s failure to include such language rendered the similar transactions charge incomplete and thus inadequate. However, because Johnson failed to request such a similar transaction charge, the alleged error is not preserved for our review. State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998). Contrary to Johnson’s assertion, a request to charge was required because the case against him was not wholly circumstantial. Livery v. State, 233 Ga. App. 882, 885 (3) (506 SE2d 165) (1998). (With respect to the trial court’s failure to charge on circumstantial evidence in general, see Division 3 below.)

2. The trial court did not err in admitting a police officer’s testimony that Johnson possessed cocaine when he was arrested for the Cobb County similar transaction. Absent a showing that Johnson’s cocaine possession was relevant to an issue at trial, it would be inadmissible evidence of bad character. Sessions v. State, 207 Ga. App. 609, 610 (2) (428 SE2d 652) (1993). Here, however, Johnson told police that he was a crack addict and could not remember anything he did during the month Hanley was robbed. Johnson was also unemployed. Those facts, taken in conjunction with the evidence that Johnson was found in possession of cocaine shortly after Gibb was robbed, provided the logical evidentiary basis for the State’s argument that Johnson robbed Hanley for cash to feed a drug habit. Thus, the evidence was relevant to show Johnson’s motive and bent of mind. See, e.g., Edmond v. State, 267 Ga. 285, 288 (4) (476 SE2d 731) (1996); Ingram v. State, 232 Ga. App. 802 (503 SE2d 70) (1998); Carruth v. State, 182 Ga. App. 786, 787 (2) (357 SE2d 122) (1987).

3. In his sixth enumeration of error, Johnson contends the trial court erred by failing to give his requested jury charge on the law of circumstantial evidence as stated in OCGA § 24-4-6. “The failure to charge on circumstantial evidence as set forth in OCGA § 24-4-6 is not harmful or erroneous as a matter of law where there is some direct evidence and the jury is properly charged on reasonable doubt, absent a request for such charge. Accordingly, when the State’s case includes both direct and circumstantial evidence, a defendant is not relieved of the necessity of requesting the charge and, in the absence of such a request, it is not error to fail to give it. [Cit.]” Livery v. State, 233 Ga. App. at 885 (3). Here, Johnson requested a charge patterned after OCGA § 24-4-6 on circumstantial evidence. Since the State’s case against Johnson “consisted of both direct and circumstantial evidence, the trial court erred in failing to give the requested charge. However, as indicated in Mims v. State, 264 Ga. 271, 273 (443 SE2d 845) (1994), this error is not automatically harmful.” Livery, 233 Ga. App. at 885 (3).

The error in this case was rendered harmless by the overwhelming direct evidence of Johnson’s guilt, namely the positive identifications given by the victim and the witness who observed Johnson shortly before the robbery. Both the victim and the witness had unobstructed, well-lighted views of Johnson, whose face was described as rather unique. Both the victim and the witness were able to pick Johnson out of a photographic lineup without any hesitation. Johnson admitted upon his arrest that he was an unemployed crack addict, establishing a motive for the robbery. Johnson admitted he had no memory of the entire month of December. Moreover, when he was finally arrested, he possessed crack cocaine. This evidence and all reasonable deductions therefrom are inconsistent with a reasonable hypothesis of innocence. “To reverse this conviction would be a perversion of justice.” (Punctuation omitted.) Cornish v. State, 219 Ga. App. 884, 885 (1) (466 SE2d 919) (1996).

4. Although the trial court erred in permitting the arresting officer to testify as to statements made by Johnson’s girlfriend, Muna White, we find the error harmless.

White’s statements were offered for the truth of the matter asserted and were used to show that Johnson lied to officers regarding his whereabouts. The court admitted White’s hearsay statements over Johnson’s objection under OCGA § 24-3-2 to explain the officer’s decision to arrest Johnson and to show a step in the events leading to Johnson’s subsequent identification as a suspect in the Fulton County case. In this case, though, the officer’s conduct was not relevant to any issue at trial. Compare Render v. State, 267 Ga. 848, 849 (2) (483 SE2d 570) (1997) (officer’s decision to proceed with murder investigation based on witness statements held not relevant) with Holmes v. State, 266 Ga. 530, 531 (2) (468 SE2d 357) (1996) (officer’s decision to take fingerprints from specific location based on witness statements held relevant). Consequently, White’s statements should not have been admitted as original evidence. However, “in order to justify a new trial or reversal, the trial court’s ruling must be both erroneous and harmful to the appellant.” (Punctuation omitted.) Wright v. State, 226 Ga. App. 499, 500 (2) (486 SE2d 711) (1997). “The test for harmful error is whether it is ‘highly probable’ that the ' error contributed to the judgment.” Head v. State, 220 Ga. App. 281, 283 (3) (469 SE2d 406) (1996). We do not believe that White’s statements, which were offered only in connection with the similar transaction, contributed to the judgment because the State’s testimony more than sufficed to establish Johnson’s identity as Hanley’s attacker. See id.

Decided February 5, 1999

Megan C. DeVorsey, for appellant.

Paul L. Howard, Jr., District Attorney, David E. Langford, Assistant District Attorney, for appellee.

5. The trial court did not err in granting the State’s motion in limine to exclude expert testimony offered by Johnson on the issue of the reliability of eyewitness testimony. “The law generally disallows expert testimony regarding inaccuracies in eyewitness identification. The determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” (Citations and punctuation omitted.) Sawyers v. State, 211 Ga. App. 668, 669 (3) (440 SE2d 256) (1994).

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A98A1965.
    ANTHONY v. THE STATE.
    (511 SE2d 612)
   Ruffin, Judge.

A jury found Michael Alphonso Anthony guilty of burglary, robbery, and criminal trespass. Anthony appeals from the trial court’s denial of his motion for new trial, asserting numerous grounds. Because each of these assertions is without merit, we affirm.

Viewed in a light most favorable to the verdict, the evidence shows that on August 10, 1996, the victim was asleep in his bed when he heard a thud and awoke to find Anthony standing in his living room with a cigarette lighter lit beneath his face. After the victim turned on his bedroom light, Anthony told him that he had run out of gas and needed money. The victim gave him some pocket change and a gas can; however, Anthony would not leave, but continued to ask the victim for various things and rifled through the victim’s belongings. The victim testified he was scared that Anthony had a gun or a knife because Anthony kept his hand in his pocket during the entire ordeal. The victim managed to leave his apartment, lock Anthony inside with a padlock, and contact the police. When he returned with the police, the victim discovered that Anthony had escaped and that his bedroom window had been torn out.

Later that same day, the victim contacted the police after he “asked around” and learned that the robber “sounded like Michael Anthony.” The police took the victim to Anthony’s apartment and brought Anthony outside, and the victim identified him as the robber. At trial, the victim also positively identified Anthony as the man who broke into his apartment and robbed him. Anthony, testifying on his own behalf, denied committing these crimes.

1. Anthony contends that the evidence was insufficient to support his convictions because the convictions were based solely on the victim’s pretrial, one-on-one identification that was impermissibly suggestive. However, Anthony “raises this issue for the first time on appeal. He did not object to the victim[’s] identification testimony below or ask the trial court to rule on its admissibility. He has therefore failed to preserve this issue for appeal.” Johnson v. State, 213 Ga. App. 194, 195 (2) (444 SE2d 334) (1994); see also Matchett v. State, 190 Ga. App. 227 (2) (378 SE2d 404) (1989).

In fact, Anthony himself elicited the very testimony of which he now complains. On cross-examination of the victim, Anthony’s attorney asked, ‘You could identify somebody, couldn’t you?” In response, the victim described for the first time his one-on-one identification of Anthony after the police took him to Anthony’s apartment. Rather than objecting to this identification testimony, Anthony continued to question the victim about it in detail. Thus, in concluding that Anthony has waived his right to appeal this issue, we note the oft-repeated rule in Georgia that “a party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” (Punctuation omitted.) Noble v. State, 220 Ga. App. 155, 158 (2) (469 SE2d 307) (1996). The evidence, including the victim’s in-court identification of Anthony, was sufficient to support the convictions. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Anthony also maintains that the trial court erred in allowing the State to introduce improper character evidence during his cross-examination. After the State’s cross-examination, Anthony asked the judge whether he could “say something.” Upon the judge’s admonition to consult with his lawyer, and after his lawyer told him to “please go ahead,” Anthony stated, among other things, that “I’m a good man. I work every day, and I work hard. Every time it seem like I try to come up, something always pull you down. But I’m a good black man. I’m a proud black man. There no problem there.” On recross, the State, without any objection from Anthony, introduced evidence of his numerous prior convictions, including possession of a firearm by a convicted felon, entering an automobile with the intent to commit a theft, two burglaries, and three counts of forgery.

“It is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. It is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Punctuation omitted.) Davitt v. State, 232 Ga. App. 427 (1) (502 SE2d 300) (1998). Since the record reflects that Anthony failed to object to the State’s introduction of character evidence, he waived any error. See Cammon v. State, 227 Ga. App. 774, 775 (2) (490 SE2d 529) (1997). Moreover, even had Anthony preserved this alleged error for appeal, it is permissible for the State to introduce evidence, of a defendant’s “bad” character when the defendant himself declares himself “a good man.” “Once the character door is opened, it is opened for all evidence that bears on the defendant’s character — convictions of crimes, guilty and nolo contendere pleas, juvenile offenses, and incidents which illustrate the defendant’s character.” (Punctuation omitted.) Phillips v. State, 171 Ga. App. 827, 828 (2) (321 SE2d 393) (1984).

3. Anthony next asserts as error the trial court’s failure to merge his burglary and criminal trespass convictions during the sentencing phase. However, Anthony “did not object in the trial court to the sentences imposed nor contend that the offenses merged. Thus the matter was not preserved for appellate review.” (Punctuation omitted.) Wright v. State, 233 Ga. App. 358, 362 (4) (504 SE2d 261) (1998); see also Alonso v. State, 190 Ga. App. 26, 30 (7) (378 SE2d 354) (1989).

In any event, the burglary conviction was based on Anthony’s breaking into the victim’s home to rob him, and the criminal trespass conviction was based on Anthony’s breaking the victim’s window. Thus, “the two offenses do not merge as a matter of law where, as here, [there were] separate incidents,. . . different actions, [and] different specific objectives.” (Punctuation omitted.) Millines v. State, 188 Ga. App. 655, 657 (2) (373 SE2d 838) (1988).

4. Finally, Anthony contends that the trial court denied him sufficient time to review the State’s proffer of his prior convictions, which were used in aggravation of his sentence. Although Anthony raised this objection during the jury charge conference, he “failed to object or otherwise raise this issue when the State introduced the conviction [s] in the sentencing phase and thus waived the right to assert this issue on appeal.” Reviere v. State, 231 Ga. App. 329, 332 (3) (498 SE2d 332) (1998); see also Head v. State, 233 Ga. App. 655, 657 (3) (a) (504 SE2d 499) (1998).

Decided February 5, 1999.

Thomas R. Morgan, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Rudjard M. Hayes, Kevin W. Drummond, Assistant District Attorneys, for appellee.

In any event, Anthony’s contention that he did not receive timely notice prior to trial is without merit. Anthony concedes that the State gave him copies of the prior convictions it intended to use in aggravation the day before his trial began. “Receipt by appellant’s counsel, prior to jury selection, of notice of the State’s intent to use the prior conviction [s] in aggravation of any sentences imposed in this case was timely notice pursuant to OCGA § 17-10-2.” (Punctuation omitted.) Godfrey v. State, 227 Ga. App. 576, 577 (1) (489 SE2d 364) (1997).

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       In his brief, Anthony contends that he did object to the State’s use of character evidence during his cross-examination; however, our review of the record reveals that Anthony objected only to the prosecutor’s comment that “I’ll tell you right now, I prosecute white, black. I don’t care what color they are.” In fact, Anthony’s attorney specifically stated that he had no objections to the trial court’s admission of Anthony’s prior convictions during the State’s cross-examination regarding his character.

       During the jury charge conference, Anthony’s counsel stated that, “We would also likewise ask that if a verdict is returned for the offense of burglary, I think robbery and trespass may merge into burglary.” The trial judge declined to address this issue at that time, stating that he wished to wait until the jury returned its verdict. Anthony’s counsel did not raise the issue again.


text:
    A98A2125.
    JACKSON et al. v. THE STATE.
    (511 SE2d 615)
   Blackburn, Judge.

Richard Jackson and Calvin Marshall appeal their convictions of aggravated assault and interference with government property following a jury trial. Jackson and Marshall contend that the trial court erred in failing to grant the motion for directed verdict and that the verdict is contrary to the evidence and against the weight of the evidence. For the reasons set forth below, we affirm.

“The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Wilson v. State, 233 Ga. App. 327, 328 (1) (503 SE2d 924) (1998). Additionally, “[o]n appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant[s] ... no longer enjoy [ ]. the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Punctuation omitted.) Shabazz v. State, 229 Ga. App. 465 (1) (494 SE2d 257) (1997). Since the same standard of review applies to all the enumerations of error, we will consider the enumerations together.

Viewed in this light, the evidence shows on August 8, 1996, Calvin Marshall became upset about arrests being made in an area of the City of Cochran known as the Hill and began repeatedly threatening to “do something about the police.” Between 11:30 p.m. and midnight, appellants Marshall and Jackson, Taurius Pitts and two friends drove in Marshall’s brown Cadillac to Cochran Bait & Tackle. Jackson and Pitts went into the shop where Jackson purchased a box of No. 3 shotgun shells and Pitts shoplifted a box of 9 millimeter bullets.

Around midnight that evening, Chief of Police Robert Schmitz, Investigator Jon Thrower and Mayor George Porter drove to the Hill. They heard gunfire as the car neared the intersection of Sixth and Thompson Streets. Investigator Thrower got out of the car and approached the intersection on foot hoping to see who was doing the shooting. As Chief Schmitz turned the car onto Thompson Street, Pitts and Jackson began shooting at the car. The car was disabled after being hit several times by rounds from a 9 millimeter pistol and a 20-gauge shotgun.

One eyewitness, Eric Anderson, identified both Richard Jackson and Calvin Marshall as the shooters. A second eyewitness, Brock Johnson, testified at trial that he saw appellants Marshall and Jackson near the intersection and that he heard Jackson say that he was tired of the police “messing with them” and that he was going to do something about it. Johnson also testified that he saw Jackson and Marshall with the shotgun and that he saw Jackson fire the shotgun.

Taurius Pitts, who admitted firing the pistol at the car and pled guilty to the offenses, gave a statement to Agent Chatman of the Georgia Bureau of Investigation which was admitted at trial in which he stated that Jackson fired the shotgun. Pitts later gave conflicting testimony, stating that he, not Jackson, fired the shotgun.

Additionally, appellant Marshall gave a statement to Agent Chatman which was admitted at trial. Marshall stated that he was tired of the police coming to the neighborhood. He admitted going to Cochran Bait & Tackle with Jackson. He admitted getting the shotgun with Jackson. He stated that he and Jackson went to Sixth and Thompson Streets and that Jackson fired at the car. Marshall later recanted his statement.

Decided February 5, 1999.

Straughan & Straughan, William T. Straughan, for appellants.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

We find that the evidence was sufficient to go to a jury and to authorize the jury’s finding that Marshall and Jackson were guilty, beyond a reasonable doubt, of aggravated assault and interference with government property. Jackson v. Virginia, supra.

Appellant Marshall nevertheless erroneously contends that the State failed to show criminal intent, arguing that the evidence shows only that he was at the scene. Although “[presence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that defendant is a party [,] . . . criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 89 (2) (469 SE2d 214) (1996). The evidence here was sufficient to support the jury’s finding of criminal intent.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A2160, A98A2161.
    CARTER v. MOODY; and vice versa.
    (511 SE2d 520)
   Blackburn, Judge.

In this contract action, the estate of Larry V. Carter appeals the trial court’s denial of its motion for summary judgment, contending that it should be allowed to argue at trial that an agreement for the sale of unregistered securities entered into between Carter and L. Bryson Moody is unlawful and unenforceable. Moody cross-appeals, contending that the trial court erred by failing to fully grant his motion for summary judgment based on its determination that a question of fact remained as to whether Moody fraudulently induced Carter to enter into the agreement.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

On May 4, 1990, Larry V. Carter entered into a stock transfer agreement with L. Bryson Moody. Pursuant to this contract, Moody agreed to transfer 576 shares of the common stock of Ron Rowland Chevrolet-Oldsmobile Buick, Inc. to Carter, and Carter agreed to assume a number of Moody’s debts as consideration. Carter also agreed to indemnify Moody from any liability stemming from enforcement of the assumed debts.

Moody alleges that Carter, prior to his death, failed to appropriately satisfy the debts that he had assumed, causing Moody to suffer losses in the amount of $63,485.74. To recoup his losses, Moody sued Carter’s estate for reimbursement. Carter’s estate denied liability and counterclaimed, contending, among other things: (1) that Moody, who was Carter’s personal certified public accountant, had breached this confidential relationship and fraudulently induced Carter into the stock agreement without fully disclosing the extent of the company’s financial difficulties and (2) that the agreement was an unlawful contract for the sale of unregistered securities in contravention of OCGA § 10-5-5.

On September 5, 1996, Moody filed a motion for summary judgment on his claims, and Carter’s estate filed a motion for summary judgment on October 11, 1996. On May 11, 1998, the trial court granted partial summary judgment to Moody, finding: (1) that Carter’s claim regarding the unlawful nature of the agreement was barred by the statute of limitation set forth in OCGA § 10-5-14 (d); (2) that Carter was precluded from raising the issue of the illegality of the contract as a defense during trial; and (3) that, with regard to the Carter estate’s fraud claim, an issue of fact remained as to whether there was a confidential relationship between Moody and Carter at the time the contract was executed. Carter’s estate’s motion for summary judgment was denied. Both parties now appeal these rulings.

The record in both parties’ cases is incomplete. Carter’s estate, in its notice of appeal, instructed the clerk: “Transcript of evidence and proceedings will not be filed for inclusion in the record on appeal.” Included within this omitted evidence were the depositions of Gaye Carter, Larry V. Carter’s surviving spouse, and Larry T. Carter, Larry V. Carter’s surviving son and executor.

In his cross-appeal, Moody failed to have this material included in the record as well, although he referenced the omitted depositions in both his motion for summary judgment and his appellate brief as support for his claims.

“When an appellant omits evidence necessary for determination of issues on appeal affirmation is required. Bennett v. Executive Benefits, 210 Ga. App. 429 (436 SE2d 544) (1993). ‘It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.’ Id. On appeal [of summary judgment] this Court is required to conduct a de novo review which, by definition, is impossible if the appellant omits the very evidence at the heart of our inquiry.” Griffin v. Travelers Ins. Co., 230 Ga. App. 665, 666 (497 SE2d 257) (1998).

Case No. A98A2161

With regard to Moody’s cross-appeal, to properly determine whether Moody fraudulently induced Carter to enter into the agreement, it is necessary to review the omitted depositions, as indicated by Moody’s own motion for summary judgment. Therefore, as the record before us is incomplete with regard to Moody’s appeal, we must affirm the decision of the trial court that a question of fact remains regarding the confidential nature of Moody’s relationship to Carter and the existence of fraud.

Case No. A98A2160

In its appeal, the Carter estate enumerates as error an issue presenting a question of law which can be decided without reference to the omitted depositions. Carter contends that the trial court erred by ordering that: “[Carter] shall not raise the issue of illegality of the contract as a defense to the enforcement of the contract upon the trial of the case.” We agree.

OCGA §§ 10-5-5 and 10-5-12 generally provide that it is unlawful for any person to offer to sell or to sell certain securities required to be registered under Georgia’s law of corporations.

Decided February 5, 1999.

Gibson & Spivey, Douglas L. Gibson, for appellant.

William J. Edgar, for appellee.

In turn, OCGA § 10-5-14 (a) provides: “Any person who violates subsection (a) of Code Section 10-5-12 shall be liable to the person buying such security.” However, OCGA § 10-5-14 (d) provides a statute of limitation on such liability: “With respect to the purchase, sale, or offer to purchase or sell a security, no person may sue under this Code section more than two years from the date of the contract for sale or sale, if there is no contract for sale.”

Both parties concur that Moody sold unregistered securities to Carter, and Carter’s estate does not appeal the trial court’s finding that OCGA § 10-5-14 (d) would prevent it from seeking reimbursement for payments made to buy the unregistered securities.

While it is true that OCGA § 10-5-14 (d) prevents Carter from pursuing civil damages arising from the sale of unregistered securities, this statute of limitation does not otherwise prevent Carter from arguing that the contract remains unlawful and unenforceable. The passage of two years does not erase the unlawful nature of the underlying contract so that it becomes fully enforceable by the seller, it merely limits the remedies available to the purchaser of unregistered securities. As such, the trial court erred when it found that, due to the running of the statute of limitation, Carter’s estate was foreclosed from trying to prove the unlawful nature of the contract.

Judgment affirmed in Case No. A98A2161. Judgment reversed in Case No. A98A2160.

McMurray, P. J., and Eldridge, J., concur.

       “[Court of Appeals Rule 27 (b)] requires an appellee to ‘point out any material inaccuracy or incompleteness of statement in the appellant’s brief and any additional statement deemed necessary, plus such additional parts of the record or transcript deemed material. . . . Except as uncontroverted, appellant’s statement of facts may be accepted by this Court as true.’ While this rule requires appellee to point out discrepencies in the record, it does not shift the burden to it to produce the portions thereof required for appellate review which were inappropriately omitted by an appellant.” Id. at 667.