author: Pope, Chief Judge.

text:
    A93A0994.
    CAFFEY v. THE STATE.
    (436 SE2d 102)
   Pope, Chief Judge.

Defendant James Caffey was indicted on six counts of vehicular homicide in the first degree and two counts of driving under the influence of alcohol. The jury found defendant guilty of the lesser included offense of vehicular homicide in the second degree (Counts 1-6) and found defendant not guilty of driving under the influence of alcohol (Counts 7 and 8). Defendant appeals from his conviction and the denial of his motion for new trial.

On January 10, 1992 at approximately 7:40 p.m., defendant was driving west on Glenwood Road. In the area where defendant was traveling, Glenwood is a four-lane road and the two center lanes are divided by a double yellow centerline. Defendant was traveling in the left lane closest to the centerline. The victims, a man, woman and child, were standing on the centerline of Glenwood Road. Although his testimony was disputed by other witnesses, defendant testified he swerved left to avoid a car approaching to his right and struck the three victims. He stated he did not observe the victims before he swerved left. Two of the victims died at the scene of the accident. The third victim was hospitalized but later died from his injuries.

1. At the time of the traffic mishap giving rise to this case, OCGA § 40-5-55 (a) required that both a blood and urine test be administered to any person operating a motor vehicle which is involved in a traffic mishap resulting in serious injuries or fatalities. Defendant argues the trial court committed reversible error by admitting the results of a blood test as proof of defendant’s blood-alcohol level because no urine test was conducted to determine his blood-alcohol level. We do not agree. The jury specifically found defendant not guilty of driving under the influence of alcohol and rejected the State’s argument that defendant committed the offenses of vehicular homicide in the first degree by driving under the influence of alcohol to the extent that it was less safe for him to drive and/or with a blood-alcohol level of 0.10. Thus, assuming the trial court’s admission of this test constituted error under the facts of this case, because the jury did not find defendant guilty of any alcohol-related charge, any error stemming from admission of this test was harmless and will not authorize reversal by this court. See McAlister v. State, 204 Ga. App. 259 (2) (419 SE2d 64) (1992).

2. Defendant also argues there was insufficient evidence presented to authorize a reasonable finder of fact to find defendant guilty beyond a reasonable doubt of vehicular homicide in the second degree. Vehicular homicide in the second degree is defined in OCGA § 40-6-393 (b) as follows: “Any person who causes the death of another person, without an intention to do so, by violating any provision of this title . . . commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death. . .

Defendant does not dispute that ultimately his car traveled across the centerline and traveled in the left half of Glenwood Road for a distance before striking a telephone pole. He argues, however, because the evidence shows the victims were standing on the double centerlines, his automobile struck them before it crossed the center-line and there is no evidence he was violating any of the uniform rules of the road at the time he struck the victims. We do not agree. Our review of the record reveals that the State presented sufficient evidence for a rational finder of fact to find beyond a reasonable doubt defendant was violating OCGA § 40-6-40 (a) at the time he struck the victims. Furthermore, with regard to defendant’s argument that an obstruction caused him to veer across the centerline, whether there was an obstruction causing defendant to drive to the left of the centerline is a question for the jury and the jury apparently did not resolve that question in defendant’s favor. See Smith v. Lott, 246 Ga. 366 (271 SE2d 463) (1980); Foskey v. Williams Bros. Trucking Co., 197 Ga. App. 715, 717 (4) (399 SE2d 484) (1990).

Decided September 27, 1993.

Carl A. Johnston, for appellant.

J. Tom Morgan, District Attorney, J. Michael McDaniel, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       OCGA § 40-6-40 (a) provides: “Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway, except as follows: (1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement; (2) When an obstruction exists making it necessary to drive to the left of the center of the highway, provided that any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such a distance as to constitute an immediate hazard; (3) Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon; or (4) Upon a roadway restricted to one-way traffic.” (Indentations omitted.)


source: Caselaw Access Project

license: Public Domain

text:
    A93A1041.
    SMITH v. THE STATE.
    (436 SE2d 104)
   Pope, Chief Judge.

Defendant Larry Smith appeals his conviction for aggravated assault and aggravated battery. Defendant was indicted and tried for aggravated assault, aggravated battery and armed robbery of a man who allegedly owed his co-defendant Anthony Middlebrooks money. This court recently affirmed the conviction of Middlebrooks. Middlebrooks v. State, 208 Ga. App. 625 (431 SE2d 425) (1993).

1. In his first two enumerations of error, defendant contends the trial court committed reversible error by giving an incorrect statement of the law during the charge concerning the State’s burden once the affirmative defense of self-defense is raised. At trial, only Middlebrooks presented the defense of self-defense. Defendant presented only an alibi defense; that is, he was not present at the crime. Thus, regardless of whether the jury was correctly instructed concerning the defense of self-defense, it would constitute at most harmless error with regard to defendant who did not present such a defense. For this reason, these enumerations of error are without merit.

2. Defendant argues the trial court erred in denying defendant access to the victim’s subpoenaed juvenile records. The record reflects that defendant adopted co-defendant Middlebrooks’ argument concerning Middlebrooks’ motion to review the victim’s juvenile record. As we discussed in Middlebrooks, however, the defendant failed to invoke a ruling on that motion and the issue is waived for purposes of appeal. Middlebrooks, 208 Ga. App. at 626 (4).

Decided September 27, 1993.

Gary W. Washington, for appellant.

Lewis R. Slaton, District Attorney, Anita Wallace, Nancy A. Grace, Assistant District Attorneys, for appellee.

3. We reject defendant’s argument that his constitutional right to a fair trial was denied because certain witnesses were intimidated by the victim and thus refused to testify or changed their testimony for the same reasons that argument was rejected in Middlebrooks, 208 Ga. App. at 626 (3).

4. Defendant’s contention that the trial court’s charge on circumstantial evidence was erroneous is not supported in his brief by citation of authority or argument and is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

5. Defendant also challenges his conviction on the general grounds. When the evidence presented at trial is considered in the light most favorable to support the verdict, there was sufficient evidence presented of defendant’s guilt of aggravated assault and aggravated battery that a reasonable trier of fact could find defendant guilty of those crimes beyond a reasonable doubt.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       Middlebrooks did not challenge on appeal the charge concerning the State’s burden once the affirmative defense of self-defense was raised.


text:
    A93A1107.
    HAMILTON v. THE STATE.
    (436 SE2d 522)
   Pope, Chief Judge.

Defendant Timothy B. Hamilton appeals his conviction for statutory rape. Construing the evidence in the light most favorable to support the verdict, the evidence presented at trial showed that defendant had sex with the victim, a 12-year-old female who was not his spouse at that time. The female later gave birth to a child and claimed defendant was the child’s father. Shortly before defendant’s trial, defendant and the victim married.

1. Defendant argues that the trial court committed reversible error by compelling the testimony of the victim in this case because the testimony of a wife is not compellable against her husband. OCGA § 24-9-23 (a) provides that a spouse is considered a competent witness but not compellable. Subsection (b) of that same statute, however, further provides that the privilege created in subsection (a) is not applicable when the other spouse is charged with a crime against a minor child. In that situation, the spouse’s testimony is “compellable to give evidence only on the specific act for which the defendant is charged.” OCGA § 24-9-23 (b). This case presents the unusual circumstance in which the spouse is also the minor victim. Our legislature has determined that the public policy of protecting this State’s children against crimes outweighs the policy of protecting the harmony and unity of marriage. We see no reason why the public policy considerations should be any different when the victim and the spouse are the same person. Accordingly, we hold the trial court correctly ruled that the victim/spouse’s testimony could be compelled concerning the crime for which defendant was charged pursuant to OCGA § 24-9-23 (b).

2. Defendant contends the trial court erred by allowing the victim/spouse to testify about a conversation she had with defendant after the first day of trial. Defendant did not object to this testimony at trial and cannot raise this issue for the first time on appeal. Wadsworth v. State, 209 Ga. App. 333, 334 (3) (433 SE2d 419) (1993).

3. We find no merit in defendant’s contention that the trial court abused its discretion by allowing a police officer of the City of Rome to testify about statements made to her by the victim describing sexual contact with defendant. Pursuant to OCGA § 24-3-16, “[a] statement made by a child under the age of 14 years describing any act of sexual contact . . . performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” The child victim was available to testify and did testify during trial. Furthermore, when we consider the ten factors that this court has generally looked at when determining if the statement of the child under the circumstances has an indicia of reliability, we hold that the trial court correctly determined the statement was reliable. See Gregg v. State, 201 Ga. App. 238, 240 (2) (b) (411 SE2d 65) (1991).

4. Defendant also argues that the trial court committed reversible error by allowing an investigator in the Child Protective Services Unit of the Department of Family & Children Services to testify about statements the child victim made concerning the defendant being the father of her child. The investigator was present during the child victim’s interview with the police officer discussed in Division 3 and the complained of statement was made during the same interview. Accordingly, this contention is governed by our holding in Division 3.

5. Finally, defendant argues the trial court erred by failing to declare a mistrial when the investigator from DFCS testified that the victim is receiving public assistance for her child and that the victim would not be receiving as much money in assistance if the defendant was supporting the child. Defendant failed to object to this testimony and did not ask the trial court to declare a mistrial. On its own the trial court intervened during that questioning. The trial court told the prosecutor not to continue that line of questioning and instructed the jury to disregard all testimony concerning child support because the support of the victim’s child was not an issue in this case. The trial court properly admonished the State’s attorney for pursuing this line of questioning and corrected any prejudicial error to defendant through its instructions to the jury. Furthermore defendant failed to object to this testimony at trial and cannot raise this issue for the first time on appeal. Wadsworth, 209 Ga. App. at 334 (3).

Decided September 27, 1993.

Duffey & Duffey, Harl C. Duffey III, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1271.
    LIGHTFOOT v. LIGHTFOOT.
    (436 SE2d 700)
   Birdsong, Presiding Judge.

We granted this discretionary appeal to consider Darlene Morgan Lightfoot’s appeal of the trial court’s judgment changing custody of her son from her to her ex-husband, Calvin Tom Lightfoot. She contends that the trial court erred by denying her motion to dismiss the complaint because of lack of jurisdiction and that the trial court abused its discretion by changing custody because the change of custody was not supported by the evidence.

The child was born in August 1990, and the parents were married later that month, but they lived together only until October 1990, when they separated. Shortly after the separation, the mother and child moved to Panama City, Florida. In July 1991, the parties were divorced and, pursuant to their agreement, custody of the child was awarded to Darlene Lightfoot with reasonable visitation granted to Calvin Lightfoot. At the time of the divorce, Darlene Lightfoot and the child continued to reside in Florida. Later, the mother agreed to more extended visits with the father, including an extended six-month visit with Calvin Lightfoot at his home in Lee County, Georgia. Shortly after the six-month visitation began, however, Darlene Lightfoot demanded the return of the child because she learned Calvin Lightfoot had hired a private investigator to investigate her living arrangements and lifestyle. Calvin Lightfoot refused to return the child and instead filed a complaint for modification of custody of the child; the mother was denied custody of the child until these proceedings were held.

After being served with the complaint, Darlene Lightfoot moved to dismiss the action because of lack of jurisdiction. She contended that she and the child were domiciliaries of Florida and therefore the modification action was required to be brought in Florida since custody modification actions are required to be brought in the county of the legal residence of the custodian of the child. Nevertheless, the trial court found jurisdiction under OCGA § 19-9-43 (a) (2) and denied the motion to dismiss. Subsequently, the trial court made Calvin Lightfoot the legal custodian of the child.

The trial court did not designate any particular event or condition that constituted a change in circumstances, but instead found “as a matter of law that there has been a material change in circumstances affecting the best interest of the child since the original custody order was entered and that it is in the best interest of the minor child to remain here in Georgia with the plaintiff, where the child is close to a loving extended family, available and eager to offer any assistance the plaintiff may need in caring for said minor child.” The court then awarded joint custody to the parties, but with Calvin Lightfoot having the child for the nine months of the school year and Darlene Lightfoot having the three summer months. The child was three years old on August 4, 1993. Held:

1. Before addressing the errors enumerated, we must note that by assuming jurisdiction of this case the trial court violated both the law and the public policy of this state. Although the child was on an extended visit with the father through the agreement with the mother, the father was not the legal custodian. OCGA § 19-9-22 (2). Therefore, the father had no right to retain physical custody of the child once the mother as legal custodian demanded his return. Consequently, under the law of this state, the father was not allowed to maintain this action. “A physical custodian shall not be allowed to maintain against the legal custodian any action for . . . change of child custody ... so long as custody of the child is withheld from the legal custodian in violation of the custody order.” OCGA § 19-9-24 (a).

Moreover, the trial court’s assumption of jurisdiction in this case also violated the long-standing public policy of this state as announced by our Supreme Court in Matthews v. Matthews, 238 Ga. 201 (232 SE2d 76) and now contained in OCGA § 19-9-48 (b) that the courts of this state will not exercise jurisdiction in cases such as this. The general rule is that the court where the parent with legal custody resides has the exclusive right to award change of custody. This is true whether the legal custodian lives in another state, or in another county, and irrespective of the physical presence of the child. Mat thews, supra. The only exception to this rule is when the court decides that the exercise of its jurisdiction is required in an emergency situation. Webb v. Webb, 245 Ga. 650, 651 (266 SE2d 463). This exception, however, is limited to a “situation in which an extreme emergency exists authorizing conduct of the noncustodial parent which otherwise would be contrary to the public policy of this state.” Bishop v. Bishop, 247 Ga. 56, 57 (273 SE2d 394); Yearta v. Scroggins, 245 Ga. 831, 832-833 (268 SE2d 151). Plainly no such emergency existed in this case, and the trial court made no mention of any unusual circumstances which might exist. If it is in the child’s best interest that child custody be changed, the noncustodial parent must, instead of retaining the child unlawfully, seek a change of custody where jurisdiction lies. Etzion v. Evans, 247 Ga. 390, 393 (276 SE2d 577). Therefore, the trial court should have refused to provide a forum for relitigating custody. Yearta v. Scroggins, supra; Harper v. Landers, 180 Ga. App. 154, 156 (348 SE2d 698).

Accordingly, the trial court erred by allowing Calvin Lightfoot to maintain this action as his claim was not then cognizable by the court. OCGA § 19-9-48 (b); Matthews v. Matthews, supra; Yearta v. Scroggins, supra.

2. Additionally, we find also that the trial court erred by finding jurisdiction under OCGA § 19-9-43 (a) (2). Ordinarily, jurisdiction over child custody cases is in the county of residence of the legal custodian (OCGA § 19-9-23 (a); Matthews v. Matthews, supra), and one of the purposes of the Uniform Child Custody Jurisdiction Act (UCCJA) is to “[a]ssure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and also to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state”; and the UCCJA “shall be construed” to promote its general purposes. OCGA § 19-9-41 (a) (3) and (b). Thus, in considering whether the trial court properly assumed jurisdiction over this case under OCGA § 19-9-43 (a) (2), we must consider that Code section in light of the stated purposes of the act.

OCGA § 19-9-43 (a) grants jurisdiction to decide child custody matters in cases such as this in limited circumstances of which only these are relevant here: (1) if this state is “the home state of the child at the time of commencement of the proceeding” (OCGA § 19-9-43 (a) (1) (A)); or (2) if this state had “been the child’s home state within six months before commencement of the proceeding” and certain other criteria are met (OCGA § 19-9-43 (a) (1) (B)); or (3) if “[i]t is in the best interest of the child that this court assume jurisdiction” because the child and his parents or the child and at least one contestant have a significant connection with this state (OCGA § 19-9-43 (a) (4) (B)); and [t]here is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.” OCGA § 19-9-43 (a) (2) (B).

Under the facts of this case, these criteria were not met. Georgia was not the home state of the child and was not the home state of the child within six months of the commencement of the proceedings. Further, except for his visits to his father, the child had no significant connection to this state. Instead, the infant has lived all but a few months of his life with his mother in Florida. Since under OCGA § 19-9-43 (b), the physical presence of the child and of one of the contestants is not alone sufficient to vest jurisdiction in the trial court, we must consider whether “substantial evidence” was present. In doing so we note the trial court did not specify the nature, scope or quantity of the evidence, and we conclude from this that the evidence presented during the hearing was the evidence on which the trial court based its jurisdictional finding. “Such ‘bootstrapping’ would not appear to be consistent with the overall spirit and purpose of the UCCJA, which seeks to ‘assure that custody proceedings take place in the state with which the child and his family have the closest connections. [Cits.]” Gordon v. Gordon, 185 Ga. App. 100, 103 (363 SE2d 353). Therefore, we find no evidence to sustain the trial court’s findings under OCGA § 19-9-43 (a) (2). Craighead v. Davis, 162 Ga. App. 145, 147 (290 SE2d 358). Accordingly, the trial court erred by denying appellant’s motion to dismiss. Kemp v. Sharp, 261 Ga. 600, 601 (409 SE2d 204).

3. The last enumeration of error asserts that the evidence was insufficient to sustain the trial court’s change of custody, and we agree. Although the trial court is vested with discretion in these matters which will not be disturbed absent abuse, we can affirm the trial court only if there is reasonable evidence to support the decision. See Hayes v. Hayes, 199 Ga. App. 132, 133 (404 SE2d 276). Further, the change of circumstances sufficient to authorize a change of custody must be a new, material change in circumstances of either the child or the parents which might affect substantially the health, happiness, or welfare of the child. Handley v. Handley, 204 Ga. 57, 59 (48 SE2d 827). There is no reasonable evidence in this record upon which the trial court could find that a material change of condition has occurred. Strese v. Strese, 237 Ga. 334 (227 SE2d 749).

Accordingly, as the trial court was without jurisdiction, the judgment of the trial court must be vacated and the case remanded to the trial court with direction to dismiss the complaint.

Judgment vacated with direction.

Pope, C. J., and Andrews, J., concur.

Decided September 27, 1993.

Vansant, Corriere & McClure, K. Alan Dasher, for appellant.

Geer & Rentz, Donald D. Rentz, for appellee.


author: McMurray, Presiding Judge.

text:
    A93A312.
    McCLENDON v. THE STATE.
    (436 SE2d 524)
   McMurray, Presiding Judge.

Defendant was indicted for burglary (Count 1) and for being a recidivist (Count 2). The case was tried before a jury and the evidence revealed the following:

At about 4:15 in the morning on August 27, 1992, Curtis L. Thompson observed a large spool of wire on the curb of the roadway outside his place of employment, Sunbeam Bread Company (“the bakery”). Thompson turned into the entrance of the bakery and saw a man in the path of his vehicle pushing a large spool of wire. Thompson stopped and told the man, “that [is] a good way to get run over.” The stranger “raised up and walked away and left the reel of wire against the curb.”

Thompson reported the incident to the police as soon as he arrived at work. About ten or fifteen minutes later, Officer Robert Carson of the Carrollton Police Department arrived at the scene and discovered that the spools of wire had been removed from the roadway. Officer Carson questioned Thompson, secured a detailed description of the suspect and transmitted the information to other patrolling law enforcement officers.

A patrolman responded to Officer Carson’s dispatch and radioed that he was confronting a man matching the suspect’s description about a block from the bakery. Officer Carson proceeded to the encounter and immediately recognized that defendant matched the description reported by Thompson. Officer Carson asked defendant why he was up at 5:00 in the morning and defendant explained that he was exercising and that he was on his way to work. Officer Carson perceived conflict in this explanation, but did not take defendant into custody.

Officer Carson returned to the reported crime scene, informed Thompson of the encounter with defendant and Thompson affirmed that defendant’s reported appearance was compatible with his earlier observations. Officer Carson then heard a radio dispatch that two large spools of wire had been found abandoned off a dirt road near the bakery and that defendant had been apprehended about a half block from the first police encounter. Defendant was immediately transported to the bakery where Thompson confirmed that defendant was the man he observed earlier that morning pushing the spool of wire.

The police later discovered that the spools of wire had been stolen from a nearby electrical and plumbing supply company during the night before defendant’s apprehension and that defendant recently sold electrical equipment to a local electrical supply dealer at better than wholesale prices.

Defendant was found guilty of the crimes charged and this appeal followed the denial of his motion for new trial. Held:

1. Defendant first contends the trial court erred in denying his motion to suppress, arguing that his in-court identification was tainted by the one-on-one showup.

“ * “Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viéwed to determine if there is a ‘likelihood of misidentification which offends against due process and “the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation.” (Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1982).)’ (Cit.)” (Cit.)’ Hood v. State, 199 Ga. App. 774, 775-776 (406 SE2d 120) (1991). ‘Although the practice of showing suspects singly to a witness for identification purposes has been widely condemned, (cit.), “our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. (Cits.)” (Cit.)’ Baines v. State, 201 Ga. App. 354, 357 (4) (411 SE2d 95) (1991). Accord Andrews v. State, 201 Ga. App. 329, 330 (1) (411 SE2d 52) (1991); McCoy v. State, 190 Ga. App. 258 (3) (378 SE2d 888) (1989).” Rogers v. State, 205 Ga. App. 739, 740 (1) (423 SE2d 435).

At the time Thompson observed asportation of the stolen wire, the suspect was directly in the path of Thompson’s vehicle and was illuminated by a security light at a nearby warehouse, street lights and the headlights of Thompson’s truck. Thompson stopped and talked to the stranger, observed him for about 30 seconds and watched the suspect raise up and walk away from the stolen merchandise. Thompson gave police a detailed description of the suspect’s physical appearance and clothing and positively identified defendant at the one-on-one showup and at trial. The showup was conducted on the morning after the burglary and as soon as defendant was taken into police custody. Under these circumstances, we do not find that the one-on-one showup was unreasonable or unnecessarily suggestive and we find it highly unlikely that Thompson misidentified defendant as the man he saw on the morning after the burglary. Consequently, the trial court did not err in denying defendant’s motion to suppress. See Williams v. State, 188 Ga. App. 496, 498 (2) (373 SE2d 281).

Decided September 27, 1993.

Word & Flinn, Gerald P. Word, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

2. In his second enumeration of error, defendant contends the evidence was insufficient to sustain his conviction for burglary.

Irving Walls testified that his plumbing and electrical supply company was burglarized sometime during the night before defendant’s apprehension and that the two large spools of wire recovered near the bakery were items taken from his business premises. This testimony, evidence that defendant was seen in the area of the crime shortly after the burglary in possession of an item matching the description of the stolen merchandise and evidence that defendant abandoned the wire in the road after being detected by Thompson is sufficient to sustain the jury’s finding that defendant is guilty, beyond a reasonable doubt, of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Jackson v. State, 205 Ga. App. 7 (1) (421 SE2d 119).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1313.
    DENNY v. THE STATE.
    (436 SE2d 526)
   Pope, Chief Judge.

Defendant was convicted by a jury of burglary. Following denial of his motion for new trial, he appealed.

The victim testified that she arrived home to find the front door of her house open and a strange car in her driveway. After slamming her car door, she saw two men wearing jeans run out from the back of her house into the woods. She took the keys from the strange car in the driveway and called 911. One of the men — defendant’s co-defendant — returned for his car and finding the keys gone, simply waited for the police to arrive. Detective Matt Fletcher, who was in charge of the investigation, testified that several police units responded quickly to the victim’s 911 call. After putting the co-defendant in one of the police cars, six or seven officers searched the woods behind the house for the second man. They found defendant about 55 yards from the house, hiding underneath a layer of pinestraw. The co-defendant pled guilty and testified for the State, identifying defendant as the second man the victim had seen running from the house.

Decided September 27, 1993.

Crumbley & Crumbley, James T. Chafin III, for appellant.

Tommy K. Floyd, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

1. Defendant contends that his alleged accomplice’s testimony against him was not sufficiently corroborated under OCGA § 24-4-8. However, the co-defendant’s testimony that defendant was with him in- the burglary was corroborated by the victim’s statement that she was positive she saw two men run from the house into the woods and the fact that officers searching the woods just after the incident found defendant and no one else hiding there. Moreover, defendant admits he lied to the officers about what he was doing there when they found him. This independent evidence sufficiently connects the accused with the crime and tends to show his participation therein. See Tucker v. State, 205 Ga. App. 683 (423 SE2d 422) (1992). Accordingly, this enumeration of error is without merit.

2. We also reject defendant’s argument that the trial court should not have allowed the detective in charge of the investigation to remain in the courtroom throughout the trial without requiring the State to call him as its first witness. See OCGA § 24-9-61. When the prosecutor states that he needs the presence of an investigator for the presentation of the case and that to require him to testify first would interfere with the orderly presentation of the case, the trial court has discretion to except that investigator from the rule of sequestration. Blalock v. State, 250 Ga. 441 (1) (298 SE2d 477) (1983). The prosecutor so stated in this case, and the trial court did not abuse its discretion.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1662.
    THE STATE v. REICH. THE STATE v. GARZA.
    A93A1663.
    (436 SE2d 703)
   Birdsong, Presiding Judge.

The State has filed direct appeals under OCGA § 5-7-1 to challenge the trial court’s grant of appellees’ motions to exclude evidence that appellees refused to take blood-alcohol tests after they were advised that the refusal to take blood-alcohol tests would result in the suspension of their out-of-state driver’s licenses for six to twelve months. The trial court found the warnings given were coercive because the warnings were inaccurate in that contrary to OCGA § 40-5-51 (c), the Department of Public Safety at the time relevant to these appeals was not seeking suspension of out-of-state driver’s licenses because of refusal to take blood-alcohol tests. Because the issues are identical, we will treat these appeals in the same opinion. Held:

Decided September 27, 1993.

W. Glenn Thomas, Jr., District Attorney, James R. Coppage, Assistant District Attorney, for appellant.

John J. Ossick, Jr., for appellees.

1. Appellees’ motions to dismiss the appeals are denied. The grant of a defendant’s pretrial motion, whatever its name, to exclude evidence because it was obtained in violation of law, is subject to direct appeal by the State. State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864).

2. The trial court’s rulings are reversed. The warnings given by the officers accurately stated the law and correctly stated appellees’ rights and the possible penalties appellees would face if they refused to consent to a blood-alcohol test. The fact that the Department of Public Safety, for whatever reason, failed to assess any of these penalties, and thus failed to carry out its responsibilities, cannot change the law.

Further, we also find error in the trial court’s analysis of the effect of this alleged misstatement. See Whittington v. State, 184 Ga. App. 282, 283-285 (361 SE2d 211). Overstating the penalty one would face for refusing to take a blood-alcohol test would not be likely to coerce either appellee to refuse the test. State v. Sells, 798 SW2d 865 (Tex. App. 1990) does not stand for the proposition appellees assert. Instead, Sells holds that overstating the penalty can coerce one to take the test and thus avoid the penalty. It does not follow that overstating the penalty would coerce one to refuse the test and thus suffer the penalty. “[T]he contention that the alleged misinformation prevented the [appellees] from making an intelligent choice ‘strains credulity.’ [Cit.]” Pryor v. State, 182 Ga. App. 79, 80 (354 SE2d 690).

Judgments reversed.

Pope, C. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A93A2102.
    RAWLS v. THE STATE.
    (436 SE2d 527)
   Blackburn, Judge.

On June 26, 1992, an indictment was returned against appellant, Frederick Rawls, charging him with trafficking in cocaine. Pursuant to North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), Rawls pled guilty to the lesser included offense of possession of cocaine with intent to distribute, a violation of OCGA § 16-13-30 (b). Under OCGA § 16-13-30, the penalty for that offense consists of various terms of imprisonment, but no monetary fines. The trial court, however, sentenced Rawls to 20 years’ imprisonment and ordered him to pay a fine of $100,000, a penalty fee pursuant to OCGA § 15-21-73 of $50, a jail fee of $10,000, and a D.A.T.E. fee of $50,000. On appeal, Rawls argues that the trial court improperly imposed fines, in the absence of statutory authority or a probated sentence. The State concedes this issue, and we agree.

Decided September 27, 1993.

Dwight L. Thomas, for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

As noted above, the statutory penalty for possession of cocaine with the intent to distribute does not include a monetary fine. OCGA § 17-10-8 allows for the imposition of a fine as a condition of probation, but “[w]here the trial court does not award probation, the imposition of a fine in addition to a prison sentence is outside the trial court’s discretion. . . .” (Citations and punctuation omitted.) Wood v. State, 204 Ga. App. 467, 469 (419 SE2d 534) (1992) (also involving a conviction for possession of cocaine with intent to distribute). Additionally, the imposition of a penalty pursuant to OCGA § 15-21-73 can only attach to properly imposed fines. See OCGA § 15-21-73 (a) (1). And finally, imposition of a D.A.T.E. fee also requires a lawfully imposed fine. OCGA § 15-21-100 (a). Accordingly, those portions of Rawls’ sentence imposing the $100,000 fine, the $50 penalty, and the $50,000 D.A.T.E. fee are vacated.

Judgment vacated in part.

McMurray, P. J., and Johnson, J., concur.


author: Cooper, Judge.

text:
    A93A1066.
    POWELL v. THE STATE. SINGLETON v. THE STATE.
    A93A1067.
    (437 SE2d 598)
   Cooper, Judge.

Appellants Willie Powell and Richard Singleton were indicted with two co-defendants for the offenses of aggravated assault, kidnapping with bodily injury and robbery by force. The two co-defendants entered guilty pleas and testified against appellants, who were tried together and convicted of kidnapping with bodily injury and robbery by force. Following the denial of their motions for new trial, appellants appeal from the judgments of conviction and sentences entered on the jury verdict.

The victim, a biscuit maker for a local Arby’s restaurant, testified that she arrived for work at approximately 4:30 a.m., and as she unlocked the door, two men grabbed her and dragged her inside the restaurant. The victim was unable to see her attackers’ faces but saw that one of the men was wearing camouflage pants and a white shirt and the other was wearing a red shirt and a white hat. The victim testified that the man in the camouflage pants repeatedly hit her in the face while dragging her toward the back of the restaurant. The men left the victim on the floor, and the man in the camouflage pants went to the safe and took the cash drawer. Both men then exited through the back door, and the victim called the police.

Lou Davidson, a musician, had just arrived from Florida and was looking for the club where he was to perform when he saw two black men holding onto a woman in front of an Arby’s restaurant. He doubled back and saw the men come out of the restaurant a few minutes later carrying some kind of tray. When the two men got into a car and drove away, Davidson went into the restaurant and discovered the victim bleeding from the head. Davidson told the police that one of the men was wearing camouflage pants and a white shirt and the other was wearing a red t-shirt. Davidson also described the suspect’s car as a light brown late model Buick with primer spots on the back and a missing rear window. The police broadcast a lookout for the car and suspects and several minutes later, a car matching the description given by Davidson was stopped by the police. The driver of the car, Powell, was wearing camouflage pants and a white t-shirt with a sailboat design across the front. A male subsequently identified as Singleton was in the back seat wearing a red shirt and blue jeans. The co-defendants were also in the car. A cash drawer was found on the front seat between the driver and passenger. Davidson went to the location where the suspects had been detained and identified both appellants as the men he saw coming from the restaurant. After appellants were read their Miranda rights, Powell made several statements without being asked a question. He told the arresting officer that the officer could not prove who did the robbery, and he stated that if he had an Uzi machine gun, he or the officer would be dead. Powell also said that with time off for good behavior he would be back on the street in a couple of years.

Both co-defendants testified that they were with Richard Singleton when Willie Powell approached the three of them about committing a robbery from which they would each receive $1,000. Powell, Singleton and the co-defendants drove in a light brown Buick Regal to an Arby’s restaurant. Appellants got out of the car and went toward the restaurant while the co-defendants waited in the car. The co-defendants saw appellants grab a woman at the door to the restaurant and drag her into the restaurant. Powell was seen hitting the woman while he dragged her inside. A few minutes later, appellants came out of the restáurant with a cash drawer. Singleton entered the car through the missing back window, and Powell drove the car away. The cash drawer contained approximately $57.

1. Both appellants contend that the evidence was insufficient to support their convictions because there was a lack of positive identification. Singleton also argues that the trial court erred in denying his motion for directed verdict due to the lack of positive identification. Powell points to the fact that the shirt he was wearing at the time of his arrest had a sailboat design on it and neither of the witnesses mentioned that the shirt had such a design. Also, Powell contends that there was evidence that one of the co-defendants was also wearing camouflage pants and a white or tan t-shirt. “ ‘The direction of a verdict of acquittal is proper only where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.” (Cits.) there is any evidence of guilt, it is for the jury, rather than the court, to decide whether the evidence is sufficient to sustain a conviction. (Cit.)’ [Cit.]” Hall v. State, 200 Ga. App. 244, 245 (407 SE2d 470) (1991). The victim described the clothing worn by her attackers, and appellants were wearing clothing matching that description at the time of their arrest shortly thereafter. Davidson also described the clothing worn by appellants and positively identified both appellants at the scene of their arrest. Also, both co-defendants testified about the clothing they were wearing at the time of their arrest and neither testified that they were wearing camouflage pants and a white t-shirt. Viewed in a light to support the verdict, the evidence was sufficient for a rational trier of fact to find appellants guilty beyond a reasonable doubt of the offenses charged. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellants assert error with the following portion of the trial court’s charge: “If you do not believe the defendants, or either of them, guilty as charged in the indictment as I have described it to you, or you have a reasonable doubt in your minds as to the defendant’s guilt, or if you do not believe that they were parties to this crime, then you should acquit the defendants of this crime or such defendant as you find to be not guilty.” Appellants argue that the charge, in relevant part, should have read “or if you do not believe that either or both of them were parties to this crime or if you have a reasonable doubt of their guilt or the guilt of either or both. . . .” Appellants contend that the charge as given misled the jury into believing that both defendants must be found guilty or they both must be found not guilty. “ ‘ “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” [Cits.]’ [Cit.]” Hill v. State, 205 Ga. App. 475, 476-477 (3) (422 SE2d 564) (1992). A complete review of the trial court’s charge reveals that the trial judge adequately informed the jury that each defendant was to be considered separately. Furthermore, in the charge complained of by appellants, the jury was informed that it was authorized to find only one of the defendants guilty if the evidence so demanded. Consequently, we cannot conclude that the trial court’s charge so confused the jury as to constitute reversible error.

3. Powell raises the remaining enumerations of error, one of which is that the trial court erred in charging the jury on conspiracy. “ ‘[E]ven if conspiracy is not alleged in an indictment, a charge upon the subject is not error if the evidence tends to show a conspiracy. (Cits.)’ [Cit.]” Beal v. State, 175 Ga. App. 234, 241 (7) (333 SE2d 103) (1985). We conclude that the evidence in this case was sufficient to warrant a charge on conspiracy.

4. Powell argues that the trial court should have charged the jury on impeachment by conviction of a crime of moral turpitude. Notwithstanding that the record does not reveal any request for such a charge, it does not appear that any witness was impeached by introduction of a certified copy of a prior conviction. Accordingly, the charge was not authorized by the evidence. See Sultenfuss v. State, 185 Ga. App. 47 (5) (363 SE2d 337) (1987).

5. In another enumeration of error, Powell argues that the offenses of robbery by force and kidnapping with bodily injury should have merged as a matter of fact. “Under OCGA § 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all of the facts used to prove the other.” Solomon v. State, 195 Ga. App. 882, 883 (2) (395 SE2d 335) (1990). The victim testified that she was grabbed by appellants outside the restaurant, forced into and through the restaurant and that she did not willingly accompany appellants. Once inside the restaurant, the robbery was effectuated. “The evidence of neither offense being necessary .to prove the other, there was no merger. [Cits.]” Solomon, supra at 883-884.

6. Powell alleges that his trial counsel was ineffective in the following ways: (a) failing to introduce certified copies of the co-defendant’s convictions, (b) failing to inform him that he was charged with kidnapping and would receive a life sentence if convicted, (c) failing to request a hearing to suppress the identification testimony of Davidson based on an impermissible one-on-one showup identification, (d) failing to file a motion to suppress the clothing seized from Powell, (e) failing to object to improper closing argument, (f) failing to reserve objections to the court’s charge and (g) failing to request a Jackson-Denno hearing on the voluntariness of Powell’s statement made after his arrest. “ ‘To prove he has received ineffective assistance of counsel, “(t)he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense.” [Cits.] “Thus counsel’s performance will not be found to be deficient if it falls within the range of ‘reasonably effective assistance.’ ” [Cit.]’ [Cit.]” Spivey v. State, 193 Ga. App. 127, 130 (3) (386 SE2d 868) (1989). “ ‘ “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” [Cit.] As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. (Cit.)’ [Cit.]” White v. State, 193 Ga. App. 428, 430 (2) (387 SE2d 921) (1989).

(a) Powell’s trial attorney testified at the hearing on the motion for new trial that he informed Powell that he was charged with kidnapping and the possible sentence but admitted that the charges were not discussed at each meeting he had with Powell because Powell became hostile and thought that the attorney was pressuring him to plead guilty. Although Powell testified that he was not informed that he was charged with kidnapping or the possible sentence he could receive and that his trial attorney did not discuss strategy with him, “ ‘ “ [determination of the witnesses’ credibility is, of course, within the discretion of the trier of fact. (Cits.)” (Cit.)’ [Cit.]” Lee v. State, 205 Ga. App. 139, 140 (421 SE2d 301) (1992).

(b) Powell’s trial attorney also testified that he did not introduce certified copies of the guilty pleas entered by the co-defendants because he felt it was a better strategy to allow the co-defendants to testify in their jail clothing and admit that they had already pled guilty to the robbery charge. He also testified that his strategy, which he discussed with Powell, was to admit that Powell was one of the four participants in the scheme but to deny that Powell was one of the two who actually took the victim inside the restaurant and committed the robbery. Also, the t-shirt seized from Powell and introduced into evidence had a sailboat design on it, and neither the victim nor Davidson mentioned that the t-shirt had such a design. Consequently, the attorney did not move to suppress the identification by Davidson or the clothes seized from Powell. Similarly, Powell’s trial counsel testified that he did not object to certain portions of the prosecutor’s closing argument because the prosecutor’s argument was not inconsistent with the defense strategy and because he found nothing improper about the argument. “ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. [Cits.]’ [Cit.]” Spivey, supra at 131.

Decided August 12, 1993

Reconsideration denied September 28, 1993

Mark J. Nathan, for appellant (case no. A93A1066).

Kevin J. Street, for appellant (case no. A93A1067).

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellee.

(c) With respect to Powell’s remaining allegations regarding the failure to reserve objections to the jury charge and the failure to request a Jackson-Denno hearing, we find that Powell has not shown either that the charge was erroneous or that the statement was not voluntary. “ ‘The burden is on the defendant to establish his claim of ineffective assistance of counsel. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.’ [Cit.] The trial court’s finding in this case was not clearly erroneous and therefore it must be upheld.” Karvonen v. State, 205 Ga. App. 852, 853 (2) (424 SE2d 47) (1992).

7. In a supplemental brief, Powell asserts a new allegation of ineffectiveness as well as an additional enumeration of error. “ ‘[Enumerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. (Cit.)’ [Cit.]” Loyd v. State, 202 Ga. App. 1, 2 (1c) (413 SE2d 222) (1991).

Judgments affirmed.

Beasley, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A93A1140.
    MORALES v. THE STATE.
    (436 SE2d 528)
   McMurray, Presiding Judge.

Defendant was indicted for child molestation (Count 1) and sexual battery (Count 2). The evidence adduced at a jury trial reveals that defendant, the 13-year-old victim’s stepfather, entered the child’s bedroom at about 2:00 in the morning; that defendant then placed his hand between the victim’s legs and in the area of the child’s genitals and that defendant fled when the child called out for her mother.

Defendant was found guilty of child molestation and not guilty of sexual battery. This appeal followed an order granting defendant’s motion for out-of-time appeal. Held:

1. Defendant first contends the victim’s uncorroborated testimony is insufficient to support the jury’s finding that he is guilty of child molestation.

Contrary to defendant’s assertion, there is evidence other than the victim’s testimony supporting the jury’s verdict. However, assuming the contrary, “[c]orroboration is not required for a conviction of child molestation. Scales v. State, 171 Ga. App. 924 (2) [(321 SE2d 764)].” Weeks v. State, 187 Ga. App. 307 (1), 308 (370 SE2d 344). In the case sub judice, the victim’s testimony that defendant entered her bedroom and touched the child’s private area and evidence that the victim reported the sexual assault immediately after the crime is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871).

2. Next, defendant contends the trial court erred in admitting evidence of an alleged similar transaction without first making a threshold determination of admissibility as required by Williams v. State, 261 Ga. 640 (409 SE2d 649).

(a) In Williams v. State, 261 Ga. 640, 642 (2b), supra, the Supreme Court outlined the procedure to be followed before allowing evidence of prior criminal transactions. “First, the trial court must hold a hearing pursuant to Uniform Superior Court Rule 31.3 (B) out of the presence of the jury. At this hearing the State must affirmatively show that (1) it seeks to introduce evidence of an independent crime or offense for an appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) the evidence is sufficient to establish that the accused committed the independent offense; and (3) there is sufficient similarity between the independent offense and the charged crime so that proof of the former tends to prove the latter. Williams, supra at 642 (2) (b). The trial court then must make and include in the record a determination that each of these elements has been satisfactorily shown by the State. Id.” Little v. State, 202 Ga. App. 7 (1) (413 SE2d 496).

In thé case sub judice, the trial court conducted a hearing outside the presence of the jury and the State then offered proof that the victim’s 19-year-old aunt, Lorena Guerrero, was sexually assaulted by defendant when she was 15 or 16 years of age. Specifically, Guerrero testified that she often visited her sister and defendant when they resided in Mexico and that during “one [such visit] when I asleep, I wake up because [defendant] is in the floor in the side [of my bed] on his knees . . . and I — I think he’s touched me because I feel the — the fingers cold on my legs, and I wake up, and I told him, what are you doing, and he say he’s looking for something. And then in the morning this — the same night, late in the morning, about 5:00 or 6:00, he’s touched me right here (indicating [her shoulder]), but he’s looking asleep, and I took it away, and I got in my cover and sat back, and then no more.”

The trial court ruled that Guerrero’s testimony was admissible as proof of a prior similar act and upon the return of the jury to the open courtroom instructed the jury the court was going to allow some testimony and that “the testimony ... is admitted for a very limited purpose and that purpose is to the extent, if any, that it shows the plan, scheme, motive, bent of mind, or course of conduct of the defendant, if at all it does, and that will be in your own judgment, and it is admitted for that purpose and that purpose only.” However, the trial court did not make a determination on the record that each of the elements enunciated in Williams v. State, supra, for admission of such evidence was satisfactorily shown by the State. Nonetheless, we find no harmful error as “the evidence presented by the State at the out-of-court hearing . . . was sufficient for the trial court to have concluded affirmatively on the record that each of the requirements of Williams, supra, had been satisfied. Compare Jefferson v. State, 206 Ga. App. 544 (4), n. 1 (425 SE2d 915).” Wells v. State, 208 Ga. App. 298, 299 (2a), 300 (430 SE2d 611). Specifically, Guerrero’s testimony authorizes a finding that (1) the State sought to introduce evidence of the independent act, not to raise an improper inference as to defendant’s character, but for the purpose of showing identity, scheme, course of conduct, motive and bent of mind; (2) that defendant committed the independent act and (3) that a sufficient similarity exists between the independent act and the crime charged so that the former tends to prove the latter. See Jefferson v. State, 206 Ga. App. 544, 547 (4), supra.

(b) Defendant also contends the prior transaction was not similar to the incident wherein he allegedly molested the victim. We do not agree.

The evidence adduced at trial reveals that defendant assaulted Guerrero in a manner similar to the sexual assault of the victim. Both incidents involved young teen-aged girls related to defendant by marriage and both incidents occurred in defendant’s home during early morning hours while other members of the household were sleeping. Further, both the victim and Guerrero were approached by defendant while in bed sleeping, both girls were awakened by defendant’s hand touching their legs and defendant withdrew in both situations after the girls resisted. This proof “evinced a sufficient similarity between [the prior similar act and the crime charged] so as to have warranted admission of evidence concerning the former [act] at [defendant’s] trial for committing the latter.” Hickey v. State, 202 Ga. App. 636, 637 (415 SE2d 60).

3. In his final enumeration, defendant contends the trial court erred in charging the law of child molestation, arguing that the charge was “inflammatory, unnecessary, and [included] prejudicial vocabulary. . . .”

Defense counsel stated that he had no problem with the suggested instruction on child molestation during the charge conference and he stated that he had no exceptions to the charge when the trial court asked for exceptions after instructions to the jury. Further, after the trial court recharged on the law of child molestation, sexual battery and criminal attempt to commit child molestation pursuant to the jury’s request, defense counsel stated that he had no exception to the recharge. Under these circumstances, “ ‘defendant has waived the right to raise the issue (of error in the charge) on appeal.’ Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).” Busbee v. State, 205 Ga. App. 533 (423 SE2d 3).

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. Beasley, P. J., concurs in judgment only. Cooper and Blackburn, JJ., concur in part and dissent in part.

Blackburn, Judge,

concurring in part and dissenting in part.

I concur with Divisions 1 and 3 of the majority opinion. However, because the trial court did not follow the procedural requirements for admitting evidence of similar transactions provided in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), I believe the defendant’s conviction must be reversed.

In Williams, the Supreme Court emphasized that before any evidence of independent offenses may be admitted, “the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility.

“The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act, The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.] After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” (Emphasis supplied.) Williams, supra at 642.

Those procedures laid down in Uniform Superior Court Rule 31.3 (B) and Williams, which were designed to protect against the improper admission of character evidence, are requirements and not mere recommendations. Neither the State, the trial court, nor this court may ignore or only partially follow that mandate of the Supreme Court.

In the instant case, it is uncontroverted that the trial court did not comply with the procedural requirements of Williams. That omission may be understandable in light of the fact that the trial occurred several months before the Supreme Court’s decision in Williams. However, this court has already decided that Williams must be applied retroactively. Ramirez v. State, 205 Ga. App. 217 (422 SE2d 3) (1992).

The majority opinion acknowledges that retroactive application of Williams, but then proceeds to avoid applying it to the instant case by concluding that the evidence was sufficient to meet the Williams requirements. In doing so, it misplaces any reliance upon Wells v. State, 208 Ga. App. 298 (430 SE2d 611) (1993), and Jefferson v. State, 206 Ga. App. 544 (425 SE2d 915) (1992), as each of those cases specifically noted that the defendant did not question the sufficiency of the trial court’s compliance with Williams. This court did observe in Jefferson (in a footnote) and in Wells (in a reference to that footnote) that the evidentiary showing was sufficient under Williams. However, those observations were mere dicta, and did not purport to establish a rule with which to dodge Williams.

Another deficiency in the determination regarding the admissibility of the similar transaction evidence in this case was the trial court’s failure to balance the relevance of the evidence with the prejudice it created. “It has long been the rule in Georgia that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial. [Cits.]” Robinson v. State, 246 Ga. 469, 470 (271 SE2d 786) (1980). However, as in the instant case, that rule has been honored more in its breach than by its observance.

In cases such as the instant one, the admission of evidence of similar transactions is often particularly needed to prove the current charge of child molestation. However, admission of such evidence is not automatic. USCR 31.3 (B) and Williams delineate procedural requirements that must be followed, and it places no onerous burden on the State for it to satisfy those requirements. The State failed to do so in this case, and the only appropriate remedy is reversal of the defendant’s conviction.

Decided September 28, 1993.

Corinne M. Mull-Milsteen, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert M. Coker, Anne G. Maseth, Assistant District Attorneys, for appellee.

Accordingly, I must respectfully dissent from Division 2 of the majority opinion.

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

       The case sub judice was tried before issuance of the opinion in Williams v. State, supra. However, the procedure outlined in Williams applies retroactively and thus controls. Ramirez v. State, 205 Ga. App. 217 (2) (422 SE2d 3); Jefferson v. State, 206 Ga. App. 544, 548, n. 1 (425 SE2d 915).


text:
    A93A2063.
    DWYER et al. v. ANAND.
    (436 SE2d 532)
   Blackburn, Judge.

In January 1990, the appellee, Vijay Anand, leased certain commercial property to Atlanta Rainbow, Inc. (Rainbow) for a monthly rental of $3,300 and a term extending from February 1, 1990, through January 31, 1995. Lawrence Dwyer executed a personal guaranty of the tenant’s obligations. Problems with water leakage developed, the cause of which was disputed by the parties, and ultimately Rainbow ceased paying the rent.

On September 5, 1991, Anand commenced this action against Rainbow and Dwyer, seeking to recover the past due rent for August 1991, as well as any future rents that may become due. Following a bench trial, the trial court entered judgment for Anand for unpaid rents totaling $38,300, from which Rainbow and Dwyer appeal.

1. Rainbow and Dwyer contend that the trial court erred in allowing Anand to recover rents that became due after commencement of the action. We agree.

Generally, “[w]here suit is brought on a written contract for rent payable in installments, a recovery can not be had for installments falling due after the suit is commenced. . . . Each installment under a contract constitutes a different cause of action on which an action can be brought, even though all are provided for in the same contract.” (Citations and punctuation omitted.) Nickerson v. Candler Bldg., 156 Ga. App. 396, 399-400 (274 SE2d 582) (1980). In order to recover rents that become due after commencement of an action seeking rents that are already past due, a plaintiff must amend his original complaint under OCGA § 9-11-15 (a), supplement his pleadings under OCGA § 9-11-15 (d), or try the additional issues with the express or implied consent of the other party in accordance with OCGA § 9-11-15 (b). See Peterson v. American Intl. Life Assurance Co., 203 Ga. App. 745 (417 SE2d 402) (1992); Price v. Age, Ltd., 194 Ga. App. 141 (3) (390 SE2d 242) (1990).

Decided September 28, 1993.

McCrimmon & McCrimmon, Edward W. McCrimmon, for appellants.

In the instant case, when Anand filed his complaint, only the August 1991 rent was past due. Although that complaint prays for recovery of future rents that may become due during the pendency of the action, it is uncontroverted that Anand never filed any amendment or supplemental pleading to assert the new causes of action. Indeed, at the beginning of the trial, counsel for Anand denied such an obligation on the grounds that it would constitute an undue burden on the plaintiff to file amendments seeking those accruing rents.

Anand argues that by failing to request a continuance and proceeding to litigate the matter of accrued rents due, Rainbow and Dwyer impliedly consented to trial of those issues. However, the record shows that Rainbow and Dwyer objected to the consideration of those issues at the beginning of the trial on the grounds that they were not raised in the pleadings, but the trial court rejected their objection. Rainbow and Dwyer then voiced a continuing objection to those issues, which was acknowledged by the trial court. Rainbow and Dwyer thus in no way consented to the trial regarding any rents that became due after the complaint was filed. Cf. Price v. Age, Ltd., supra. OCGA § 9-11-15 (b) allows a trial court to grant a continuance to enable the objecting party to meet the evidence regarding the additional claims, but that Code section places no requirement on the objecting party to request such.

In summary, in the absence of an amendment to the complaint, supplemental pleadings, or trial of the claims for accrued rents by the express or implied consent of the parties, the trial court was not authorized to enter judgment for Anand for the rents that became due after commencement of the action. See Burger King Corp. v. Garrick, 149 Ga. App. 186 (253 SE2d 852) (1979). Accordingly, the judgment must be reversed to that extent.

2. Rainbow and Dwyer also enumerate as error the trial court’s findings with regard to their defense of constructive eviction, the respective rights and obligations of the parties under the lease concerning maintenance of the property, and as to whether Anand terminated the lease when he demanded vacation of the premises so that he could attempt to relet the property. The trial court thoroughly addressed those issues in her order, and the findings contained therein are supported by the evidence and the law. These remaining enumerations of error are without merit.

Judgment affirmed in part, reversed in part.

McMurray, P. J., and Johnson, J., concur.

Blandford & Werbin, B. Emory Potter, for appellee.


author: Beasley, Presiding Judge.

text:
    A93A1488.
    DECKARD v. THE STATE.
    (436 SE2d 536)
   Beasley, Presiding Judge.

Deckard was charged by accusation with driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), and driving with an unlawful alcohol concentration, OCGA § 40-6-391 (a) (4). The interlocutory review challenges the order denying a motion in limine which seeks to exclude from evidence at trial the results of a State-administered chemical breath test. Deckard contends that the State improperly obtained his consent to the test because the investigating officer misinformed him that his refusal would result in a six-month suspension of his out-of-state driver’s license, a penalty which the State was unauthorized to carry out. The test results should have been excluded from evidence.

A DeKalb County police officer on patrol on October 17, 1992, observed Deckard’s vehicle speeding and having difficulty staying within his lane of traffic. After initiating a traffic stop, the officer detected a “moderate odor of alcoholic beverage on or about his person.” Upon request, Deckard produced a valid driver’s license issued by the State of Tennessee. When he was unable to successfully perform a series of field sobriety tests, he was arrested, secured in the patrol car and notified of his rights under the Implied Consent Statute, OCGA § 40-5-55, as follows: “Georgia Code 40-5-55 requires you to submit to state administered chemical tests of your blood, breath, urine or other bodily substance for the purpose of determining alcoholic drug content. Under Georgia Code 40-6-392 you have the right to an additional test of the foregoing substances made by personnel of your own choosing if you so desire. This additional test in no way satisfies your obligation to submit [to] state administered tests. Should you refuse my request that you submit to a state administered test, your driver’s license will be suspended for six months.”

According to the officer, appellant verbally indicated his understanding of the consent notice and initialed and signed a form confirming that understanding and agreeing to take the requested test. He declined a second test.

Deckard was misinformed as to the consequences of his failure to submit to chemical analysis because the Georgia Department of Public Safety is without authority to absolutely suspend or revoke a nonresident’s driver’s license. OCGA § 40-5-51 (a) provides that as to a nonresident driver of a motor vehicle, Georgia may suspend or revoke only the “privilege of driving a motor vehicle on the highways of this state ... in like manner and for like cause as a driver’s license issued under this chapter may be suspended or revoked.” Id.

We note that effective January 1, 1993, the implied consent notice read to suspected DUI offenders was amended to include: “If you are a non-resident, Georgia is only authorized to suspend your privilege to operate a motor vehicle in the State of Georgia.” The language was apparently added to conform with the enactment of OCGA § 40-5-67.1 (d), Ga. L. 1992, p. 2564, § 6, effective January 1, 1993, which provides that the failure of a nonresident DUI arrestee to submit to chemical testing for the purpose of detecting the presence of alcohol will result in the suspension of that person’s “nonresident operating privilege for a period of one year. ...”

In Beasley v. State, 204 Ga. App. 214 (1) (419 SE2d 92) (1992), defendant was asked by police to submit to urine testing to detect the presence of illegal drugs and was told that the test results would be used as a consideration in setting bond. Defendant consented and tested positive for cocaine. As a consequence, his bail was increased and he was also charged with possession of cocaine. This court reversed the denial of a motion to suppress the test results finding that defendant’s consent was not voluntary because it was “premised on the incomplete and thus deceptively misleading information,” id. at 216, received from police concerning the purpose for which the results would be used.

In Sorrow v. State, 178 Ga. App. 83 (342 SE2d 20) (1986), a DUI arrestee was informed of his rights under the Implied Consent Statute and initially agreed to be tested but then declined when informed by police that his provisional license had been revoked. It was subsequently determined that his license was valid. It was held that evidence of his refusal to submit to testing was properly introduced at trial because defendant was correctly informed of the statutory options, and the mistake, which was an honest one, “had nothing to do with the defendant’s options under the Implied Consent Statute.” Id. at 84.

In Whittington v. State, 184 Ga. App. 282 (2) (361 SE2d 211) (1987), a DUI suspect was informed that his refusal to submit to intoximeter testing would result in the suspension of his driver’s license for six to twelve months, a range of sanctions permissible by law. The court held that the State is not required to warn an arrestee of the legitimate consequences of his refusal to submit to a State-administered test, but if such information is given, it must be correct so as not to mislead. “[B]y informing the arrestee of the legitimate consequences of his refusal to submit to the State-administered test, the arresting officer is engaging in an act of lawful inducement.” Id. at 284. If misinformation is given, it may constitute unlawful coercion. This did.

Decided September 29, 1993.

King & King & Jones, David H. Jones, John C. Leggett, for appellant.

Ralph T. Bowden, Jr., Solicitor, Eleanor A. Kornahrens, W. Cliff Howard, Assistant Solicitors, for appellee.

The State argues that the notice given to Deckard contained no false or misleading information and that it implied a proper statement of the law, i.e., only his privilege to drive in Georgia would be suspended for refusal to submit. Neither contention is borne out by the record. Unlike Whittington, supra, Deckard was not informed of the “legitimate consequences” of his refusal to submit to testing. Id. at 284. And, although we find no suggestion that the officer intentionally misinformed Deckard concerning the penalty for refusal, compare Beasley, supra, we cannot conclude that his misstatement of the law did not induce the consent. It directly impacted Deckard’s options under the Implied Consent Statute. Compare Sorrow, supra.

One who operates a motor vehicle on the highways of this State is deemed to have given consent, subject to the requirements of OCGA § 40-6-392, to chemical testing of a bodily substance to determine the presence of alcohol or any other drug. OCGA § 40-5-55 (a). Although consent is implied, before test results may be admitted into evidence the State must satisfy the burden of showing that the method of testing had been approved by the GBI’s Division of Forensic Sciences, that the operator was properly licensed, and that the accused had been advised of his rights under the Implied Consent Statute. Turrentine v. State, 176 Ga. App. 145 (1) (335 SE2d 630) (1985); Swearingen v. State, 205 Ga. App. 748 (1) (423 SE2d 305) (1992).

Since the consent was based at least in part on deceptively misleading information concerning a penalty for refusal, which the State was unauthorized to implement, Deckard was deprived of making an informed choice under the Implied Consent Statute. Accordingly, the test results were rendered inadmissible.

The State did not show that the consent implied by law was in fact voluntary in this instance.

Judgment reversed.

Cooper and Smith, JJ., concur.

       Although the motion was styled “motion to suppress/motion in limine,” the appropriate motion to exclude the test results is a motion in limine. State v. Johnston, 249 Ga. 413, 414 (3) (291 SE2d 543) (1982); Smith v. State, 185 Ga. App. 531 (2) (364 SE2d 907) (1988).


text:
    A93A1522.
    CHANDLER v. THE STATE.
    (436 SE2d 539)
    Decided September 29, 1993.
   McMurray, Presiding Judge.

This case first appeared in Chandler v. State, 204 Ga. App. 816 (421 SE2d 288), where defendant’s convictions for aggravated assault and aggravated battery of a police officer engaged in the performance of her duties were vacated because the trial court “did not instruct [the jury] that an element of the charged offenses was that the defendant acted with knowledge that the victim was a peace officer.” Id. at 820 (3). The case was remanded for a new trial or for sentencing on the lesser included offenses of aggravated assault and aggravated battery. Upon remand, the trial court sentenced defendant on the lesser included offenses of aggravated assault and aggravated battery. This appeal followed. Held:

1. In his first enumeration, defendant contends the trial court erred in sentencing him on the lesser included offenses instead of granting a new trial on the charges of aggravated assault and aggravated battery of a police officer engaged in the performance of her duties.

In Bundren v. State, 247 Ga. 180 (274 SE2d 455), the trial court failed to instruct the jury that an essential element of aggravated assault of a police officer is that the defendant acted with knowledge that the victim is a peace officer. The Court reversed and remanded the case for a new trial or for sentencing on the lesser included offense of aggravated assault. Id. at 181 (1), 182. The same procedure was employed in the case sub judice. Consequently, the trial court did not err in sentencing defendant on the lesser included offenses instead of ordering a new trial on the charges of aggravated assault and aggravated battery of a police officer engaged in the performance of her duties.

2. Next, defendant contends the trial court erred in sentencing him for aggravated battery and aggravated assault, arguing that the crimes merged as a matter of fact. This enumeration is without merit as the evidence adduced at trial reveals that each offense was a completed crime when the next was perpetrated upon the victim. Knight v. State, 190 Ga. App. 87, 88 (2) (378 SE2d 373).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Michael Mears, for appellant.

J. Tom Morgan, District Attorney, J. Michael McDaniel, Barbara B. Conroy, Assistant District Attorneys, for appellee.


text:
    A93A1754.
    HYATT v. THE STATE.
    (436 SE2d 540)
   McMurray, Presiding Judge.

Defendant Hyatt appeals her conviction of the offenses of possession of marijuana and possession of marijuana with intent to distribute. Held:

Í. The first enumeration of error complains of the denial of defendant’s motion to suppress evidence. The marijuana was discovered by Federal Express employees who inspected two wooden crates shipped by the same individual from Texas to separate addresses in Georgia. Law enforcement officials were informed and controlled deliveries of the crates were accomplished. Defendant accepted delivery of one of the crates.

The Fourth Amendment did not apply due to the private character of the search of the crates. There was no evidence that the crates were opened through the intervention or direction of law enforcement officers. Various law enforcement agencies became involved only after, the corporate employees discovered the contraband and called an agent of the Drug Enforcement Administration. The subsequent inspection of the contraband by law enforcement officers did not exceed the scope of the private search, therefore did not amount to a violation of the Fourth Amendment. Hester v. State, 187 Ga. App. 46, 47 (1) (369 SE2d 278); Marks v. State, 174 Ga. App. 711, 713 (1) (330 SE2d 900). This enumeration of error is without merit.

2. Next, defendant complains as to the admission of evidence concerning the second wooden crate and particularly the controlled delivery of that crate to another person at another address in Georgia, as well as the manner and method of the arrest accomplished in connection with that crate. Defendant argues that the second crate was never linked to her. However, it is well settled that all circumstances connected with an accused’s arrest are admissible as evidence at trial even though they may incidentally place defendant’s character in issue. Tilley v. State, 201 Ga. App. 360, 361 (2) (411 SE2d 100); Merritt v. State, 201 Ga. App. 150, 151 (3) (410 SE2d 349); Blackshear v. State, 199 Ga. App. 839, 840 (2) (406 SE2d 269). When transactions involving other crimes are so connected in time and event as to be a part of the same transaction as that for which accused is being tried, they are admissible. Leonard v. State, 197 Ga. App. 221, 222 (1) (398 SE2d 250); Bostic v. State, 183 Ga. App. 430, 431 (1) (359 SE2d 201).

Decided September 30, 1993.

Robert D. Pope, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

3. In Her final enumeration of error, defendant maintains that the prosecuting attorney was allowed to improperly comment on her invoking her rights under the Fifth Amendment. Defense counsel objected and moved for a mistrial on the basis of a question put to defendant during cross-examination. The trial court sustained the objection but denied the motion for mistrial, and then instructed the jury to disregard the question. Defendant did not renew her motion for mistrial following the instructions to the jury, therefore she failed to preserve this issue for appellate review. Smith v. State, 196 Ga. App. 758 (2) (396 SE2d 809); Abner v. State, 196 Ga. App. 752, 754 (2) (397 SE2d 36); Bryant v. State, 196 Ga. App. 132 (2) (395 SE2d 385).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1786.
    McFARLAND v. THE STATE.
    (436 SE2d 541)
   McMurray, Presiding Judge.

Defendant McFarland appeals his conviction of the offenses of driving under the influence and of habitual violator. Held:

1. Defendant contends the trial court erred in admitting into evidence a photocopy of two return receipts for certified mail. The only issue both preserved by objection at trial and argued on appeal in support of this enumeration of error maintains that the admission of this evidence was a violation of the best evidence rule. However, pursuant to OCGA § 40-5-2 (f) (1), since this exhibit was a certified copy of a record of the Georgia Department of Public Safety and there was no challenge to the certification, the “best evidence” objection has no merit. Henson v. State, 168 Ga. App. 210, 213 (3) (308 SE2d 555). See also Gill v. Bowman, 201 Ga. App. 308 (410 SE2d 780); Arnold v. State, 189 Ga. App. 900, 901 (1) (377 SE2d 918); Smith v. State, 187 Ga. App. 322 (1) (370 SE2d 185).

2. The three remaining enumerations of error question the sufficiency of the evidence to authorize defendant’s conviction. The evidence viewed in the light most favorable to upholding the jury’s verdict shows that a vehicle driven by defendant was stopped after police received a citizen’s report that the driver was intoxicated. See State v. McFarland, 201 Ga. App. 495 (411 SE2d 314). When defendant got out of the car, he smelled of alcohol, his face was red and flushed, his speech was slurred, and he staggered and braced himself against the car. Several empty and full beer cans were found in the car. After defendant failed a number of field sobriety tests, defendant was arrested and asked to take a breath test to determine the alcohol content of his blood. Defendant was given the implied consent warning, but refused to take the breath test and demanded a blood test. Defendant was driven to a hospital in order that a blood sample could be taken for testing. However, upon arrival at the hospital, defendant became belligerent to an extent such that the officers did not believe that it was safe to remove the handcuffs from defendant, as was necessary in order to draw blood for a test, so no blood test was done. Based on his experience and defendant’s appearance, the arresting officer opined that defendant was under the influence of alcohol to an extent that he was a less safe driver. This evidence was sufficient to authorize defendant’s conviction beyond a reasonable doubt of driving under the influence. Veal v. State, 205 Ga. App. 564 (422 SE2d 920); Duncan v. State, 205 Ga. App. 181, 182 (2) (421 SE2d 336); Shults v. State, 195 Ga. App. 525, 528 (4) (394 SE2d 573).

Decided September 30, 1993.

Jason R. Hasty, for appellant.

Garry T. Moss, District Attorney, Cecelia V. Moutoux, Assistant District Attorney, for appellee.

In regard to the habitual violator charge, we note that upon first being stopped, defendant stated to the officers that he was a “HV” or habitual violator. The State also showed proper notice to defendant of his habitual violator status, in that the custodian of the records of the Georgia Department of Public Safety testified that the records of that department showed service to defendant by certified mail of notice of the declaration of his habitual violator status and certified copies of these records were introduced into evidence. The evidence was sufficient to authorize defendant’s conviction of the habitual violator offense. OCGA § 40-5-58 (b); Luke v. State, 177 Ga. App. 518, 519 (1) (340 SE2d 30).

The evidence, considered in the light most favorable to the judgment of the trial court, was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of the offenses of which he was convicted. There was no error in the trial court’s denial of defendant’s motion for directed verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Veal v. State, 205 Ga. App. 564, supra; Luke v. State, 177 Ga. App. 518, 519 (1), supra.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1812.
    EXTERIOR WALL SYSTEMS, INC. v. DEAN.
    (436 SE2d 543)
    Decided September 30, 1993.

      McReynolds & Welch, J. Michael Welch, for appellant.

      James W. Penland, Jeffrey B. Bogart, for appellee.
   McMurray, Presiding Judge.

Plaintiff Exterior Wall Systems, Inc. filed this action seeking to recover sums due for plaintiff’s labor and materials furnished in the construction of defendant Dean’s residence. Plaintiff’s complaint stated alternative theories of breach of contract and quantum meruit. Defendant answered denying the claims stated in the complaint and counterclaimed alleging negligent damage to the residence and breach of contract. Upon the trial of the case, a jury returned a verdict in favor of defendant on plaintiff’s claims and in favor of plaintiff on defendant’s counterclaim. Plaintiff appeals. Held:

The first four enumerations of error complain of the trial court giving a charge that: “Any devise or scheme by which Plaintiff extracted and collected more from the Defendant than was actually due would constitute a breach of the contract that would bar all recovery under the contract." (Emphasis supplied.) While defendant maintains that this charge is taken directly from the opinion of this court in Smith v. Aultman, 30 Ga. App. 507 (118 SE 459), we do not agree. The first portion of the charge is taken almost verbatim from the cited case and is correct. However, there is nothing in that decision supporting the emphasized language. The remedy for such a breach of contract is not nonpayment, it is recoupment. Uniflex Corp. v. Saxon, 198 Ga. App. 445 (2) (402 SE2d 67); Kuhlke Constr. Co. v. Mobley, Inc., 159 Ga. App. 777, 779 (1) (285 SE2d 236); Sasser & Co. v. Griffin, 133 Ga. App. 83, 87 (2b) (210 SE2d 34). While the remaining enumerations of error are without merit, this erroneous charge requires reversal since it cannot be deemed harmless.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A93A2069.
    BENNETT et al. v. EXECUTIVE BENEFITS, INC.
    (436 SE2d 544)
    Decided September 30, 1993.
    William R. Bennett, pro se.

    Robert J. Dyes, pro se.

      Alston & Bird, Donna P. Bergeson, Branch, Pike & Ganz, Cathleen M. Devlin, Robert N. Dokson, for appellee.
   McMurray, Presiding Judge.

This appeal involves just one branch of a multi-faceted action by plaintiffs Bennett and Dyes. The complaint alleges that plaintiffs contracted with defendant Kruse to obtain a health insurance policy, were informed by Kruse that they were covered by a health insurance policy, and repeatedly paid premiums on the policy to Kruse when in fact no policy of insurance on plaintiffs had been issued. Plaintiffs’ action is against Kruse, along with multiple insurance companies and agencies. This appeal is taken from the grant of summary judgment in favor of defendant Executive Benefits, Inc. and against plaintiff. Held:

The notice of appeal filed by plaintiffs is not in the form directed by OCGA § 5-6-37 in that, rather than designating portions of the record to be omitted on appeal, plaintiffs have instructed that only items listed on the notice of appeal be included in the record sent to this court. Under the statutory scheme, the notice of appeal provides information concerning omission of portions of the record before the lower court. Nonetheless, after study of the record sent up and communication with the clerk of the court below, it is apparent that under the directions contained in the notice of appeal, some portion of the evidence upon which the superior court relied in this case has been omitted from the record on appeal.

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. Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16); Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 (412 SE2d 847); Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (401 SE2d 294); Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 309 (1) (395 SE2d 898); Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397 (370 SE2d 520).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1941.
    DELANEY v. LAKESIDE VILLA, LTD. et al.
   Birdsong, Presiding Judge.

Donna Delaney appeals the judgment entered on the jury verdict for appellee/defendant.

Appellant/plaintiff Delaney brought suit against appellee Lakeside Villa, Ltd., for damages sustained when her apartment was burglarized. Appellant contended that appellee failed to safeguard the spare keys to apartments; and that, after keys had been taken approximately 14 months earlier during the course of an office break-in, appellee failed to give adequate warning to the tenants. Held:

1. Appellant’s enumeration that the trial court erred by giving a so-called time-fuze charge has been abandoned. Court of Appeals Rule 15 (c) (2). Further, appellant took no timely exception or objection to this charge at trial. OCGA § 5-5-24 (a). Appellant also failed to establish that such charge resulted in prejudicial error. Compare Williams v. State, 205 Ga. App. 445, 446 (3) (422 SE2d 309).

2. Appellant waived the error asserted in enumeration 1 (a). Unless appellant makes a timely objection or exception on a specific ground to a charge, appellate consideration of that particular charging issue is waived on appeal. Compare Brown v. Dept. of Transp., 194 Ga. App. 530 (2) (391 SE2d 32). Appellant neither excepted nor objected to the charge based on the specific ground asserted in enumeration 1 (a).

Even specific exceptions or objections to charges must be expressed with sufficient clarity to enable a trial court to ascertain promptly the precise nature of the asserted error, and thus be afforded a meaningful opportunity to take timely and effective corrective action if warranted. The trial court was not given such notice regarding enumeration 1 (a); for this additional reason, the charging error therein asserted has not been preserved on appeal. Moreover, a party cannot complain of error that her own legal strategy, trial procedure, or conduct aided in causing. West v. Nodvin, 196 Ga. App. 825, 829 (3e) (397 SE2d 567).

3. Appellant contends the trial court erred in its proximate cause charge to the jury as the instruction was confusing in that it indicated appellant must exclude every other potential proximate cause, except that of the alleged operative cause, in order to recover. Specifically, appellant claims that the language of the charge “implies” she must prove the failure of appellee to secure the keys of its tenants was the sole proximate cause of her damages, rather than the proximate cause thereof. The contested charge states, inter alia, that “a possible cause cannot be accepted by the jury as the operative cause unless the evidence excludes all others or shows something in the way of [a] direct connection with the occurrence.” In Stapleton v. Stapleton, 87 Ga. App. 417, 418-419 (74 SE2d 116), this court accepted the contested charging language as a correct abstract principle of law, but found it to be not applicable under the attendant circumstances of that case. We are not convinced that this legal principle was not applicable in the case at bar, where the alleged loss of keys occurred months before the break-in of appellant’s apartment.

Decided October 1, 1993.

Steven J. Strelzik, for appellant.

Greene, Buckley, Jones & McQueen, Frank C. Schenck, for appellees.

Pretermitting this issue, however, is whether the contested instruction did inform the jury that appellant must prove said failure of appellee to be the sole proximate cause of appellant’s damages, rather than merely a proximate cause. Examining the charges in their totality (Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177)), we find the jury was not misled as asserted by appellant, neither was the correct legal meaning of the charge obscured by its language. The jury did not receive a “sole proximate cause” charge.

Assuming some verbal inaccuracy had existed in the contested charge, a new trial is not required when the inaccuracies in a charge do not mislead or obscure meaning. Strickland v. Dept. of Transp., 196 Ga. App. 322 (1) (396 SE2d 21).

Appellant’s reliance on Bender v. Dingwerth, 425 F2d 378 (5th Cir.) is misplaced; the harmful charge in Bender differs substantially from the charge in this case. While federal court decisions are deemed highly respectable and persuasive authority (Custom One-Hour Photo of Ga. v. C & S Bank, 179 Ga. App. 70 (345 SE2d 147)), the federal court cases cited by appellant are not binding on this court unless adopted by it. Benford v. State, 189 Ga. App. 761, 763 (377 SE2d 530). We decline to depart from the well-established Georgia rule that jury instructions must be read and considered as a whole in determining whether the charge contained error. Hambrick, supra.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.