text:
    A98A2176.
    THE STATE v. PAYNE.
    (512 SE2d 292)
   Andrews, Judge.

After Bell L. Payne was arrested on May 17, 1997, and charged with driving under the influence of alcohol, she moved to suppress the results of the state-administered breath test on the ground that the arresting officer gave an implied consent notice to her that did not conform to the notice set forth in OCGA § 40-5-67.1 (b) (2). The trial court granted the motion, and the State appeals pursuant to OCGA § 5-7-1 (a) (4).

The required implied consent notice is set forth in OCGA § 40-5-67.1 (b) (2) as follows: “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.10 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

The record of the arresting officer’s testimony at the suppression hearing shows that the officer read the implied consent notice to Payne in language that differed from the statutory notice as follows (the officer’s omissions are in brackets and his additions are underlined): “Georgia law requires you to submit to a state-administered chemical test[s] of your blood, breath, urine or other bodily substance [s] for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at a trial. If you submit to testing, and the results indicate an alcohol concentration of [0] .10 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state test[s], you are entitled to an additional chemical test[s] of your blood, breath, urine or other bodily substance at your own expense and from qualified personnel of your own choosing. Will you submit to the state-administered chemical test[s] of your breath under [the] implied consent law?”

Because the officer did not read the notice according to the exact statutory language, the trial court’s May 21, 1998 order granted Payne’s motion to suppress the results of the breath test relying on opinions from this Court which required that the statutory notice set forth in OCGA § 40-5-67.1 (b) be read according to its exact language. See State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) (1998); State v. Barfield, 230 Ga. App. 141 (495 SE2d 622) (1998); State v. Fielding, 229 Ga. App. 675 (494 SE2d 561) (1997). However, subsequent to those opinions, OCGA § 40-5-67.1 (b) was amended by the legislature effective March 27, 1998, to provide that the implied consent notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” We held in State v. Moncrief, 234 Ga. App. 871, 872-873 (508 SE2d 216) (1998) that the amendment had retroactive effect. Accordingly, the prior opinions of this Court relied upon by the trial court requiring the exact statutory language are no longer applicable. Pursuant to the amendment to OCGA § 40-5-67.1 (b), we must determine whether the arresting officer’s reading of the implied consent notice to Payne in language that differed from the statute changed the substance of the statutory notice.

In the first and last two sentences of the notice, the officer used language indicating that Payne was required to submit to “a” state-administered chemical “test,” instead of submitting to state-administered “tests” as set forth in the statute. Since the officer requested that Payne submit to only one test of a bodily substance, a breath test, this was not a substantive change in the notice. State v. Sneddon, 235 Ga. App. 739 (510 SE2d 566) (1998); State v. Hopkins, 232 Ga. App. 705 (503 SE2d 590) (1998). In this context, the change in the statutory notice from bodily “substances” to “substance” in the first sentence of the officer’s notice was also insubstantial.

Decided February 9, 1999.

Leslie C. Abernathy, Solicitor, Laura A. Janssen, Assistant Solicitor, for appellant.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellee.

In the second to last sentence of the notice, the officer used language indicating that, after submitting to state-required testing, Payne was entitled to “an” additional chemical “test” of her blood, breath, urine or other bodily “substance,” at her own expense and from qualified personnel of her own choosing. The statutory notice provides that, after submitting to state-required testing, Payne was entitled to “additional chemical tests of [her] blood, breath, urine, or other bodily substances” at her own expense and from qualified personnel of her own choosing. In Rojas v. State, 235 Ga. App. 524 (509 SE2d 72) (1998) we held that similar changes did not alter the substance of the statutory notice. “In notifying [Payne] that after submitting to the required state-administered test, she was entitled to an additional chemical test of her own choosing, the substance of the notice [the arresting officer] gave [Payne] was unchanged. [The officer] alerted [Payne] to the fact that she could have additional testing done — that he did not alert her that she could have additional tests performed is not dispositive under the amended OCGA § 40-5-67.1 (b).” (Emphasis in original.) Id. at 527 (1).

The other differences from the statutory notice in the third, fourth, and last sentences of the notice read by the officer are either minor changes of no substance or changes contemplated in the statutory notice by the officer’s designation of a test.

Under the amended OCGA § 40-5-67.1 (b), Payne was not entitled to suppression of the state-administered breath test.

Judgment reversed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A2177.
    LETSON v. THE STATE.
    (512 SE2d 55)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of trafficking in methamphetamine, possession of more than one ounce of marijuana, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony and possession of a pistol with an altered serial number. This appeal followed the denial of defendant’s motion for new trial. Held-.

1. Defendant first contends the trial court erred in denying his motion for continuance based on the absence of a witness, Melissa Heath. According to defendant’s trial attorney, a private investigator reported that Melissa Heath would testify that defendant’s accomplice (Jennifer McDaniel) owned or possessed two handguns that were found in the hotel room where defendant was arrested. Defendant’s trial attorney also stated that this private investigator gave him information indicating that Melissa Heath’s testimony would impeach a witness (Casper Heath, apparently also known as John Wayne Heath) who testified that defendant owned the handguns that were found at the crime scene.

OCGA § 17-8-25 provides, among other things, that applications for continuance based on the absence of a witness must be accompanied by a showing that the absent witness’s testimony is material. “Each of the named requirements must be met before the appellate court will review the trial court’s discretion in denying the motion for continuance based upon the absence of a witness. Tomlin v. State, 170 Ga. App. 123 (316 SE2d 570); Brown v. State, 169 Ga. App. 520 (313 SE2d 777). The trial court has discretion in determining whether to grant a continuance for absence of a witness, and that discretion is not abused unless all of the requisites of OCGA § 17-8-25 are shown and the trial court still denied a continuance. Watts v. State, 142 Ga. App. 857 (237 SE2d 231); Smith v. State, 120 Ga. App. 448 (170 SE2d 832); Frost v. State, 91 Ga. App. 618 (86 SE2d 646).” Luttrell v. State, 176 Ga. App. 508 (3) (336 SE2d 369).

Although defendant claims that his trial attorney satisfied OCGA § 17-8-25’s requirements for a continuance based on the absence of a witness, defendant failed to call the absent witness, Melissa Heath, at a hearing that was conducted on his motion for new trial. Defendant, thus, failed to substantiate his trial attorney’s reliance on a private investigator’s report that Melissa Heath’s testimony was material to defendant’s defense. Under such circumstances, we cannot say the trial court abused its discretion in denying defendant’s motion for continuance based upon the absence of a witness.

2. Defendant claims his trial attorney was ineffective because he failed to have Melissa Heath appear at trial to testify. “ ‘In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a (defendant) is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. “(T)he failure of trial counsel to employ evidence cannot be deemed to be ‘prejudicial’ in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because [defendant in the case sub judice] failed ... to [call the absent witness, Melissa Heath, at the hearing on his motion for new trial so as to substantiate the private investigator’s report to defendant’s trial attorney that Melissa Heath’s testimony would be material to defendant’s defense], it is impossible for [defendant] to show there is a reasonable probability the results of the proceedings would have been different.”’ Goodwin v. CruzPadillo, 265 Ga. 614, 615 (458 SE2d 623) (1995). Accordingly, ineffective assistance is not shown under these circumstances. Strickland [v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674)].” Howard v. State, 232 Ga. App. 430, 431 (2), 432 (502 SE2d 292).

Decided February 9, 1999.

Lambros & Lambros, Michael G. Lambros, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

The trial court in the case sub judice did not err in denying defendant’s motion for new trial based on defendant’s ineffective assistance of counsel claim.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2201.
    HAMMONTREE v. THE STATE.
    (512 SE2d 57)
   McMurray, Presiding Judge.

On December 6,1996, defendant was charged with driving under the influence in violation of OCGA § 40-6-391 and also with weaving over the roadway in violation of OCGA § 40-6-48. Chemical testing of her breath on an Intoxilyzer 5000 indicated that defendant’s blood alcohol level was .170 grams percent. After a bench trial, she was convicted of both offenses. Defendant’s direct appeal to the Supreme Court of Georgia was transferred to the Court of Appeals of Georgia, where she enumerates the denial of two motions in limine seeking to exclude the results of the chemical testing of her breath. Held:

1. OCGA § 40-6-392 (a) (1) (A) provides: “Chemical analysis of [a] person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences . . . shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements. . . .” Defendant first contends the inspections authorized and periodically performed by the GBI Division of Forensic Sciences are insufficient to establish that all components of the Intoxilyzer 5000 are working properly, because the Division of Forensic Sciences does not separately “inspect two of the three components (or filters) designed to detect the presence of [the] interfering substances [toluene and acetaldehyde] in human breath.” We disagree.

It is undisputed that this particular Intoxilyzer 5000 had been routinely inspected by Georgia State Patrol TFC Roger K. Moore, the Area Supervisor for the Implied Consent Unit of the Division of Forensic Sciences, on a quarterly basis. TFC Moore is certified by the manufacturer of the Intoxilyzer 5000 in maintenance, repair, and operation. He is also certified by the Georgia Department of Public Safety and the GBI, Division of Forensic Sciences, “to perform chemical analyses of breath specimens . . . subject to the regulations of the Department of Public Safety[,] utilizing [the] Intoxilyzer Model 5000 only.” It is further undisputed that TFC Moore followed the protocol established by the GBI Supervisor for Implied Consent in performing his maintenance inspections. Thus, TFC Moore’s testimony in conjunction with his certificates is more than adequate to lay the foundation necessary to admit defendant’s breath test results. Helmeci v. State, 230 Ga. App. 866 (1), 867 (498 SE2d 326). Specifically, this evidence is sufficient to satisfy the pertinent requirements of OCGA § 40-6-392 (a) (1), pursuant to the express terms of OCGA § 40-6-392 (f). Kollman v. State, 231 Ga. App. 630, 631 (3) (498 SE2d 745). “We are not persuaded by [defendant’s] argument that the test results were inadmissible because the inspection [protocol does] not include [additional] tests to determine whether machine components designed to detect the presence of interfering substances [other than acetone] were working properly. . . . [T]he fact that a testing procedure has some margin of error or may give an erroneous result under certain circumstances [not shown to apply in the case sub judice] relates to the weight, rather than the admissibility, of the test results. See Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991); [cit.].” Gutierrez v. State, 228 Ga. App. 458 (1), 459 (491 SE2d 898). The trial court did not err in overruling this ground of defendant’s motion in limine.

2. Defendant next contends the existing regulations promulgated by the GBI fail to comply with OCGA § 40-6-392 (a) (1) (A), arguing that any such regulation “must be approved through the procedures set forth in the [Georgia Administrative Procedure Act],” OCGA § 50-13-1 et seq. This contention is without merit. The authorities relied upon by defendant have been legislatively superseded by the enactment of OCGA § 35-3-155, which Code section “expressly provides that the Division of Forensic Sciences need not seek approval of testing methods and procedures through the Administrative Procedure Act. . . . [A]fter a review of the record, we conclude that the [S]tate met its burden under [OCGA] § 40-6-392 (a) (1) (A) through the testimony of the [trained officer] who [certified this particular Intoxilyzer 5000].” Price v. State, 269 Ga. 222, 225 (4) (498 SE2d 262). The trial court correctly denied defendant’s motion in limine on this ground.

Decided February 9, 1999.

Daniel Law Offices, J. Robert Daniel, for appellant.

Gary L. Mikell, Solicitor, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


author: Blackburn, Judge.

text:
    A98A2209.
    PARKER v. WELBORN et al.
    (511 SE2d 917)
   Blackburn, Judge.

Eleanor Parker appeals the trial court’s orders granting the defendants’ motions for summary judgment in the underlying premises liability action. On appeal, Parker contends that issues of fact preclude summary judgment. Because the evidence in this case is plain, palpable, and undisputable, we affirm.

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

In the present case, defendant James Welborn listed his house with defendant Spinks Brown Durand Realtors for the purpose of selling it. Defendant Tammie Owen, an independent real estate agent associated with Spinks Brown Durand Realtors, held an open house in Welborn’s home. Eleanor Parker and her husband attended the open house, and, while there, Parker fell down the basement stairs.

Parker deposed that she was looking for a bathroom when she fell. Parker walked into the hall, which was brightly lit, and opened the first door she saw, which she assumed was the bathroom door. The door instead led to the basement, and Parker stepped into the stairwell as she was opening the door. As she was expecting to step onto a floor, she missed the first step and was unable to hold onto the door. Parker deposed that the stairwell was brightly lit and that she saw the stairs when she looked down, but was unable to stop her fall.

Parker brought the underlying action to recover damages for the injuries she alleges she received as a result of her fall. In her complaint, Parker contended that Welborn’s stairwell constituted a dangerous latent condition which was defective because it had no rails or landing, and that the defendants failed to warn her of such condition.

1. In Robinson v. Kroger Co., 268 Ga. 735, 747 (2) (b) (493 SE2d 403) (1997), our Supreme Court modified the burden of proof required on motion for summary judgment in a slip-and-fall case. “A slip-and-fall plaintiff need not necessarily produce evidence which disproves the plaintiff’s negligence to withstand a motion for summary judgment — the burden of coming forward with such evidence arises only after it has been established or assumed the defendant had actual or constructive knowledge of the hazard, and the defendant presents evidence that the plaintiff’s injuries were proximately caused either by the plaintiff’s voluntary negligence, i.e., plaintiff’s intentional and unreasonable exposure of self to a hazard of which plaintiff has knowledge, or by the plaintiff’s casual negligence, i.e., the plaintiff’s failure to exercise ordinary care for personal safety. In this way, the defendant has the evidentiary burden as to the issue of the plaintiff’s negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent, i.e., that the defendant had actual or constructive knowledge of the existence of a hazard on its premises. Only after the defendant has produced evidence of the plaintiff’s negligence does the plaintiff have the burden of producing rebuttal evidence that the invitee’s failure to ascertain the existence of the hazard was due to actions or conditions within the control of the defendant, which actions or conditions are of such a nature that the defendant knew or should have known they would have diverted the invitee’s attention from looking where he was going.” Id. at 747-748.

In the present case, assuming for the purposes of summary judgment that Welborn’s stairwell was a defective condition, the defendants herein have presented evidence that Parker’s injuries were proximately caused by her own negligence. Parker admitted that she assumed that the door she opened was the bathroom based solely on her opinion that the location was a convenient one for the bathroom. Thereafter, without looking at all, she stepped into the lit stairwell and fell. This case is distinguishable, therefore, from the cases cited in Robinson, supra, where the Court found a jury issue remained regarding the plaintiff’s failure to look where she put her foot. Herein, the plaintiff failed to look not just at where she put her foot, but at the space she was entering. After making unfounded assumptions about its nature, she blindly entered the stairwell space with which she had no familiarity.

Decided February 9, 1999.

Charles D. Mays, for appellant.

Willis, McKenzie & Long, Edward L. Long, Jr., for appellees.

Failure to look does not necessarily constitute failure to exercise ordinary care. Rather, “the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Robinson, supra at 748. In the present case, we find that the evidence is plain and palpable that in walking blindly into an unfamiliar room through a closed door, Parker failed to exercise the prudence of an ordinarily careful person. The trial court did not err in granting defendants’ motions for summary judgment.

2. The defendants contend that Parker was a licensee rather than an invitee at the time of her fall, because she was not viewing Welborn’s house for her own interest, but was merely there with her relatives who were interested in purchasing a house. However, we do not address this issue because even under the more stringent standard imposed on owners or occupiers of land with regard to invitees, the trial court did not err in granting defendants’ motions for summary judgment.

Judgment affirmed.

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


text:
    A98A2254.
    HAWKINS v. THE STATE.
    (512 SE2d 59)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of statutory rape, aggravated child molestation and two counts of sodomy. The victim was 13 years old at the time of trial. She testified that defendant committed acts which constitute the charged offenses and that he committed these acts while residing as a guest with the victim’s mother, the victim and the victim’s sister and aunt. The victim’s mother and aunt testified that they confronted defendant during the evening of August 2, 1993, when the victim informed them about defendant’s crimes; that defendant then admitted to sexually assaulting the victim, and that they struck defendant (with their hands, a fan and a frying pan) after this admission and used a shotgun to prevent him from fleeing arrest. A physician testified that a physical examination of the victim revealed signs consistent with sexual abuse.

This appeal followed an order granting defendant’s motion for out-of-time appeal. Held:

1. Defendant asserts in his first two enumerations of error that his trial attorney was ineffective because he failed to subpoena certain “schoolmates” of the victim who would have testified at trial that the victim had falsely accused others of sexually molesting her. These assertions are without merit.

Although defendant’s trial attorney testified that he “failed to render effective representation” at trial by not calling certain witnesses, this attorney admitted that he believed before the jury’s guilty verdict that he was employing a “winnable [trial] strategy. . . .” “ ‘The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result.’ (Citations and punctuation omitted.) Etheridge [v. State, 210 Ga. App. 96, 98 (435 SE2d 292)].” Wallace v. State, 228 Ga. App. 686, 690 (4), 691 (492 SE2d 595).

2. In his third enumeration of error, defendant contends that the trial court erred in failing to conduct a hearing as to the voluntariness of his non-custodial admission that he sexually assaulted the victim. Defendant, however, did not request an OCGA § 24-3-50 hearing as to the admissibility and voluntariness of his non-custodial admission. See Griffin v. State, 230 Ga. App. 318 (496 SE2d 480). He sought exclusion of this evidence only via a motion in limine and objection at trial based on state and federal constitutional grounds. We therefore have no jurisdiction to address defendant’s third enumeration of error. See Ray v. State, 233 Ga. App. 162, 165 (2), n. 3 (503 SE2d 391).

3. Defendant contends the trial court should have dismissed the statutory rape charge against him because there was no evidence corroborating the victim’s testimony that defendant subjected her to sexual intercourse. This assertion is not supported by the record. The 13-year-old victim’s testimony regarding defendant’s sexual assaults against her was corroborated by defendant’s non-custodial admission that he sexually molested the victim and a physician’s testimony that the victim displayed symptoms indicating that she had been subjected to sexual intercourse. The evidence was sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of statutory rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ogles v. State, 218 Ga. App. 92, 93 (2) (460 SE2d 866).

Decided February 9, 1999

Charles J. Steedley, for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       Although the case sub judice first appeared in Hawkins v. State, 222 Ga. App. 461 (474 SE2d 666), and later in Case No. A98A2015, this appeal represents defendant’s first opportunity for substantive review.


author: Johnson, Chief Judge.

text:
    A98A2281.
    STEWART v. STEWART.
    (511 SE2d 919)
   Johnson, Chief Judge.

Richard Stewart and his sister, Beth Stewart Crichlow, filed suit in Greene County Superior Court seeking an accounting and asserting that John Stewart misappropriated and commingled assets while serving as attorney-in-fact for certain now-deceased relatives of the parties. John Stewart filed a permissive counterclaim against Richard Stewart for monies due on an unrelated promissory note. The counterclaim was severed and transferred by consent order to Hall County Superior Court.

John Stewart then filed a motion for summary judgment in his promissory note suit. Richard Stewart opposed the motion contending that genuine issues of material fact exist because of a set-off defense. His set-off defense is based on the same claims which he currently has pending against John Stewart. He also sought a stay of proceedings in Hall County Superior Court until the amount which he would claim in his set-off defense could be adjudicated before the Greene County Superior Court.

The Hall County Superior Court granted summary judgment to John Stewart after holding that by failing to answer John Stewart’s request for admissions, Richard Stewart admitted the facts alleged in the pleadings. Specifically, the court held that Richard Stewart admitted the indebtedness asserted as due on the promissory note and the note’s subsequent default. The Hall County Superior Court also denied Richard Stewart’s request for a stay of proceedings pending the outcome of the suit filed in Greene County Superior Court.

1. Richard Stewart appeals contending that the trial court erred by granting summary judgment and by holding that his set-off claim could only be raised as a counterclaim and could not be categorized as an equitable defense in the suit pending in Hall County Superior Court. He argues that because of the pendency of the action between the parties in Greene County, his set-off claim could not be asserted as a counterclaim before the Hall County Superior Court and that he has been placed in a “Catch 22” situation. Richard Stewart’s contentions are without merit.

In general, parties to a suit are entitled to set-off mutual demands existing at the time of the commencement of the suit. OCGA § 13-7-5. However, this type of set-off does not operate as a denial of the plaintiff’s claim; rather, it merely allows the defendant to set-off a debt owed him by the plaintiff against the claim of the plaintiff. OCGA § 13-7-1. As such, it must be asserted as a counterclaim rather than as a defense. J R. Mabbett & Son, Inc. v. Ripley, 185 Ga. App. 601, 605 (3) (365 SE2d 155) (1988).

Although the claim for monies due on the promissory note originally was filed as a permissive counterclaim in the suit brought by Richard Stewart and Beth Stewart Crichlow, it ceased to be a counterclaim when it was severed and transferred to the Hall County Superior Court for adjudication as an original action. Richard Stewart cannot assert his claim as a set-off defense in the now separate suit on the promissory note. The assertion of a set-off against the amount owed is not a defense, but is a claim for affirmative relief. Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga. App. 481, 484 (5) (445 SE2d 297) (1994); see Mitchell v. W. S. Badcock Corp., 230 Ga. App. 352, 353 (1) (496 SE2d 502) (1998). Because Richard Stewart has not affirmatively asserted his set-off claim as a counterclaim, there is no genuine issue of material fact as to the amount of the alleged set-off in the suit on the promissory note. Id.; see also Russell v. KDA, Inc., 206 Ga. App. 397, 399-400 (4) (425 SE2d 406) (1992).

Richard Stewart contends, however, that he should not be barred from asserting his alleged set-off claim as a defense because he is prohibited from filing it as a counterclaim due to his pending suit in Greene County Superior Court. See generally OCGA § 9-2-5 (a). This argument is not persuasive. We cannot conclude from the record that an injustice will result from following the rules of law applicable to this case. Cf. Brunson v. Bridges, 130 Ga. App. 102, 104 (1) (202 SE2d 553) (1973). Richard Stewart is free to pursue his claims in the suit pending in Greene County Superior Court.

Moreover, John Stewart originally filed his claim on the promissory note as a permissive counterclaim, but Richard Stewart and Beth Crichlow filed a motion seeking to dismiss or transfer it. A consent order subsequently was entered transferring the counterclaim from Greene County Superior Court to Hall County Superior Court. Thus, Richard Stewart’s own trial strategy was instrumental in creating the procedural dilemma which he now faces. A party cannot complain of a verdict, judgment, ruling or order that his own legal strategy, trial procedure or conduct aided in causing. See Perry v. Rosenbaum, 205 Ga. App. 784, 790 (4) (423 SE2d 673) (1992). The trial court did not err as enumerated.

Decided February 9, 1999.

Hartness & Link, Frederick E. Link, for appellant.

Chambless, Higdon & Carson, Kim H. Stroup, Thomas F. Richardson, Peter J. Rice, Jr, for appellee.

2. John Stewart’s motion for imposition of a penalty for frivolous appeal is denied.

Judgment affirmed.

Ruffin and Barnes, JJ., concur.


author: Barnes, Judge.

text:
    A98A2302.
    SHERIDAN v. THE STATE.
    (511 SE2d 908)
   Barnes, Judge.

After the grant of an interlocutory appeal, George Sheridan appeals the trial court’s denial of his motion in limine seeking to exclude the results of his breath test in his prosecution for driving under the influence of alcohol. Sheridan contends the trial court erred by relying on Ga. L. 1998, Act 573 (HB 1378) to deny his motion because this Act became effective after the date of his arrest, and because applying the Act in this fashion violates the prohibition against ex post facto laws contained in Art. I, Sec. I, Par. X, Ga. Const, of 1983. We affirm.

1. Ga. L. 1998, Act 573 (HB 1378), effective March 27,1998 (codified as the last sentence of OCGA § 40-5-67.1 (b)), eliminated the former requirement that the warnings in OCGA § 40-5-67.1 be read verbatim for the test results to be admissible. See, e.g., State v. Fielding, 229 Ga. App. 675 (494 SE2d 561) (1997). When Sheridan’s application was granted, this Court had not addressed the applicability of the Act. Since that time, however, this Court has considered this issue and concluded that the Act is applicable to offenses occurring before its effective date. Rojas v. State, 235 Ga. App. 524 (509 SE2d 72) (1998); State v. Moncrief, 234 Ga. App. 871, 873 (5) (508 SE2d 216) (1998); State v. Levins, 234 Ga. App. 739 (507 SE2d 246) (1998) (physical precedent); State v. Nolen, 234 Ga. App. 291 (508 SE2d 733) (1998) (physical precedent). Accordingly, Sheridan’s contentions regarding retroactive application of the Act are without merit, and the trial court did not err by applying the Act in Sheridan’s case.

Although Sheridan mentioned in the trial court that the Act violated the ex post facto provisions of the Georgia Constitution, this comment came after the trial court’s ruling on his original objection and he did not obtain a ruling on the ex post facto issue from the trial court. Therefore, this issue is not ripe for appellate review. State v. Nolen, 234 Ga. App. at 292; Devins v. Leafmore Forest Condo. Assn. of Owners, 200 Ga. App. 158, 159 (3) (407 SE2d 76) (1991).

Decided February 9, 1999.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

2. The remaining issue is whether the warning actually given Sheridan changed the substance of the required warning. Sheridan contends the officer deviated from the required warning by informing him that “Georgia law requires you to submit to state administered test of your blood” when the prescribed warning states “tests of your blood.” He also contends that the officer informed him that after submitting to the state test, he was “entitled to an additional chemical test” even though the required warning does not contain the word “an.” We do not find that informing Sheridan that the law required him to submit to a state-administered “test” of his blood rather than “tests” of his blood changed the substance of the required warning. Harrison v. State, 235 Ga. App. 78, 80 (508 SE2d 459) (1998). Sheridan was informed that the law required him to submit to a state-administered test, and that is the significant point in that portion of the warning. We also do not find that the substance of the required warning was changed by informing Sheridan that he was entitled to “an additional chemical test,” rather than merely chemical “tests.” Id.; State v. Black, 236 Ga. App. 56 (510 SE2d 903) (1999); Rojas, 235 Ga. App. at 527 (1).

Accordingly, the trial court did not err by denying Sheridan’s motion in limine.

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.


text:
    A98A2315.
    WILLIAMS v. THE STATE.
    (511 SE2d 910)
   McMurray, Presiding Judge.

Defendant-appellant Efrem Williams and co-defendant Alfred Demond Lawson were each charged with ten counts of armed robbery, five counts of kidnapping, two counts of theft by receiving, and seven counts of possession of a firearm’ during the commission of a crime. They were jointly tried before a jury, which found defendant “Williams guilty of all charges against him [and finding co-defendant Lawson] not guilty on any charges listed.” On appeal, defendant chailenges his convictions for Counts 9 through 13, namely, the kidnapping, armed robbery, and firearm charges involving the victims Chad T. Curry and David M. Droll. Viewed in the light most favorable to the jury’s verdicts as to those charges, the evidence revealed the following:

Co-indictee Jerry Lewis Lee identified defendant Williams as one of the gang that committed the crimes. Defendant “has a [distinctive] gold tooth or a gold cap or edge around his [front upper] tooth. The gold stands out.” On December 24, 1990, Chad Thomas Curry was walking with David M. Droll behind the Food Lion on Gordon Highway when they were “stopped by three guys in a silver Acura and one of them, the one in the back seat, on the driver’s side, pulled out and put a gun on [them].” The gunman said, “‘Get in the car.’ Then he pointed the gun at [Chad Curry and David Droll] and [they] got in the car. . . . Then they started driving around front and they . . . got [a] chain off [David Droll] and [his] three rings and then they told [Chad Curry and David Droll] to give them [(the robbers) their] wallets. And then [the robbers] checked to see if [Chad Curry and David Droll] had watches on and they took . . . two cassette tapes and [Chad Curry’s] hat. Then told [Chad Curry and David Droll] to get out the car. . . .” David Droll specified that the robbers took “[a] gold chain with a pendant on it, a gold ring and two silver rings, and [his] wallet. . . . [All David Droll recovered was one] ring, . . . the gold and black onyx ring.” Neither Chad Curry nor David Droll could positively identify defendant Williams in court, but Chad Curry confirmed he picked defendant as the driver out of a photographic lineup examined at the police station in late December.

Annette Freeman identified her car as a red Toyota Corolla, with a South Carolina tag, AZL 106. Tony Freeman testified that on December 24, 1990, he was robbed of his wallet at gunpoint, after which the thieves jumped in his sister’s car “and they said,'‘I told you to keep going,’. . . and they drove off.” On December 30, 1990, near the Kroger on Deans Bridge Road by Augusta Tech Drive, James Thomas Lifsey was kidnapped at gunpoint by four young men in a small red foreign car, with a non-Georgia partial tag number, —106. The gunman “stuck the gun back in [Lifsey’s] face and knocked [his] glasses off.” Lifsey’s brother thought he had spotted the car, and together, they viewed a small red car, tag number AZL 106, which they reported to police.

Adrian Norman identified defendant in court as the driver of a dark grey Mercury Topaz. This person “was kind of like . . . kind of dark with a low hair cut and he had a gold tooth on the left side. . . .” Defendant stopped the car near Adrian Norman and “asked [Adrian Norman] what time it was. . . .” The passenger “pulled out a gun and said, ‘Give me your jacket.’ ” Adrian Norman complied, yielding his New York Mets jacket to a third “guy in the back seat. He rolled down the window and I [Adrian Norman] gave him the jacket.”

Investigator Wayne Pinkston with the Richmond County Sheriff’s Office investigated the theft of a smoke gray, four-door, 1987 Mercury Topaz bearing a white Acura-of-Augusta tag, identified by Chad Curry and David Droll as the vehicle involved in their armed robbery and kidnapping. This vehicle was recovered but only as a total wreck. Adrian Norman’s Mets jacket was retrieved from the car and returned to him. Investigator Pinkston next responded to the reported theft of a red Toyota Corolla bearing a South Carolina tag AZL 106. The car was found in the Kroger parking lot on Deans Bridge Road, and defendant Williams was arrested at the scene. Concealed in his shoe, defendant “had two yellow gold nugget rings, one yellow gold initial ring with the letter ‘D’ as in David on it, one herringbone necklace and one yellow rope chain and one wrist watch.”

In a custodial statement, defendant Williams explained to Investigator Pinkston that he had gotten use of the red car from Pete, last name unknown, in exchange for $10 in gas money. Defendant admitted driving three friends around and that one of them had a small chrome .25 caliber handgun. At the direction of the others, defendant pulled the car over and a co-indictee “pulled out a gun and told [some male] to get in.” Defendant Williams also took the stand and admitted driving the red Toyota even though he knew it was stolen. He testified that the gunman acted without discussing any plan amongst the four. He admitted that, when arrested, he possessed items identified by the victims as stolen property, but claimed he got them from a person named Rico Fryer.

Defendant’s motion for new trial was denied, and this appeal followed. Held:

1. Defendant first enumerates the general grounds as to Counts 9, 10, 11, 12, and 13.

(a) “ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ (Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847).” Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489).

(b) “The testimony of a single witness is generally sufficient to establish a fact. . . .” OCGA § 24-4-8. If corroboration were necessary in the case sub judice, the testimony of the eyewitness coindictee Jerry Lewis Lee, identifying defendant, corroborated Chad Curry’s out-of-court identification of defendant in the photographic lineup. See Farley v. State, 210 Ga. App. 580 (436 SE2d 770). Proof of defendant’s complicity in the crimes rather than his mere presence comes from proof that the spoils of armed robbery were hidden in defendant’s shoes, authorizing the jury’s verdict that defendant is guilty, beyond a reasonable doubt, as a party to the armed robberies alleged in Counts 10 and 12. Butler v. State, 194 Ga. App. 208 (2), 209 (390 SE2d 278).

(c) Under Georgia law, “ ‘(a) person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.’ OCGA § 16-5-40 (a). Further, the slightest movement of the victim will establish asportation. Lloyd v. State, 226 Ga. App. 401, 402 (1) (487 SE2d 44) (1997); Lockett v. State, 217 Ga. App. 328, 329 (1) (457 SE2d 579) (1995).” Cosby v. State, 234 Ga. App. 723, 724 (2) (507 SE2d 551). In the case sub judice, proof that defendant willingly drove the victims around the corner of the parking lot while they were being robbed at gunpoint is sufficient to authorize his conviction as a party to the crimes of kidnapping Chad Curry and David Droll as alleged in Counts 9 and 11. Brown v. State, 225 Ga. App. 201, 202 (1) (483 SE2d 641).

(d) The evidence was also sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize defendant’s conviction as a party to the crime of possessing a firearm during the commission of a crime, as alleged in Count 13. Collins v. State, 229 Ga. App. 210, 211 (1) (b) (493 SE2d 592). The enumeration of the general grounds is without merit.

2. Next, defendant contends the trial court erroneously denied defendant his right to conclude the closing argument. We disagree.

Counsel for the co-defendant tendered the entire written pretrial statement of a co-indictee who testified for the State in order to impeach that witness. This was admitted over defendant’s contemporaneous objection that “[w]e have the live testimony of this witness. There could be parts of that statement that are conflicting. The jury will be confused.” Defendant subsequently moved to exclude the coindictee’s statement on the ground that it was improperly introduced during the co-defendant’s cross-examination of the co-indictee. Counsel for the co-defendant confirmed “he wanted this [statement] introduced into evidence and [that] he introduced it ... of his own free will and accord. . . .” Defendant then first objected to the order of argument, when the State’s attorney declined to waive her right to conclude closing argument. Defendant repeated his objection: “I just think you have to introduce evidence at the proper time, that’s my only contention. . . .”

“After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed.” OCGA § 17-8-71. “This right is not forfeited when the defendant testifies in his own behalf, provided he introduces no other evidence. Code Ann. § 38-415 [now OCGA § 24-9-20 (c)]. [But] the right of a defendant introducing no evidence at trial to open and close . . . is not absolute. If one defendant offers evidence in the trial of co-defendants, the right to make the closing argument is lost to all defendants, even those introducing no evidence, for the reason stated in Lackey v. State, 246 Ga. 331 (10) (271 SE2d 478) (1980). Further, the right is waived by failure to make a timely objection at trial. Scott v. State, 243 Ga. 233, 234 (253 SE2d 698) (1979); Garrett v. State, 21 Ga. App. 801 (7) (95 SE 301) (1918).” McDuffie v. Jones, 248 Ga. 544, 546 (2) (283 SE2d 601).

“Whether the witness admits or denies making the prior inconsistent statement in writing, the written statement [now is] admissible ‘because the jury may now consider the inconsistent statement as substantive evidence.’ . . . This change in the admissibility of prior inconsistent statements does not mean that the cross-examiner must now offer the prior [inconsistent] statement into evidence before impeaching the witness. [The] purpose behind laying a foundation for impeachment is met by showing or reading the prior written statement to the witness before asking questions about it. . . .” (Footnotes omitted.) Duckworth v. State, 268 Ga. 566, 567 (1), 568 (492 SE2d 201). In our view, when the co-defendant in the case sub judice attempted impeachment of the co-indictee during cross-examination by tendering into evidence the entire written statement of that witness, this amounted to the introduction of substantive evidence by the co-defendant for purposes of OCGA § 17-8-71. Kennebrew v. State, 267 Ga. 400, 403 (4) (480 SE2d 1). It follows that all defendants thereby lost the right to conclude closing argument, or, perhaps more accurately, the State thereby retained the right to conclude. The fact that the Supreme Court of Georgia in Duckworth v. State, 268 Ga. 566, supra, ruled that OCGA § 24-9-83 does not mandate that a prior inconsistent statement be admitted into evidence before it is used for impeachment certainly does not render erroneous the trial court’s admission of such a statement after cross-examination. Such a statement is substantive evidence under Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717), the value of which is not limited to impeachment.

Decided February 9, 1999.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. The third enumeration contends the trial court erred in failing to give a complete charge on the law of circumstantial evidence, OCGA § 24-4-6. See Mims v. State, 264 Ga. 271. (443 SE2d 845).

The record contains written requests to charge submitted by counsel for the co-defendant, including a charge on circumstantial evidence. But for aught that appears of record, no written requests were submitted by defendant himself. Nor are we shown where defendant purported to join in the requests submitted by the co-defendant. In the case sub judice, the State’s case consists of both direct and circumstantial evidence. Consequently, the failure of the trial court to give, on this defendant’s behalf, an unrequested charge on the law of circumstantial evidence as set forth in OCGA § 24-4-6 is not error. Yarn v. State, 265 Ga. 787, 788 (2) (462 SE2d 359).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2328, A98A2329, A98A2330.
    JOHNSON v. THE STATE (three cases).
    (511 SE2d 921)
   McMurray, Presiding Judge.

Defendants Christopher Johnson, Roderick Johnson and Constant Bernard Johnson were jointly tried before a jury and convicted of armed robbery (Count 1), theft by receiving a stolen automobile (Count 2), theft by receiving a stolen handgun (Count 3), and possession of a firearm during the commission of a felony (Count 4). Defendant Constant Bernard Johnson was also convicted of fleeing and attempting to elude a police officer (Count 5) which is not part of his separate appeal.

The evidence adduced at trial reveals that defendants robbed the victim at gunpoint and fled in a car just as a bystander appeared on the scene. Law enforcement officers spotted and pursued the defendants within minutes after the armed robbery and arrested defendants Roderick Johnson and Christopher Johnson after their getaway car crashed during a high-speed chase. Defendant Constant Bernard Johnson escaped the crash scene, but was arrested two days later. Officers found a handgun in an area where items were tossed from the getaway car during the high-speed chase.

Defendants filed separate appeals after the denial of their respective motions for new trial. We consolidate and resolve these appeals in one opinion because defendants assert the same enumerations of error. Held:

1. Defendants challenge their convictions for theft by receiving a stolen vehicle, citing Curtis v. State, 190 Ga. App. 173 (378 SE2d 516), to support arguments that the State failed to prove the getaway car was a stolen vehicle.

This Court reversed a conviction for theft by receiving stolen property in Curtis because the State did not prove that the car which was the subject of the offense was a stolen vehicle. The facts in the case sub judice are different. Although the owner of the defendants’ getaway car did not testify, defendants Roderick Johnson and Constant Bernard Johnson admitted to a law enforcement officer that the getaway car had been stolen. These admissions, evidence that the getaway car’s steering column was “busted” in such a way as to indicate to an investigating law enforcement officer that the vehicle had been stolen and proof that defendants used the getaway car during an armed robbery and then abandoned the car after a high-speed chase is sufficient to authorize the jury’s finding that defendants are guilty, beyond a reasonable doubt, of theft by receiving a stolen vehicle as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hurston v. State, 202 Ga. App. 311 (1) (414 SE2d 303).

2. Defendants next challenge their convictions for theft by receiving a stolen handgun, arguing that the State failed to prove that the gun that was allegedly tossed from the defendants’ getaway car (“State’s Exhibit 4”) was a stolen handgun. We agree.

Defendants were charged with theft by receiving Sharon Dunn’s stolen “.380 caliber Lorcin handgun. . . .” Although Dunn testified at trial that State’s Exhibit 4 was a handgun that was stolen from her car about two years before commission of the charged offenses, she admitted on cross-examination that there were no distinguishing marks, characteristics, or numbers identifying State’s Exhibit 4 as her weapon. Dunn also admitted that she had not seen her handgun for about two years; that State’s Exhibit 4 looked like any other handgun of the same make and model and that she never matched State’s Exhibit 4’s serial number to her handgun’s serial number. Dunn explained that she was able to identify State’s Exhibit 4 as her handgun because she reported the theft of her gun when it was stolen and “they said the serial number matched the gun I reported stolen.” Since the State did not call a witness to affirm this out-of-court declaration, it appears Dunn’s identification of State’s Exhibit 4 as a stolen handgun was based solely upon nonprobative hearsay statements. Duke v. State, 205 Ga. 106,110 (52 SE2d 455); Curtis v. State, 190 Ga. App. 173, 174 (2), 175, supra. Finding no other evidence which would authorize a finding that State’s Exhibit 4 was a stolen handgun, we are compelled to reverse defendants’ judgments of conviction and sentences under Count 3 of the indictment for theft by receiving a stolen handgun. There must be proof of a larcenous taking to authorize a conviction for theft by receiving stolen property. OCGA § 16-8-7 (a). “ ‘(I)f the goods found in the possession of the defendant are not shown to be that which has in fact been stolen, proof of larcenous taking is absent.’ Causey v. State, 139 Ga. App. 499 (1) (229 SE2d 1) (1976). Cf. Ladson v. State, 248 Ga. 470 (3) (285 SE2d 508) (1981).” Curtis v. State, 190 Ga. App. 173, 174 (2), supra.

Decided February 9, 1999.

Cummins & Kneidel, D. Scott Cummins, for appellant (case no. A98A2328).

Fanning & Hudson, Steven E. Fanning, for appellant (case no. A98A2329).

3. Defendants contend the trial court erred in granting the jury’s request to rehear an investigating officer’s testimony while, at the same time, denying the jury’s request to rehear the armed robbery victim’s testimony. Defendants contend this procedure violated their state and federal due process rights by emphasizing the investigating officer’s testimony.

“ ‘ “A trial judge may, in his discretion, on request from the jury, recall a witness and allow him to restate what he swore when he was previously on the stand, or he may require the official court stenographer to read the testimony of a witness. (Cits.)” ’ Person v. State, 235 Ga. 814, 816 (221 SE2d 587) (1976). The court may also, in its discretion, refuse such a request. Compton v. State, 179 Ga. 560 (176 SE 764) (1934); Hill v. State, 114 Ga. App. 527 (151 SE2d 818) (1966).” Byrd v. State 237 Ga. 781, 782 (1) (229 SE2d 631).

Absent a showing in the cases sub judice that the armed robbery victim’s testimony was contrary or inconsistent with the investigating officer’s reread testimony, we find no abuse in the trial court’s discretion in granting the jury’s request to rehear the investigating officer’s trial testimony and denying the jury’s request to rehear the armed robbery victim’s testimony.

Judgments affirmed in part and reversed in part.

Blackburn and Eldridge, JJ, concur.

Stemberger & Associates, William J. Stemberger, Jr., for appellant (case no. A98A2330).

Peter J. Skandalakis, District Attorney, Brian D. Lewis, Assistant District Attorney, for appellee.

       Defendant Christopher Johnson appeals in Case No. A98A2328; defendant Roderick Johnson appeals in Case No. A98A2329, and defendant Constant Bernard Johnson appeals in Case No. A98A2330.


text:
    A98A2340.
    KENNEY v. THE STATE.
    (511 SE2d 923)
   Barnes, Judge.

A jury convicted Joshua Kenney of two counts of armed robbery. On appeal, Kenney challenges the sufficiency of the evidence against him, the constitutionality of his mandatory 15-year sentence, and several evidentiary rulings. We affirm the convictions.

Construed in favor of the jury’s verdict, the evidence shows that two tourists were riding a MARTA train headed east from the Five Points station. The robber held a gun to one victim’s face, screamed at him and took his wallet, then took his companion’s wallet. The robber left the car with another young man who had been standing nearby.

A few minutes later, a MARTA bus driver flagged down a city police officer, who had noticed two young men running, and reported to the city officer that MARTA officers were pursuing two men. The police officer quickly located and held the two men while a MARTA officer retraced their tracks and recovered a gun at the base of a nearby bush. A witness from the train identified Joshua Kenney as the gunman. One of the victims positively identified Sirajuddin Qadir as the “lookout,” and Qadir gave police a written statement that also identified Kenney as the gunman.

1. Kenney argues that the evidence was insufficient to convict him, asserting that the only evidence implicating him in the robberies was the uncorroborated testimony of Qadir. Thus, he argues, his convictions should be overturned pursuant to OCGA § 24-4-8. However, a former MARTA detective testified without objection that a witness to the robbery gave a statement positively identifying Kenney as the gunman. This testimony corroborates Qadir’s testimony, and whether it was sufficient for a conviction was for the jury to determine. See Slaughter v. State, 227 Ga. App. 739 (490 SE2d 399) (1997); Moore v. State, 224 Ga. App. 797 (481 SE2d 892) (1997). With that corroboration, the evidence was sufficient for a rational trier of fact to find Kenney guilty of two counts of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Kenney contends that the admission of a res gestae statement violated his right under the Sixth Amendment of the United States Constitution to confront his accuser. However, we find no merit in this contention, as both this Court and the United States Supreme Court have specifically rejected this argument. See White v. Illinois, 502 U S. 346 (112 SC 736, 116 LE2d 848) (1992); Barnett v. State, 211 Ga. App. 651 (440 SE2d 247) (1994). Further, despite Kenney’s contention to the contrary, Georgia law has never required proof of the declarant’s unavailability to admit res gestae. See Stovall v. State, 216 Ga. App. 138 (453 SE2d 110) (1995).

3. Kenney argues that his trial counsel should have been allowed to ask Qadir, who had been convicted but not sentenced, the minimum amount of time he could serve for armed robbery. The trial court initially told defense counsel he could not question Qadir at all about his possible penalty, but later advised counsel that he could ask Qadir only about his possible maximum, not minimum, sentence. We find no abuse of discretion in the trial court’s limitation of defense counsel’s cross-examination. See Wand v. State, 230 Ga. App. 460 (496 SE2d 771) (1998); Cantrell v. State, 225 Ga. App. 680, 681 (484 SE2d 751) (1997). The trial court allowed defense counsel to fully explore whether the witness had struck a deal with the prosecution in exchange for his testimony or whether he had any other bias that might affect his testimony.

4. Kenney asserts that the trial court erred in allowing Qadir’s clothing to be entered into evidence because the State failed to prove chain of custody. We disagree, because “[u]nlike fungible items, distinct physical objects which are identified upon observation require no custodial proof for admission into evidence at trial.” Pryor v. State, 231 Ga. App. 136,137-138 (5) (497 SE2d 805) (1998) (holding chain of custody not required for ski mask and hood).

5. Kenney argues that the trial court erred in sentencing him to serve 15 years. He asserts that OCGA § 17-10-6.1 (c) (3), which provides that armed robbery convicts are not eligible for parole, is unconstitutional as applied to juveniles tried as adults. This challenge to the constitutionality of the statute is raised for the first time on appeal and, therefore, cannot be considered. Westmoreland v. State, 215 Ga. App. 21 (449 SE2d 640) (1994); Grice v. State, 199 Ga. App. 829 (406 SE2d 262) (1991).

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.

Decided February 9, 1999.

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Barbara B. Conroy, Assistant District Attorneys, for appellee.

       Sirajuddin Qadir was convicted of four counts of armed robbery in a trial from which Joshua Kenney was severed. Those convictions were affirmed in Qadir v. State, 235 Ga. App. 884 (510 SE2d 362) (1998).


author: Ruffin, Judge.

text:
    A98A2439.
    VANGOOSEN et al. v. BOHANNON.
    (511 SE2d 925)
   Ruffin, Judge.

Mary and John Vangoosen sued Michael Bohannon for injuries they allegedly sustained in an automobile accident. When defendant failed to answer, the trial court granted the plaintiffs’ motion for a default judgment. However, the trial court failed to serve defendant with a copy of the judgment as required by OCGA § 15-6-21 (c), thereby preventing defendant from exercising his right of appeal. Upon defendant’s motion, the trial court set aside the default judgment pursuant to Cambrón v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980), which allows the court in this situation to set aside and then re-enter the judgment, so as to allow the losing party to file a timely appeal. However, after setting aside the default judgment pursuant to Cambrón, the trial court did not re-enter the judgment, but proceeded to open the default pursuant to OCGA § 9-11-55 (b). We denied the plaintiffs’ application for interlocutory appeal of this ruling. At trial, the jury found in the defendant’s favor. Plaintiffs appeal the trial court’s order dismissing their motion for new trial and also appeal the earlier order opening the default. Because we conclude the trial court erred in opening the default in the first instance, we do not need to address the plaintiffs’ remaining enumerations of error. Instead, we reverse and remand the case to the trial court so that it may re-enter the default judgment.

1. Plaintiffs contend that the trial court, upon setting aside the default judgment pursuant to Cambrón, erred in proceeding to open the default under OCGA § 9-11-55 (b), rather than re-entering the default judgment. We agree.

OCGA § 9-11-60 provides the sole means of attacking a judgment. The only portion of the statute relevant to this case is OCGA § 9-11-60 (g), which provides that “[clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time.” In Cambron, the Supreme Court held that, if the trial judge does not send notice to the losing party after entering a judgment, that party may move the court “under [OCGA § 9-11-60 (g)] to set aside the earlier judgment; and upon a finding that notice was not provided as required by [OCGA § 15-6-21 (c)], the motion to set aside may be granted, the judgment re-entered, and the thirty-day period within which the losing party must appeal will begin to run from the date of the re-entry.” (Emphasis supplied.) Cambron, supra at 148-149 (1); see also Downs v. CDC Fed. Credit Union, 224 Ga. App. 869, 870 (2) (481 SE2d 903) (1997).

The holding in Cambron serves to correct the prejudice caused by a trial court’s error in failing to notify the losing party of the judgment. Nothing in Cambron allows the court to set aside the judgment and then proceed as if no judgment had ever been entered. Rather, Cambron requires that the trial court re-enter the judgment at issue. See Downs, supra.

In this case, after setting aside the default judgment pursuant to Cambron, the trial court opened the default under OCGA § 9-11-55 (b). However, this procedure is available only prior to the entry of a default judgment. See OCGA § 9-11-55 (b). Because the trial court gave no basis for setting aside the default judgment other than its failure to provide notice of the judgment to the defendant, it was required under Cambron to re-enter the default judgment and thus could not proceed to open the default under OCGA § 9-11-55 (b).

Morgan v. Starks, 214 Ga. App. 265 (447 SE2d 651) (1994), relied on by defendant, does not change this result. In Morgan, the trial court dismissed a suit without prejudice when neither party appeared for a peremptory calendar call, but failed to notify the parties of the dismissal. Id. When the parties learned of the dismissal, the plaintiff moved to set aside the judgment under Cambron. The trial judge granted the motion and re-entered a new order dismissing the case. Because the dismissal was without prejudice, plaintiff was able to file a renewal action within six months. Id. at 266. Contrary to the defendant’s contention, Morgan does not stand for the proposition that a trial court can set aside a judgment under Cambron without proceeding to re-enter the same judgment. The plaintiff in Morgan was able to have the merits of his case ultimately reached only because the judgment in question was a dismissal without prejudice as opposed to a final judgment.

Decided February 9, 1999

Rodney L. Mathis, for appellants.

Kinney, Kemp, Sponcler, Joiner & Tharpe, Henry C. Tharpe, Jr., Chadwick D. Plumley, for appellee.

Accordingly, this case is reversed and remanded to the trial court with direction to re-enter the default judgment. The defendant, of course, will have the right to appeal from that judgment.

2. Defendant asserts that we lack jurisdiction to review the trial court’s order granting his motion to set aside the default judgment and open the default because plaintiff did not file a direct appeal of such rulings previously. This assertion is without merit. While defendant correctly notes that “[m]otions to set aside brought on the grounds that the court failed to notify the losing party of its decision are cognizable as motions to correct a clerical error pursuant to OCGA § 9-11-60 (g) and are properly the subject of a direct appeal,” Downs, supra at 869 (1), this is not the issue upon which plaintiffs base their appeal. Instead, they acknowledge that the default judgment was properly set aside due to the trial court’s clerical error, but contest the trial court’s ruling in the same order which opened the default. In that regard, the grant of a motion to set aside a default judgment and open the default leaves the case pending in the trial court and is thus not a final judgment proper for direct appeal. See Laff Lines, Ltd. v. Dimauro, 186 Ga. App. 24, 25 (366 SE2d 375) (1988). Thus, plaintiffs properly applied for an interlocutory appeal following the trial court’s order opening the default judgment, which we denied without comment.

Judgment reversed and remanded with direction.

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

       In plaintiffs’ second, third, and fourth enumerations of error, they attack that portion of the trial court’s order which opened the default. In their fifth enumeration of error, plaintiffs contend the trial court erred in dismissing their motion for new trial for a delay in filing the transcript.

       In his motion to set aside the default judgment and open default, defendant asserted that the judgment should be set aside pursuant to OCGA § 9-11-60 (d) (2); however, the trial court did not rule on this assertion, and the defendant has not appealed this issue.


author: Smith, Judge.

text:
    A98A2445.
    SUTTON v. THE STATE.
    (511 SE2d 888)
   Smith, Judge.

David Charles Sutton was indicted on charges of kidnapping with bodily injury and rape. A jury found him guilty of kidnapping with bodily injury and simple battery. His motions for new trial as amended were denied, and he appeals. Sutton’s contention on appeal is that evidence of prior difficulties between the victim and himself was erroneously admitted. We find no error, and we affirm.

Construed to uphold the verdict, evidence was presented that Sutton and the victim had been involved in a romantic relationship for several years. The victim considered Sutton to be her common law husband, although she and Sutton were separated at the time of this incident. In February 1997, while grocery shopping, Sutton and the victim began arguing after he saw a “hickey” on her neck and became angry. She testified that after she purchased her groceries and walked outside the store with Sutton, he grabbed her by her neck, “with his fingernails in me.” Sutton then pulled the victim “real hard by my arm” through the store parking lot, across the highway, and into a wooded area. The victim stated that she did not know where she and Sutton were going as he was pulling her. After they reached this wooded area, Sutton told her he wanted her to have sex with him. The victim testified that she did not want to have sexual intercourse with Sutton but did so because she was afraid. The victim reported the incident to the police after she and Sutton left the wooded area, and Sutton was arrested.

Sutton contends that evidence of prior incidents of violence toward the victim was improperly admitted. The state presented evidence of several altercations that occurred between July 1994 and February 1997, the date of the incident at issue in this case. According to the victim, in July 1994, she and Sutton began fighting after Sutton’s friend told him that the victim “was talking to another guy.” Twice in April 1996, during arguments about money, Sutton again physically fought with the victim, hitting her. In May 1996, during an argument, Sutton kicked the victim in the chest and punched her. She testified that she could “hardly breathe.” On each of these occasions, although the police were called, the victim later expressed her desire to drop charges. Evidence also was presented that the victim wrote a letter concerning the charges in this case stating she “didn’t want to file a rape [charge] against [Sutton] because I guess it wasn’t really rape.”

Following a hearing, the trial court ruled these prior difficulties admissible, concluding that the probative value of the evidence outweighed its prejudicial impact. The court found that the incidents showed “a pattern of abuse Mr. Sutton uses on [the victim] to get his way. It shows a predisposition of violence to negate the element of consent.” As further basis for its ruling, the court stated that this evidence showed Sutton’s “state of mind, that he habitually uses violence to get his way” and that the prior difficulties showed “a continuing pattern of battery and shows he has the intent to use it whenever he needs to do so to punish [the victim], to get his way, to intimidate her, and ultimately to force her to consent to sex and kidnapping her to get her there.” We note that before evidence of these prior difficulties was introduced, the trial court instructed the jury on the limited purpose for which the evidence could be considered. See Wall v. State, 269 Ga. 506, 509 (500 SE2d 904) (1998).

We find no error. The basis for the trial court’s decision is well supported in our law. As stated in Wall, supra, “evidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted. [Cits.]” Id. Here, the trial court explicitly weighed the prejudicial impact against the probative value of the objected-to evidence, and the objected-to evidence clearly showed Sutton’s pattern of conduct toward the victim. Moreover, at trial, Sutton sought to show that the victim consented to going into the woods and to having sexual intercourse. Given this defense, evidence of the prior difficulties between Sutton and the victim was admissible. “[H]is continuing pattern of abusing and intimidating the victim ... is evidence that he likely abused and coerced the victim on this occasion and that she was too afraid of him to refuse his demands. [Cits.]” Bohannon v. State, 208 Ga. App. 576, 579-580 (2) (b) (431 SE2d 149) (1993).

Decided February 9, 1999.

Robert Greenwald, for appellant.

Daniel J. Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       We note that it is no longer necessary for trial courts to “conduct a pre-trial hearing and make certain findings before evidence of prior difficulties between the defendant and the victim can be admitted at trial.” Wall, supra at 509, overruling Maxwell v. State, 262 Ga. 73, 74 (2) (414 SE2d 470) (1992).


text:
    A98A2467.
    STONE v. THE STATE.
    (511 SE2d 915)
   Ruffin, Judge.

A jury found Randall Stone guilty of possession of a dangerous weapon, a razor blade, by an inmate. On appeal, Stone contends that the trial court erred in (1) failing to charge tbe jury with his sole defense; (2) failing to give the jury contemporaneous limiting instructions at the time similar transaction evidence was admitted; and (3) misstating the purpose for which the similar transaction evidence had been admitted during its charge to the jury. Because these contentions are without merit, we affirm.

We note initially that Stone has failed to file a separate enumeration of errors as required by Court of Appeals Rule 22 (a). This Court does not look with favor upon one who fails to follow the rules of this Court. We remind Stone that failure to comply with this Court’s rules may “subject! ] the offending party and/or attorney to contempt and may subject the appeal to dismissal or cause [appellant’s] brief to be stricken.” Court of Appeals Rule 7; see also Leslie v. Williams, 235 Ga. App. 657, 663-665 (510 SE2d 130) (1998) (Ruffin, J., dissenting). Nevertheless, we elect to address the enumerations as framed by Stone in his brief.

1. Stone maintains that the trial court erred in failing to charge the jury that the razor blade found in his possession was not a dangerous weapon. However, because he failed to request such a charge in writing, he cannot complain on appeal of the trial court’s failure to do so. See Sparks v. State, 232 Ga. App. 179, 180 (1) (501 SE2d 562) (1998).

Stone relies upon the proposition that “[f]ailure to give a charge on a defendant’s sole defense is error regardless of whether the defendant requested a charge on the defense.” Benefield v. State, 204 Ga. App. 87 (418 SE2d 447) (1992). However, Stone’s contention that the razor blade was not a dangerous weapon is not a “defense,” but is a contention that the State failed to prove an essential element of the crime. See OCGA § 42-4-13 (b) (1) (unlawful for inmate to possess a “dangerous weapon”). Accordingly, Stone’s suggested charge is not subject to the rule that a court must charge a defendant’s sole defense, even in the absence of an objection. See Muhammed v. State, 243 Ga. 404, 406 (1) (254 SE2d 356) (1979).

In any event, whether the razor blade constituted a “deadly weapon” was a matter for the jury to decide. See, e.g., Quarles v. State, 130 Ga. App. 756, 757 (2) (204 SE2d 467) (1974) (“whether the instrument used constitutes a deadly weapon [in an aggravated assault case] is properly for the jury’s determination”). Although not raised in his enumerations, we also reject Stone’s argument that the trial court should have defined “dangerous weapon” for the jury, because “the words ‘dangerous weapon’ as used in [OCGA § 42-4-13 (b) (1)] are not words of art but rather are words of common understanding and meaning which require no definition themselves for understanding by the jury.” Baird v. State, 201 Ga. App. 378 (411 SE2d 332) (1991) (construing OCGA § 16-10-52 (b), escape while armed with dangerous weapon).

2. Stone asserts that the trial court erred in failing to give, sua sponte, a limiting instruction contemporaneous with its admission of similar transaction evidence showing that Stone had previously been found in possession of a toothbrush with a sharpened point. This assertion has been decided adversely to Stone in State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998). “Regardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request to the trial court for such a charge.” Id. See also State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998); Warren v. State, 235 Ga. App. 145, 146-147 (1) (509 SE2d 82) (1998). Accordingly, the trial court did not err in failing to give a contemporaneous limiting instruction absent a request therefor.

Decided February 9, 1999.

Ballard & Ballard, Scott L. Ballard, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

3. Stone contends that in its charge at the close of evidence, the trial court erred in instructing the jury that the similar transaction evidence could be considered for purposes other than showing his course of conduct, which was the only purpose for admission articulated by the court at the Uniform Superior Court Rule 31.3 (B) hearing. However, when asked if he had any objections to the charge, Stone’s attorney neither raised this objection nor reserved the right to make additional objections. Accordingly, Stone has waived his right to appellate review of this issue. Hill v. State, 228 Ga. App. 362, 364 (3) (492 SE2d 5) (1997).

In any event, the court’s charge did not constitute a “substantial error . . . which was harmful as a matter of law,” so as to be reversible in the absence of objection under OCGA § 5-5-24 (c). “Although there was a difference between the State’s stated purpose [course of conduct] and the court’s instruction [identity, intent, state of mind], each of the purposes espoused by both the State and the court [was a] permissible” use of similar transaction evidence. McClain v. State, 220 Ga. App. 474, 477 (5) (469 SE2d 756) (1996). Stone has not shown he was harmed by the court’s alleged error, since he admits that the only issue at trial was whether the razor blade constituted a deadly weapon. Although the additional purposes stated by the court may have been irrelevant, Stone does not show how he was harmed thereby. Accordingly, this enumeration is without merit.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A99A0141.
    LANDERS v. THE STATE.
    (511 SE2d 889)
   Eldridge, Judge.

Appellant Juan Valdez Landers challenges his conviction for aggravated assault and possession of a firearm during the commission of a crime. Landers was convicted on January 12,1994, following a jury trial. Trial counsel filed a motion for new trial on February 7, 1994, asserting that there was insufficient evidence to support the verdict; the motion was denied on August 13, 1998. This appeal was timely filed by Landers’ appointed appellate counsel.

1. In his first enumeration, Landers asserts that the evidence was insufficient to support his convictions. This enumeration lacks merit. Under OCGA § 16-5-20 (a), “[a] person commits the offense of simple assault when he either: (1) [attempts to commit a violent injury to the person of another; or (2) [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” An aggravated assault is an assault which is committed with, inter alia, “a deadly weapon . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2).

When reviewing the evidence on appeal, “the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In evaluating the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. at 319.

Viewed in this light, the evidence in this case showed the following: On September 7, 1993, Landers and the victim, Danny Ellison, were shooting dice near the Small World apartment complex on Second Avenue in Augusta, Richmond County. Ellison decided to quit after winning some of Landers’ money, and an argument ensued. According to Ellison, he attempted to leave and was confronted by Landers, who had a sawed-off shotgun. The two men fought over the shotgun, and Landers chased Ellison around a parked car. After Ellison slipped on some rocks and fell, Landers approached him and shot him in the back. Landers then threatened to shoot Ellison in the head, but a female bystander told him to let Ellison go. Both men left the scene. Ellison was transported to the hospital after Officer Hudson Bell, a deputy with the Richmond County Sheriff’s Department, observed him running from the scene and collapsing on a front porch on Bolt Avenue. He was hospitalized for a month for treatment of a close-range shotgun wound. Ellison denied having a weapon in his possession at the time of the shooting, and Officer Bell testified that Ellison did not possess a weapon at the time he was discovered. Officer Bell testified that Ellison told him that “Juan” shot him.

Officer Bell and Officer J. M. Cawley, who also worked with the Richmond County Sheriff’s Department, testified that, during their investigation of the scene of the shooting, they discovered two shotgun shells, which were entered into evidence at trial. Officer Cawley also testified that he interviewed residents of the area and no one admitted seeing the incident. After the investigation at the scene, Officer Cawley questioned Ellison at the hospital; Ellison identified Landers as his assailant. During this visit, Officer Cawley observed a piece of shotgun “wadding” fall out of the wound in Ellison’s back.

Officer Cawley interviewed Landers following his arrest and obtained a written statement in which Landers admitted shooting Ellison, but claimed that he had done so in self-defense. However, the statement also noted that, when he shot Ellison, Landers believed that Ellison’s gun was empty.

Landers testified in his own defense at trial and asserted that Ellison had been smoking crack cocaine on the night of the shooting and that Ellison had approached him in order to rob him of $160 he had in his pocket. Landers claimed that Ellison wanted to steal the money in order to buy drugs. According to Landers, Ellison threatened him with a gun, and as Landers attempted to run away, one of four unidentified drug dealers who were standing nearby handed him a shotgun. Landers then chased Ellison around the car, where he shot Ellison. Although he admitted shooting Ellison, Landers claimed that he did not intend to strike Ellison, but that he fired a “warning” shot in an attempt to escape. He claimed to be acting out of fear for his life.

In challenging the sufficiency of the evidence on appeal, Landers asserts that the evidence was insufficient to support the conviction because the victim’s testimony allegedly was “uncorroborated”; the shotgun was not recovered or entered into evidence; and he testified that he acted out of self-defense. However, these issues go only to the weight and credibility of the witnesses’ testimony, determinations which are solely within the domain of the jury. See OCGA § 24-9-80.

In this case, the jury obviously rejected Landers’ claims of self-defense in finding him guilty of the crimes charged. The State presented sufficient evidence to support the jury’s verdict that Landers was guilty beyond a reasonable doubt of aggravated assault and possession of a firearm during the commission of a crime.

2. “Having determined that the evidence was sufficient to sustain [Landers’] conviction within the meaning of Jackson v. Virginia, [supra], it necessarily follows that a motion for directed verdict would have been unavailing. [Cit.]” Pollard v. State, 230 Ga. App. 159, 161 (4) (495 SE2d 629) (1998).

3. Landers’ final enumeration asserts ineffective assistance of counsel at trial. This issue was not raised in his February 1994 motion for new trial, which was filed by trial counsel and only challenged the sufficiency of the evidence. Appellate counsel was appointed on June 24, 1998, but did not file an amended motion for new trial raising the issue of ineffective assistance of trial counsel. A hearing on the February 1994 motion was held in August 1998, although no hearing transcript appears in the record. Therefore, appellate counsel failed to perfect the record as to whether the ineffectiveness issue was raised during the hearing or whether appellate counsel presented any evidence of ineffectiveness during the hearing. The trial court issued an order denying the motion on August 13, 1998.

“It is a well established rule that any allegation of a violation of the right to counsel should be made at the earliest practicable moment.” (Citation and punctuation omitted.) McGlohon v. State, 228 Ga. App. 726, 728 (3) (492 SE2d 715) (1997). “Our Supreme Court has clearly stated that ‘the rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that that claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising that issue at a later time.’ (Punctuation omitted; emphasis in original.) Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).” Howard v. State, 233 Ga. App. 724, 730 (505 SE2d 768) (1998). Although trial counsel cannot reasonably be expected to assert or argue his own ineffectiveness in a motion for new trial, an attorney who is appointed to replace trial counsel before the ruling on such motion should raise the issue in an amended motion for new trial and request a hearing on the amended motion; otherwise, he risks waiving the issue. Id.; Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988).

“A motion for new trial may be amended any time on or before the ruling thereon. OCGA § 5-5-40 (b). After his entry of appearance, appellate counsel [in this case had approximately seven weeks] and an entire evidentiary héaring in which to amend the motion for new trial in order to add a claim of ineffective assistance of trial counsel, before the ruling of the trial court on the motion precluded such amendment. This was not done, although ‘ample opportunity’ was available. Sartin v. State, 223 Ga. App. 759 (479 SE2d 354) (1996). Accordingly, we will not consider such claim raised for the first time on direct appeal by appellate counsel, when direct appeal does not mark the first appearance of appellate counsel. Glover v. State, [supra]. This enumeration of error is waived.” (Emphasis in original.) Miller v. State, 226 Ga. App. 509, 516 (6) (486 SE2d 911) (1997). See also Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994); White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991); Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987); Howard v. State, supra; Elliott v. State, 230 Ga. App. 855, 858 (4) (c) (497 SE2d 817) (1998).

Decided February 9, 1999.

Samuel W. Cruse, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Further, “ ‘[a]bsent a transcript, we must assume the ruling of the trial court is supported by the evidence.’ (Citation and punctuation omitted.) Walker v. State, 215 Ga. App. 790, 792 (3) (452 SE2d 580) (1994); Jackson v. State, 205 Ga. App. 827, 829 (3) (424 SE2d 6) (1992).” Vaughn v. State, 226 Ga. App. 318, 322 (6) (486 SE2d 607) (1997).


text:
    A99A0252.
    GENTRY v. CHATEAU PROPERTIES.
    (511 SE2d 892)
   Eldridge, Judge.

Defendant-appellant Eddie Gentry challenges the Cobb County State Court’s grant of a directed verdict to plaintiff-appellee Chateau Properties in a dispossessory action. We affirm.

The following facts are undisputed: In 1995, Gentry purchased a mobile home which was anchored to property in the Castlewood Estates Mobile Home Park, located in Mableton, Cobb County. At that time, the park was owned by ROC Properties; Chateau Properties purchased the park in February 1997. Gentry never signed a lease for the lot on which the home was located, but paid rent on a month-to-month basis from 1995 until December 1997. On December 28, 1997, Chateau Properties gave Gentry 60 days notice to vacate the property, pursuant to OCGA § 44-7-7. When Gentry failed to vacate, Chateau Properties filed this dispossessory action.

Gentry filed a motion to transfer the case to the Cobb County Superior Court, claiming that, because he owned stock in Chateau Properties, he had an ownership interest in the land. Accordingly, he argued, this case raised an issue regarding the title of land that had to be decided in superior court. The trial court found that Gentry was estopped from raising a challenge to Chateau Properties’ title to the land during a dispossessory hearing and denied Gentry’s motion to transfer.

A jury trial was conducted on July 9, 1998. Gentry acted pro se. Chateau Properties filed a motion in limine, which was granted by the trial court. The trial court gave Gentry the opportunity to proffer evidence excluded by the motion in limine for the purposes of an anticipated appeal.

On direct examination, Chateau Properties presented the testimony of its property manager, who testified as to the absence of a written lease between the parties and to the 60-day notice. She also testified that, if Gentry had signed a lease with Chateau Properties, it would have been a month-to-month contract. Chateau Properties also called Gentry for the purposes of cross-examination. He admitted that he did not have a written lease for the property and that he received the December 1997 notice to vacate. During his case-in-chief, Gentry explained to the jury that he believed he had acquired an estate for life from the previous lessee. However, he presented no evidence to support this assertion.

The trial court granted Chateau Properties’ motion for directed verdict and issued a writ of possession. Gentry appeals. Held-.

1. In his first enumeration, Gentry asserts that the trial court erred in failing to transfer the case to superior court, claiming that he had a partial ownership interest in the property pursuant to his ownership of stock in Chateau Properties. He claims that, under Art. VI, Sec. IV, Par. I of the Georgia Constitution of 1983, the superior court has jurisdiction over the case because it involves a dispute over the title of land. See also OCGA § 15-6-8 (1).

However, pursuant to OCGA § 44-7-9, Gentry is estopped from asserting an ownership interest in the property, and thereby disputing his landlord’s title to the property, during a dispossessory hearing. See also Ranger v. First Family Mtg. Corp. of Fla., 176 Ga. App. 715 (1) (337 SE2d 388) (1985); McKinney v. South Boston Sav. Bank, 156 Ga. App. 114, 115 (2) (274 SE2d 34) (1980). Further, the defendant is not entitled to an automatic transfer, as the state court is a court of record with jurisdiction over a dispossessory action. See OCGA § 44-7-53 (b); Rowe v. Fleet Mtg. Corp., 226 Ga. App. 593, 594 (2) (487 SE2d 133) (1997); Napper v. Nat. Mtg. Group, 194 Ga. App. 148 (390 SE2d 70) (1990); Ranger v. First Family Mtg. Corp. of Fla., supra at 716 (5). Therefore, the trial court did not err in refusing to transfer the case to superior court.

2. In his second enumeration, Gentry asserts that the trial court erred in disallowing evidence of emblements or emoluments that Gentry allegedly gained during his occupation of the property. However, the trial court correctly found that these issues were irrelevant to Chateau Properties’ dispossessory action, as Gentry failed to assert any claim as to emblements or emoluments in his answer or as a counterclaim; to proffer evidence of the existence, value, and date of creation of the alleged specific improvements that may have been the basis for such claim; of to proffer evidence as to an agreement between the parties for reimbursement of the cost of any improvements. See OCGA §§ 9-11-13; 44-7-8; 44-7-51 (b); Petty v. Kennon, 49 Ga. 468, 471 (1873). Accordingly, there was no error.

3. Gentry also asserts that the trial court erred in finding as a matter of law that he had a tenancy at will. Gentry claims that he assumed a lease in 1995 and that, when tacked onto his possession of the property, the combined possession exceeded five years. As such, he claims that he had an estate for life, thereby precluding Chateau Properties from forcing him to vacate. See OCGA § 44-6-82 (a).

However, under OCGA § 44-7-1 (b), “[a] 11 renting or leasing of real estate for a period of time less than five years shall be held to convey only the right to possess and enjoy such real estate, to pass no estate out of the landlord, and to give only the usufruct unless the contrary is agreed upon by the parties to the contract and is so stated in the contract.” See also OCGA § 44-7-1 (a). “Where no time is specified for the termination of a tenancy, the law construes it to be a tenancy at will.” OCGA § 44-7-6. See also Western Union Tel. Co. v. Fain & Parrott, 52 Ga. 18, 20-21 (1874).

In this case, it is undisputed that, when Gentry purchased the mobile home in 1995, he never signed a lease with Chateau Properties or the company which then owned the property. Further, Gentry presented no evidence to support his assertion that the property owner ever contracted for or consented to the establishment of a life estate in the property; that the prior tenant had possessed a life estate; or that he assumed a lease or a life estate when he purchased the mobile home from the previous tenant. Cf. Draper & Kramer, Inc. v. Lerow, 143 Ga. App. 413, 414 (2) (238 SE2d 560) (1977) (by accepting rental payments from assignee, landlord accepted assignment of a prior, renewable, year-to-year lease for the remainder of the term); Norge Sales Corp. v. Baker, 111 Ga. App. 373 (1) (a), 374 (2) (141 SE2d 786) (1965) (sub-lease of property expressly approved by landlord). Accordingly, there was no error in the trial court’s determination that, as a matter of law, Gentry’s relationship to Chateau Properties was as a tenant at will.

Decided February 9, 1999.

Eddie Gentry, pro se.

Robert W. Shurtz, Kris K. Skaar, for appellee.

4. In his fourth enumeration, Gentry claims that the trial court erred in issuing a writ of possession, asserting that Chateau Properties’ petition constituted an abuse of process. However, pursuant to our analysis in the prior divisions, Gentry was a tenant at will. Gentry does not dispute that he received the required 60 days termination notice pursuant to OCGA § 44-7-7. See also OCGA § 44-7-50. Chateau Properties filed a petition for a writ of possession, Gentry timely answered, and a trial was conducted pursuant to OCGA § 44-7-53 (b).

Gentry failed to assert or demonstrate the elements of malicious use or abuse of process in his answer or in a counterclaim. See Defnall v. Schoen, 73 Ga. App. 25, 30 (35 SE2d 564) (1945). Although he argued pre-trial that Chateau Properties had an improper motive for filing this action, the landlord’s motive in seeking possession of its property is immaterial in a dispossessory action. Williams v. Housing Auth. of Columbus, 158 Ga. App. 734, 737 (282 SE2d 141) (1981).

Accordingly, there was no error in the trial court’s issuance of a writ of possession.

5. As Gentry’s final two enumerations were unsupported by argument or citations to authority, they are deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       “The tenant may not dispute his landlord’s title or attorn to another claimant while he is in actual physical occupation, while he is performing any active or passive act or taking any position whereby he expressly or impliedly recognizes his landlord’s title, or while he is taking any position that is inconsistent with the position that the landlord’s title is defective.” OCGA § 44-7-9.

       “The doctrine of emblements denotes the right of a tenant to take and carry away, after his tenancy has ended, such annual products of the land as have resulted from his own care and labor.” Black’s Law Dictionary (6th ed.), p. 522.

       Gentry utilizes the alternative term, “emoluments,” interchangeably with emblements. “Emoluments” refer to the “profit arising from office, employment, or labor.” Id. at 524.

       “An estate for life may be created by deed or will, by express agreement of the parties, or by operation of law.” OCGA § 44-6-82 (a).