text:
    A93A0236.
    BOWMAN v. PALMOUR.
    (433 SE2d 380)
   Andrews, Judge.

We granted the application for discretionary appeal of the Commissioner of the Department of Public Safety to review the superior court’s reversal of the department’s affirmance of the suspension of Palmour’s driver’s license. We reverse.

1. When sitting in review of a department’s affirmance of an administrative decision, the superior court sits only as an appellate court. Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 579-580 (5) (396 SE2d 562) (1990). It may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. OCGA § 50-13-19 (h) (5), (6); Ga. Power Co., supra. The “any evidence” test is the applicable touchstone and the presence of conflicting evidence is sufficient to satisfy that test. Id.

Viewing the evidence presented at the administrative hearing in the light favorable to the. decision rendered, it showed that Mrs. Palmour was driving north on Highway 27 in Rome about 9:30 p.m. when she was approached by Rome Police Officer Lively in his cruiser going south. From observing her van, Officer Lively concluded that she was exceeding the posted 40 mph speed limit. He turned his car around and began to follow her. He then observed the van veer over the center yellow line and decided to pull it over. He activated his blue lights just as the van approached an intersection where it ran a red light. The van then pulled over and Officer Lively detected an odor of alcohol as he approached the driver’s window. Mrs. Palmour exited the van and moved to the rear of the van. The officer observed that her eyes were bloodshot and watery and that the odor of alcohol was detectable in her presence. He also observed a “swayingness” in her. He asked her to blow into an alco-sensor, but she refused. He then inquired if she had had anything to drink, to which she responded negatively. He advised that the sensor would only detect alcohol and she had nothing to worry about if she had consumed none. She then advised that she had consumed a glass of wine with dinner and again refused to blow on the alco-sensor. She was also using a breath mint.

At that point, the officer asked if she would do field tests, advising her that she did not have to. She refused. She was placed under arrest for DUI and was read the implied consent warnings. She was asked if she would comply with the state administered test, but made no response. She was placed in the rear of the cruiser while Officer Lively requested a female officer who came to the scene to search Mrs. Palmour and handcuff her.

Decided June 28, 1993.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Kay D. Baker, Staff Attorney, for appellant.

Cook & Palmour, Bobby Lee Cook, Jr., Westbrook & Vines, Carl ton H. Vines, for appellee.

Mr. Palmour, an attorney and solicitor of an adjoining county, was behind his wife in another vehicle. He saw her pulled over, went down the road to turn around, and returned. By this time, the second officer was at the scene. Mr. Palmour testified that he asked to speak with Mrs. Palmour and was refused. Officer Lively, however, testified that the only request he made at the scene was to be allowed to take her home. She had their three small children in the van with her and the officer told Mr. Palmour that he could take the van and the children and meet his wife at the sheriff’s office.

Mrs. Palmour was taken into the sheriff’s office where Officer Lively activated the Intoximeter 3000 and asked her to blow into it. She again refused to be tested. Officer Lively then executed the affidavit which resulted in the six-month suspension of her driver’s license, the subject of review below and here.

2. While Mrs. Palmour does not dispute her refusal to be tested, she contends that she had the right to consult with her attorney/husband both at the scene and at the jail before the test was administered. This position was accepted by the superior court, based solely on two articles in American Law Reports.

Contrary to the position taken by other courts, in Georgia “there is no right to have counsel present when a person is asked to submit to a chemical test and when [she] is asked to comply with the implied consent law. Cogdill v. Dept. of Pub. Safety, 135 Ga. App. 339 (2) (217 SE2d 502) (1975).” Rawl v. State, 192 Ga. App. 57, 58 (4) (383 SE2d 903) (1989) (authored by now Supreme Court Justice Benham). E.g., Courson v. State, 184 Ga. App. 793, 794 (3) (363 SE2d 41) (1987); Billingsley v. State, 183 Ga. App. 850, 852 (2) (360 SE2d 451) (1987); Oyler v. State, 175 Ga. App. 486, 487 (1) (333 SE2d 690) (1985); Hardison v. Chastain, 151 Ga. App. 678, 679 (261 SE2d 425) (1979).

Judgment reversed.

Pope, C. J., and Birdsong, P. J., concur.

       This is the required standard for both the superior court in its review and this court in ours. Ga. Power Co., supra at 581.

         Much is made over the fact that when Officer Lively was asked by Mrs. Palmour what would happen to the children she was advised that, if there were no family member to take them, DFACS would be called. It is unclear what other procedure would have been more appropriate if the father had not arrived.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A93A0358.
    OWENS v. THE STATE.
    (433 SE2d 382)
   Andrews, Judge.

Owens, charged with murder, was convicted of voluntary manslaughter and possession of a firearm during the commission of a crime.

He appeals, contending that the admission of both an oral and written statement made by him was improper.

Viewed in favor of the verdict, the evidence showed that Owens and the victim, Mapp, were acquainted. Owens had been advised by neighbors that Mapp had been seen leaving Owens’ home shortly after it had been broken into.

On Sunday morning, September 19, 1991, Owens confronted Mapp in a neighborhood park and demanded the return of his belongings.

Another resident was walking his dogs in the park and observed the discussion between Mapp and Owens. According to this witness, Owens appeared to be in control of the situation and had his hand on Mapp’s shoulder. The witness observed Owens strike Mapp in the face with his hand. As the witness proceeded through the park with his dogs, he saw Owens, still holding on to Mapp’s shoulder, walking backward. Then he heard a gunshot. The witness left the park and the police were summoned. The witness and a second resident returned to the park and observed that Mapp appeared to be dead. The police searched the area and found a casing from a .380 handgun. Mapp had sustained a through and through bullet wound to the chest.

The following morning, Owens called the police station and spoke with Detective Champion and indicated he wanted to turn himself in. Approximately 45 minutes later, Owens arrived at the police station. He handed Detective Champion a .380 handgun and a bullet clip. At that time he made an oral statement in which he stated that he had shot Mapp in self-defense because Mapp was assaulting him with a knife.

Detective Champion testified that she orally advised Owens of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Detective Champion then summoned Detective Daniels, to whom the case had been assigned. Detective Daniels arrived approximately 30 minutes later and read a written Miranda form to Owens. Owens also read to himself the contents of that form and signed it. Thereafter, a written statement was taken from Owens. It was typed by a secretary and signed by a witness.

Decided June 28, 1993.

Dorothy Williams, for appellant.

J. Tom Morgan, District Attorney, Gregory A. Adams, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Both enumerations deal with the statements and will be considered together. Initially, Owens contends that he was not properly given his rights. After the hearing conducted by the court pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), conducted outside of the jury’s presence, the court determined that both the oral and written statements were voluntarily made after valid waiver of Owens’ rights under Miranda. Owens testified at that hearing. He equivocally stated that Detective Champion did not advise him orally of his rights but later stated that he did not remember whether she had done so.

“A trial court’s findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld on appeal unless clearly erroneous. [Cit.]” Stephens v. State, 170 Ga. App. 342, 343 (1) (317 SE2d 627) (1984).

Additionally, Owens contends that his statement was inadmissible as violative of OCGA § 24-3-50. That section provides that a confession must be made voluntarily “without being induced by another by the slightest hope of benefit or remotest fear of injury.” The claimed hope of benefit, according to Owens, was Detective Champion’s statement to him when he called on the telephone that she would help him get back with his family. The detective denied making any such statement. The court concluded that the statement was made without hope of benefit or fear of harm. Further, Owens contended that he saw Detective Champion as a “mother figure,” and that adversely influenced his decision to make the statement. With regard to this latter contention, “ ‘[a] hope or fear which originates in the mind of the person making the confession and which originates from seeds of his own planting would not exclude a confession.’ [Cit.]” Hall v. State, 180 Ga. App. 366, 367 (1) (349 SE2d 255) (1986). Ramos v. State, 198 Ga. App. 65, 66 (1) (400 SE2d 353) (1990). Likewise, there was no error in the court’s determination that both the written and oral statement were voluntarily made. Caffo v. State, 247 Ga. 751, 756 (3) (279 SE2d 678) (1981).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


author: Pope, Chief Judge.

text:
    A93A0389.
    GREEN v. THE STATE.
    (433 SE2d 383)
   Pope, Chief Judge.

Defendant John H. Green was convicted of aggravated assault with a deadly weapon and appeals.

1. During the instructions to the jury the trial court defined aggravated assault as assault with a deadly weapon. That is the offense with which defendant was charged and the charge is accurate based on the definition of the offense contained in OCGA § 16-5-21 (a) (2). We reject defendant’s argument that the trial court erred in failing to use the phrase “when used offensively” in its definition of the crime. The phrase referred to by defendant is contained within the statutory definition of aggravated assault but describes an alternative method of committing the offense of aggravated assault by employing “any object . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Defendant was indicted specifically for using a handgun which is a deadly weapon as a matter of law. See Adsitt v. State, 248 Ga. 237 (6) (282 SE2d 305) (1981). Defendant was not charged with the alternative method of committing the crime and thus the language requested by defendant was inapplicable.

2. We also reject defendant’s argument that the trial court erred by failing to exclude certain hearsay testimony. The evidence showed defendant and the victim were both staying at the house belonging to the elderly and ailing woman who reared them and that they argued about which of them should be allowed to use the only available bedroom in the house. In response to being asked to describe the conflict between her and the defendant, the victim commenced to testify that the owner of the house told defendant to let her sleep in the room, but before the witness completed her statement, an objection on the ground of hearsay was raised. The trial judge did not rule on the objection but indicated that an exception to the hearsay rule would apply if the statement was made in the presence of the defendant. The judge suggested that the prosecutor should attempt to lay a foundation concerning the defendant’s presence. In response to additional questions, the witness could not say whether the owner ever directly informed the defendant that the victim should be given the bedroom and thus the testimony was never completed. Because the defendant failed to elicit a ruling on the objection, nothing is presented for appellate review. See Green v. State, 194 Ga. App. 343 (4) (390 SE2d 285) (1990).

Defendant also raised an objection on the ground of hearsay concerning statements an officer made to defendant when he appeared at the house to investigate a complaint called in by the defendant on the evening before the shooting involved in this case. The exception to the hearsay rule regarding statements made by others in the presence of defendant is based on the fact that defendant may utilize a full and thorough cross-examination to challenge the testimony concerning the out-of-court statements. Faircloth v. State, 253 Ga. 67 (3) (316 SE2d 457) (1984). Here, defendant was given the opportunity to cross-examine the victim who gave the hearsay testimony. Moreover, even if the testimony was inadmissible hearsay, defendant has shown no harm in its admission because he admitted in his own testimony that he called the police the evening before the shooting to attempt to evict the victim from the bedroom.

3. We reject defendant’s argument that the trial court erred in permitting the blood-stained dress the victim was wearing at the time of the shooting to be admitted into evidence. Defendant admitted he shot the victim but disputed the circumstances surrounding the shooting and claimed self-defense. The victim denied defendant’s claim that she was threatening defendant with a knife at the time he shot her and testified that she had turned to walk away when he shot her. The bullet hole in the shoulder of the dress was relevant to the issue of defendant’s guilt.

4. Finally defendant argues the trial court erred in failing to rebuke the prosecutor and give curative instructions to the jury concerning certain remarks he made during closing argument to which the defendant raised an objection. During closing argument the prosecutor argued that because the bullet struck the victim in the shoulder and traveled up to clip her ear lobe, defendant must have been aiming for the victim’s head or neck and must have intended to kill her. The evidence showed that the owner of the house where the altercation took place had since died and left the house to the victim and the defendant in joint ownership. The prosecutor suggested that the defendant intended to kill the victim, claiming self-defense, so he would own the house by himself once the owner died. Defendant argues the argument is improper and prejudicial since he was not charged with attempted murder but was on trial only for aggravated assault. “ ‘While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence, and the fact that the deductions may be illogical, unreasonable or even absurd is a matter for reply by adverse counsel and not rebuke of the court.’ [Cits.]” Ladson v. State, 248 Ga. 470, 476 (285 SE2d 508) (1981). Since defendant admitted shooting the victim, the issue for the jury was to determine whether the defendant shot the victim in self-defense or shot her because he intended to harm her. It was permissible to deduce from the evidence concerning the shooting that defendant intended to harm and even to kill the victim. Thus, the prosecutor’s argument was not legally impermissible and the trial court did not err in failing to rebuke the prosecutor or give curative instructions.

Decided June 28, 1993.

Shaffer & Combs, Brian G. Combs, for appellant.

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

Judgment affirmed.

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


text:
    A93A0772.
    BURSE v. THE STATE.
    (433 SE2d 386)
   Andrews, Judge.

Burse, convicted of possession of cocaine with intent to distribute and possession of Hydrocodone, a Schedule III narcotic, appeals solely on the basis of the denial of his motion to suppress the evidence.

On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). Here, the conclusions of the trial court are supported by the record as follows: On May 31, 1991, a confidential informant whose name and identity were known to the officers involved appeared in person at the police station to report that Burse had cocaine in his possession and was selling cocaine in the Whitehall area near the Kool Inn. This informant had previously provided information that resulted in an arrest and conviction on a felony charge less than a year prior to this tip. The officers on patrol that evening were already familiar with Burse and had previously stopped him, talked to him, asked to search his vehicle, and done so with his consent. The Whitehall area and the Kool Inn were known as a drug sales area in the community.

Within 20 to 30 minutes of receiving the information from the confidential informant, the officers proceeded to the Whitehall area and observed the truck known to be driven by Burse leaving the area.

While one officer testified that the informant’s information was in regard to sales on May 31, the other two officers stated that the information related to repeated sales on the evening of May 30. Either way, it is clear that the informant had seen Burse selling repeatedly and on a regular basis in that area. The officers activated their blue lights and Burse pulled over and got out of the truck and approached the officers. At that point, the officers informed him that they believed he had been involved in the distribution of drugs and asked for his consent to search his person and the vehicle. Both officers present said that the consent given was as to the person of Burse as well as the vehicle. Burse was instructed to put his hands on the car and the officer began to pat-down his person. At this time, Investigator Bailey noticed an unnatural bulge in the short pants worn by Burse. He patted the bulge and pulled up Burse’s shorts leg and observed the corner of a small brown pouch. At this point Burse took his hand off the car and placed his hand over that area, and refused to remove it at the officer’s direction. At that point, Investigator Bailey notified Burse that he was under arrest for obstruction of an officer. Investigator Bailey then removed the pouch and discovered 69 pieces of crack cocaine. Burse was then placed in the police car and the truck was searched, resulting in the location of the bank bag. Additionally, $180 in cash was found in Burse’s sock. In the glove compartment of the truck a pill bottle with another individual’s name was located, containing the Hydrocodone.

The motion to suppress filed below relied upon alleged violations of the “Fourth, Fifth and Fourteenth Amendments of the United States Constitution, and Article 1, Section 1, Para. 13 of the Constitution of the State of Georgia. . . .” The factual basis supporting these alleged violations, according to the motion, were that the information from the informant was unreliable, that the search and seizure was without probable cause and that the arrest was illegal and not with probable cause.

Here, the argument made relates solely to the reliability of the informant’s information and refers only to the federal rights, which is all we will consider. In this case, unlike those relied upon by appellant, the informant was not unknown to the officers investigating the tip. In fact, he arrived in person at the station and provided the alleged perpetrator’s name, a description of the locale where he had been operating, and recent observations of the activities, at least within the previous 24 hours. Based upon this, the officers, who were personally familiar with Burse, proceeded to the area which they knew as a high drug area and observed him in the truck they knew to be his leaving the scene.

Thus, not only did the officers know the informant, making him, at least as to them, not anonymous, but they also verified portions of the information provided by him. See Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990); compare Polke v. State, 203 Ga. App. 306 (1) (417 SE2d 22) (1992).

Decided June 28, 1993.

Michael O. Horgan, for appellant.

Dennis C. Sanders, District Attorney, Robert G. Dunn III, Assistant District Attorney, for appellee.

Under these circumstances, the officers had a sufficient articulable suspicion to authorize an investigatory detention of Burse. Foster v. State, 208 Ga. App. 699 (431 SE2d 400) (1993); Brooks v. State, 208 Ga. App. 680 (431 SE2d 466) (1993); State v. Jarrells, 207 Ga. App. 192 (2) (427 SE2d 568) (1993). As stated in Jarrells, ‘“(A) tip from an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminality, but information from a known informant of unknown reliability has more indicia of reliability than an anonymous telephone tip.’ (Emphasis supplied.)” Id. at 192.

Having concluded that the original detention was appropriate based upon the articulable suspicion of the officers, we need not consider the second enumeration of error. With regard to the issue of the validity of the consent to search, “ ‘ “(W)here there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld where there is evidence to authorize a finding in support of his order.” . . . State v. Swift, 232 Ga. 535 (2) (207 SE2d 459); [Cits.]’ ” State v. Holton, 205 Ga. App. 434, 437 (2) (422 SE2d 295) (1992).

Therefore, there was no error in the denial of the motion to suppress and the conviction is affirmed.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

       .Burse does not dispute that he did in fact consent to the search of the vehicle, in which a bank bag containing $2,500 in cash was found.


author: Smith, Judge.

text:
    A93A0831.
    ARNOLD v. BRUNDIDGE BANKING COMPANY.
    (433 SE2d 388)
   Smith, Judge.

This is an action to enforce a foreign judgment pursuant to the Uniform Enforcement of Foreign Judgments Law, OCGA § 9-12-130.

Brundidge Banking Company filed an action in the Superior Court of Dougherty County, Georgia, seeking to domesticate and enforce a judgment obtained against Arnold and Plantation Transport, Inc., in the Circuit Court of Pike County, Alabama. Arnold moved to set aside the Alabama judgment on the ground of lack of jurisdiction over his person. The Georgia court denied Arnold’s motion, domesticated the Alabama judgment, and entered final judgment in favor of Brundidge. Arnold appeals, enumerating as error the denial of his motion to set aside the foreign judgment. We affirm.

In a motion to set aside a foreign judgment the standard is identical to that of OCGA § 9-11-60 (d). OCGA § 9-12-132. The defendant must show that the judgment is defective due to lack of jurisdiction over the person or subject matter, due to fraud, accident or mistake, or due to a nonamendable defect on the face of the pleadings. Hawkins v. Walker, 158 Ga. App. 562 (281 SE2d 311) (1981). Arnold has not met this burden.

Although Arnold contends in his brief that he has had no contact with the State of Alabama and that the Alabama courts had no jurisdiction over his person, nothing in the record of the Georgia court shows any sworn testimony or evidence presented to support that claim or his motion to set aside the judgment. “It is the duty of the party asserting error to show it by the record. [Cits.] Assertions of evidence in briefs or enumerations of error cannot satisfy this duty. [Cit.]” York v. Miller, 168 Ga. App. 849, 850 (310 SE2d 577) (1983).

“A brief or attachment thereto cannot be used in lieu of the record or transcript for adding evidence to the record; we must take our evidence from the record and not from the brief of either party. [Cit.] The burden is on appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of errors is not brought up so that this court can make its determination from a consideration of all relevant evidence bearing thereon, an affirmance as to that issue must result. [Cits.]” Nodvin v. West, 197 Ga. App. 92, 97 (397 SE2d 581) (1990).

We also note that Brundidge has attempted to supplement the record on appeal with the Alabama record, which shows that Arnold appeared and litigated the issue of personal jurisdiction in the Alabama courts, thereby foreclosing him from relitigating that issue. Brundidge’s statement of Georgia law is correct in principle. See Packer Plastics v. Johnson, 205 Ga. App. 797 (423 SE2d 690) (1992). However, the proceedings of the Alabama court are not properly before us.

The record in the Circuit Court of Pike County, Alabama, did not form part of the record in the Georgia trial court, but was transmitted at the request of counsel as a “Supplemental Record” after the docketing of this appeal. Matters which were not part of the record until after entry of judgment and docketing of the appeal cannot be considered as an “authentic part of the record on appeal.” Burgess v. Nabers, 122 Ga. App. 445, 447 (2) (177 SE2d 266) (1970). However, exclusion of the “Supplemental Record” does not change the outcome of this appeal.

Decided June 28, 1993.

Ralph L. Phillips, for appellant.

Ronald W. Russell, Frankel, Hardwick, Tanenbaum & Fink, Joel S. Arogeti, for appellee.

As the trial court observed, even if Arnold were entitled to raise the issues of the Alabama court’s lack of personal jurisdiction in this domestication action, the Georgia order shows on its face that the requirements of in personam jurisdiction were met under Alabama law, ARCP 4.2 (a) (2) (I), which was properly noticed and introduced under OCGA § 9-11-43 (c). Arnold presented no evidence on the record to controvert this finding. Therefore, under the “any evidence” standard of review, the trial court’s denial of Arnold’s motion to set aside the judgment will be upheld. Wolfe v. Rhodes, 166 Ga. App. 845, 847 (305 SE2d 606) (1983).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       In his brief, Arnold contends that the guaranty agreement which forms the basis of his liability is to be construed according to the laws of Georgia. He bases this claim upon a provision of the guaranty which reads: “This agreement is governed by the laws of the state in which you are located.” That agreement was not part of the record below, but review of the copy attached to Arnold’s brief as Exhibit “B” shows that the agreement explicitly defines “You” as “the lender, its successors and assigns.” Even had it been properly presented, this contention has no merit.


author: McMurray, Presiding Judge.

text:
    A93A0874.
    THE STATE v. GOODRICH et al.
    (433 SE2d 390)
   McMurray, Presiding Judge.

Defendants Kenneth Goodrich and Brenda Joan Goodrich were jointly indicted for possession of marijuana with intent to distribute (Count 1), possession of marijuana (Count 2), possession of diazepam (Count 3) and possession of firearms during the commission of a crime. Defendant Brenda Joan Goodrich was also charged with possession of firearms by a convicted felon (Count 5). Defendants entered not guilty pleas and filed motions to suppress evidence seized during a warranted search of their home.

The police search of defendants’ home uncovered about 12.5 grams of suspected marijuana, “some Valiums[,] a revolver in the bedroom, and . . . other weapons in a gun cabinet in the living room area.” The magistrate who authorized the search warrant relied solely upon the affidavit of Investigator Vicki Underwood of the Jackson County Sheriff’s Department. The affidavit provides, in pertinent part, as follows: “Within the past five (5) days of June 3, 1992 affiant was contacted by an anonymous source who stated that it had occasion to be present at the above described premises within the past seven (7) days and observe a [quantity] approximately seven (7) pounds) of marijuana being stored. The source stated that it observed the marijuana on the dining room table. The anonymous source stated that Ken was also selling valiums and that it was told by Ken that he had been ‘busted’ (arrested) in Atlanta, Georgia for possessing cocaine. The anonymous source described the residence belonging to Ken Goodrich, including location as a brown in color, double wide mobile home that looked like a house, with shingle/wood siding. The anonymous source further stated that the residence was hard to see from the road but it was behind the business that Ken operated which involved heavy equipment (cranes). Anonymous source stated that the driveway to the residence was horseshoe shape allowing you to enter from two (2) ways, one (1) being beside the business that Ken operates traveling in behind the business to the residence. Anonymous source described the inside of the residence as an open like area with approximately six (6) inch step-up from the dining room area to the living room area. Anonymous source stated that Ken’s wife’s name would be Brenda and that he had a son who did not live there. The anonymous source sounded like a mature adult who had demonstrated a truthful demeanor. The anonymous source stated that it was gainfully employed and it provided information and details which would not be readily detected by law enforcement. Anonymous source had no apparent motive for providing false information to affiant and indicated a personal knowledge/acquaintance with Ken Goodrich. On May 29, 1992, Investigator William Grant with the Jackson County Sheriff’s Department told affiant that he had received information from a concerned citizen, who is a resident of Jackson County and is gainfully employed that Ken Goodrich stored pounds of marijuana at the residence herein described. On May 30, 1992, Kyle Bryant a former investigator for Jackson County Sheriff’s Department and a current member of the Braselton City Council told affiant that he had received information from various sources that Ken Goodrich stored marijuana at the residence for the purpose of sell and consumption by smoking said marijuana. For these reasons, affiant holds the opinion that there is a strong probability that contraband may be found in the residence as well as any vehicles owned by or under the control of Ken Goodrich. Anonymous source stated that located inside the residence there would be a variety of weapons, i.e., handgun and rifles. Affiant holds the opinion from personal experience that persons involved with illegal contraband have a great tendency to destroy any contraband in their possession to avoid the apprehension of the contraband and/or themselves. For these reasons and in regard to the safety of the officers executing this search warrant, request is made by affiant for a No-Knock clause to be included in this search warrant for use if affiant feels that circumstances necessitate its execution. Independent investigation by affiant reveals that the premises is located as described in this affidavit and as related by anonymous source. Information from the Braselton Post Office revealed that Ken Goodrich resides at said residence depicted in this search warrant. Information obtained through records check with utilization of G.C.I.C. revealed that Ken Goodrich was arrested by Decatur Police Department in 1980 for possession of Dangerous Drugs. Records check at the Jackson County Sheriff’s Department revealed that Ken Goodrich resided at [the premises] as of January 23, 1991. For the above reasons affiant has probable cause to believe that at the above described premises there is now contained marijuana in Violation of Georgia Criminal Law.”

The trial court granted defendants’ motions to suppress. The State appeals. Held:

“An affidavit submitted in support of a search warrant must ‘ “set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.” ’ State v. McKendree, 188 Ga. App. 290, 291 (372 SE2d 673) (1988). In the . . . case [sub judice], there was insufficient corroboration of the information to establish any reliability of either that information or the informant. The independent investigation by [Investigator Underwood] revealed only that [defendant Kenneth Goodrich] resided at the premises[; that defendant Kenneth Goodrich had been arrested in 1980 on drug-related charges], and that the premises appeared as described by the informant; this minor corroboration did not infuse with reliability the information regarding controlled substances on the premises. If the informant lacked any apparent motive to dissemble, it could equally be said that he lacked any apparent motive to tell the truth. In short, the affidavit relates the conclusions of [Investigator Underwood] regarding the reliability of the information and informant, but fails to set forth the necessary facts for a magistrate’s independent determination. Cf. State v. McKendree, supra.State v. Teague, 192 Ga. App. 839, 840 (386 SE2d 718). Further, the statements in Investigator Underwood’s affidavit that Investigator William Grant and former Investigator Kyle Bryant also received reports about drug activity at defendants’ home does nothing to bolster the materially uncorroborated telephone call of the anonymous tipster. The total lack of information concerning the basis or sources of these outside reports and the absence of affidavit or testimony from the law enforcement agents who allegedly received said reports relegates Investigator Underwood’s account of such information to the status of rumor. See McRae v. State, 204 Ga. App. 234 (1), 235 (418 SE2d 796). Thus, Investigator Underwood’s affidavit was insufficient to provide the magistrate with probable cause for issuance of a warrant and the trial court did not err in granting defendants’ motions to suppress.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided June 28, 1993.

Timothy G. Madison, District Attorney, Jeffrey G. Morrow, Assistant District Attorney, for appellant.

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


author: Cooper, Judge.

text:
    A93A0072.
    GRIER v. THE STATE.
    (433 SE2d 685)
   Cooper, Judge.

Appellant appeals his conviction for selling cocaine in violation of the Georgia Controlled Substances Act. He was sentenced to a mandatory life sentence pursuant to OCGA § 16-13-30 (d).

As part of an undercover investigation conducted on June 20, 1991, two agents with the East Metro Drug Enforcement Team went to an apartment complex for the purpose of buying drugs. The agents were dressed in civilian clothes and drove an unmarked car equipped with a hidden video camera. When the agents arrived at the apartments, appellant approached their car, and one of the agents asked appellant for a “rock.” Appellant then produced what appeared to be a piece of crack cocaine. The agent gave appellant $20 in exchange for the substance. Based on the videotape a warrant was issued, and appellant was subsequently arrested. At trial, a witness from the state crime lab testified that the substance purchased by the agents tested positive for cocaine.

1. Appellant first contends that the trial court erred in denying his motion for mistrial made when one of the State’s witnesses referred to a statement made by appellant which the trial judge had ruled inadmissible. The record reflects that appellant made a timely request pursuant to OCGA § 17-7-210 for all statements made by appellant. The State complied with the request by furnishing appellant with a statement he made after his arrest, in which appellant stated: “I sold dope to get dope.” During the Jackson-Denno hearing, the agent who took appellant’s statement testified that in addition to the above statement, appellant also stated that he may have sold dope on June 20, 1991. Appellant objected to the latter portion of the statement on the grounds that it had not been furnished to him pursuant to his request. The trial court agreed and ruled the second portion of the statement inadmissible. When the jury returned, the prosecutor asked the witness whether appellant gave a statement in response to the question about whether he sold drugs on June 20, 1991, and the agent testified that appellant said that he may have. Appellant’s attorney objected and moved for a mistrial. The trial judge denied the motion for mistrial but instructed the jury to disregard the witness’ response. “ ‘When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions. [Cit.]’ [Cits.] Whether the giving of corrective instructions is sufficient to cure the error, or whether the declaration of a mistrial is necessary, are questions addressing themselves to the discretion of the trial judge. [Cits.]” (Indention omitted.) Richardson v. State, 199 Ga. App. 10, 12 (2) (403 SE2d 877) (1991). We find no abuse of discretion in the denial of the motion for mistrial.

2. Appellant’s defense at trial was that he sold the agents marijuana but not cocaine. In his second enumeration of error, appellant contends that the trial court should have allowed him to explain that the reason why he only sold marijuana was because he had been advised by his previous attorney that if he were convicted again of selling cocaine he would receive a life sentence. The trial court allowed appellant to testify that he switched from selling cocaine to marijuana after his first conviction because he knew that if he were caught selling cocaine again he would “be in big trouble.” We find no error in the trial court’s ruling that appellant could not testify regarding the specific punishment for a second conviction of selling cocaine. See Hill v. State, 239 Ga. 799 (1) (239 SE2d 15) (1977).

3. Appellant argues that the trial court erred in admitting evidence of his prior conviction for selling cocaine as a similar transaction. The State called as a witness a former narcotics undercover agent who testified that in August 1989, he, another agent and a confidential informant drove by a location where it was believed they could purchase drugs. Appellant approached their car and asked them what they were looking for. The informant stated that they were looking for $20 worth of drugs, and appellant sold the agent two $10 portions of suspected crack cocaine. The former agent also testified that approximately one month later on the same street, he was with another agent when appellant approached their car and sold the other agent a $20 piece of cocaine. Appellant was subsequently arrested and indicted for selling cocaine. He pled guilty and a certified copy of appellant’s guilty plea to the charges was introduced. Appellant argues that the similar transaction evidence should not have been admitted because in the prior case, he had not been provided with a copy of the scientific reports pursuant to OCGA § 17-7-211. We find no merit to appellant’s argument. “ ‘There are two conditions to admissibility [of similar transaction evidence]. The first condition is that there must be some evidence establishing that the independent crime was committed by the defendant. The evidence may be circumstantial but it must be more than mere speculation. (Cits.) . . . The second condition of admissibility requires that there “be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.” (Cit.)’ [Cit.]” Banks v. State, 201 Ga. App. 266, 267-268 (1) (410 SE2d 818) (1991). The similar transaction evidence met the two conditions for admissibility, and the trial court properly overruled appellant’s objection to the evidence.

Decided June 29, 1993.

Garland & Milam, J. Byrd Garland, for appellant.

Tommy K. Floyd, District Attorney, Gregory A. Futch, Robert G. Dunn III, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, P. J., concurs in judgment only as to Division 2.


text:
    A93A0183.
    J. LEE GREGORY, INC. v. SCANDINAVIAN HOUSE, L.P. et al.
    (433 SE2d 687)
   McMurray, Presiding Judge.

Plaintiff J. Lee Gregory, Inc., d/b/a Perma Sash, brought a two-count complaint against Scandinavian House, L.P. (“Scandinavian House”), a limited partnership, and Immobilia International, Inc. (“Immobilia”), the general partner of Scandinavian House. In Count 1, plaintiff alleged that Scandinavian House invited it to submit a bid for the sale and installation of windows in an apartment house; that plaintiff submitted a proposal outlining the terms and conditions of the sale; that Scandinavian House accepted plaintiff’s proposal; and that plaintiff and defendants entered into a contract in which plaintiff was to supply and install windows in the apartment house for $453,067. Plaintiff also alleged that defendants breached the “windows” contract and caused plaintiff to suffer monetary damages, including the cost of its performance prior to the breach ($11,556), the loss of anticipated profits ($97,345) and unabsorbed labor costs ($23,302). Plaintiff sought judgment in the amount of $135,203, plus its costs of litigation, including attorney fees. In Count 2, plaintiff sought the foreclosure of a materialman’s lien on the apartment house. Defendants answered the complaint, denied liability, and counterclaimed, alleging plaintiff wrongfully filed the materialman’s lien.

The following evidence was adduced via affidavit and deposition: On February 8, 1990, plaintiff sent a proposal to Lon Meyers, Scandinavian House’s Director of Management, offering to remove the old windows and to install new windows in the apartment house for a total price of $453,067. The proposal did not segregate the total price of the windows from the total price of the services to be rendered. However, approximately two-thirds of the total price reflected plaintiff’s material costs; the remaining one-third of the total price reflected plaintiff’s labor costs. The proposal contained, inter alia, the following provision: “VI. PAYMENT AND PERFORMANCE — Terms of payment are within ten days after receipt of materials unless otherwise stated herein. . . . Whenever Buyer shall fail or refuse, or in Seller’s opinion be unable to make payments in accordance with the terms of this agreement . . . Seller may, as a condition precedent to continuing or resuming performance required of Seller . . . , require from Buyer such information, security or guarantee of performance and/or payment as in the Seller’s opinion will insure timely payments under this contract. . . .” The proposal also stated: “Terms of payment are subject to approval and acceptance by Perma-Sash.”

On April 2, 1990, Lon Meyers delivered a “letter of intent” to J. Lee Gregory, plaintiff’s president. When he gave Gregory the letter of intent, Meyers stated that Scandinavian House had awarded the windows contract to plaintiff.

The letter of intent was signed by Jan Goransson, the president of Immobilia. It reads as follows: “Please consider this letter an indication of our intent to purchase the windows contained in your proposal dated February 8, 1990. This is your authorization to begin the measuring and the preparation of shop and installation drawings. We reserve the option to make changes until the time of installation drawing approval (approximately 2 weeks). We further reserve the option to negotiate terms and conditions of the proposal which may impact or affect the operation of the building and the installation of the windows.”

Thereafter, plaintiff’s employees began to measure the windows in the apartment house and to prepare shop drawings. Those tasks took approximately three weeks. When the shop drawings were finished, plaintiff delivered them to Scandinavian House.

Thereafter, on May 4, 1990, plaintiff sent a letter to Lon Meyers which reads, in part: “[Plaintiff] will provide a full payment and performance bond covering the work to be performed under the contract dated 4-9-90, made payable to the owners. . . . The cost of the bond is to be added to the contract price and to be paid for upon delivery, subject to the owner providing the contractor with one of the following options. A) An irrevocable letter of credit issued by a local Atlanta bank . . . for the full amount of the contract with payment releases in accordance with the terms of the contract. B) Deposit of funds equal to the contract price in a local bank in the contractor’s name to be released upon delivery of materials and completion of installations according to the contract. All interest earned on the es-crowed funds will belong to the owners and will be released back to the owners upon payment of the contract price in full. C) Any other guarantee of payment acceptable to the contractor. Please understand when I release the order for fabrication I am obligated to pay the manufacturer for the product. . . . All I am requiring are the same assurances any prudent businessman would require. ... If these terms are unacceptable, then we need to meet with you and determine an alternate course of action.”

Responding to plaintiff’s letter, Lon Meyers sent a letter to plaintiff which reads: “Please allow this letter to serve as official notification that the payment method for installation of windows in [the apartment building] is unacceptable. Therefore, the contract to install said windows will not be executed.”

Thereafter, J. Lee Gregory met with Lon Meyers and Jan Goransson to resolve the dispute over the terms of payment and the payment guarantees. The parties were unable to resolve their differences and, ultimately, Scandinavian House entered into an agreement with another contractor for the replacement and installation of windows.

Following discovery, plaintiff moved for partial summary judgment upon Count 1; so did defendants. The parties agreed that two issues presented by their motions were ripe for review: (1) Whether the transaction was governed by the Uniform Commercial Code (“UCC”); and (2) whether a contract was formed between the parties. Issues regarding breach vel non and damages were not raised below. The trial court denied plaintiff’s motion and granted defendants’ motion, ruling that (1) the UCC did not apply to this transaction and (2) the parties did not enter into a contract. Accordingly, the trial court entered judgment against plaintiff and in favor of defendants upon Count 1 of the complaint. Plaintiff appeals, asserting the trial court erred in denying its partial summary judgment motion and in granting defendants’ partial summary judgment motion. Held:

1. Article 2 of the UCC is expressly limited to transactions involving the sale of goods. OCGA § 11-2-102. If a contract involves only the sale of goods, the UCC applies. If, on the other hand, a contract involves only the rendition of services, the UCC does not apply.

Difficulty arises in determining whether the UCC applies to a hybrid contract, i.e., a contract involving both goods and services. When the predominant element of a contract is the sale of goods, the contract is viewed as a sales contract and the UCC applies “even though a substantial amount of service is to be rendered in installing the goods.” Anderson, Uniform Commercial Code, § 2-105:38. When, on the other hand, the predominant element of a contract is the furnishing of services, the contract is viewed as a service contract and the UCC does not apply. Mail Concepts v. Foote & Davies, Inc., 200 Ga. App. 778 (409 SE2d 567). As it is said: “ ‘ “(A) contract for services and labor with an incidental furnishing of equipment and materials” is not a transaction involving “the sale of goods” and is not controlled by the (UCC). (Cits.)’ W. B. Anderson Feed &c. Co. v. Ga. Gas Distrib., 164 Ga. App. 96 (296 SE2d 395) (1982).” OMAC, Inc. v. Southwestern Machine & Tool Works, 189 Ga. App. 42 (374 SE2d 829). See also Mingledorff’s, Inc. v. Hicks, 133 Ga. App. 27, 28 (209 SE2d 661) (contract for installation of heating and air conditioning systems in an apartment complex is contract for services and labor with an incidental furnishing of equipment and materials).

What was the dominant purpose of the transaction in the case sub judice? Was it the sale of goods or the rendition of services? It can hardly be said that the sale of the windows was “incidental” to the transaction. Rather it would appear that the rendition of services was the incidental factor. After all, approximately two-thirds of the cost of the transaction was allocated to the windows. Besides, the contract did not segregate the total price of the windows from the total price of the services to be rendered. See Anderson, Uniform Commercial Code, § 2-105:38, p. 582 (“fact that there is no separate charge or bill for services rendered is significant in concluding that the services were merely incidental. . .”). Thus, we think the predominant character of the transaction was the sale of goods, even though a substantial amount of service was involved in installing the goods.

The mere fact that Scandinavian House would not have purchased the windows unless plaintiff installed them is of no consequence. “When presented with two elements of a contract, each absolutely necessary if the subject matter is to be of any significant value to the purchaser, it is a futile task to attempt to determine which component is ‘more necessary.’ Thus, [we must look] to the predominant purpose, the thrust of the contract as it would exist in the minds of reasonable parties. There is no surer way to provide for predictable results in the face of a highly artificial classification system.” Meyers v. Henderson Constr. Co., 370 A2d 547, 550 (Sup. Ct. N.J. 1977).

Inasmuch as the predominant purpose of the transaction involved the sale of goods, the UCC applies. The trial court erred in ruling otherwise.

2. Having determined that the UCC applies to this hybrid transaction, we look to the UCC to determine if plaintiff and Scandinavian House entered into a contract for the sale and installation of the windows. The UCC provides, in part: “A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.” OCGA § 11-2-204. It adds: “An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.”

These (and other) provisions make it clear that the UCC “expands our conception of contract. It makes contracts easier to form, and it imposes a wider range of obligations than before. Contract formation is easier in several ways. Parties may form a contract through conduct rather than merely through the exchange of communications constituting ‘offer and acceptance.’ . . . Further, Article Two reduces the formalities required for contract formation. The statute of frauds (section 2-201) requires only a writing that ‘indicate(s)’ a contract was made, and 2-206 and 2-207(1) abandon the requirement that an acceptance must coincide precisely with all terms of the offer. Section 2-204(3) states: ‘Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.’ ” White & Summers, Uniform Commercial Code, § 1-2.

Given the UCC’s broad concept of contract, we have no hesitation in concluding that plaintiff and Scandinavian House entered into a contract for the sale and installation of the windows. The letter of intent manifested a clear intention to contract. It stated, in part: “consider this letter an indication of our intent to purchase the windows contained in your proposal. . . .” See generally Kennedy v. Thruway Svc. City, 133 Ga. App. 858, 860 (1) (212 SE2d 492). In addition, the letter authorized plaintiff to begin work on the project. The “options” reserved in the letter of intent did not expressly make the acceptance of plaintiff’s offer conditional. See OCGA § 11-2-207 (1). The “options” did not demonstrate a lack of contractual intent. On the contrary, the fact that Scandinavian House deemed it necessary to reserve “options” demonstrates that it intended to contract with plaintiff.

Assuming arguendo that the letter of intent was equivocal, we would find, nevertheless, that Scandinavian House intended to contract with plaintiff. Why? Because the conduct of the parties demonstrates an intention to contract. OCGA § 11-2-204 (1); see § 11-2-207 (3). Lon Meyers gave a letter of intent to Gregory and informed him that Scandinavian House had awarded the windows contract to plaintiff. The letter of intent authorized plaintiff to take measurements and prepare shop drawings. Pursuant to the letter, plaintiff took measurements in the apartment house. That was no small undertaking and it could not have been done without the cooperation of Scandinavian House. Ultimately, plaintiff completed and delivered the shop drawings to Scandinavian House.

The conduct of the parties is inconsistent with the theory that they only agreed to agree. On the contrary, the conduct of the parties demonstrates that they intended to enter into a contract for the sale and installation of windows. See Anderson, Uniform Commercial Code, § 2-204:37, in which the author notes that (1) “conduct may be the commencement of performance under the contract” and (2) conduct “embraces not only acts but statements indicating the belief of the parties.” The mere fact that plaintiff subsequently met with defendants to resolve the guarantee of payment issue does not negate the fact that the parties entered into a contract previously.

Decided June 29, 1993.

Griffin, Cochrane & Marshall, W. Henry Parkman, Warren N. Sams III, for appellant.

Cashin, Morton & Mullins, A. L. Mullins, Jr., William T. McKenzie, D. Todd Markle, for appellees.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A0674.
    CLARK et al. v. SUPERIOR INSURANCE COMPANY.
    (433 SE2d 394)
   Beasley, Presiding Judge.

Plaintiffs Kenneth Clark and Charlene Powell appeal the grant of summary judgment to defendant/third-party plaintiff Superior Insurance Company in this action alleging breach of an automobile insurance contract and fraud. Superior counterclaimed for declaratory judgment seeking a determination that it has no liability for plaintiffs’ loss. It also asserted a third-party complaint against Central & Southern Bank of Georgia (C & S), the lienholder of the vehicle. At issue is whether the policy issued to Clark by Superior was in force on April 24, 1990, when the vehicle sustained collision damage.

Clark purchased a 1990 Oldsmobile automobile which he financed through C & S. He obtained automobile insurance from the Harrell Insurance Agency which provided a six-month policy issued by Superior, effective December 27, 1989. He financed the insurance premiums through Agency Premium Services, Inc. (“APSI”), agreeing to make a down payment and pay monthly, installments to APSI beginning on January 30, 1990. The premium was to be paid to the Harrell Agency, which in turn would pay APSI. APSI would pay the premium to Superior. Clark paid Harrell the down payment and made two subsequent monthly payments to Harrell on February 12 (twelve days late) and March 26 (twenty-six days late).

APSI subsequently sought to cancel the insurance under a power of attorney which Clark had executed in conjunction with the premium financing agreement, authorizing APSI to cancel the policy for non-payment of premium.

On April 5, 1990, APSI mailed Clark a ten-day notice of intent to cancel the coverage, effective April 20. It was admittedly received by Clark and Powell prior to April 20. Powell thereupon brought the notice to the Harrell Agency where she was told that no notice of intent to cancel or of cancellation had been received at their office. She claims she had the money with her then to make the necessary payments. APSI thereafter mailed notice of cancellation to Superior with a copy to Clark on April 16, effective April 20. Superior contends that Clark’s coverage was canceled effective April 20, 1990. Superior notified C & S as lienholder that coverage under the loss payable provision of the policy would terminate effective May 14, 1990.

The vehicle incurred collision damage on April 24, 1990. Superior denied coverage, contending that the policy had been canceled on April 20.

C & S repossessed the car on June 28, 1990 and made claim under the “loss payee” clause to Superior for the damage to the vehicle. Payment was made by Superior to C & S for $3,260.58 on August 31, in full satisfaction of Superior’s obligation. Simultaneously, C & S gave Superior a “hold harmless” agreement agreeing to defend the insurer from any further claim under the policy.

1. Appellants contend that a question of fact remains as to whether proper notice of intent to cancel the policy was given as required by OCGA § 33-22-13.

When a premium finance company seeks to cancel an insurance contract pursuant to authorization of a power of attorney contained in an agreement with its insured, it must do so in strict compliance with OCGA § 33-22-13. OCGA § 33-22-13 (a); Ga. Mut. Ins. Co. v. Gardner, 205 Ga. App. 458 (422 SE2d 324) (1992); Freeman v. Govt. Employees Ins. Co., 151 Ga. App. 161, 163 (259 SE2d 165) (1979). OCGA § 33-22-13 (b) mandates: “Not less than ten days’ written notice shall be mailed to the insured of the intent of the premium finance company to cancel the insurance contract unless the default is cured within such ten-day period. A copy of said notice shall also be sent to the insurance agent or insurance broker indicated on the premium finance agreement.”

Appellants contend that the insurance agreement was improperly canceled because APSI failed to send the statutorily required notice of intent to cancel to the Harrell Agency. It was established through depositions of Embry Harrell, owner of the agency, and Jane Lann, its employee, that notice of intent to cancel had not been received by the agency prior to the date of cancellation. APSI offered no proof that notice of intent had been sent to the agency. The agency did receive a cancellation notice from APSI dated April 27, showing a cancellation date of April 20.

“ ‘We thus come to the well-established position of the insurance company in the present posture of the case: as the movant for summary judgment its supporting papers are construed most strongly against it (cit.); “the language of the statute must be strictly construed” (cit.); and the “company has the burden of proving strict compliance with the cancellation provisions . . . (and) any ambiguities of the notice must be resolved in favor of the insured. . . .” (Cit.)’ [Cit.]” Gardner, supra at 461. Since proper notice of intent to cancel was not given to the agency, the cancellation was not effectuated in accordance with OCGA § 33-22-13 (b). Summary judgment was improperly granted in favor of the insurer. Compare Mass. Bay Ins. Co. v. Photographic Assistance Corp., 732 FSupp. 1572, 1579 (5) (N.D. Ga. 1990) (summary judgment was authorized where the premium finance company produced “strong evidence” that the proper notices were mailed, to rebut plaintiff’s assertion that it never received notice).

2. Appellants contend that a question of fact exists as to whether APSI gave proper notice of cancellation to the mortgagee, C & S, as required by OCGA § 33-22-13 (d).

Under OCGA § 33-22-13 (d), a premium finance company may terminate coverage notwithstanding the existence of a mortgagee so long as the insurer “give[s] the prescribed notice on behalf of itself or the insured ... on or before the second business day after the day it receives the notice of cancellation from the premium finance company and shall determine the effective date of cancellation taking into consideration the number of days required to complete the cancellation.” In so doing, the premium finance company stands in the shoes of the insured by canceling the policy in accordance with the power of attorney. Photographic Assistance, supra at 1575 (1).

APSI sent notice of cancellation to Superior on April 16. The record is silent as to when such notification was received by Superior. On April 27, Superior sent notice to C & S that cancellation as to the lienholder would occur on May 14. Because an eleven-day gap exists between the time notice was sent to the insurer and the insurer notified the mortgagee, appellants assert that the two-day requirement of OCGA § 33-22-13 (d), which begins when the insurer “receives the notice of cancellation from the premium finance company,” was not satisfied.

We do not reach this question because “the insured has no real standing to argue that its contract should not be terminated until the mortgagee has received notice. Only the mortgagee is harmed by the insurer’s failure to notify it of the termination. . . . The mortgagee is the entity being harmed and the mortgagee has a remedy against the insurer.” Photographic Assistance, supra at 1577 (2).

Decided June 29, 1993.

William V. Evans, for appellants.

Eason, Kennedy & Associates, Richard B. Eason, Jr., J. David McRee, for appellee.

3. Appellants contend that a factual question exists as to whether the monthly premium payments were timely made.

Appellant Powell submits that when she inquired at the Harrell Agency concerning the cancellation notice, she was not informed of the delinquent status of the premium payments but was told instead the account was current. She claims she was prepared to pay any outstanding balance but that she reasonably relied on the agent’s misrepresentation to her detriment. She asserts that Harrell’s misrepresentations are binding on Superior because a fiduciary relationship under OCGA § 23-2-58 existed between her and Harrell’s agent.

“Any relationship shall be deemed confidential . . . where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another. . . .” OCGA § 23-2-58. “[0]ral statements by an agent of an insurance company generally cannot bind the insurance company. . . .” Trulove v. Woodmen of the World Life Ins. Society, 204 Ga. App. 362, 365 (1) (419 SE2d 324) (1992). However, where “there are facts from which the jury could have found that a confidential or fiduciary relationship existed between [Powell] and [Harrell], . . . this gives rise to an exception to the foregoing rules. ‘(A) party to a confidential or fiduciary relationship may rely upon representations made. . . .’ [Cit.] ” Id. Powell was neither a party to the insurance contract, a named insured, nor an owner of the vehicle. The record is devoid of evidence from which to conclude that a confidential relationship existed between her and the agency, and by extension, the insurer. Summary judgment was properly awarded the insurer with respect to the claim for fraud.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A0870.
    MOSS v. THE STATE.
    (433 SE2d 397)
   Andrews, Judge.

Moss was convicted of aggravated assault and cruelty to children and appeals. The indictment charged that in July 1990, Moss unlawfully assaulted the victim, his girl friend’s son, by forcing his face onto the eye of a stove. The third count of the indictment, as to which the trial court directed a verdict, charged both Moss and the victim’s mother with a second count of cruelty to children.

At trial, both circumstantial and direct evidence were presented. The State called as a witness the doctor who examined the eight-year-old victim on July 26, 1990 who testified that the victim initially reported that his facial burn was caused by falling against a barrel which contained burning trash; though he later stated that Moss had caused the burn. The doctor testified that the injury was not consistent with the victim’s explanation of falling against a barrel.

A police officer testified that the victim reported that Moss pressed his head to the stove and caused the burn. A social worker testified that the victim had been subjected to ongoing abuse and that the victim told him that the burn was the result of Moss holding the victim’s face against a hot surface. A worker for the Department of Family & Children Services testified that the victim first told her that he had tripped and hit his face on a barrel, but later stated that the injury was caused by Moss. She stated that she became suspicious of abuse when the victim’s mother did not allow her to see him. Two additional witnesses stated that the victim told them that Moss was responsible for the burn.

The victim, who was nine years old at trial, testified initially that the injury occurred when he tripped and fell against a barrel in which trash was burning, but his trial testimony was somewhat contradictory. There was also testimony regarding a 1987 conviction against the victim’s mother for simple battery against the victim.

The defense presented several witnesses. Two witnesses were children who testified that they saw the victim fall against the barrel and injure himself. Moss and the victim’s mother testified that they were away at the time the injury occurred and returned home to find the victim injured.

In his sole enumeration of error, Moss claims that the court erred in failing to give his requested instruction to the jury, which stated: “where all the facts and circumstances of the case, and all reasonable deductions therefrom, present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused.” We are mindful that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Robinson v. State, 261 Ga. 698, 699-700 (410 SE2d 116) (1991); see also Postell v. State, 261 Ga. 842 (412 SE2d 831) (1992). Nonetheless, we find that the trial court did not err in failing to give the requested charge here.

In Langston v. State, 208 Ga. App. 175 (430 SE2d 365) (1993), this court upheld the trial court’s refusal to give the requested charge at issue here. “This charge does not accurately state the principle addressed. First, it relates to the weight of the evidence and therefore is not an accurate statement of the ‘two theories’ principle. . . . This inaccuracy alone would be reason enough for the trial court’s refusal to instruct the jury to use it. [Cit.]” Id. Further, the charge “only applies when all of the evidence of guilt is circumstantial or when the jury is authorized to discredit the direct evidence and must base its decision on circumstantial evidence of guilt.” Id. at 177; see also Burris v. State, 204 Ga. App. 806 (3) (420 SE2d 582) (1992); Hamilton v. State, 260 Ga. 3, 5 (4) (389 SE2d 225) (1990) (“the request is appropriate only when all of the evidence is circumstantial”). In the instant matter, there was direct evidence and the case was not wholly dependent on circumstantial evidence. As in Langston, although a charge pursuant to OCGA § 24-4-6 would have been appropriate and proper, the failure to give the charge requested here was not reversible error. Compare Gidden v. State, 205 Ga. App. 245 (1) (422 SE2d 30) (1992).

Decided June 29, 1993.

Charles R. Sheppard, Sam B. Sibley, Jr., for appellant.

Furthermore, the court defined and described circumstantial evidence and explained to the jury that: “[t]he comparative weight of circumstantial evidence and direct evidence on any given issue is a question of fact for you jurors to decide.” The jury was also fully instructed regarding reasonable doubt, and the presumption of innocence, and was charged that facts and circumstances which merely place upon the defendant a grave suspicion of the crime charged or which merely raise a speculation or conjecture of the defendant’s guilt were not sufficient to convict the defendant. Moreover, Moss did not request any other charge regarding circumstantial evidence, see Manning v. State, 207 Ga. App. 181 (427 SE2d 521) (1993), and objected at trial and here, only to the failure to give his requested charge, not to the court’s failure to instruct more fully regarding circumstantial evidence. These factors combined with the fact that the direct evidence was sufficient to prove the crime charged, see Rash v. State, 207 Ga. App. 585 (428 SE2d 799) (1993), indicate that the trial court did not err in refusing to charge the jury with Moss’ requested instruction.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.

Daniel J. Craig, District Attorney, for appellee.

       Although appellant does not argue otherwise, we note that the testimony regarding the victim’s statements to various witnesses was direct evidence. See generally OCGA § 24-3-16; Brown v. State, 175 Ga. App. 246 (1) (333 SE2d 124) (1985).


text:
    A93A0125.
    VINING v. KIMOTO USA, INC.
    (433 SE2d 342)
   Smith, Judge.

Billy R. Vining, as trustee, initiated this action on account against Kimoto USA, Inc. Kimoto sought discovery of the factual basis for Vining’s claim by way of interrogatories and requests for the production of documents, properly served by mail on Vining’s counsel of record. The requests sought copies of the account ledger and an itemization of the elements of the total principal demanded. No response was received by Kimoto’s counsel within the time allowed to answer or object. Vining made no application for an extension of time in which to respond nor were formal objections ever filed. Kimoto’s counsel both wrote to and spoke with Vining’s attorney requesting an immediate response to the outstanding discovery and threatening to move for sanctions. Vining’s attorney offered assurances that responses were forthcoming. Despite this attempt to resolve the discovery dispute informally, no response was ever made.

On March 27, Kimoto moved for the sanction of dismissal for Vining’s total failure to comply with discovery, or, in the alternative, for an order to compel. The hearing on this motion was set for May 27, and Vining’s counsel of record was notified. He appeared at the May 27 hearing but failed, according to the trial court, to “give any acceptable justification for its failure to make discovery or respond to [Kimoto’s] discovery requests,” and did not bring with him the desired information.

In its May 29 ruling, the trial court ordered Vining to “answer fully and without any objection each Interrogatory and furnish each document requested” and further ordered that “should [Vining] fail to make discovery [by] June 6, 1992, then upon the filing of an affidavit by [Kimoto’s] attorney this case shall be dismissed with prejudice, without further notice or hearing.” An affidavit stating that Vining had failed or refused to comply with that May 29 directive by failing or refusing to make or permit discovery was submitted on June 8, and on June 9, the trial court entered an order dismissing the complaint with prejudice. Vining appeals from that order, enumerating as error the dismissal of the complaint as a discovery sanction.

1. Vining contends the trial court’s discovery order of May 29 was an impermissible prospective, self-executing order of dismissal. We disagree. Compare Steele v. Colbert, 182 Ga. App. 680 (356 SE2d 736) (1987); Thornton v. Burson, 151 Ga. App. 456, 460 (2) (260 SE2d 388) (1979); Maxey v. Covington, 126 Ga. App. 197, 199 (190 SE2d 448) (1972). There were two orders entered with respect to Kimoto’s motion for sanctions or, in the alternative, motion to compel. In the first, entered on May 29, the trial court found that Vining had no valid excuse for not responding to discovery, and ordered him to make discovery without objection by a date certain or suffer the penalty of dismissal upon further application of Kimoto. Certainly this put Vining on notice of the possible consequence of his wilful failure to comply with the May 29 order, and of the procedure that the court would employ in the event of noncompliance. The complaint was dismissed by a separate order, entered only after Kimoto submitted sworn testimony that Vining still had failed totally to comply with either its requests or the court’s directives. This enumeration is without merit.

2. Vining enumerates as error the failure of the trial court to afford him an opportunity to explain the circumstances prior to dismissing the complaint.

Upon being informed that Vining still had failed totally to answer the interrogatories and to comply with other proper and timely discovery, and considering the entire history of the proceeding, the trial court was authorized to impose immediately the ultimate sanction authorized by OCGA § 9-11-37 (d), dismissal of the complaint. It was not necessary that the trial court schedule an additional evidentiary hearing with oral argument before determining that Vining’s total failure to make discovery and to comply with the court’s earlier order was wilful. Appellant “had an opportunity to present any legal justification [or mitigating circumstance] at the hearing on [appellee’s] motion to compel, and failed to convince the trial court at that time.” Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 183 (402 SE2d 723) (1991).

In Schrembs, the Supreme Court overruled Lewis v. Foster, 186 Ga. App. 819 (368 SE2d 575) (1988) and Harwood v. Great American Mgmt. &c., 164 Ga. App. 703 (298 SE2d 263) (1982). In those cases, this court had reversed dismissals of complaints for the plaintiff’s failure to make court-ordered discovery without first holding a complete adversarial evidentiary hearing on the issue of wilfulness.

It remains the rule that a prior finding of wilfulness, bad faith, or that behavior which at best reflects a conscious indifference to the consequences of failure to comply with the trial court’s order compelling discovery is a prerequisite to the imposition of the harsher sanctions authorized by OCGA § 9-11-37 (b) (2). Schrembs, supra at 182; Swindell v. Swindell, 233 Ga. 854, 856 (2) (213 SE2d 697) (1975). However, the procedure no longer requires a second evidentiary hearing, complete with oral argument, before the imposition of sanctions. “[T]he trial court need not conduct a hearing on the issue of wilfulness in every case. Such a requirement serves no purpose where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.” (Footnote omitted.) Schrembs, supra at 182-183.

Decided June 17, 1993 —

Reconsideration denied June 30, 1993 —

Lamb & Associates, T. Gordon Lamb, Andrew R. Bickwit, for appellant.

Alexander P. Levorse, for appellee.

The record shows no effort by Vining to request an extension of time from the trial court. The Civil Practice Act provides a vehicle for being heard again, should the defaulting party pursue it. “[I]f a party against whom the sanction of dismissal [or] default is imposed has a justifiable reason for failure to comply with a trial court’s order on discovery, that party . . . may seek to [set aside the judgment of dismissal pursuant to OCGA § 9-11-60 or may seek to] open the default under OCGA § 9-11-55 (b) by setting forth facts which show excusable neglect, providential cause, or an otherwise proper case. . . . [Cit.]” Schrembs, at 183-184, n. 5.

The trial court did not err by deciding, without a second evidentiary hearing, whether Vining’s continued total failure to answer interrogatories and to comply with a discovery order warranted the ultimate sanction of dismissal.

3. The trial court was authorized to conclude that Vining’s continued total failure to answer straightforward interrogatories within the time required by the order compelling discovery was a wilful disobedience of that order, authorizing dismissal of the complaint. Schrembs v. Atlanta Classic Cars, 197 Ga. App. 450, 451 (398 SE2d 712) (1990), aff’d, 261 Ga., supra. See also Fidelity Enterprises v. Heyman & Sizemore, 206 Ga. App. 602, 603 (1) (426 SE2d 177) (1992); Thornton v. Burson, supra at 459 (2). “The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only ‘ “ ‘a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.’ ” ’ [Cit.] ‘A conscious or intentional failure to act’ is in fact ‘wilful.’ [Cit.]” Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A93A0287.
    FULTON COUNTY v. DANGERFIELD et al.
    (433 SE2d 335)
   Blackburn, Judge.

This is another installment in the appellate course of a condemnation case involving land taken for the College Park MARTA station that began with the condemnation petition filed in October 1984. On September 3, 1987, judgments were entered in favor of the condemnees, Herbert and James Dangerfield as the owners, and Jeffrey White as the lessee of the property.

In the trial of the matter, the Dangerfields asserted that the property had extra value as a site for an advertising sign, and the trial court admitted evidence explaining why the property had not been put to such use. The lessee, White, was allowed to adduce evidence of loss of business profits. Those evidentiary rulings constituted the primary issues in the original appeal in this matter, and were upheld by this court. Fulton County v. Dangerfield, 195 Ga. App. 208 (393 SE2d 285) (1990). However, the Supreme Court reversed with regard to the admissibility of the above evidence submitted by the Dangerfields. Fulton County v. Dangerfield, 260 Ga. 665 (398 SE2d 14) (1990).

When the case was eventually returned to the trial court, White moved to be dismissed on the grounds that the Supreme Court’s reversal of the judgment pertained only to the improper admission of evidence relating to the Dangerfields’ claim as owners of the property, and that he should be let out of the case with his judgment intact. The trial court granted White’s motion, and this court granted Fulton County’s application for interlocutory appeal.

“As we noted in Department of Transp. v. McLaughlin, 163 Ga. App. 1, 2 (1) (292 SE2d 435) (1982), ‘how to arrive at just and adequate compensation for separate interests of condemned property has been the subject of much controversy.’ The general procedure that was authorized by the Georgia Supreme Court in Department of Transp. v. Olshan, 237 Ga. 213 (227 SE2d 349) (1976) is that the condemnor should file one in rem condemnation action, join all parties whose presence is necessary to condemn all interests, and to instruct the jury first to determine the value of the whole, and then determine the amounts to be awarded to the separate interests.” Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723, 725 (1) (409 SE2d 281) (1991). Separate trials with respect to the interests of the fee simple owner and lessees of property in a condemnation proceeding are not allowed. Dept. of Transp. v. Gordon, 148 Ga. App. 713 (252 SE2d 211) (1979).

Owners of an interest in property who do not wish to have a jury determine the value of their interest are not joined as parties to an in rem condemnation proceeding. In Dept. of Transp. v. Franco’s Pizza &c., supra, involving such a situation, this court limited the issue and evidence adduced at the proceeding to the value of the interest of the lessee who was the only party, and not the value of the whole property.

In the instant case, however, all of the owners of an interest in the condemned property participated in the jury trial. For that reason, the jury’s task was to determine first the value of the whole property, and then the proportionate amounts of that whole value to be awarded to the separate interests. Dept. of Transp. v. Olshan, supra. Fulton County appealed from the entire judgment entered on the jury’s award to both the owners of the fee and the lessee, and contends that it was the entire judgment that was ultimately reversed by the Supreme Court. We agree.

Decided June 11, 1993 —

Reconsideration denied June 30, 1993 —

Robert G. Young, for appellant.

Peek & Whaley, James G. Peek, J. Corbett Peek, Jr., Culbreth & Sharony, Abraham A. Sharony, for appellees.

White’s basis for seeking dismissal was the fact that both this court and the Supreme Court upheld the trial court’s admission of the evidence pertaining to the value of his leasehold interest. From that fact, however, it does not follow that the jury’s valuation of his interest in the initial proceeding can be separated from the case upon retrial.

Although it was presented by the owners and not White, the evidence which was improperly admitted in the first proceeding was proffered for the purpose of showing that the property had “extra value” as a potential site for an advertising sign. Fulton County v. Dangerfield, supra, 260 Ga. at 665. This evidence thus pertained to the value of the whole property. If the admission of that evidence improperly inflated the valuation of the whole property, it likewise may have resulted in a proportionately inflated value to White’s partial interest in the property.

The Supreme Court’s decision in this case precludes relitigation of the issue of admissibility of White’s evidence concerning loss of profits, but it does not foreclose redetermination of the value of his leasehold interest in the condemned property. On the contrary, the Supreme Court’s reversal of the entire judgment in the case requires it. Accordingly, the trial court erred in dismissing White from the action.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A93A0347.
    HOLBROOK v. THE STATE.
    (433 SE2d 616)
   Smith, Judge.

Gary Holbrook was convicted of theft by taking, OCGA § 16-8-2; theft by receiving, OCGA § 16-8-7 (a); criminal damage to property in the second degree, OCGA § 16-7-23 (a) (1); DUI, OCGA § 40-6-391 (a) (1), (4); attempting to elude a police officer, OCGA § 40-6-395 (a); and was sentenced as a recidivist pursuant to OCGA § 17-10-7. His motion for a new trial was denied.

The evidence at trial showed that a 1989 Ford truck was taken without permission from the work site of a P. F. Moon Construction Company project during the weekend of August 30, 1991. A red Honda Civic was taken without authority from the sales lot of Heritage Honda in Rome after the close of business on September 12, 1991. On the evening of September 12, a man drove a white Ford truck to a street in a housing project in Rome and tried to “pawn” a color television set by offering it to several residents in return for $50, telling them he would return the money in several hours and retrieve the television set. Dorothy Mack talked with him for about 15 minutes and accepted this arrangement after going to her apartment and being shown the television set worked. The man returned approximately two hours later with two girls in a small gray car. He could not start the truck when he was ready to leave, and he became angry, cursed at the people on the street and accused them of tampering with the truck. He left and returned again in a red Honda Civic that looked new. Mack and several other people observed that the car had a paper driveout tag from Heritage Honda. They also saw him break the window of the truck on the passenger side with a crowbar or stick, unreel hose from a tank on the back of the truck, place the hose through the broken window, ignite what appeared to be a piece of paper, and use it to set fire to the truck. He then left in the Honda.

The residents telephoned the police, who placed a lookout for the Honda. The car was spotted almost immediately, and a high-speed chase ensued. After causing a collision involving two police cars, the driver left the Honda and was captured lying in some weeds. Two officers involved in the chase observed him after he was placed in a patrol car. Both officers testified at trial that they had seen his face in their spotlights during the chase, and had no doubt that the man they observed in the patrol car, who was identified as Holbrook, was the same man they were chasing. Holbrook was taken to the police station, where the residents who had witnessed the events in the housing project observed him on a television monitor and identified him as the person they had seen earlier driving the Ford truck and the red Honda and the person who had set fire to the truck.

After Holbrook’s conviction on all counts, new counsel was appointed to represent him. New counsel filed a motion for new trial, raising the issue of ineffective assistance of trial counsel.

1. Holbrook contends the trial court erred in denying his motion for new trial because, given the fact that misidentification was his primary defense, trial counsel’s failure to move the court to exclude the one-on-one showup or to object to the in-court identification by the witnesses who viewed it conclusively demonstrated ineffective assistance of counsel.

In considering whether a pretrial showup must be excluded, a court must first determine whether the procedure used was impermissibly suggestive. If so, the court must then decide whether, given the totality of circumstances, there was a substantial likelihood of misidentification. Killens v. State, 184 Ga. App. 717, 720 (3) (362 SE2d 425) (1987). Here, the witnesses viewed Holbrook while he was at the police station, strapped in a chair facing a video camera. He was the lone suspect viewed, and was surrounded by police officers in uniform. The witnesses were together in another room watching the video monitor, and were asked within the hearing of each other whether Holbrook was “the one.” “We agree with [Holbrook] that the procedure used was impermissibly suggestive. One-on-one showups have been held to be inherently suggestive, id., especially where, as here, the accused is [a lone suspect who is] obviously in custody], surrounded by uniformed police officers], and no precaution is taken to ensure the integrity of the identification process. [Cit.]” Banks v. State, 203 Ga. App. 355 (416 SE2d 866) (1992).

We therefore address the second prong of the test to determine whether a substantial likelihood existed of misidentification. Applying the factors set forth in Neil v. Biggers, 409 U. S. 188, 199-200 (93 SC 375, 34 LE2d 401) (1972), we find that the showup took place within hours of the crimes, and that the witnesses’ opportunity, degree of attention, accuracy of description, and certainty were excellent. All the witnesses accurately described Holbrook. Mack’s opportunity to observe Holbrook was best, having conversed with him face-to-face for approximately 15 minutes while paying close attention to him. She had absolutely no doubt about her identification of Holbrook.

“Moreover, notwithstanding any taint in pretrial identification procedures, [a] witness’ in-court identification may still be admitted if it has an ‘independent origin’ from the illegal identification procedures involved. [Cits.]” McCoy v. State, 190 Ga. App. 258, 261 (3) (378 SE2d 888) (1989). Mack’s identification of Holbrook was clearly based on her earlier observation of and conversation with him on the street, and not on her view of him at the showup. Considering the totality of the circumstances, including his identification by at least three police officers, we find no substantial likelihood of misidentification.

It may have been better practice to move to exclude evidence regarding the pretrial showup and to object to the in-court identification. However, since neither strategy would have changed the result, neither omission may be deemed conclusive evidence of ineffectiveness on the part of Holbrook’s trial counsel. Indeed, our examination of the transcript persuades us trial counsel’s performance, viewed as a whole, was not ineffective. The trial court did not err in denying the motion for new trial on this ground.

2. Holbrook asserts error in the trial court’s denial of his motion for a directed verdict of acquittal, made on the ground that the State failed to prove ownership of the stolen vehicles as alleged in the indictment.

The indictment charged Holbrook with theft by taking a “1991 Honda Civic, the property of Heritage Honda,” and with theft by receiving a “1989 Ford truck, the property of P. F. Moon, Inc.” The manager of the dealership testified that although the dealership is incorporated as RHC, Inc., it does business as, and is commonly known as, Heritage Honda. It was established that the truck was owned either by P. F. Moon individually or by P. F. Moon Construction Company. A variance between the allegata and probata is not fatal unless it misinforms the accused of the charges against him or leaves him subject to subsequent prosecutions for the same offense. Stinson v. State, 197 Ga. App. 687, 689 (3) (399 SE2d 278) (1990). The allegations in the indictment in this case were adequate in those respects. Moreover, one charged with theft “will not be heard to raise nice and delicate questions as to the title of the article stolen.” (Citations and punctuation omitted.) Cline v. State, 153 Ga. App. 576, 577 (2) (266 SE2d 266) (1980).

3. Holbrook maintains that because no proper foundation was laid, the trial court erred in admitting opinion testimony regarding the value of the truck. Opinion testimony regarding value, without giving reasons for the opinion, is without probative value. Holbrook v. State, 168 Ga. App. 380 (1) (308 SE2d 869) (1983).

In this case, an equipment operator for the construction company testified that he was familiar with the approximate value of trucks of that nature used in the construction business and that the truck was worth “around $17,000” before the damage, and less than $1,000 after the damage. The witness also testified that the truck had no damage before the incident; that he had viewed it after it had been set afire and the seat, upholstery, dash, windows, and paint were ruined; and that it had been repaired and reconditioned. Given this testimony regarding the extent of the damage, as well as the photographs of the truck properly admitted into evidence, the jury had sufficient evidence to determine that the value of damage was in excess of $500. Id. at 381 (1).

Decided June 17, 1993 —

Reconsideration denied June 30, 1993 —

William F. Sparks, for appellant.

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

Judgment affirmed.

Johnson, J., and Blackburn, J., concur.


text:
    A93A0557.
    EDWARDS v. THE STATE.
    (433 SE2d 619)
   Smith, Judge.

Anthony Edwards was convicted of burglary, OCGA § 16-7-1 (a); armed robbery, OCGA § 16-8-41 (a); possession of a firearm during commission of a felony, OCGA § 16-11-106 (b) (1); and possession of a firearm by a convicted felon, OCGA § 16-11-131 (b). His motion for a new trial was denied.

1. He contends the evidence was insufficient to support his conviction on the charges of armed robbery and possession of a firearm during the commission of a felony.

At trial, Officer Lorenzo Brown of the Savannah Police Department testified that he responded to a call of a burglary in progress, and when he arrived at the address given found an open rear window. Through the window, he observed two masked men armed with an assault rifle and an assault pistol. He heard one of the men ask the victim where her money and jewelry were. He called for backup, and other officers had arrived when two men ran out the back door and fled, dropping an assault pistol and some of the victim’s property.

The victim testified she was at home with her two young sons at about midnight when three men entered her bedroom, pointed two guns at her, threatened her and her younger son, and demanded money. They took $80 in cash from a box in the victim’s closet and $1.52 in change she had in a drawer, as well as jewelry, a Walkman radio/cassette player, and a jar of iced tea. Edwards was found hiding in a utility closet in the victim’s home after the two accomplices fled. He was unmasked by the police, and the victim identified him as the man who had held an assault rifle to her face. Police officers recovered the rifle adjacent to the closet where Edwards hid. Officer Brown testified the rifle was the same weapon he had seen through the window.

Sergeant J. C. Whitcomb testified that after having been advised of his Miranda rights, Edwards admitted he was guilty of burglary but denied armed robbery, claiming he and two others, whose names he did not know, had decided to burglarize the house but had found the guns in the house. The victim denied the guns had been in her home before the robbery.

Decided June 17, 1993 —

Reconsideration denied June 30, 1993 —

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Richard S. Gopen, Assistant District Attorney, for appellee.

Despite Edwards’ denial that he committed armed robbery and regardless of whether the weapons were brought to the house or were found there by the burglars, the victim testified she was robbed at gunpoint and police officers corroborated this testimony based on their observations. “ [Determinations of credibility and resolution of conflicts in the evidence are for the jury; this court does not reweigh the evidence but only determines its legal sufficiency.” Holcomb v. State, 198 Ga. App. 547 (1) (402 SE2d 520) (1991); OCGA § 24-9-80. The evidence was sufficient to enable a rational trier of fact to find Edwards guilty beyond a reasonable doubt of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Edwards’ assertion of error in the trial court’s failure to give his requested charge on theft by taking, OCGA § 16-8-2, is without merit. Although theft by taking has been held to be a lesser included offense of armed robbery, “it is not necessary to charge on the lesser included offenses where the evidence demonstrates completion of the greater offense. [Cit.]” Sims v. State, 197 Ga. App. 214, 217 (5) (398 SE2d 244) (1990). The evidence clearly demonstrated the elements of armed robbery, and the court did not err by failing to charge on theft by taking.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.