author: Birdsong, Presiding Judge.

text:
    A92A0869.
    BOGAN v. THE STATE.
    (426 SE2d 392)
   Birdsong, Presiding Judge.

Clarence Bogan appeals his conviction of armed robbery, kidnapping, possession of a firearm during an armed robbery, and the sentence. He enumerates six errors. Held'.

1. Appellant asserts the trial court erred in allowing the police officer to testify as to appellant’s spontaneous and voluntary statements that he had ingested cocaine.

The incident occurred at approximately 3:00 p.m. The victim identified appellant as having first come into her store to purchase cigarettes, then returning later to rob her. A subsequent informal accounting revealed approximately $100 had been taken from the service station. At the time of the robbery, appellant’s eyes were glassy, his speech slurred, and he acted strangely. Appellant was acting totally different than he had earlier when he bought the cigarettes. About 8:00 p.m., police went to appellant’s home and arrested him; at that time, appellant made a voluntary, spontaneous statement that he had ingested cocaine just before the police arrived to arrest him. Appellant was taken to the police station and advised of his Miranda rights. When asked if he wished to waive those rights, appellant made another voluntary, spontaneous statement that he was unable to talk to the police because he had ingested a nickel bag of cocaine “approximately five hours before [the police officer’s] arrival to him.”

The first voluntary, spontaneous statement was admissible to show the circumstances surrounding appellant’s arrest. All circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. Lanham v. State, 184 Ga. App. 554 (2) (362 SE2d 131); compare State v. Luke, 232 Ga. 815 (209 SE2d 165). Where evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded because it incidentally shows the commission of another crime. Sapp v. State, 184 Ga. App. 527, 528 (2) (362 SE2d 406). Moreover, the statement had independent relevance to establish that appellant had ingested cocaine prior to the time of his arrest. The significance of this is increased by the second voluntary, spontaneous statement made by appellant at approximately 8:00 p.m. clarifying that he had used cocaine about five hours earlier; this would have been about 3:00 p.m., near the time of the robbery. The fact appellant ingested cocaine around the time of the robbery clearly was corroborative of the victim’s testimony regarding the strange change in appellant’s conduct between the time he bought the cigarettes and subsequently robbed the store. As such, it was admissible as to the issue of identification. Likewise, appellant’s first statement was relevant as to the issue of identification. “ ‘Where evidence may incidentally put character in issue or be prejudicial it may be admitted if otherwise relevant.’ ” Coney v. State, 198 Ga. App. 272, 274 (3) (401 SE2d 304). Appellant’s contentions as to these statements are without merit.

2. Appellant asserts the trial court erred in not allowing appellant’s probation officer to impeach the victim with opinion testimony and references to specific incidents in support of the probation officer’s conclusions, inter alia, that the victim’s character “was generally bad” and she would not believe her under oath. The probation officer testified, outside the presence of the jury, that she knew, at least as among the probation community, that the victim’s character is bad, but she did not know what the victim’s reputation for general character was among the victim’s neighborhood and social peer groups. Specifically, the probation officer testified that her opinion as to the victim’s reputation was based on her personal dealings with the victim as her probation officer and also with comments made through law enforcement agents with whom she has been in contact. The record also reflects that the witness had not interviewed anyone from the victim’s work place, and thus was not familiar with her reputation there. Thus, we find Gravitt v. State, 220 Ga. 781, 786 (8) (141 SE2d 893) to be factually distinguishable.

Relying on OCGA § 24-9-84; Gresham v. State, 169 Ga. App. 525, 527 (314 SE2d 111) (specific acts not admissible to establish general character; opinion as to a party’s character based solely upon personal observation is not allowed); and Ailstock v. State, 159 Ga. App. 482, 483-484 (283 SE2d 698) (specific acts not admissible to show general bad character), the State argues that the trial court did not err in not allowing the probation officer to testify, as she did not have knowledge of the victim’s general character reputation within her community.

The place in which to ascertain a person’s true reputation is the place where people, generally, have had the best opportunity of forming a correct estimate of the person’s character. It is obvious that this may not, in each and every instance, be the neighborhood where a man’s home is situated. Martinez v. State, 189 Ga. App. 69, 71 (1) (375 SE2d 123) (thus, in an exceptional case, general reputation in a penal institution was admissible). While, under certain circumstances, a person might well have a general character reputation within a small specialized community, such as the probation community or the law enforcement community, the record before us fails to establish such fact in this case. Rather, reasonable inferences can be drawn from the testimony of the probation officer that she actually was giving her personal opinion as to the victim’s reputation for general character based upon personal observation coupled with unspecified reports received from unidentified law enforcement officials rendered under undisclosed circumstances. The admissibility of evidence rests largely within the sound discretion of the trial court. See generally Roney v. State, 192 Ga. App. 760, 763 (2) (386 SE2d 412). The record reveals no such abuse by the trial court.

3. Appellant asserts the trial court erred in limiting the cross-examination of the victim and the person who could provide testimony linking appellant to the crimes charged.

On cross-examination, appellant was allowed to introduce evidence of the victim’s prior conviction, pursuant to a guilty plea, of two counts of bad checks. Thereafter, the State objected after appellant began questioning the victim as to her probation status. Appellant explained its defense strategy and the purpose of its questions as follows: “We think that this would go to a possible motive for [the victim] herself actually taking the cash involved. Our next question was going to be to ask if she was under some requirement to pay restitution and a probation fee and if, in fact, on several occasions bench warrants have been issued for this failure of her to pay these amounts.” (Emphasis supplied.) Appellant also asserted the additional ground of bias for its exploration of the terms of probation maintaining that as the victim was under some probation requirements “she probably feels [she has] to testify favorably for the State because there is some control the State has over her probation disposition.” The trial court sustained the objection thereby limiting the scope of cross-examination.

Appellant’s right to a thorough and sifting cross-examination of witnesses called against him is without question in this state. OCGA § 24-9-64. However, scope of cross-examination is not unlimited but rests largely within the discretion of the trial court, and exercise of this discretion will not be disturbed on appeal unless it has been abused. Moore v. State, 251 Ga. 499, 501 (2a) (307 SE2d 476). A trial court may restrict the scope of cross-examination if the inquiry is not relevant or material to issues being tried. Fletcher v. State, 197 Ga. App. 112 (1) (397 SE2d 605).

The jury received, inter alia, testimonial evidence of the victim’s probation status and that the victim had entered pleas of guilty to several different cases of bad checks.

On appeal the burden is on appellant to prove error which harms him. Robinson v. State, 229 Ga. 14, 15 (189 SE2d 53); Griffin v. State, 194 Ga. App. 624 (2) (391 SE2d 675). Under the attendant circumstances, appellant has not met his burden.

In view of the above, we find the trial court did not abuse its discretion in limiting the scope of appellant’s cross-examination of the alleged crime victim.

4. Appellant asserts the trial court erred in allowing the State to impeach its own witness.

The record establishes an alibi witness testified for the defense. The State cross-examined the alibi witness but made no attempt to impeach her by showing prior inconsistent statements, bias, or interest (prejudice). Thereafter, both the defense and the State announced on the record that the witness could be excused. The next day the State recalled the same witness, after the defense rested, and attacked the witness’ credibility with claims of prejudice toward the police department and law enforcement officers in general.

Murray v. State, 203 Ga. App. 858 (418 SE2d 624); Gielow v. Strickland, 185 Ga. App. 85, 87 (2) (363 SE2d 278); and Hood v. State, 179 Ga. App. 387, 389 (1) (346 SE2d 867) are factually distinguishable from the issue presented in this case.

In Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717), it was held “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” See also Ranger v. State, 249 Ga. 315, 318 (290 SE2d 63). Moreover, the trial court did not abuse its discretion in allowing such procedure when the purpose was to expose a potential bias of the witness. See OCGA § 24-9-68.

5. Appellant asserts the trial court erred in not allowing testimony about a prior false allegation of rape made by the victim. The trial court did not make a ruling regarding the admissibility of this evidence, but denied a defense motion made during the commencement of trial for a continuance. The trial court, however, expressly informed appellant the motion could be renewed later in the trial. Appellant cites this court to no page in the record where any renewal of the continuance motion was made, and it is not the function of an appellate court to cull a trial record in search of error. Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463). The resolution of a motion for continuance for additional time to prepare a defense rests in the trial court’s discretion. Babb v. State, 157 Ga. App. 757 (278 SE2d 495). The record fails to establish such an abuse in this instance.

Moreover, although the trial judge initially indicated, when asked if he would allow the victim to be cross-examined (“questioned”) regarding the incident, that “I don’t think so,” he subsequently agreed, after hearing further argument from appellant’s counsel that he “would think so too” that the defense should be allowed to ask the victim anything that goes to her reliability. Thus, the record fails to show affirmatively that appellant was precluded from not inquiring into this matter during the victim’s cross-examination. Appellant fails to cite this court to any place in the record where an attempt was thereafter made by appellant to question the victim over this matter. Talley, supra. Furthermore, appellant cannot complain of a ruling that his own procedure or conduct aided in causing. Hollis v. State, 191 Ga. App. 525, 528 (5) (382 SE2d 145). Accordingly, we find that the error, as enumerated, is without merit.

6. Appellant alleges the trial court erred by denying appellant’s motion for mistrial based on the State’s alleged improper arguments during closing. Appellant asserts four instances where the State’s argument should have mandated mistrial. We disagree.

First, the State stated, “if somebody broke into your house and raped you. . . .” Following an unreported bench conference, the trial court gave a curative instruction to the jury that they must disregard and could not consider the remark during deliberation. Appellant moved for a mistrial upon completion of appellee’s argument asserting, as a basis therefor, the additional three matters asserted on appeal in support of this enumeration. The first statement attributed to the State is contained in the record of trial, and it has been reviewed. We are satisfied that any possibility of prejudicial error was negated by the timely curative instruction of the trial court. A trial court is vested with broad and sound discretion in the correction of improper or inflammatory argument; the trial court’s election to give the jury a curative instruction will not be disturbed on appeal absent an abuse of discretion, which will not arise if the curative instruction given can serve to prevent any prejudicial impact. Allen v. State, 259 Ga. 303 (2) (379 SE2d 513). We are satisfied the curative instruction given served to prevent any prejudicial impact by the statement at issue.

Decided December 1, 1992 —

Reconsideration denied December 14, 1992

Angela M. Coggins, Terry T. Everett, for appellant.

Edward D. Lukemire, District Attorney, A. Robert Tawse, Jr., Assistant District Attorney, for appellee.

We cannot review the remaining three claims of erroneous argument, and in particular the total context in which such statements were made, as that portion of the State’s argument has not been transcribed. Absent a complete transcript, this court can only presume the trial was conducted in a regular and proper manner. Powell v. State, 198 Ga. App. 509, 512 (2) (402 SE2d 108).

Moreover, the record discloses that the motion for mistrial was not timely made when the impropriety occurred. In such instances, the proper test for reversible error is not whether the argument was objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of trial. Todd v. State, 261 Ga. 766, 767 (2a) (410 SE2d 725); accord Tharpe v. State, 262 Ga. 110, 113 (16) (416 SE2d 78). Examining the remarks of the trial court and of counsel and recounting in the record what was believed by them to have been stated during closing argument, we cannot conclude and do not conclude that there exists any reasonable probability that the alleged improper argument changed the result of trial.

We find that none of appellant’s contentions in support of his various enumerations of error is adequate to require case reversal.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A92A0906.
    WATKINS v. THE STATE.
    (426 SE2d 238)
   Cooper, Judge.

Appellant was convicted of robbery in a jury trial and appeals the trial court’s denial of her motion for new trial.

Viewed in a light to support the jury’s verdict, the evidence shows that appellant’s accomplice entered the victim’s home and physically attacked him, eventually wrestling him to his bed where she forcibly restrained him by placing her knee in his abdomen and her arms around his neck. The victim then saw appellant peek through the front door. Appellant entered the house, threw a coat over the victim’s head, reached under the victim’s mattress and took the victim’s wallet containing at least $100. Although appellant denied committing the robbery, she admitted that she had known the victim for ten years and had visited his home on numerous occasions.

1. In her first and second enumerations of error, appellant contends the trial court erred in admitting evidence of a 1989 conviction for a robbery committed in 1988 as a similar transaction.

(a) Appellant argues first that the State failed to give timely notice of its intention to introduce evidence of the 1988 robbery. “ ‘Although [Uniform Superior Court] Rule 31.1 requires the notice to be filed at least 10 days before trial, it also provides the time may be either shortened or lengthened by the judge. [Cit.] We interpret this as clothing the trial court with discretion which will not be controlled absent abuse.’ [Cit.]” Thompson v. State, 186 Ga. App. 421, 422 (2) (367 SE2d 586) (1988). The record shows that the State filed notice of its intention to introduce evidence of appellant’s prior robbery conviction one day before the trial commenced. Appellant contends that the trial court erred in shortening the ten-day requirement because the State failed to exercise due diligence in complying with the notice requirement. Appellant argues that the 1989 conviction took place in Cobb County; that the instant case was pending against her for seven months during which time the prosecutor had access to appellant’s Cobb County criminal record, as well as computer network criminal files; that more than ten days prior to the trial, the prosecutor and appellant’s attorney discussed the fact that appellant was already on probation at that time; that although the prosecutor did not know the specific circumstances surrounding the probation and related conviction, he initiated the revocation of that probation; and that further inquiry into the prosecutor’s own Cobb County records after the conversation with appellant’s attorney would have revealed the 1989 robbery conviction soon enough to have given appellant timely notice of the State’s intent to introduce the prior conviction at trial. The prosecutor maintained at the pre-trial hearing that the customary computer search of appellant’s record revealed five prior felony convictions but inexplicably did not include the 1988 robbery and that until he received a probation revocation form referring to the 1988 case on the day before the trial, he was unaware of the conviction and the similarities between the two robberies. The trial court found no lack of diligence on the part of the State but ordered that the victim of the 1988 robbery be produced by the State for discovery by appellant prior to the commencement of the trial.

“ ‘[T]his court has adopted as its primary consideration whether defendant was deprived of any substantial rights under the circumstances. [Cit.] (Cit.) (In this regard we have also) noted “that the apparent purpose of the rule is to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial.” The purpose of the length of the advance notice is to allow defendant the opportunity to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses. . . . [Cit.]’ [Cits.]” Thompson, supra at 422-423. This purpose was served by the trial court’s order requiring the victim of the 1988 robbery to be available for questioning by appellant in advance of the trial. The record contains no request for a continuance, no further objection regarding the 1988 robbery and no further objection to proceeding to trial by appellant prior to the commencement of the trial. Appellant has the burden on appeal of establishing not only error, but harmful error. Id. “Common sense dictates that the State cannot give notice of its intention to introduce evidence ten days prior to trial when it is not aware of the existence of such evidence until [one day] prior to trial.” Roman v. State, 185 Ga. App. 32, 33 (1) (363 SE2d 329) (1987). Accordingly, we find no abuse of discretion or prejudice to appellant resulting from the shortening of the ten-day notice requirement. Adams v. State, 191 Ga. App. 16 (4) (381 SE2d 69) (1989).

(b) Appellant next argues that the transaction was not sufficiently similar to the offense of which he was convicted. “ ‘Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that appellant was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter.’ [Cit.]” Jordan v. State, 192 Ga. App. 69, 70 (2) (383 SE2d 631) (1989). Appellant admits having been the perpetrator of the prior offense; however, we agree with appellant that there is insufficient similarity between the two such that proof of the former tends to prove the latter. In the 1988 robbery, the victim had been driving around in search of a particular address when she stopped and asked appellant for assistance. Appellant offered to ride with the victim to the address. When they reached the dead-end street the victim was looking for, appellant grabbed the victim’s pocketbook and ran. The State contends the offenses were similar in many respects: both victims were elderly, black and in bad health, such that they could not pursue appellant after the robbery; in both incidents items were personally taken from the victims; appellant did not mask her face in either case; in both incidents a pocketbook or wallet containing money was taken; and in both incidents appellant fled on foot. However, our review of the similarities reveals that in the 1988 robbery, although appellant had been in the company of another woman before she was picked up by the victim, the robbery was committed by appellant alone whereas the current robbery was accomplished by the planning and participation of appellant and her accomplice. Moreover, in the 1988 robbery, it was the victim who initiated contact with appellant. In addition, there was no evidence that appellant knew the 1988 victim prior to the incident and thus no basis for an assumption on appellant’s part before the theft that the victim would be unable to pursue appellant. In our view, introduction of the prior offense does not tend to show common design or scheme, intent, bent of mind, or course of conduct, the purposes for which the prior offense was offered. Accordingly, “[i]t was error to admit the evidence of the prior crime. [Cit.] However, the admission was harmless since the jury verdict was overwhelmingly supported by the other evidence, including the victim’s identification of appellant. . . . [Cit.]” Black v. State, 186 Ga. App. 406, 407 (367 SE2d 238) (1988).

2. Appellant also contends the court erred in permitting the victim to testify as to a prior incident in which appellant allegedly took his wallet because the State failed to give the defense any notice of its intention to introduce evidence of this similar transaction. The record reveals that prior to the trial, the prosecutor informed defense counsel that the victim might offer testimony regarding the incident; however, the prosecutor indicated that the evidence would not be offered as a similar transaction under Rule 31.1 but was admissible as evidence of the crime charged in the indictment because it was a similar crime against the same victim committed within the statute of limitation. The indictment alleges that the robbery occurred on October 10, 1990, but does not show that the date was an essential averment. This court has previously held that an “indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment, covers any offense of the nature charged within the . . . period of limitation, including the date alleged, and the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period. [Cits.]” Grantham v. State, 117 Ga. App. 444 (1) (160 SE2d 676) (1968); Burnett v. State, 202 Ga. App. 563 (1) (415 SE2d 43) (1992). In the instant case, however, the only evidence regarding the time of the commission of the prior robbery of the victim is the victim’s testimony that appellant took the wallet “before she went to prison the first time.” The record indicates that appellant has several previous convictions which date back as far as 1984 in which she was sentenced to confinement in prison. Thus, there is no evidence that this offense occurred within the four-year statute of limitation. See OCGA § 17-3-1 (c). Nonetheless, we again find that the error in admitting such evidence does not require reversal due to the overwhelming evidence supporting the jury’s verdict. Black, supra.

3. Appellant enumerates as error the admission of State’s Exhibit 1, appellant’s indictment, and Exhibit 3, a guilty plea questionnaire, because they contained a plea and sentence to an unrelated burglary and impermissibly placed her character in issue. The record demonstrates that appellant raised no objection to the admission of State’s Exhibit 1 when it was tendered; therefore, any objection to its admission is waived. Jacobson v. State, 201 Ga. App. 749 (2) (412 SE2d 859) (1991). At trial, appellant objected to Exhibit 3 on the grounds that it was immaterial, irrelevant and prejudicial because the defense was not furnished with a copy of the evidence. “ ‘It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.’ [Cit.]” Yelverton v. State, 199 Ga. App. 41, 43-44 (2) (403 SE2d 816) (1991).

4. Appellant contends the trial court erred in refusing to grant her motion for mistrial when the State improperly questioned a defense witness regarding appellant’s prior incarceration on an unrelated offense. The record shows that in addition to the motion for mistrial defense counsel requested that the court instruct the prosecutor not to refer to any prison sentences. The court denied the motion but instructed the prosecutor and the witness not to refer to inadmissible matter regarding appellant’s past record. After the court’s ruling, defense counsel indicated to the court that he was satisfied with the instruction. “ ‘ “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. . . . Acquiescence deprives him of the right to complain further. (Cits.)” [Cit.]’ [Cit.]” Swint v. State, 199 Ga. App. 515, 518 (2) (405 SE2d 333) (1991). Accordingly, this enumeration is without merit.

5. Appellant also contends the trial court erred in permitting the State to recall a defense witness for rebuttal and then proceed to impeach the witness with a prior conviction, arguing that the evidence was not strictly rebuttal evidence and that the State had an unfair advantage in being able to discover the witness’ prior conviction because of its access to computer criminal records. “After the defense has rested, the State has the right to call rebuttal witnesses to refute or explain any or all of the defendant’s evidence and the trial court has the discretion to admit the relevant evidence at any stage in the trial even where it is not actually in rebuttal of the defense testimony. [Cit.]” Verble v. State, 172 Ga. App. 321, 322 (2) (323 SE2d 239) (1984). We find no abuse of discretion in the court’s admission of this relevant evidence.

Decided December 2, 1992 —

Reconsideration denied December 14, 1992.

Lauren L. Becker, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

6. Appellant argues the court erred in allowing the State to question a defense witness about her alleged prostitution. Appellant contends the questioning was an impermissible method of impeachment which placed the witness’ character in issue. The record shows that prior to the question to which appellant objected, the witness testified that on a prior occasion she agreed to have a sexual relationship for money. Shortly thereafter, the prosecutor began the question, “Now, how many times have you been convicted of —,” but was cut off by appellant’s objection. After the court overruled the objection, the witness did not answer the question, and the prosecutor began another line of questioning. “Where an objected-to question is npt answered by the witness there is no harmful error. [Cit.]” Stevens v. State, 195 Ga. App. 324, 326 (393 SE2d 482) (1990).

7. Finally, appellant contends the trial court erred in allowing the State to ask a defense witness whether she had a sexual relationship with appellant. When the question was propounded the evidence had already shown that the witness and appellant were good friends and had lived together for six years. The court ruled that the relationship between the witness and appellant was a proper subject for cross-examination. “The state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury.” OCGA § 24-9-68. “[I]t was competent to impeach her by evidence tending to show that she was the paramour of the defendant, — not to impeach her by reason of the immorality, but to show her intimate relations with the accused and her probable bias as a witness. [Cit.]” Perdue v. State, 126 Ga. 112, 113 (14) (54 SE 820) (1906).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1071.
    WOOD v. BROWNING-FERRIS INDUSTRIES OF GEORGIA, INC. et al.
    (426 SE2d 186)
   Cooper, Judge.

Appellant brought an action against appellees, McCombs Freight Line, Inc. (“McCombs”) and Browning-Ferris Industries of Georgia, Inc. (“BFI”), for personal injuries he sustained in a rear-end collision. The collision occurred when a southbound truck owned by McCombs struck a BFI truck which was stopped at a red light. The impact from the McCombs truck knocked BFI’s truck into the car in front of it, and that car then struck the rear of appellant’s car which was also stopped at the red light. As a result of the accident, appellant suffered back and leg pain and required extensive medical treatment, including back surgery. Appellant’s medical bills totalled $29,000, and his lost wages totalled $167,000. The jury returned a verdict in favor of appellant against only McCombs in the amount of $500,000 and appellant appeals.

1. Appellant first enumerates as error the trial court’s charge to the jury on magnified damages. We agree with appellant that the giving of the charge was error. However, since the jury’s verdict was more than twice the amount of appellant’s special damages, we hold that the error was harmless. Coker v. Casey, 178 Ga. App. 682 (1) (344 SE2d 662) (1986); Ammons v. Six Flags Over Ga., 172 Ga. App. 210 (2) (323 SE2d 2) (1984).

2. Appellant contends that the trial court erred in allowing appellees’ medical expert to testify regarding appellant’s medical condition based on x-rays which had not been admitted into evidence. The witness testified that he ordered certain diagnostic tests to be performed on appellant and that the x-rays in question were made under his supervision by a resident. “Generally, an expert cannot state his opinion based upon observations or reports which are not admitted in evidence. [Cits.] On the other hand, an expert can give an opinion based upon facts which he personally observes. [Cit.] And where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based in part, upon the other’s findings. [Cit.]” Dual S. Enterprises v. Webb, 138 Ga. App. 810, 813-814 (4) (227 SE2d 418) (1976). Furthermore, “ ‘[i]t is incumbent upon the reviewing court to determine if the mistake was of sufficient magnitude to require a new trial. [Cit.]’ [Cit.]” Andrews v. Major, 180 Ga. App. 393, 395 (2) (349 SE2d 225) (1986). Even if the admission of the testimony was error, it was harmless in light of the amount of medical evidence which was presented during the trial.

3. In three enumerations of error, appellant contends that the trial court erred in refusing to admit the following medical exhibits: (a) a drawing used by one of appellant’s medical experts while testifying, (b) a model of the back joints and disc articulation, and (c) a needle similar to the one used when appellant underwent the myelogram. Our review of the transcript reflects that each of the exhibits was merely illustrative. Also, the drawing and model were cumulative of the expert’s testimony, and the needle was not the actual needle used on appellant. “[I]ssues concerning the admissibility of evidence are committed to the sound discretion of the trial court and the trial court’s rulings will not be reversed absent an abuse of discretion. [Cit.]” Nalley Motor Trucks v. Cochran, 200 Ga. App. 487, 488 (408 SE2d 501) (1991). We find no abuse of discretion in the exclusion of the exhibits from the evidence to be considered by the jury.

Decided November 13, 1992 —

Reconsideration denied December 14, 1992

Nick Long & Associates, Nick Long, Jr., Roy S. Mullman, Davis, Gregory & Christy, Hardy Gregory, Jr., for appellant.

Chamberlain, Hrdlicka, White, Johnson & Williams, Richard N. Hubert, Mark D. Oldenburg, Carter & Ansley, Ben Kingree III, David M. Atkinson, for appellees.

4. In four enumerations of error, appellant argues that the trial court improperly restricted his counsel’s closing argument. The transcript reflects that appellant’s counsel attempted to interject into his closing argument matters related to inflation, the frailty of the bond market, his personal experience with a dentist’s needle, and the possibility that appellant could become addicted to drugs due to all of the medication he currently takes. None of these arguments appellant’s counsel sought to make was based on facts in the record or reasonable inferences to be drawn from the evidence, and we find no error with the trial court’s refusal to allow the argument. See Reid v. Odom, 199 Ga. App. 146 (1) (404 SE2d 323) (1991).

5. In his final enumeration of error, appellant argues that the verdict was inadequate in light of the evidence. “ ‘The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of evidence in the case.’ OCGA § 51-12-12.” Bales v. Shelton, 197 Ga. App. 522 (1) (399 SE2d 78) (1990).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A1354, A92A2088.
    DORSEY v. THE STATE (two cases).
    (426 SE2d 224)
   Cooper, Judge.

In separate trials, appellant Marilyn Dorsey (“Mrs. Dorsey”) was convicted on six counts of rape, aggravated sodomy, aggravated sexual battery and simple battery and appellant James Dorsey (“Mr. Dorsey”) was convicted on four counts of rape, aggravated sodomy and sexual battery. These convictions arose out of appellants’ relationship with a young woman suffering from a mental disease. In Case Nos. A92A2088 and A92A1354, Mr. and Mrs. Dorsey respectively appeal from their convictions and sentences on numerous grounds.

At Mrs. Dorsey’s trial, the evidence revealed that, as the result of childhood sexual abuse by her grandfather (“Pawpaw”), the victim developed a dissociative disorder in which she has at least two distinct personalities — “Big Wendy” and “Little Wendy.” When subjected to upsetting situations or memories, the victim’s primary or host personality, Big Wendy, retreats and Little Wendy takes over. Such an occurrence is called by the experts a “dissociative state.” When the victim goes into a dissociative state, she takes on the voice and personality of a five- to nine-year-old child. There was expert testimony that in this condition the victim can easily be taken advantage of by adults and would be “extremely vulnerable to any manipulation, especially sexual.” Little Wendy is aware of most of Big Wendy’s activities, but Big Wendy has no personal knowledge of what happens to Little Wendy; for Big Wendy, the time spent in a dissociative state as Little Wendy is a blackout or “lost time.” Although the experts said the victim’s dissociation is easily triggered, they also testified that an individual with dissociative disorder can appear normal to others as long as circumstances triggering the dissociation are avoided.

During the victim’s junior year of high school, she realized she was having problems and sought help from a school counselor. Concerned about the seriousness of the victim’s problems, that counselor consulted Mrs. Dorsey, the lead school counselor. For a short time the victim was seeing Mrs. Dorsey and two other counselors on a regular basis, as well as attending classes. Eventually, however, Mrs. Dorsey convinced the victim and her mother that she alone could best help the victim. Consequently, the victim stopped seeing the other counselors and started spending more time with Mrs. Dorsey, often missing classes. The victim and Mrs. Dorsey spent long periods of time in Mrs. Dorsey’s office with the door closed and the windows covered. The victim would also often drive home with Mrs. Dorsey, to babysit for the Dorseys’ children and then spend the night at their house. The overnight visits became increasingly frequent over the victim’s last two years of high school, and after graduation the victim moved in with the Dorseys. When appellants moved to a new town, the victim moved with them. During the period of approximately five years that the victim lived with the Dorseys, she worked, dated and had many aspects of an apparently normal life.

In the fall of 1990, the victim was beginning to doubt whether living with the Dorseys was helping her. She went into a dissociative state while with a family friend and revealed that she was having sexual relations with the Dorseys. With that friend’s encouragement, the victim moved out and sought professional help. In her sessions with psychologists and psychiatrists, the victim as Little Wendy described how Mrs. Dorsey (whom Little Wendy called “Mommy”) would talk about Pawpaw and tell her that Pawpaw was coming to get her but that he would stay away as long as she was engaging in various forms of sexual activity with Mrs. Dorsey. These activities, including kissing, touching, oral sex and intercourse with the use of a dildo, occurred in Mrs. Dorsey’s office and in her van on deserted dirt roads, as well as in appellants’ homes and boat. At some point Mr. Dorsey (“Papa” to Little Wendy) joined the activities occurring at home, engaging in oral, vaginal and anal sex with the victim.

The evidence at Mr. Dorsey’s trial was similar, but by that time — approximately eight months after Mrs. Dorsey’s trial — the victim’s doctors had discovered additional personalities. In particular, a third personality called “Trouble” was identified. Trouble comes out when Little Wendy or any of the others are being physically hurt because she feels no pain. Mr. Dorsey testified at his trial and admitted having sexual relations with the victim but stated that their activities were consensual.

1. The victim testified against the Dorseys in a dissociative state, and both appellants challenge the admissibility of such testimony. Specifically, appellants argue that a dissociative state is like a hypnotic trance, and since “[statements made by a person while in a hypnotic trance are inadmissible, as ‘the reliability of hypnosis has not been established’ [cits.],” Bobo v. State, 254 Ga. 146, 148 (3a) (327 SE2d 208) (1985), testimony from a person while in a dissociative state should also be inadmissible. See also Harper v. State, 249 Ga. 519 (1) (292 SE2d 389) (1982) (statement made by person taking “truth serum” not admissible because it was not established that persons taking the drug will in fact tell the truth while under its influence). Although appellants call our attention to expert testimony that a dissociative state is similar to hypnosis or a trance state in that all three involve alterations in consciousness, the same expert testified that, beyond that, they are “not at all the same thing.” Another expert testified that there was no real correlation between a dissociative disorder that is a multiple personality disorder and hypnosis. The most important difference for our purposes is that hypnosis is a process a person voluntarily chooses to engage in yet which is externally imposed, while a dissociative state is involuntary and, although triggered by external stimuli, comes solely from within. We believe the nonvolitional nature of a dissociative state itself makes statements made while in such a state inherently more reliable than statements made in a hypnotic trance. Moreover, unlike the statements made in the hypnosis and truth serum cases relied on by appellants, in both of these trials the victim’s testimony in a dissociative state could be tested for reliability. In the cases cited by appellants for the proposition that statements made in a hypnotic trance are inadmissible, the statements at issue were hearsay: the question presented was whether someone should be allowed to testify at trial regarding what was recalled and said by himself or another while in an artificially induced altered state of consciousness at an earlier time. Thus, in addition to concerns about the inherent reliability of the statement, those cases also involved concerns about the impossibility of testing that reliability due to the jury’s inability to see the declarant in the altered state making the statement and the opposing party’s inability to cross-examine the declarant in the state he was in at the time the statement was made. See United States v. Swanson, 572 F2d 523, 527-528 (5th Cir. 1978). In the instant cases, these concerns do not arise because the victim actually testified in a dissociative state, giving the jury the opportunity to see and evaluate her demeanor, and, as will be discussed further below, appellants were given the opportunity to cross-examine the victim in a dissociative state. We therefore conclude that, for purposes of the cases under consideration, the line of cases holding that statements made by a person in a hypnotic state are inadmissible does not control the admissibility of the victim’s testimony in a dissociative state.

Perhaps not surprisingly, we could find no law in any jurisdiction regarding the admissibility of testimony from a witness in a dissociative state. We start with a presumption, however, that because the goal of a trial is to ascertain the truth, “[a]ny evidence is admissible which logically tends to prove or disprove any material fact which is at issue in the case.” Westerfield v. State, 176 Ga. App. 195, 196 (2) (335 SE2d 702) (1985). Furthermore, “ ‘[admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. . . . (Cit.)’ [Cit.]” Johnson v. State, 204 Ga. App. 277 (1) (419 SE2d 118) (1992). With these principles in mind, we conclude that the challenged testimony was sufficiently reliable to be admissible. There was undisputed expert testimony at both trials that the victim in a dissociative state would not lie. The reliability of the victim’s statement in a dissociative state was also supported in both trials by numerous prior consistent statements. Furthermore, the jury was able to observe the victim while she testified, and appellants had the opportunity to test the reliability of her testimony through cross-examination. The trial court properly recognized that if testimony from a person in a dissociative state is never admissible, even if sufficient indicia of reliability are present, persons aware of someone’s dissociative disorder will be able to take advantage of that condition with impunity. This we cannot allow. We therefore conclude that the trial court did not abuse its discretion in admitting the testimony of the victim in a dissociative state.

We have twice alluded to appellants’ opportunity to cross-examine the witness in each dissociative state in which she testified. At Mrs. Dorsey’s trial, the victim went into a dissociative state when the prosecutor began to ask her about sexual activity and Pawpaw and presented the majority of her direct testimony as Little Wendy. When Mrs. Dorsey’s attorney began cross-examination of the victim after a recess, the victim, no longer in a dissociative state, could not remember her prior testimony as Little Wendy. Mrs. Dorsey’s motion for mistrial was denied, and her counsel continued to cross-examine the victim as Big Wendy. After Big Wendy testified that she was not sure if she could bring Little Wendy back, a second motion for mistrial was denied. On redirect, the prosecutor elicited testimony from Big Wendy that Mrs. Dorsey knew how to trigger a dissociative state and had done so many times. The questions regarding Mrs. Dorsey and how she brought out Little Wendy by talking about Pawpaw themselves brought out Little Wendy, and the prosecutor then turned the witness over to the defense for a full cross-examination. At Mr. Dorsey’s trial, each of the three personalities that appeared and testified — Big Wendy, Little Wendy and Trouble — was made available for cross-examination, but Mr. Dorsey’s counsel chose not to ask any questions based on his position that testimony from a witness in a dissociative state was not admissible and that the victim was not competent to testify. From these facts in the record, we conclude appellants had ample opportunity to cross-examine the witness in each dissociative state in which she testified and emphasize that we probably would have been compelled to reach a different conclusion had appellants not been given this opportunity.

2. In two enumerations of error, Mrs. Dorsey additionally argues that the trial court erred in failing to instruct the jury that it should disregard evidence obtained through hypnosis and testimony from a witness in a hypnotic-type trance. As discussed in Division 1, however, we do not agree with Mrs. Dorsey’s contention that a hypnotic state and a dissociative state are essentially the same thing for purposes of admitting or evaluating testimony. Thus, the requested instructions were not applicable to the facts presented, and the trial court did not err in refusing to give them.

3. Both appellants also contend the victim was incompetent to testify based on expert testimony that she suffers from a mental disease and that she may at times, while in a dissociative state, have incomplete or distorted perceptions of what is happening. However, a mental disease does not necessarily render a witness incompetent to testify. “ ‘Everyone is presumed competent to testify, and even where a person is shown to have been insane, or to have been adjudged insane previously and is presently in a state mental hospital, this does not necessarily render such person incompetent to testify. [Cit.]’ [Cit.] ‘The competency of a witness shall be decided by the court,’ OCGA § 24-9-7 (a), and the decision of the trial court will not be disturbed unless there is an abuse of discretion. [Cit.]” Flynn v. State, 255 Ga. 415, 419 (7) (339 SE2d 259) (1986). If the allegedly incompetent person understands her obligation to tell the truth and is capable of giving material evidence upon the subject matter in question, she is competent to testify, and it is then up to the jury to determine the appropriate weight to give her testimony. See Cuesta v. Goldsmith, 1 Ga. App. 48 (3) (57 SE 983) (1907). At both trials there was testimony from the victim and others indicating that she could and did understand her obligation to tell the truth and that in a dissociative state she could remember what happened to her previously in a dissociative state and truthfully relate this material evidence to the jury. Accordingly, the trial court did not abuse its discretion in finding the victim competent to testify in each trial. That the victim’s perceptions in a dissociative state might sometimes be incomplete or distorted was a proper subject of argument to the jury regarding why it should discount her testimony, but it did not render the victim incompetent to testify. See Cuesta, supra.

Nor did the trial court err in the procedures it used to reach its conclusion that the victim was competent. In Mrs. Dorsey’s trial, the court did not examine the victim and determine her competency prior to her testimony, see OCGA § 24-9-7 (b), because Mrs. Dorsey did not object to the victim’s competency prior to the victim’s testimony. When Mrs. Dorsey finally objected to the victim’s competency to testify, several days into the trial and long after the victim’s testimony was complete, the trial court properly ruled that Mrs. Dorsey had waived her right to a pre-testimony examination of the victim’s competency. See Redfield v. State, 240 Ga. 460 (3) (241 SE2d 217) (1978). Contrary to Mrs. Dorsey’s assertions, however, the trial court did not then refuse to rule on the victim’s competency and leave it as a jury question. Rather, the court concluded that a determination of competency could be made based on the testimony of the victim and others already presented and ruled that the victim was not incompetent. In Mr. Dorsey’s trial, where the objection to the victim’s competency was properly raised prior to her testimony, the trial court examined and ruled competent the victim’s host personality (the victim not in a dissociative state) as well as each of the two other personalities that emerged and testified when the victim was in a dissociative state. Thus, we conclude appellants’ enumerations of error relating to the trial court’s rulings on the victim’s competency are without merit.

4. At the beginning of his trial, Mr. Dorsey objected to the State’s presentation of evidence of similar transactions on the grounds that the State’s notice of its intention to do so pursuant to Uniform Superior Court Rule 31.3 was not sufficiently specific with respect to dates on which the similar transactions occurred. The similar transactions in question were incidences of sexual conduct between the victim and appellants not charged in the indictment but part of the same pattern of abuse. Mr. Dorsey contends the trial court erred in ruling that no notice was necessary under Rule 31.3 (E) because the similar transactions were part of a single continuous transaction. See Dempsey v. State, 197 Ga. App. 674 (1) (399 SE2d 239) (1990). Even if this ruling were error, however, it would be harmless because the notice provided was sufficient. “While the dates given in the notice were not specific, ‘the prosecution did not have specific dates of similar transactions in its possession. In revealing to appellant the information which it had, the prosecution complied with Rule 31.3. [Cits.]’ [Cit.]” Patten v. State, 184 Ga. App. 152, 154 (3) (361 SE2d 203) (1987).

Mr. Dorsey also contends that testimony regarding sexual conduct between the victim and Mrs. Dorsey in which he was not involved was irrelevant to his guilt or innocence and should not have been admitted in his trial. This evidence was relevant, however, for it established a background pattern of sexual abuse against which the inference that Mr. Dorsey committed the charged acts of sexual abuse was more probable than it would have been without the evidence. See Southern R. Co. v. Lawson, 256 Ga. 798 (4) (353 SE2d 491) (1987).

5. Mr. Dorsey’s ninth enumeration of error, that the trial court improperly allowed the victim witness coordinator from the prosecutor’s office to sit with the victim during her testimony, is also without merit. See Miles v. State, 201 Ga. App. 568 (5) (411 SE2d 566) (1991).

6. Mr. Dorsey additionally argues that the trial court erred in instructing the jury that force could be found from a continuing set of circumstances involving force or threats of bodily harm; that a lack of resistance induced by fear is not legally cognizable consent but is force; and that substantial violence on the part of the accused or vigorous resistance on the part of the female is not required to find rape if forcible intercourse is otherwise found. Acknowledging that these instructions are accurate statements of law, Mr. Dorsey argues that they are not authorized by any evidence presented. However, this argument would only be valid if the testimony of the victim in a dissociative state were inadmissible, for that testimony provides ample evidence of force and fear of force. Because we have held the evidence of the victim in a dissociative state admissible, this challenge to the jury instructions regarding force is also rejected.

7. Both appellants raise the general grounds with respect to each count on which they were convicted. Viewing all the evidence, including the testimony of the victim, in a light most favorable to the verdicts, rational jurors could have found appellants guilty of each count on which they were convicted beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

8. Lastly, both appellants enumerate as error the trial court’s award of restitution to the victim as a condition of probation pursuant to OCGA § 17-14-1 et seq. Specifically, they first contend that the victim’s damages were not proximately caused by appellants’ criminal acts. “Damages” in the restitution context “means all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced. . . .” OCGA § 17-14-2 (2). Appellants say the victim’s injuries were caused by the childhood abuse of the victim by her grandfather rather than their later acts. There can be more than one proximate cause of an injury, however. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157 (IB) (256 SE2d 916) (1979). Moreover, proximate cause is a question of fact for the factfinder. Id. The trial court found as fact that the victim was injured by and has incurred costs as the result of appellants’ criminal behavior toward her, and this finding is not clearly erroneous.

Appellants also contend that restitution is barred by the two-year statute of limitation applicable to tort actions and that restitution is improper because of appellants’ poor financial condition. There is nothing in the statutory or case law on restitution to suggest that restitution cannot be awarded after the statute of limitation for an analogous civil action has run. Although the amount of damages suffered by the victim, which is one consideration in establishing the appropriate restitution amount and sets the upper limit for that amount, is ascertained by looking to the amount of damages available in an analogous civil action, restitution is not synonymous with a civil action and does not preclude a separate civil action. See Morrison v. State, 181 Ga. App. 440, 441 (352 SE2d 622) (1987). Furthermore, the trial court’s written findings and the transcripts of the restitution hearings show that the trial court heard and considered evidence and argument regarding appellants’ financial condition. The State requested more than one million dollars in restitution and supported its request with bills and expert testimony regarding the victim’s prognosis. Based primarily on its assessment of appellants’ present financial condition and their probable future earnings capacity, the trial court determined that the total restitution amount for both appellants would be less than one hundred thousand dollars. Accordingly, appellants’ argument that the trial court’s restitution award was improper is without merit.

Decided November 25, 1992 —

Reconsideration denied December 14, 1992

Robert E. Andrews, for appellant.

C. Andrew Fuller, District Attorney, Anne M. Bishop, Lee Darragh, Assistant District Attorneys, for appellee.

Judgments affirmed.

Sognier, C. J., concurs. McMurray, P. J., concurs in judgment only.

       Mr. Dorsey argues that the trial court improperly refused to rule on the victim’s competency prior to her testimony. Our review of the record suggests his characterization of the course of events is not accurate. Instead, there seems to have been a general agreement that the better procedure would be to examine and rule on the competency of the victim and each of the victim’s personalities as they appeared at trial rather than having a separate hearing in which the court and parties would have to anticipate which personalities would emerge at trial and attempt to bring them out prior to trial simply to assess their competency to testify. To the extent Mr. Dorsey did not agree to this procedure, we approve it as a logical way to deal with a difficult and unique situation.


text:
    A92A0965.
    GEORGIA MUTUAL INSURANCE COMPANY v. KURTZ et al.
    (426 SE2d 248)
   Birdsong, Presiding Judge.

Georgia Mutual Insurance Company appeals from a trial court’s judgment declaring that its automobile insurance policy provided coverage for damages arising from an accident involving a pickup owned by a used car dealer and driven by a Georgia Mutual insured, Willie F. Braswell, and a car driven by Mary Kurtz. Braswell received the pickup from the dealer for “detailing” in his business, Braswell Cleanup Shop, and the record shows Braswell Cleanup Shop washes, waxes, and shampoos interiors of vehicles.

After Kurtz sued Braswell and he claimed coverage under his Georgia Mutual policy, Georgia Mutual filed this declaratory judgment action. Georgia Mutual contends that the policy does not provide coverage because of Section V, “Use of Other Automobiles: If the named insured is an individual or husband and wife and if during the policy period such named insured . . . owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under [the insurance coverage] with respect to said automobile applies with respect to any other automobile, subject to the following provisions . . . (d) This insuring agreement does not apply ... (2) to any accident arising out of the operation of an automobile sales agency, repair shop, service station, storage garage, or public parking place.”

Georgia Mutual moved for summary judgment contending this provision applied since the accident arose from the operation of Bras-well’s Cleanup Shop, which Georgia Mutual asserted was included by implication within the businesses listed. The trial court, however, held that coverage was available because a reasonable person in Bras-well’s position would not understand that the detailing business was included within the businesses listed in Section V (d) (2). After the trial court denied Georgia Mutual’s motion for summary judgment and granted declaratory judgment in Braswéll’s favor, this appeal followed. Held:

Georgia Mutual’s sole enumeration of error asserts that “the trial court erred by finding that a reasonable person would not consider a car detailing shop to be a service station excluded from coverage under Georgia Mutual’s policy and by finding that the policy of insurance issued by Georgia Mutual to Braswell provided coverage for the incident at issue in the lawsuit filed by Kurtz against Braswell as this determination was contrary to law since the policy issued by Georgia Mutual clearly excluded coverage for a non-owned automobile involved in an accident arising out of the operation of a repair shop or service station.”

Thus, the issue before us is whether the trial court properly construed Georgia Mutual’s policy as a matter of law, to extend coverage because the accident did not arise out of the operation of a repair shop or service station. OCGA § 13-2-1. Georgia Mutual relies on Metropolitan Property &c. v. Mr. Pride of Atlanta, 258 Ga. 770 (374 SE2d 82), for the proposition that although the term “detailing business” is not specifically listed in the policy, the trial court erred because it did not consider the intended scope of this provision and not its exact words. Review of Mr. Pride, supra, shows our Supreme Court did not consider the issue in that fashion. Instead, the Supreme Court found the term “servicing” used in that case reasonably could be construed to include the following services: “cleaning, waxing, vacuuming, and filling with gasoline.” Id. at 770. Thus, Mr. Pride, supra, does not stand for the proposition Georgia Mutual asserts. Consequently, as nothing in this record shows the Braswell Cleanup Shop ever repaired any vehicle, the question presented is whether a detailing shop that only washes, waxes, and shampoos the interior of the vehicles can reasonably be considered a service station within the meaning of the Georgia Mutual policy. In this regard, neither “repair shop” nor “service station” are anywhere defined in the policy, and coverage in Georgia Mutual’s policy is not defined through use of the term “automobile business” or by certain listed activities, e.g., servicing or repairing. Instead, coverage is defined by the operations of particular kinds of businesses, i.e., an automobile sales agency, repair shop, service station, storage garage, or public parking place. Consequently, this provision differs from those in Mr. Pride, supra, or Smith v. State Farm Mut. &c. Co., 193 Ga. App. 347 (387 SE2d 623): “ ‘(t)here is no coverage for non-owned cars . . . being repaired, serviced or used by any person while that person is working in any car business [,]’ ” and the policy “did not cover the insured vehicle while it is ‘being repaired, serviced or used by any person employed or engaged in any way in a car business.” Moreover, the State Farm policy defined the term “car business” as “ ‘a business or job where the purpose is to sell, lease, repair, service, transport, store or park land motor vehicles or trailers.’ ” Id.

In this case, because a cleanup shop or detailing business is not specified in the policy as one of the businesses denied from coverage, we must consider whether a detailing business or cleanup shop reasonably can be considered a “service station.” The dissent in Mr. Pride of Atlanta v. Metropolitan Property &c. Co., 187 Ga. App. 737, 738-739 (371 SE2d 211), which the majority of our Supreme Court found persuasive, noted that car washes maintained automobiles and thus serviced automobiles just as much as service stations even though car washes did not provide the full range of services provided by a service station. Neither this dissent nor the majority of the Supreme Court, however, found in Mr. Pride that a car wash was a service station. On the contrary, the analyses concluded that car washes were included in the policy’s definition of automobile businesses because they serviced automobiles. Additionally, the dissent found the exclusion was “expressed in a comprehensive serialization of various aspects of that segment of American business which is related to motor vehicles and trailers, and each aspect is one which would embrace a number of different establishments, the term ‘servicing’ should not be construed to excise car-washing from its common meaning.” Id. at 739. The provision in the Georgia Mutual policy, of course, is not expressed in that manner, but instead only lists several specific businesses.

Under these circumstances, we do not find that a car wash is a service station, and we note that any common definition of a service station includes a business that, in addition to whatever other services it might offer, typically sells gasoline. As Braswell Cleanup Shop only washed, waxed, and vacuumed the vehicles and did not sell gasoline, it would be unreasonable to consider the detailing business a service station. If Georgia Mutual wishes to exclude the operation of car washes or detailing shops, it should do so in its policy.

Accordingly, we do not find that the trial court erred in its interpretation of the policy. Since whether the collision otherwise arose from the operations of an automobile sales agency was not addressed by the parties and the enumeration of error was drawn narrowly to cover only repair shops and service stations, we express no opinion on that issue.

Decided December 3, 1992 —

Reconsideration denied December 15, 1992

Smith, Gilliam & Williams, Steven P. Gilliam, Catherine H. Hicks, Bradley J. Patten, for appellant.

McKenney, Jordan & Carey, Jane M. Jordan, Sinnreich & Francisco, John R. Francisco, for appellees.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Andrews, Judge.

text:
    A92A1236.
    PEREZ-MEDINA v. FIRST TEAM AUCTION, INC.
    (426 SE2d 397)
   Andrews, Judge.

Perez-Medina brought this trover action against First Team Auction alleging that First Team Auction refused to relinquish possession of a tractor owned by him. Perez-Medina appeals from the trial court’s order granting summary judgment in favor of First Team Auction, and denying his motion for summary judgment.

Construed in favor of appellant as the party opposing summary judgment, the evidence reflects that Perez-Medina bought the tractor at an auction for $66,500. At the auction, appellant met Julio Lara, who was bidding on the same tractor. At a second auction the same day, appellant purchased certain equipment for the tractor. He met Lara again at the second auction, and the two agreed that Lara would install the equipment on the tractor. With Perez-Medina’s knowledge and consent, Lara took possession of the tractor, and moved it to his place of business for this purpose. About four months later, Perez-Medina went to Lara’s place of business, and paid him $10,000 to install the equipment. Appellant testified that the business where the tractor was located appeared to him to be a repair shop rather than a business dealing in heavy equipment. Other undisputed evidence showed that Lara operated a business in which he regularly bought and sold heavy equipment like the tractor at issue at auctions conducted by First Team Auction and others, and in other business transactions. Subsequently, without appellant’s knowledge or consent, Lara represented to First Team Auction that he was the owner of the tractor free and clear of any liens, and put the tractor up for sale at an auction conducted by First Team Auction. After the auction failed to produce an adequate bid for the tractor, Lara negotiated a sale of the tractor to First Team Auction for about $54,000. The tractor was sold without appellant’s knowledge or consent, and appellant received no part of the sales proceeds. The tractor was thereafter sold by First Team Auction to a tractor dealer, who sold it to a consumer. When the sales were made, neither First Team Auction, nor the subsequent purchasers had any knowledge of appellant’s interest in the tractor. After Lara’s conversion of the tractor was discovered, the subsequent purchasers after First Team Auction returned the purchase price and tractor, culminating in First Team Auction’s return of the purchase price, and acceptance of the tractor back from its purchaser.

OCGA § 11-2-403 provides that: “(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business. (3) ‘Entrusting’ includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescense and regardless of whether the procurement oí- the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law.” Thus, the issue becomes whether Lara was a “merchant” under OCGA § 11-2-104 (1) to whom appellant “entrusted” the tractor within the meaning of OCGA § 11-2-403 (2), (3). If so, then Lara was empowered to transfer appellant’s ownership interest in the tractor to a “ ‘buyer in ordinary course of business’ ” as defined in OCGA § 11-1-201 (9). Accordingly, if First Team Auction retained the status of a buyer in ordinary course of business, appellant cannot prevail in the present trover action because he would lack title or right of possession to the tractor as against First Team Auction. Perimeter Ford v. Edwards, 197 Ga. App. 747, 748 (399 SE2d 520) (1990).

1. In his first enumeration of error, appellant contends the trial court erred by determining that Lara was a “merchant.” A “ ‘[m]erchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction. . . .” OCGA § 11-2-104. The evidence is undisputed that Lara was known by First Team Auction and others as a regular dealer buying and selling heavy equipment. Moreover, appellant met Lara at an auction, where Lara was bidding on the tractor at issue. After meeting Lara again at another such auction the same day, appellant hired him to install equipment on the tractor, and authorized him to take immediate possession of the tractor for this purpose. Appellant contends that Lara is not a “merchant” because he did not know he was a dealer in heavy equipment. This contention is based on his observation of Lara’s place of business, which he visited about four months after placing the tractor in Lara’s possession. Appellant concluded that the business appeared to him to be a place to make repairs, rather than a business dealing in heavy equipment.

The primary rationale behind the entrusting provisions of OCGA § 11-2-403 is aimed at protecting the buyer who purchases the entrusted goods in the ordinary course of business. Simson v. Moon, 137 Ga. App. 82, 85 (222 SE2d 873) (1975). Thus, “the owner takes the risk by placing or leaving his chattel with a merchant of his own choosing who could convert or otherwise misdeal it. . . . The protection afforded the purchaser is merely a special application of the broad equitable principle that where one of two innocent persons must suffer loss by reasons of the fraud or deceit of another, the loss should rightly fall upon him by whose act or omission the wrongdoer has been enabled to commit the fraud.” (Citations and punctuation omitted.) Id. at 85-86. Nevertheless, given that the entrusting provisions of the statute operate only where the goods have been placed with a “merchant,” it is reasonable to conclude that the statute requires, from an objective viewpoint, that the entruster know, or in the exercise of reasonable diligence should know, that he placed the goods with one who might reasonably appear to third persons to be a dealer in the type of goods in question. See Anderson, Uniform Commercial Code, 3d ed., Sales, § 2-403:34. It follows that the entrustment provisions of OCGA § 11-2-403 do not operate in the context of a casual sale, where the entruster places the goods in the possession of one who exhibits no objective indicia of being a dealer in the kind of goods in question.

Here, the record supports the trial court’s conclusion, as a matter of law, that Lara was a merchant dealing in the kind of goods at issue. Appellant met Lara at an auction at which Lara was bidding on the tractor at issue. Appellant later met Lara at a similar auction, agreed for Lara to install equipment on the tractor, and placed the tractor in Lara’s possession. When appellant visited Lara four months later, he contends the place where Lara kept the tractor impressed him as a repair shop. Other undisputed testimony from First Team Auction and others engaged in the buying and selling of heavy equipment, shows that Lara held himself out as a merchant in the business of buying and selling the kind of goods at issue, and regularly bought and sold such goods at auctions and in other business transactions. The evidence established, as a matter of law, that First Team Auction and other third parties knew Lara was a dealer in the type of goods in question, and that appellant knew, or should have known, that Lara might reasonably appear to third parties to be such a dealer.

2. Secondly, appellant argues that he did not “entrust” the tractor to Lara. The trial court also properly concluded that appellant “entrusted” the tractor to Lara as defined by OCGA § 11-2-403 (2), (3). “[S]ubsection (3) [of the statute] specially includes any delivery and acquiescence in possession, and encompasses possession regardless of any condition or limitation expressed between the parties.” (Emphasis in original. Citations omitted.) Perimeter Ford, supra at 749. Under the statute, the tractor was “entrusted” despite the fact that it was piaced in Lara’s possession only for the purpose of installing equipment for appellant rather than for sale. See Simson, supra (after entruster placed truck in possession of dealer for purpose of repairs, dealer’s unauthorized sale of truck to a buyer in the ordinary course of business was effective to convey the entruster’s ownership interest); Christopher v. McGehee, 124 Ga. App. 310, 311 (183 SE2d 624) (1971). Under the statute, “[appellant’s] acquiescence in leaving the [tractor] with [Lara] amounts to an estoppel, which is the underlying principle of [OCGA § 11-2-403 (2) and (3)].” Simson, supra at 85; see Anderson, Uniform Commercial Code, 3d ed., Sales, §§ 2-403:42; 2-403:43 (under the entrustment provisions of OCGA § 11-2-403, it is immaterial why possession of the goods was left with the merchant-seller, or that sale of the goods was not authorized by the entruster); compare Sylvester Motor &c. Co. v. Farmer’s Bank of Pelham, 153 Ga. App. 614, 615 (266 SE2d 293) (1980) (although noting the goods were not “entrusted” to the dealer for sale, the holding appears to ultimately rest on the conclusion that the purchaser from the dealer was not a buyer in the ordinary course of business). Accordingly, Lara was empowered to transfer appellant’s ownership interest to a buyer in the ordinary course of business. Classic Cadillac v. World Omni Leasing, 199 Ga. App. 115, 117 (404 SE2d 452) (1991); Perimeter Ford, supra at 750.

3. In his third enumeration, appellant contends the trial court erred in ruling that First Team Auction was a buyer in the ordinary course of business. A “buyer in ordinary course of business” is defined by OCGA § 11-1-201 (9) as “a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind. ...” The record shows that First Team Auction, which bought, sold and conducted an auction business in goods of this kind, knew Lara was in the business of buying and selling heavy equipment, and had dealt with Lara on a regular basis. There is no evidence that First Team Auction, as a dealer itself, failed to reasonably inquire into Lara’s interest in the tractor, nor do we find any peculiar circumstances about the sale sufficient to raise a question of fact as to whether there was a good faith purchase. See Perimeter Ford, supra at 750. Prior to First Team Auction’s purchase of the tractor, Lara executed a standard pre-auction document declaring that he had ownership interest in the tractor and could sell it free of all liens. There is no requirement that the sale of the tractor be evidenced by a bill of sale or other proof of ownership. See Brown v. Allen, 203 Ga. App. 894, 895 (418 SE2d 153) (1992). As a buyer in the ordinary course of business, First Team Auction received from Lara all of appellant’s ownership interest in the tractor under OCGA § 11-2-403. Perimeter Ford, supra. On the present facts, the risk of the loss caused by Lara’s conversion, as between appellant and First Team Auction, is borne by appellant. See Benton v. Duvall Livestock Marketing, 201 Ga. App. 430 (411 SE2d 307) (1991). Consequently, there was no error in the trial court’s grant of summary judgment in favor of First Team Auction.

Decided December 1, 1992 —

Reconsideration denied December 15, 1992

Dorough & Sizemore, Kermit S. Dorough, Jr., for appellant.

Ben F. Easterlin IV, for appellee.

4. Finally, appellant contends the trial court erred in denying his motion for summary judgment because, even if First Team Auction was a buyer in the ordinary course of business when it originally purchased from Lara, it could not occupy that status when, after learning of Lara’s conversion, it repurchased the tractor from its subsequent good faith purchaser with knowledge of appellant’s interests. By returning the purchase price and reobtaining the tractor, First Team Auction accomplished a rescission of the sale rather than a repurchase, and thus continued to occupy the status of a good faith buyer in the ordinary course of business. See Charles Evans BMW v. Williams, 196 Ga. App. 230, 233 (395 SE2d 650) (1990). The trial court properly denied appellant’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A92A1278.
    BRANSON v. DONALDSON.
    (426 SE2d 218)
   Cooper, Judge.

Appellant, the defendant in this malicious prosecution action, appeals from a judgment entered on a jury verdict for appellee.

Viewed in a light most favorable to the jury verdict, the evidence at trial showed that appellant’s property is crossed by a road which, at the time of the events which form the basis of this action, appellant claimed as private property. Many members of the public, however, including appellee, used the road as a public thoroughfare. One Sunday afternoon in October 1984, Billy Carter invited appellee and his son to drive with him down to the river, as they often did. To get to the river and back, they used the road across appellant’s property. On the return trip, Carter informed appellee he intended to use dynamite to blow up a beaver dam under a bridge on a portion of the road crossing appellant’s property. The dam was causing water to back up on the land of Phillips, appellant’s neighbor and primary antagonist in an ongoing dispute over use of the road and Carter’s friend and sometime employer. Appellee and his son did not want to be involved and insisted that Carter drop them off 100 yards before he reached the bridge. Carter then drove on and proceeded to blow up the dam. Appellant’s son and a friend arrived and engaged in a heated exchange with Carter. Appellee and his son decided to get into the truck and stay out of the fight. As they passed near appellant’s son, he asked for their names, but Carter told him they were not involved in setting off the dynamite.

A warrant was sworn against Carter for criminal damage to property and a hearing was held in November 1984. Appellee accompanied Carter to the hearing, and appellant’s son and his friend identified appellee to appellant as one who was with Carter on the day the dam was blown up. Immediately after the hearing, without talking to anyone else or asking any further questions, appellant had appellee arrested and swore out a warrant charging him with criminal damage to property. Appellant did not inspect the allegedly damaged area before swearing out either of the warrants. Appellee was then taken before the magistrate who, after asking several questions which were answered by Carter’s attorney, bound appellee’s case over for the grand jury and required that he post a $500 bond. Appellee asked appellant several times to dismiss the warrant, but she refused. Appellee was called to appear before a grand jury three times. Eventually, the district attorney told appellee he would not pursue the matter further until appellant showed him some damage to her property, and finally, in February 1988, the charge against appellee was dismissed for insufficient evidence to prosecute. However, having a felony charge pending against appellee for over three years impaired his ability to find work as well as his state of mind. After the prosecution for criminal damage to property was dismissed, appellee filed this action for malicious prosecution. The jury awarded appellee $12,000 in general damages and $23,000 in punitive damages, and appellant appealed.

1. Appellant first contends the trial court erred in failing to direct a verdict for her because appellee’s evidence was insufficient as a matter of law to establish lack of probable cause, malice and a “prosecution,” three essential elements of a malicious prosecution cause of action.

(a) “ ‘ “Probable cause is that apparent state of facts existing after reasonable and proper inquiry; the prosecutor is under a duty of caution and avoidance of haste.” (Cit.) “While a prosecutor need not be fully satisfied of the truth of the charge . . . and is not required to have a sufficient statement of fact to guarantee a conviction, nevertheless, where slight diligence would have . . . shown conclusively that there could be no conviction, whether or not he is guilty of malicious prosecution is a question of fact to be determined by the jury.” (Cit.)’ [Cit.] ‘ “The appearances must be such as to lead a reasonable man to set the criminal proceeding in motion. The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so. . . .” ’ [Cit.]” Bi-Lo v. McConnell, 199 Ga. App. 154, 155-156 (2) (404 SE2d 327) (1991). Although there is evidence in the record indicating that appellant acted on information from her son and his friend that appellee was with Carter at the time of the explosions, there is also evidence indicating that, even though her son and his friend were surprised that their unidentified “suspect” would voluntarily appear at the hearing and even though she could have easily asked appellee for his side of the story before swearing out the warrant, appellant instead acted immediately, without making any further inquiry and without even visiting the site to ascertain whether her property had in fact been damaged. Moreover, there is also evidence that when appellee did explain his side of the story and it became apparent that appellant’s property was not damaged, appellant still refused to withdraw her complaint. Having reviewed the record in a light favorable to the verdict, we conclude rational jurors could find that appellant failed to act reasonably in the underlying prosecution of appellee for criminal damage to property. See Jones v. Parrish, 203 Ga. App. 566 (1) (417 SE2d 210) (1992); Munford, Inc. v. Anglin, 174 Ga. App. 290 (1) (329 SE2d 526) (1985).

(b) “Malice consists in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” OCGA § 51-7-2. Because appellant and appellee had no prior relationship and appellant had nothing against appellee personally, appellant contends appellee did not and could not show malice. As defined in the Code, however, malice may be general as well as personal, and there is evidence in the record showing that appellant bore a general ill will toward anyone who, like appellee, used the road crossing her property without her permission. Rational jurors could infer malice from this evidence.

(c) Appellant’s contention that the proceedings brought against appellee did not rise to the level of a “prosecution” is also without merit. “For purposes of this article, an inquiry before a committing court or a magistrate shall amount to a prosecution.” OCGA § 51-7-42. Contrary to appellant’s contention, the proceeding in which, after appellee’s arrest, he was brought before a magistrate who asked questions and then bound his case over for the grand jury and set bond was an “inquiry,” even though appellee himself did not answer any questions. This is a sufficient “prosecution” to provide the basis for a malicious prosecution action. See Page v. Citizens Banking Co., 111 Ga. 73 (4) (36 SE 418) (1900).

2. In her second enumeration of error, appellant argues that the trial court erred in admitting allegedly irrelevant evidence regarding a controversy between appellant and third parties not directly involved in this action over use of the road across appellant’s property. As discussed above in Division 1 (b), however, evidence regarding this controversy was relevant on the issue of malice, for it gave rise to a permissible inference that appellant harbored a generalized malice toward all who used the road without her permission. Accordingly, the trial court did not abuse its discretion in admitting this evidence. See Dyches Constr. Co. v. Strauss, 192 Ga. App. 454 (4) (385 SE2d 316) (1989).

3. Appellant next argues that the trial court erred in charging the jury that, even if there was probable cause at the instigation of the prosecution, lack of probable cause may be found if the prosecution is continued after the prosecutrix discovers the charge is not well founded. Acknowledging that this charge is a correct statement of the law, appellant nonetheless contends the charge was improper because there was no evidence indicating that the prosecution in the underlying case was “continued.” While it is true that appellant did not push the prosecution forward, it is also true that she refused to ask the district attorney to drop the charges despite appellee’s repeated requests. This is sufficient evidence of continuation to warrant the challenged charge.

4. In her fourth enumeration of error, appellant argues the trial court erred in submitting to the jury the issue of punitive damages. “Recovery in actions for malicious prosecution shall not be confined to the actual damage sustained by the accused but shall be regulated by the circumstances of each case.” OCGA § 51-7-47. “The measure of damages in such cases is the enlightened conscience of impartial jurors. [Cits.] Punitive damages are allowed where the defendant’s act was influenced by malicious motives and was without probable cause.” Atlantic Zayre v. Meeks, 194 Ga. App. 267 (2) (390 SE2d 398) (1990). Appellant’s contention that punitive damages were not supportable because there was no evidence of malice or lack of probable cause is without merit. As discussed in Division 1 (a) and (b), there was sufficient evidence from which rational jurors could infer both lack of probable cause and malice. Accordingly, the trial court did not err in instructing the jury on punitive damages.

5. Lastly, appellant contends the trial court erred in charging the jury that punitive damages could be awarded “to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff. ...” She argues that recovery for wounded feelings is only authorized where recovery is sought under OCGA § 51-12-6, in cases “in which the entire injury is to the peace, happiness, or feelings of the plaintiff.” She cites no support for this contention, however, and it is belied by the language of OCGA § 51-12-5, from which the trial court’s instruction was directly drawn: “In a tort action in which there are aggravating circumstances, in either the act or the intention, the jury may give additional damages to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.” Thus, this contention is also without merit.

Decided November 24, 1992 —

Reconsideration denied December 15, 1992

Groover & Childs, Denmark Groover, Jr., for appellant.

Lane & Jarriel, Walter J. Lane, Jr., for appellee.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.