text:
    A90A1529.
    ELECTRICAL WORKERS HOME ASSOCIATION OF ATLANTA, INC. v. DEPARTMENT OF TRANSPORTATION.
    (401 SE2d 347)
   Carley, Judge.

The relevant facts in this condemnation action are the following: Appellant-Condemnee owns two adjacent city blocks. An office building is located on one block and parking and training facilities are located on the other. Acting pursuant to OCGA § 32-3-1 et seq., appellee-Condemnor filed a separate declaration of taking as to each parcel and deposited its estimates of just and adequate compensation into the registry of court. Being dissatisfied with the estimated amount of compensation, Condemnee appealed pursuant to OCGA § 32-3-14 and the two actions were consolidated for jury trial. Condemnee now appeals from the judgment that was entered by the superior court on the jury’s verdict.

1. Over objection, an expert witness for Condemnor was allowed to give his opinion as to a single aggregate value for both parcels rather than to a separate value for each of the two parcels. This evidentiary ruling is enumerated as error.

We note at the outset that Condemnee’s reliance upon Seckman v. Ga. Power Co., 155 Ga. App. 204 (270 SE2d 328) (1980) is misplaced. The issue presented for resolution is not whether the two parcels are to be considered as contiguous for the purpose of determining the extent of the recoverability of consequential damages. Compare also Georgia Power v. Bray, 232 Ga. 558 (207 SE2d 442) (1974). There was a partial taking of both parcels and the question is whether, in this consolidated proceeding, it was reversible error to allow an expert to testify as to his opinion regarding a single aggregate value of both partially-taken parcels rather than to a separate value for each of the two parcels. The record shows that the expert’s testimony was based upon his opinion that the aggregate value of both partially-taken parcels was greater than the sum of the separate values of each of the two parcels. Accordingly, the expert’s opinion testimony as to value was, in fact, beneficial to Condemnee and it was, therefore, not reversible error to have admitted that testimony. See Department of Transp. v. Arnold, 154 Ga. App. 502 (268 SE2d 775) (1980).

2. It was not error to allow Condemnor’s expert to explain his opinion as to consequential damages. “When a witness is qualified as an expert, it is not necessary that he state the facts on which his opinion is based but he may do so. [Cit.]” Lewis v. State Hwy. Dept., 110 Ga. App. 845, 847 (2) (140 SE2d 109) (1964). The credibility of both the expert’s opinion and the explanation therefor was for the jury.

3. Condemnee attempted to adduce an expert’s opinion that access had been rendered “hazardous” as the result of the configuration of the highway at a point which was some 500 feet from the parcels. Condemnor’s objection to the relevancy of this testimony was properly sustained. Tift County v. Smith, 219 Ga. 68 (131 SE2d 527) (1963). Moreover, the record shows that Condemnee was nevertheless successful in subsequently adducing the irrelevant testimony.

4. It was not error to sustain Condemnor’s objections to certain questions which were propounded to a non-expert witness for Condemnee who had no personal knowledge of the condition of the parcels on the relevant dates of taking. The witness was properly precluded from giving an opinion as to the conditions of the parcels which she had formed entirely upon inadmissible hearsay. Marshall v. Pierce, 136 Ga. 543 (3) (71 SE 893) (1911).

5. The refusal to give one of Condemnee’s requested instructions is enumerated as error. Although the instruction expressed legal principles which were not otherwise adjusted to the facts of the case, the record shows that the substance thereof was nevertheless presented to the jury in the charge as given by the superior court. Accordingly, there was no reversible error.

Judgment affirmed.

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

Decided January 17, 1991.

Wall & Noonan, W. Alford Wall, for appellant.

Charles C. Pritchard, Michael J. Bowers, Attorney General, for appellee.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    A90A1565.
    BRANCH et al. v. WESAV FINANCIAL CORPORATION.
    (401 SE2d 569)
   Carley, Judge.

The relevant facts in this dispossessory proceeding are as follows: Appellant-defendants entered into a contract to purchase a mobile home. Although the sale was conditional upon appellee-plaintiff’s approval of appellants’ credit application, the mobile home was nevertheless delivered to appellants before that condition had been satisfied. When appellants’ credit application was subsequently disapproved, appellee demanded the return of the mobile home. Appellants refused the demands and appellee initiated this dispossessory proceeding pursuant to OCGA § 44-7-50 et seq. The trial court granted appellee a writ of possession and appellants appeal.

“Under [OCGA § 44-7-50], before the plaintiff is entitled to recover, he must show that the defendant is in possession of the premises as his tenant. [Cits.]” Williams v. Stark, 75 Ga. App. 668, 669 (1) (44 SE2d 300) (1947). “[T]he relationship of landlord and tenant must exist before a dispossessory hearing can be held under OCGA § 44-7-50 et seq. . . .” Stevens v. Way, 167 Ga. App. 688, 690 (5) (307 SE2d 507) (1983). “The relationship of landlord and tenant is created when the owner of real estate grants to another person, who accepts such grant, the right simply to possess and enjoy the use of such real estate either for a fixed time or at the will of the grantor.” OCGA § 44-7-1 (a). Although appellee relies upon a contract to evidence its relationship with appellants, it is not a contract for the lease of real property. The contract is a conditional contract for the sale of personal property. Appellants have never been tenants of any realty that is owned by appellee, but are merely in possession of an item of personalty the title to which never passed to them under the terms of the conditional sales contract. It follows that the trial court erred in granting appellee a writ of possession. See Sanders v. Hughes, 183 Ga. App. 601, 602 (1) (359 SE2d 396) (1987). Appellee’s remedy for the return of its personalty is an action in trover pursuant to OCGA § 44-12-150 et seq. See generally Binion v. Ivester, 185 Ga. App. 759 (365 SE2d 515) (1988).

Judgment reversed.

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

Decided January 17, 1991.

Griner & Alderman, Elsie H. Griner, for appellants.

Alan H. Swan, for appellee.


author: McMurray, Presiding Judge.

text:
    A90A1837.
    In the Interest of D. R. C., a child.
    (401 SE2d 754)
   McMurray, Presiding Judge.

This is an appeal by the natural mother from an order of the juvenile court terminating her parental rights to her minor son. The case has been before this Court on appeal from a previous termination order which was reversed in In the Interest of D. R. C., 191 Ga. App. 278 (381 SE2d 486). This Court held therein that the State’s petition failed to provide any of the facts upon which it was predicated, and also failed to comply with OCGA § 15-11-82 (c) in failing to state clearly that the effect of the order of termination of parental rights would be as set forth in OCGA § 15-11-80. Upon remand, the Georgia Department of Human Resources filed the instant petition for termination of appellant’s parental rights, which was granted after a hearing on January 18, 1990, and from which the present appeal is brought. Held:

1. Appellant contends that the State failed to adequately notify her as to what allegations were being made to prove her “parental misconduct or inability” as well as the child’s current “deprived” condition. She argues that while the petition makes sweeping references to past facts from the previous transcript, it does not show of what parental misconduct she is presently guilty.

On January 10, 1990, the juvenile court conducted a pretrial hearing, with the attorneys for the Department of Human Resources, appellant and the child’s guardian ad litem present, at which it was stipulated that the transcript from the previous trial would be admissible. After considering the petition and appellant’s answer and hearing argument of counsel, the court found that the petition was legally sufficient.

The petition alleged that appellant was a habitual abuser of Dilaudid, a strong painkiller similar to synthetic heroin. Her child was born on February 8, 1985, and held for some time for observation at the hospital for possible drug withdrawal problems. He was placed in the custody of the Department of Human Resources in August 1985 and put in emergency foster care because appellant was in prison. Appellant regained custody in September 1985, but the child was placed again in foster care in February of 1986 when appellant was incarcerated again. Appellant was incarcerated at the time the child initially came into the custody of the Department of Human Resources, and at all three custody review sessions. Her only contact with the child since February of 1986 occurred on December 30, 1986, when she abducted the child after having twice made appointments to visit him which she failed to keep. She also failed to appear in the United States District Court for sentencing on that date. The Department of Human Resources obtained a warrant for her arrest for interference with custody and notified all the police agencies, but they did not locate the child until some ten months later. He had been living with a series of appellant’s acquaintances who did not know her whereabouts. The child was found with a stranger with whom he had been left, who did not even know his name, except through a television news segment concerning “an unknown abandoned child” in need of identification.

At the time the petition was filed the mother was in federal prison in Kentucky, although two days before the hearing she was transferred to a halfway house located in Atlanta to serve the remainder of her sentence. She has been convicted of a plethora of drug related crimes and testified at the hearing that while she was trying to rehabilitate herself, she would always be addicted' to drugs. Neither she nor the child’s putative father supported the child while he was in the temporary custody of the Department of Human Resources, nor paid any child support.

We conclude that the petition contained specific allegations of facts indicating both appellant’s history of misconduct and deprivation of the child as well as her present inability to parent, which was supported by the evidence presented at the hearing and more than met the requirements of OCGA § 15-11-25. “There being clear and convincing evidence in the record to support the juvenile court’s termination of appellant’s parental rights, this enumeration is without merit. [Cit.]” In the Interest of J. A. B., 189 Ga. App. 79 (1), 80 (374 SE2d 839). Accord Wynn v. Dept, of Human Resources, 149 Ga. App. 559 (1) (254 SE2d 883).

2. Appellant complains that the juvenile court erred in admitting inadmissible hearsay testimony from a psychologist regarding statements made to her by the child. She argues that if the child’s statements were admissible under OCGA § 24-3-16 as an expression of child abuse, it was necessary for the judge to conduct a hearing to determine whether there existed any indicia of reliability surrounding the statements made by the child, which was not done. We do not agree. “The Georgia Supreme Court, in Reynolds v. State, 257 Ga. 725 (2) (363 SE2d 249), decided this issue adversely to appellant, by holding that ‘OCGA § 24-3-16 does not require a hearing to determine “indicia of reliability” be held prior to receiving the testimony . . . (and) we cannot say that failure to do so in this case was error. . . .’ The trial [court] is presumed to know the law [cit.] and presumed to ‘faithfully and lawfully (perform) the duties devolving upon it by law.’ [Cit.] Hence, implicit in any ruling by a trial court is that [it] made the necessary finding of admissibility before admitting such evidence.” Windom v. State, 187 Ga. App. 18, 19 (2) (369 SE2d 311).

3. Appellant asserts that in the termination hearing the court improperly considered its previous orders finding deprivation, because these orders were based upon written allegations without support from any sworn testimony and without a hearing on temporary custody. She protests that the court went beyond consideration of mere records or ministerial orders on file with the court as approved in Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107), and incorporated a previous order based upon facts known only to the court to which appellant had no opportunity to respond.

The findings that appellant objects to were appended by a nunc pro tunc order to a previous deprivation order from which they had been inadvertently omitted by a clerical error. Appellant made no objection to the correction and did not appeal the order either before or after it was amended, but now insists that a second evidentiary hearing should have been held prior to correction of the order. However, “any objection on this ground has been waived. [Cits.]” In the Interest of J. L. Y., 184 Ga. App. 254, 258 (3) (361 SE2d 246).

4. Appellant challenges the sufficiency of the evidence to warrant termination of her parental rights, contending that there was no showing that the child was presently deprived or that such deprivation was likely to continue. The juvenile court stated in its termination order that it found from clear and convincing evidence all attempts to locate the putative father or to find a suitable family member with whom to place the child had been unsuccessful; that appellant had abandoned him and failed to provide for his care and support as required by law; that appellant was guilty of excessive use of and a history of unrehabilitated abuse of narcotic and dangerous drugs and controlled substances; that the effect of these renders her incapable of providing adequately for the physical, mental, emotional and moral conditions and needs of the child; that she had been convicted of felonies and imprisoned therefor, which had a demonstrable negative effect on the quality of the parent-child relationship; that appellant was guilty of parental misconduct or inability in that the child was deprived, the cause of his deprivation being the lack of proper care and control by appellant; that the cause of the deprivation was likely to continue or was not likely to be remedied; and that the continued deprivation would cause or was likely to cause serious physical, mental, emotional and moral harm to the child. The court further found that the child’s putative father had failed to form a familial bond with the child or to legitimate him, and that an order had previously been entered terminating the putative father’s rights. The court concluded that since the Department of Human Resources had made an exhaustive and thorough search for a family member with whom to place the child and found no one suitable, his temporary and permanent custody was placed and continued with the Department of Human Resources for the purpose of placing the child for adoption.

Decided January 17, 1991.

Larry L. Duttweiler, for appellant.

Joseph E. Cheeley III, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

“In this case there is evidence of appellant’s lengthy and continued neglect of this child. A ‘lengthy and continuing neglect of . . . children, is sufficient to authorize the termination of appellant’s parental rights’ at least when coupled with some other significant factor. [Cit.] Moreover, parental unfitness supporting a termination of parental rights can be caused ‘ “ ‘either by intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child.’ ” ’ [Cit.] In this regard, OCGA § 15-11-81 (b) (4) (B) (i) provides that in determining whether the child is without proper parental care and control the court shall consider certain medically verifiable deficiencies of the parent’s mental or emotional health. The resulting deprivation, however, must be shown ‘ “ ‘likely to continue and likely to cause serious harm to the child.’ ” ’ [Cit.]” In the Interest of E. P. N., 193 Ga. App. 742, 747-748 (2c) (388 SE2d 903).

Clearly, appellant’s habitual drug use, commission of crimes and resulting incarcerations provided the necessary element of continued deprivation and authorized the finding that remaining in appellant’s custody would be likely to cause serious harm to the child. “ ‘ “ ‘The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review ... is not met.’ ” ’ [Cit.] ‘ “(T)he appropriate standard of appellate review . . . is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . .” ’ [Cits.] We find that the evidence in this case could be so viewed, and that no basis exists for reversing the judgment of the juvenile court. [Cits.]” In the Interest of E. P. N., 193 Ga. App. 742, supra at 748. Accord In the Interest of J. A. B., 189 Ga. App. 79, supra; In the Interest of A. T., 187 Ga. App. 299 (1) (370 SE2d 48).

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.


text:
    A90A1942.
    BROWN v. THE STATE.
    (401 SE2d 568)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, with permitting an unauthorized minor to drive a motor vehicle. The case was tried before a jury and Officer Tim Pafford of the Ware County Sheriff’s Department testified that on April 17, 1989, he investigated a traffic accident on a public road in Ware County and discovered that defendant’s child was the driver of the wrecked vehicle. Officer Pafford further testified that he went to defendant’s home, informed defendant of the collision and told defendant that “his children were en route to the hospital.” Officer Pafford then testified that defendant “made a statement . . . that he had let the boy drive the car to go to Pogo Foods at Carswell and South Augusta, which is a half a mile from [defendant’s] residence.”

Defendant’s son, who was 16 years of age on the day of the collision, testified that he drove an automobile without a driver’s license on April 17, 1989; that he asked his father for permission to drive; that defendant “wasn’t feeling good [and] was still half asleep . . .” when he inquired and that “it sounded like [defendant] said yes.” Defendant was found guilty of the offense charged and this appeal followed the denial of his motion for new trial. Held:

1. In his first and third enumerations, defendant challenges the sufficiency of the evidence and also contends that “the uncorroborated alleged confession by [defendant] did not justify a conviction.”

“The amount of evidence necessary to corroborate a confession is left entirely within the province of the jury and corroboration in any material particular satisfies the requirements of the law. Gilder v. State, 219 Ga. 495, 498 (2) (133 SE2d 861); Morrison v. State, 157 Ga. App. 405, 406 (278 SE2d 60); Griswold v. State, 159 Ga. App. 22, 23-24 (3) (282 SE2d 679); Owens v. State, 157 Ga. App. 198 (276 SE2d 873); Cunningham v. State, 248 Ga. 835, 837 (3) (286 SE2d 427).” Reynolds v. State, 168 Ga. App. 555 (1) (309 SE2d 867). In the case sub judice, defendant’s son’s corroborating testimony that his father gave him permission to drive on the day of the collision corroborated Officer Pafford’s testimony of defendant’s admission. This evidence and Officer Pafford’s testimony that defendant did not appear to be ill or sleepy when he admitted to allowing his son to drive was more than sufficient evidence to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided January 17, 1991.

James A. Yancey, Jr., for appellant.

Douglas L. Gibson, Solicitor, for appellee.

2. In his second enumeration, defendant contends the trial court erred in charging as follows: “You are only concerned, however, with the guilt or innocence of the defendant. You are not to concern yourselves with anything concerning punishment. That is a matter for the court, and the responsibility of the court.” Defendant argues that this jury instruction “may have left the jury with the impression that it was to find [defendant] guilty, so that the court would sentence him.” Defendant also argues that “[t]he jury may have further considered that the court presumed [defendant] guilty and that, it, not the jury would set sentence.” These arguments are without merit.

The trial court’s instruction is an accurate statement of the law. See Wilson v. State, 233 Ga. 479, 482 (8) (211 SE2d 757). Further, the instruction is not misleading, but is sufficiently clear to be understood by jurors of ordinary understanding. Lovell v. State, 189 Ga. App. 311 (1), 312 (375 SE2d 658). This enumeration is without merit.

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A90A1984.
    QUICK v. THE STATE.
    (401 SE2d 758)
   McMurray, Presiding Judge.

Defendant Quick appeals his convictions of two counts of armed robbery, two counts of aggravated assault, and one count of possession of a firearm during commission of a felony. Held:

1. The first enumeration of error complains of the trial court’s denial of motions for mistrial predicated on the district attorney’s cross-examination of defendant. However, following defendant’s refusal to answer certain questions the trial court, acting on the State’s motion to strike, directed the jury to disregard every question that had been asked of defendant and to disregard every answer given by defendant. The grant of the motion to strike defendant’s testimony has not been enumerated as error. Furthermore, defendant did not renew his objection following the instructions to the jury. Under these circumstances, even if the State’s questions were improper, the error was cured by the trial court’s instructions. Hilburn v. State, 166 Ga. App. 357, 358 (2) (304 SE2d 480).

2. The second enumeration of error contends the jury improperly considered certain extra-record evidence. In support of defendant’s motion for mistrial on the grounds that evidence which had not been admitted was sent out with the jury, defendant elicited testimony of the bailiff of the trial court. This testimony and colloquy of the court and counsel show that apparently the prosecutors were in possession of three bags containing items relevant to the case sub judice. Some of these items had been introduced into evidence and some had not. At the end of the first day of trial all of the items were consolidated into one paper bag for overnight storage. The following day, the jury became conscious that the paper bags contained items which had not been present during the trial. When the bailiff delivered to the jury the exhibits, which had been admitted into evidence, jurors requested access to the remaining items in the bag but were told by the bailiff, pursuant to the trial court’s direction, that they had been provided with all that the law allowed. The trial court overruled defendant’s motion for mistrial. Then the jury, through its foreperson, inquired of the trial court concerning access to the remaining contents of the paper bag. The trial court responded that the sack was not placed in evidence, that the only thing placed in evidence was a jacket which was carried in the bag, and that the jury was not to be concerned with anything that may have been in the bag except the jacket. At this point, the foreperson disclosed that a list of items found in defendant’s pocket (the list consisted of jewelry, $25 cash, a pen, and a syringe) had gone out with the jury. The list was recovered from the foreperson and the jury was directed to “forget the list.” Defendant renewed his motion for mistrial.

“Where a motion for mistrial is made on the ground of inadmissible evidence illegally placed before the jury, the corrective measure to be taken by the trial court is largely a matter of discretion, and where a proper corrective action is taken and no indication of an abuse of that discretion appears, the refusal to grant a mistrial is not error. Osteen v. State, 83 Ga. App. 378, 381 (63 SE2d 692).” Waters v. State, 168 Ga. App. 918, 920 (310 SE2d 774). See also Jones v. State, 139 Ga. App. 643 (1), 644 (229 SE2d 121). In view of the corrective actions taken by the trial court, there does not appear to be any reasonable possibility that the list, which was briefly placed in possession of the jury, contributed to defendant’s conviction. See Bobo v. State, 254 Ga. 146 (327 SE2d 208).

3. The trial court’s charge to the jury stating the substance of OCGA § 16-2-6 was not improper or burdenshifting in violation of Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39). See Wilson v. Jones, 251 Ga. 23 (1) (302 SE2d 546).

4. The fourth enumeration of error complains of the denial of defendant’s motion for discharge and acquittal under OCGA Title 42, Chapter 6. First, we note that insofar as defendant’s motion sought to rely upon the provisions of OCGA § 17-7-170, such is unfounded as there was no demand for speedy trial made in the trial court. Hunley v. State, 105 Ga. 636 (31 SE 543). Insofar as defendant’s motion seeking acquittal was predicated upon an alleged failure to try defendant within two terms of a request by defendant pursuant to OCGA § 42-6-3 (a), the motion was properly denied since the only sanction provided for the’ State’s failure to comply with the requirements of OCGA § 42-6-3 (a) is that the detainers based upon pending indictments or accusations shall be stricken or dismissed.

5. Defendant’s final enumeration of error complains of the denial of his motion for mistrial predicated on communications in the courtroom between the sheriff and several jurors during a recess in the case. “Where an unauthorized contact or communication is made to a juror, a valid conviction is not otherwise vitiated unless the defendant was actually prejudiced by the communication. [Cits.]” Dudley v. State, 179 Ga. App. 252, 255 (3) (345 SE2d 888) (1986). “[W]here such an improper communication occurs, there is a presumption of harm and the burden is on the State to show the lack thereof. [Cits.]” Jones v. State, 258 Ga. 96 (366 SE2d 144).

In the case sub judice, the State presented the testimony of the sheriff that the topic of the conversation at issue was the poultry business, a subject having no relevance to the case sub judice, and that no mention was made of the case sub judice. The trial court was authorized to conclude that the State had satisfied its burden to show lack of harm to defendant. Jones v. State, 258 Ga. 96, supra.

Judgment affirmed.

Sognier, C. J., and Carley, J., concur specially.

Sognier, Chief Judge,

concurring specially.

I concur fully in the judgment, but write specially in regard to Division 2. The transcript reveals that jewelry, currency, an ink pen, and a syringe (items found in appellant’s possession when taken into custody) were inadvertently left in the bottom of a bag containing the State’s exhibit of appellant’s jacket. A list itemizing these extra items was attached to the bag. These items were removed from the jury when the mistake was discovered. The foreperson of the jury then asked the trial judge about the items and was told that the items were not offered into evidence, that they did not go out with the jury, and that the jury was “not concerned with anything that may have been in the bag except the jacket.” When the foreperson argued with the trial judge over whether the items had been admitted, the trial judge strongly admonished the jury that only the jacket was admitted into evidence and that they were not to concern themselves with the other items. When the foreperson later repeated the jury’s question about the contents of the sack, the trial judge instructed them, “Let me put it to you as concise and as distinct and plain as I know how under the law. Insofar as the paper bag is concerned, you are not to concern yourselves with anything except the jacket, regardless of what was in the bag, if anything was in the bag. Whatever was in the bag, you’re not concerned with it. You’re concerned with only that evidence that was delivered to you in the jury room.” In response to the foreperson’s inquiry about the list on the bag, the trial judge stated he did not know why the list went out with the jury, then told the jury twice to forget about the list.

The transcript supports the appellant’s contention that the jury displayed more than a casual interest in the items mistakenly submitted to them and raises questions as to the efficacy of the trial court’s instructions to the jury to disregard those items. However, pretermitting the issue whether appellant waived any objection to the jury’s contact with the list on the bag, even conceding that error was committed when the jury was allowed to come into contact with both the list and the items in the State’s exhibit, that error was harmless in view of the overwhelming evidence of appellant’s guilt. As established at trial, appellant entered the service station operated by Horace Logan and robbed both Logan and his assistant, Andy England, at gunpoint. Appellant then forced the two men outside, still at gunpoint, at which time Logan’s nephew and another man drove up to the service station. The arrivals, alerted by Logan’s shouts, took cover as appellant fired two shots at them. Logan attacked appellant as he was shooting at the arrivals. In the fight appellant struck Logan repeatedly with the gun. The gun was dislodged from appellant’s hand, and he fled to the nearby woods. Logan, unaware appellant was unarmed, retrieved his own gun and with his nephew unsuccessfully tried to find appellant. Returning to the service station, Logan managed to bluff appellant into surrendering by claiming the woods were surrounded. Logan and the other men then held appellant until police arrived. The money taken from Logan and England was found in appellant’s possession, and Logan and the other men at the service station all positively identified appellant as the perpetrator of the charged crimes.

Applying the standard set forth in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), it is highly probable that any error in allowing the jury to come into contact with the items in the State’s exhibit did not contribute to the jury’s verdict. See also Wilson v. State, 145 Ga. App. 33, 35-36 (6) (243 SE2d 304) (1978); Brooks v. State, 236 Ga. 108 (223 SE2d 79) (1976). Therefore, I concur in the majority’s affirmance of appellant’s conviction.

I am authorized to state that Judge Carley joins in this special concurrence.

Decided January 17, 1991.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, for appellee.


text:
    A90A2139.
    GRANT et al. v. THE STATE.
    (401 SE2d 761)
   McMurray, Presiding Judge.

Via a two-count indictment, Harvey Lee Grant, Thomas Doe, Herbert Grant and Gregory Hodges a/k/a Meaty Treaty, were charged with selling cocaine in violation of the Georgia Controlled Substances Act. Specifically, in Count 1 of the indictment, Harvey Lee Grant and Thomas Doe were accused of selling cocaine on June 5, 1989, to Cecil Hutchins; in Count 2 of the indictment, Harvey Lee Grant, Herbert Grant and Gregory Hodges were charged with selling cocaine on June 14, 1989, to Andre Cooper in violation of the Georgia Controlled Substances Act.

Gregory Hodges entered a guilty plea; the remaining defendants entered not guilty pleas and were tried by a jury. The jury found the remaining defendants guilty as charged. Following the imposition of sentence and the denial of their motion for a new trial, defendants Herbert Grant, Thomas Doe and Harvey Lee Grant appeal.

Viewing the evidence in a light favorable to the State, as we are bound to do, we find the following: On June 5, 1989, Special Agent Cecil Hutchins of the Georgia Bureau of Investigation (“GBI”) and Andre Cooper, an informant, were working undercover in Glennville, Georgia. They drove to a club and saw Harvey Lee Grant standing outside. Harvey Lee Grant walked over to the automobile and the informant asked about a “deal.” A deal was struck and someone brought a “package” to Harvey Lee Grant. At that point, Harvey Lee Grant handed four rocks of cocaine to the informant; the informant passed the rocks along to the agent; and Harvey Lee Grant was given $400.

Thomas Doe walked up to Harvey Lee Grant and took the money out of his hands. Doe and Harvey Lee Grant walked about five feet away. Doe “fumbled” through the money and gave it back to Harvey Lee Grant who put it in his pocket.

On June 14, 1989, Special Agent Hutchins and Andre Cooper returned to Glennville and spotted Harvey Lee Grant near the same club. They asked if they could buy more drugs and were told to return in 15 minutes. The agent and informant drove around the block and parked. Harvey Lee Grant, accompanied by a group of young males, approached the automobile. Harvey Lee Grant motioned to several of the young males to circle the automobile. When the automobile was surrounded, Harvey Lee Grant accused the special agent of being with the GBI. The agent denied the accusation and Harvey Lee Grant asked Herbert Grant if the special agent was the person he had seen in the area earlier and if the special agent was with the GBI. Herbert Grant replied: “Yes, this is him . . . He’s the bust man.”

The special agent and the informant argued with the young men and insisted that the special agent was not with the GBI. Herbert Grant and Thomas Doe were arguing the point with the special agent and the informant.

Harvey Lee Grant told the informant to get out of the automobile. When he did, the young men circled around him and continued their accusations. Finally, someone in the crowd vouched for the informant. A that point, the special agent instructed the informant to get back in the automobile and he told Harvey Lee Grant to “forget it.” Harvey Lee Grant said “no,” and banged on the automobile. He told the special agent to give the informant the money and wait in the automobile. In this regard, he explained: “You’re gonna have to give the money to Andre. Andre’s gonna go with me behind a building where you can’t see anything. That way you can’t testify in court, you can’t arrest me on anything ‘cause you didn’t see anything.”

The informant and Harvey Lee Grant walked behind the club. Herbert Grant and Gregory Hodges remained with the special agent. Herbert Grant and Gregory Hodges continued to make accusations against the agent. Then Herbert Grant and Gregory Hodges also went behind the club.

The informant returned to the automobile and handed the special agent 12 small rocks of cocaine. In short order, they drove off. Held-.

1. Each defendant contends the evidence is insufficient to support his conviction beyond a reasonable doubt. We disagree.

(a) As to the two cases against Harvey Lee Grant, he is positively identified as the person who sold the cocaine on June 5, 1989, and on June 14, 1989. The evidence was sufficient to enable a rational trier of fact to find defendant Harvey Lee Grant guilty of the offenses charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Wilson v. State, 193 Ga. App. 183 (387 SE2d 413).

(b) OCGA § 16-2-20 provides, in part: “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” “While this Code section does not use the word ‘conspiracy’ it is plain that it embodies the theory of conspiracy insofar as it renders one not directly involved in the commission of a crime responsible as a party thereto.” Scott v. State, 229 Ga. 541, 543 (1), 544 (192 SE2d 367); Hamby v. State, 158 Ga. App. 265 (2) (279 SE2d 715).

Decided January 17, 1991.

Hugh J. McCullough, for appellants.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

“ ‘The question of the existence of a conspiracy is ultimately for the jury to determine. (Cit.) The existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence.’ [Cit.] It may be shown by conduct as well as by direct proof or express agreement, by inference as well as deduction from conduct which shows common design on the part of persons charged to act together for the accomplishment of the unlawful purpose. [Cit.]” Brown v. State, 177 Ga. App. 284, 295 (9) (339 SE2d 332).

In light of the conduct of Thomas Doe at the sales made on June 5, 1989, and June 14, 1989, and the conduct of Herbert Grant at the sale made on June 14, 1989, we deem the evidence sufficient to enable a rational trier of fact to find Thomas Doe guilty of selling cocaine on June 5, 1989 and Herbert Grant guilty of selling cocaine on June 14, 1989 beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Boatwright u. State, 193 Ga. App. 141 (1) (387 SE2d 386).

2. Defendants contend the trial court erred in permitting the special agent to testify that (1) he feared Gregory Hodges was carrying a weapon at the June 14, 1989, sale because he had a bulge in his pants and that (2) Harvey Lee Grant was sporting a similar bulge. We find no error. The evidence was relevant to explain the unusual circumstances behind the June 14, 1989, sale of cocaine. See McKeever v. State, 196 Ga. App. 91, 94 (5) (395 SE2d 368).

Judgment affirmed.

Sognier, C. J., and Carley, J., concur.


text:
    A90A2196.
    MARTHAME SANDERS & COMPANY et al. v. BUCKHEAD ELECTRIC COMPANY, INC.
    (401 SE2d 570)
   McMurray, Presiding Judge.

Buckhead Electric Company, Inc., brought suit against Marthame Sanders & Company (“Marthame Sanders”) and John H. Hartley, Jr., in the Superior Court of Fulton County. Plaintiff alleged that, pursuant to a contract with Marthame Sanders, it provided labor and materials to improve certain property owned by Hartley; that it had not been paid for the labor and materials; and that it filed a claim of lien against the property. Plaintiff sought (1) a monetary judgment against Marthame Sanders and (2) a special lien against Hartley’s property. Defendants answered the complaint and set forth various affirmative defenses, including a demand for arbitration. Subsequently, plaintiff and defendants agreed to stay the case pending the arbitration of plaintiff’s claim against Marthame Sanders. The arbitrator entered an award against Marthame Sanders in the amount of $12,618.62. On May 7, 1990, judgment was entered in accordance with the award. In entering judgment, however, the court made it clear that it was only adjudicating plaintiff’s case against Marthame Sanders; no action was taken with regard to plaintiff’s claim of lien against the property. In the words of the court: “This matter is not closed as the claim of lien of the Plaintiff remains against the Defendant owner, John H. Hartley, Jr.” Held:

Decided January 17, 1991.

Smith, Currie & Hancock, Ronald G. Robey, McGee & Oxford, Clifford Oxford, Ray S. Smith III, for appellants.

McReynolds & Boyd, J. Michael Welch, Frederic S. Beloin, Gomel & Davis, Jed S. Beardsley, for appellee.

This appeal was filed prematurely as the case remains pending below in view of the reservation of a ruling upon the claim of lien issue. Thus, the judgment was not final and the appeal must be dismissed. See Terry v. Cochran, 176 Ga. App. 51 (335 SE2d 304) (1985); English v. Tucker Fed. Savings &c. Assn., 175 Ga. App. 69 (332 SE2d 365) (1985).

Appeal dismissed.

Sognier, C. J., and Carley, J., concur.


author: Pope, Judge.

text:
    A90A2212.
    HUDSON v. THE STATE.
    (401 SE2d 571)
   Pope, Judge.

Defendant Harold Curtis Hudson was indicted for five counts of conversion of payments for real property improvements in violation of OCGA § 16-8-15. The jury found him guilty on two counts and he was sentenced to serve ten years on probation, pay restitution to the victim plus court costs at the rate of $200 a month, and ordered to perform 300 hours of community service work. He appeals from the verdict and judgment thereon.

1. Defendant contends the trial court erred in overruling his motion for new trial because the weight of the evidence was contrary to the verdict. The evidence showed defendant contracted to build a house for Mr. and Mrs. Alan Ponders at an estimated construction cost of $114,000. After work began in October of 1988, the first payment of $10,000 was made on November 28, 1988, which defendant told Ponders would cover payments for the foundation, blocks and labor. When Ponders made the next payment of $14,000 on December 22, 1988, defendant told him it would be used to pay for materials supplied by Bradley Builders and labor for framing the house. Ponders made another payment of $10,000 on January 6, 1989, after 35 percent of the project was complete. The final payment, consisting of two checks totalling $15,000, was made on January 30 when the house was 42 percent completed. Although the bank would approve only a $10,000 draw from the construction loan, Ponders wrote a second check for $5,000 due to defendant’s insistence that more money was needed to pay for materials and labor used on his property, including Bailey Plumbing & Electric and Southern Wholesalers. After that time Ponders could not find defendant at the building site, even though he checked it as often as 12 times a day. When he finally did locate defendant at his home, he assured Ponders he was in no financial trouble. However, on February 16, 1989, defendant filed for Chapter 7 bankruptcy protection. Subsequent thereto, three material-men’s liens and one labor lien were filed against the Ponderses’ property under construction.

At the time he filed bankruptcy, defendant had several other projects under construction, against which various liens were filed. On the same day he filed the bankruptcy petition, defendant executed a builder’s affidavit for an addition to a house owned by Gary Jackson attesting that all materials and labor had been paid. Under cross-examination, defendant admitted that he “was not aware” whether or not such bills had actually been paid. According to the accountant for Bradley Builders, defendant made no payments for the Ponders job and the last payment he made to Southern Wholesalers for any of his construction accounts was November 21, 1988. Under cross-examination defendant was uncertain whether he had ever used funds from his construction company account to pay personal debts. However, the joint personal bank account maintained in his and his wife’s names listed 14 insufficient funds charges on the December 1988 statement, and none on the January 1989 statement. Also, numerous cash withdrawals were made from and personal checks were drawn on defendant’s business account during the months the Ponderses’ checks were deposited, totalling $17,791 in funds unaccounted for. The jury found defendant guilty of converting payments for real property improvements that were due to Bradley Builders and Southern Wholesalers.

Decided January 18, 1991.

E. Crawford McDonald, Jeffrey J. Dean, Gregory H. Kinnamon, for appellant.

“The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight. We find that a rational trier of fact could find from the evidence adduced at trial proof of [defendant’s] guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Citations and punctuation omitted.) Bonner v. State, 192 Ga. App. 721 (1) (386 SE2d 379) (1989). See Stowe v. State, 163 Ga. App. 535 (295 SE2d 209) (1982). Compare Teston v. State, 194 Ga. App. 324 (1) (390 SE2d 437) (1990).

2. Defendant complains that the trial court erroneously admitted evidence of similar transactions involving conversion of payments for real property improvements between defendant and other individuals. He argues that presenting evidence of these transactions for which he was not charged was too confusing to the jury and unduly prejudicial, because they were so similar it was impossible to know if the jury found him guilty of the crimes charged or the similar transactions.

We find no merit in this contention. The evidence was ruled admissible at trial because it showed defendant had also converted payments made by other people who had hired him to make improvements to their property during the same time period. The trial court twice instructed the jury that this evidence was being allowed solely for the purpose of illustrating defendant’s state of mind, motive, intent, good or bad faith, scheme, course of conduct, etc., and for nothing else. Evidence of this nature is admissible only if there is sufficient similarity or connection between the independent transactions and the offense charged. See Flanagan v. State, 193 Ga. App. 408 (2) (388 SE2d 29) (1989). As pointed out by defendant, that was clearly the case here where the independent transactions involved substantially the same subcontractors and materialmen, the liens were filed on the property by either Bradley Builders or Southern Wholesalers, and all of the conversions were committed by defendant in late 1988.

“In the instant case, the [independent transactions] evidence was introduced for a limited evidentiary purpose, as to which the trial court instructed the jury. The [defendant’s] identity as the perpetrator of the independent [transactions] was established. ... We agree with the trial court that a sufficient similarity existed between the crime charged and the other [transactions], such that proof of the latter tended to prove the former. [Cit.] We find no error.” Terry v. State, 259 Ga. 165, 169 (377 SE2d 837) (1989).

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Jack 0. Partain III, District Attorney, David T. Blackburn, Kermit N. McManus, Assistant District Attorneys, for appellee.


text:
    A89A1526.
    BENTON v. DAVID ALLEN COMPANY, INC.
    (402 SE2d 554)
    Decided January 22, 1991.

      Downing, McAleer & Gaskin, James E. McAleer, Mark H. Johnson, for appellant.

      Barrow, Sims, Morrow & Lee, Jordan D. Morrow, for appellee.
   Carley, Judge.

In Benton v. David Allen Co., 193 Ga. App. 789 (388 SE2d 878) (1989) , we reversed the grant of summary judgment in favor of appellee-defendant, holding that we were bound by the Supreme Court’s opinion in Powell v. Ledbetter Bros., 251 Ga. 649, 651 (3) (307 SE2d 663) (1983). On certiorari, the Supreme Court reversed, agreeing that its opinion in Powell v. Ledbetter Bros., supra, was otherwise controlling in the instant case, but nevertheless holding that Powell should be overruled. David Allen Co. v. Benton, 260 Ga. 557 (398 SE2d 191) (1990) . Accordingly, our original judgment of reversal in the instant case is hereby vacated and the judgment of the Supreme Court is made the judgment of this court. The trial court correctly granted summary judgment in favor of appellee and that judgment is, therefore, affirmed.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A90A1702, A90A1703.
    US SPRINT COMMUNICATIONS COMPANY v. COMPUTER GENERATION, INC.; and vice versa.
    (401 SE2d 573)
   Beasley, Judge.

Both the appeal of US Sprint and the cross-appeal of Computer Generation claim error in the trial court’s finding of lack of subject matter jurisdiction of both Sprint’s complaint and Computer’s counterclaim.

Sprint sued Computer in two counts, one for money due on account and one for unjust enrichment, arising from $6,846.30 for long distance telephone service based on tariffs filed with state and federal regulatory agencies. Computer counterclaimed for fraud, breach of contract, and attorney fees under OCGA § 13-6-11.

The court granted Sprint’s motion to dismiss the counterclaim on the ground that it alleged, aside from the frivolous litigation claim, violations of the Federal Communications Act, 47 USCA § 201 et seq., subject matters it deemed solely within the jurisdiction of the Federal Communications Commission or the federal district court. The court also applied that reasoning to the complaint, dismissing the entire lawsuit sua sponte.

Both Sprint and Computer contend the court was incorrect. Plaintiff Sprint further enumerates error in the court’s implicit finding that it could pursue delinquent accounts before the FCC. Defendant Computer contends the failure of the court to grant its motion to dismiss the complaint with prejudice and for default judgment, based on non-compliance with discovery, was error. We address the latter first.

1. Computer had served requests for production of documents and had noticed the deposition of a corporate representative familiar with the allegations of the complaint. A clerical employee with limited knowledge appeared. Computer contends this was a failure to respond to discovery requests and entitled it to dismissal and default judgment pursuant to OCGA § 9-11-37.

This issue was not ruled on by the trial court because of its decision on jurisdiction and therefore presents nothing for our review. Augusta Tennis Club v. Leger, 186 Ga. App. 440, 441 (1) (367 SE2d 263) (1988). Moreover, it is an issue which is addressed to the trial judge’s discretion. Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 745 (1) (360 SE2d 70) (1987); Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344 (373 SE2d 50) (1988).

2. The statute drawn in question, 47 USCA § 207, provides that “[a]ny person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies.”

The suit of Sprint, a carrier, was appropriately before the state court on its purely state claims seeking recovery of money owed, because 47 USCA § 207 by its terms provides for claims only by persons alleging damage by the common carrier. Tel-Central &c. v. United Telephone &c., FCC 89-323 (1989). The court erred in deciding that Sprint could pursue payment against a customer before the FCC or in the district court.

The ground for Sprint’s motion to dismiss the counterclaim of Computer was that the area of regulation of interstate communications had been preempted by federal law and that 47 USCA § 207 vested exclusive jurisdiction in federal court or the FCC. Assuming, without deciding, that the claims made by Computer are within the subject matter covered by federal law, that does not preclude concurrent jurisdiction. The only argument presented to the court below was that the language of Section 207 vests such claims exclusively within the federal realm.

Two recent United States Supreme Court cases point in the opposite direction from Sprint’s argument. Tafflin v. Levitt, _ U. S. _ (110 SC 792, 107 LE2d 887) (1990), dealt with civil RICO claims under 18 USCA §§ 1961-1968; Yellow Freight System v. Donnelly, 494 U. S. _ (110 SC 1566, 108 LE2d 834) (1990), dealt with claims under Title VII of the Civil Rights Act, 42 USCA § 2000e et seq.

In Yellow Freight, supra, the Court considered 42 USCA § 2000e-5 (f) (3), which stated that the federal district courts “shall have jurisdiction of actions brought under this subchapter.” The Court concluded there was concurrent jurisdiction, stating that “[u]nder our ‘system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.’ Tafflin, 493 US, at _, 107 LEd 2d 887, 110 S Ct 792; [Cits.]. To give federal courts exclusive jurisdiction over a federal cause of action, Congress must, in an exercise of its powers under the Supremacy Clause, affirmatively divest state courts of their presumptively concurrent jurisdiction. Tafflin, 493 US, at _, 107 LEd 2d 887, 110 S Ct. 792.” Yellow Freight, supra 494 U. S. at _, 108 LE2d at 839 (2).

The Supreme Court concluded that, despite the use of “shall” and legislative history which indicated that the Congress had meant for the federal courts to handle these cases, “[t]hat expectation, even if universally shared, is not an adequate substitute for a legislative decision to overcome the presumption of concurrent jurisdiction. Like its plain text, the legislative history of the Act affirmatively describes the jurisdiction of the federal courts, but is completely silent on any role of the state courts over Title VII claims.” Yellow Freight, supra, 494 U. S. at_, 108 LE2d at 840 (lb).

The rationale is even stronger regarding Section 207 because of its permissive rather than mandatory wording plus the total lack of proof of any preemptive legislative understanding.

Should the trial court find that some or all of the claims asserted in the counterclaim do require the FCC expertise, the remedy is not to dismiss the counterclaim, but to stay it and refer those matters to the FCC for resolution. Delta Traffic Suc. v. Snider, 197 Ga. App. 377 (398 SE2d 430) (1990); see In re Long Distance &c. Litigation, 831 F2d 627, 633 (4) (6th Cir. 1987).

Decided January 22, 1991.

Smith, Gambrell & Russell, Edward H. Wasmuth, Jr., for appellant.

Booth, Wade & Campbell, L. Allison Wade, Douglas N. Campbell, Deborah A. Ausburn, for appellee.

Judgment reversed.

Pope and Andrews, JJ., concur.

       Compare Nordlicht u. New York Telephone, 799 F2d 859 (2nd Cir. 1986) with Citibank, N. A. v. Graphic Scanning Corp., 618 F2d 222 (2nd Cir. 1989) and Van Dussen-Storto Motor Inn a. Rochester Telephone, 338 NYS2d 31 (1972), modified on other grounds, 348 NYS2d 404 (App. Div.), aff’d 359 NYS2d 286.


text:
    A90A2317.
    AVANTI GROUP (U.S.A.), LTD. v. ROBERT HALF OF ATLANTA, INC.
    (401 SE2d 576)
   Beasley, Judge.

Defendant The Avanti Group (U.S.A.), Ltd., Avanti Furs, appeals the grant of partial summary judgment on the issue of contractual liability in favor of plaintiff Robert Half of Atlanta, Inc., and the denial of summary judgment to Avanti in this suit to collect an employment placement fee.

The record shows the following to be without dispute. From November 24, 1987 to April 11, 1988, Avanti employed DeFalcis as a temporary accounting employee on assignment from Accountemps, a temporary employment service division of Robert Half. At the beginning of DeFalcis’ employment, Avanti received from Accountemps its “Conditions of Assignment” and other documents. Each week of DeFalcis’ temporary employment Avanti’s agents signed a “client approval” on time cards for DeFalcis, and each time card contained the statement that by signing the client approval, the party agreed to be bound by the terms of the conditions of assignment, which were listed.

One of the conditions of assignment provided: “After you evaluate the performance and potential of our employee on the job you may wish to employ this person directly. Our employees represent our inventory of skilled professionals and in the event you wish them converted to your employ a conversion fee will be charged. The conversion Fee Schedule has been furnished to you by mail and is our standard placement fee. Though we do not encourage conversions, we ask that you carefully consider our employee before making the offer. Simply call our office and advise when you wish our employee transferred to your payroll and the date you wish the conversion effective. A conversion fee will be due us if you hire our employee assigned to you, regardless of the employment classification, on either a permanent, temporary (including temporary assignments through another agency) or consulting basis within twelve months of the last day of your assignment period or the last day our employee was paid by us for your assignment period (whichever occurs first). You also agree to pay a conversion fee if our employee assigned to you is hired by a subsidiary or related company as a result of your referral of our employee to that company.”

DeFalcis completed the temporary assignment for Avanti on April 11, 1988, and ceased her relationship with Robert Half after mid-May 1988. After learning that Avanti had a job opening for a permanent position, in January 1989, DeFalcis interviewed for it with the company’s comptroller. The comptroller was not employed by Avanti at the time DeFalcis had been temporarily employed there, and during the interview DeFalcis’ prior employment was not discussed. DeFalcis was hired for this permanent position within 12 months of completion of her temporary assignment through Robert Half. When Robert Half learned of this, it sent Avanti an invoice for the conversion fee outlined in the conditions of assignment.

(a) Avanti maintains that there was a material question of fact as to whether the “conditions of assignment” formed part of the contract because of a lack of consideration, no meeting of the minds, and lack of authorization in regard to signature of the time cards. It further asserts that even if the conditions were part of the contract, there is a material question about the proper construction of the conversion fee provision.

There is no evidence of record to support the contention that the conditions of assignment were not part of the contract between the parties due to a lack of authorization or meeting of the minds. Nor was any lack of consideration shown. See OCGA § 13-3-42. The documentary evidence showed otherwise.

(b) Avanti also contends that the conversion fee provision could reasonably be interpreted to provide that Avanti would owe the fee to Robert Half if and only if Avanti hired an employee who had been assigned to Avanti by Half and who was still an employee of Half at the time he or she was hired as a direct employee by Avanti. That is, the conversion fee is incurred only when hiring a Half employee.

Decided January 22, 1991.

Barry L. Zimmerman, Keith F. Brandon, for appellant.

Bryant, Davis & Cowden, James W. Hays, for appellee.

“It is axiomatic that a contract should be construed by the court where the language is undisputed but the meaning of that language is in dispute. OCGA § 13-2-1. It is the responsibility of the court to determine whether an ambiguity exists. [Cit.] If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties. [Cits.]” Board of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 673 (357 SE2d 100) (1987). Avanti’s interpretation of the provision would not be a reasonable one because it could easily defeat the stated purpose of affording Half a placement fee for professional talent it has found for a business. Half’s right to the fee could be circumvented for the benefit of a new employer by the Half employee purposefully terminating his or her association with Half prior to taking the direct position with the new employer which had benefited from Half’s initial introduction of the screened employee. The parenthetical inclusion in the provision confirms the construction that time and not current employment controls the issue of liability.

There was no error in the court’s construction of the provision and conclusion that Avanti was contractually liable to Robert Half for the conversion fee for DeFalcis. There was consequently no error in denying summary judgment to Avanti.

Judgment affirmed.

Pope and Andrews, JJ., concur.

       The time card omits this word.


text:
    A90A1640.
    BUTTS v. THE STATE.
    (401 SE2d 763)
   Beasley, Judge.

Butts, charged with Cuffie and Jackson with one count of murder and three counts of armed robbery, appeals his conviction of the armed robbery counts, OCGA § 16-8-41 (a). The three were acquitted of malice murder and a mistrial was declared on the felony murder charge.

1. Defendant enumerates error in the denial of his motion for new trial on the general grounds, Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

The evidence is viewed in favor of the verdict. Thomas v. State, 173 Ga. App. 810, 812 (2) (328 SE2d 422) (1985). Added to this principle is the “thirteenth juror’s” judgment, delivered by denial of the motion for new trial. Barnes v. State, 175 Ga. App. 621, 623 (1) (334 SE2d 205) (1985), rev’d in part on other grounds 255 Ga. 396 (339 SE2d 229) (1986).

The evidence was that on May 21,1989, co-defendants Cuffie and Jackson had stolen a Cougar automobile. On Friday night, May 26, they and appellant Butts rode around in the car, arriving at Grant Park around 10:30 or 11:00 p.m. Before exiting the car, Butts asked Jackson for the .38 pistol and checked to make sure it was loaded. The three men exited the car after spying two women and a man sitting hear the gazebo talking. Compton, the man, told the women that he felt uneasy in the park and wanted to leave. He then noticed the three men approaching and told the women to stay until they passed by.

One of the three men, with defendant holding the weapon, ordered the three victims to lie face down on the ground. Defendant removed a pearl handled .25 caliber pistol from Compton and jewelry from one of the women. Compton was shot in the back, by a large caliber weapon, such as a .38.

The evidence was sufficient to enable a reasonable juror to find defendant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant complains of portions of the court’s charge to the jury, as violating OCGA § 17-8-57 by pressuring the jury towards a guilty verdict. The statements, which came during the court’s instructions on the requirement of verdict unanimity, were: “[i]f you cannot unanimously agree upon a verdict, the Judge is required by law to declare a mistrial and re-try the case before another jury,” and “I caution you about this because we do have mistrials. . . .”

Defendant did not object during the charge immediately thereafter but only made a reservation of right to object later. While such a reservation is sufficient to attack charges given or refused, it is not adequate to maintain an objection under OCGA § 17-8-57. “ ‘ “The question of whether [OCGA § 17-8-57] has been violated is not reached unless an objection or motion for mistrial is made.” Therefore, this enumeration of error is without merit.’ Driggers v. State, 244 Ga. 160, 162 (2) (259 SE2d 133) (1979).” Anglin v. State, 173 Ga. App. 648, 652 (5) (327 SE2d 776) (1985). Moreover, the charge as given was a correct statement of the law. Cunningham v. State, 255 Ga. 35, 37 (3) (334 SE2d 656) (1985).

3. During voir dire, one of the panel who had suffered an assault himself indicated that he could not put that experience aside. Defendant moved to strike him for cause. The court, seeking further information from the man, asked why he would be biased against the defendant and he responded, “I don’t like the way the man looks. He has evil eyes.” That venireman was excused on defendant’s objection.

The court inquired of the remaining veniremen if any had been affected by his statement. One woman stated that she was affected by it but denied that it would in any way impair her ability to be fair and impartial.

Defendant moved to strike the entire panel on the basis that the stricken juror’s statement prejudiced her client before the entire panel. Denial of this motion is enumerated as error.

“The conduct of voir dire and decision of whether to strike a juror for cause lies (sic) within the sound discretion of the trial court. Welch v. State, 237 Ga. 665 (5) (229 SE2d 390); Gatlin v. State, 236 Ga. 707 (2) (225 SE2d 224).” Hughey v. State, 180 Ga. App. 375, 377 (2) (348 SE2d 901) (1986).

The court immediately granted defendant’s motion to strike the juror for cause and inquired of the jury as stated above. We find no abuse of discretion. There is no reason to conclude that any juror was prejudiced by the statement, which was one of personal opinion based on observation of the defendant and was not related to the charges for which he was being tried. Giles v. State, 253 Ga. 144, 145 (2) (317 SE2d 527) (1984); Scott v. State, 177 Ga. App. 474, 476 (2) (339 SE2d 718) (1986). The court’s prompt corrective action was sufficient.

4. The fourth enumeration claims it was error to deny defendant’s motion for mistrial, made during the court’s recharge.

After the jury had announced it had reached verdicts on all but one count, later revealed to be the felony murder count, the jury requested reinstruction on elements of that offense. Thereafter, defendant’s counsel stated, “I’d like to object to the court’s comment. I’d like to object to having the jury out here making comments. They were deliberating in open court. I’d like to move for a mistrial, and I would also like to reserve my objections to the additional charge that the court has given.”

Without considering the sufficiency of the objections to the charge and the motion, all of the objected-to matters dealt with the murder counts. As to one of these counts, the jury found defendant not guilty; the other count was mistried.

Additionally, the recharge was not erroneous. Lobdell v. State, 256 Ga. 769, 776 (13) (353 SE2d 799) (1987); Asbury v. State, 175 Ga. App. 335, 337 (2) (333 SE2d 194) (1985). Even if it was, no reversal is required because no harm is shown. “When a plaintiff in error brings a case here he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.” Brown v. City of Atlanta, 66 Ga. 71, 76 (1) (1880); Robinson v. State, 229 Ga. 14, 15 (189 SE2d 53) (1972); Stamey v. State, 194 Ga. App. 305, 309 (4) (390 SE2d 409) (1990).

Decided January 23, 1991.

Christine A. Van Dross, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Richard E. Hicks, Assistant District Attorneys, for appellee.

5. Finally, defendant objects, on grounds of undue prejudice, to the admission into evidence of three photographs of the deceased victim taken as part of the autopsy. The photographs, although gruesome, were relevant and material to show the wound locations. Brooks v. State, 258 Ga. 20, 22 (3) (365 SE2d 97) (1988); Buice v. State, 191 Ga. App. 7, 9 (6) (380 SE2d 741) (1989).

Judgment affirmed.

Pope and Andrews, JJ., concur.

       Cuffie, who pled guilty and testified against defendant, and the two female victims identified defendant as the person with the gun.


text:
    A90A1693.
    BOYCE v. THE STATE.
    (401 SE2d 578)
   Beasley, Judge.

Boyce appeals her convictions for two counts of cruelty to children, OCGA § 16-5-70 (b). She was found guilty of shooting her not quite two-year-old son in the face and shoulder with a .38 caliber semi-automatic pistol and of unlawfully and maliciously causing her four-year-old daughter cruel and excessive mental pain by blaming the shooting on the little girl.

1. Appellant contends that she was entitled to a directed verdict of acquittal on the charge of cruelty to her daughter because there was no evidence of cruel and excessive mental pain to the child, or of appellant as the perpetrator.

The evidence construed in favor of the verdicts, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed that appellant accused her young daughter of the shooting from the outset. Initially the little girl told police that her mother had gotten the gun. Appellant contradicted the girl in front of the police and told them the girl had gotten the gun and shot her brother. Subsequently the girl continued to deny shooting her brother or stated, referring to herself in the third person, that she shot the boy. An examining psychologist concluded that the little girl’s consistent referral to herself in the third person presented two unhealthy hypotheses, either that she had been seriously traumatized and did not dare think of herself in first-person terms, i.e., a kind of early state of multiple personality, or that she was echoing something that she heard, i.e., that she had been coached.

Implicit in the statutory definition of “cruel or excessive” pain is the element of unreasonableness. See Allen v. State, 174 Ga. App. 206, 208 (3) (329 SE2d 586) (1985) (physical precedent). Appellant’s blaming of the little girl for such a violent act against a loved one which resulted in the girl manifesting observable psychological pathology could have authorized the jury to conclude that appellant inflicted on her daughter mental pain which was unreasonably cruel or excessive. Therefore, the trial court was correct in refusing to grant a directed verdict of acquittal on the charge. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erréd in allowing the medical examiner/forensic pathologist to testify about the “ultimate issue” to be decided by the jury, i.e., the identity of the person who fired the gun. She claims that the witness testified that she was the only one who could have fired the weapon, and that it was unnecessary to provide the jury with such information because they possessed the requisite knowledge, skill, and experience to draw for themselves an inference of who the perpetrator was.

This objection was not made at trial and so was not preserved for appeal. Rigenstrup v. State, 197 Ga. App. 176, 178 (2) (398 SE2d 25) (1990).

Moreover, even if the failure to object were itself a properly raised ground of the enumeration claiming ineffective assistance of counsel, the outcome would be the same. That is, this objection to the evidence would have been a useless one, as it lacks legal base.

The witness testified about his qualifications and experience and defense counsel unequivocally concurred that the doctor was an expert forensic pathologist. The doctor then laid a foundation about the evidence that he had reviewed and gave great detail about the firing mechanisms of the gun at issue and the relative distances and heights regarding the paths of the bullets, largely in the context of the possibility of the daughter having obtained and fired the gun in the surroundings then existent. The doctor’s scientific conclusion was that if a number of hypothetical factors had been present it was technically possible that the little girl had fired the gun, so as to create the markings left by the two bullets, but it was not a realistic probability; rather it was most probable the girl did not fire the gun that caused the injury to her brother. At no time did the doctor opine that the appellant had fired the weapon or that she was the only one who could have fired it. His only stated conclusions about the mother were that based on the bullets’ paths, “the mother, whose shoulder height is four feet five inches, could have stood anywhere along this line — approximately four feet five and a half inches — and fired the weapon, at least technically” and that one of the bullets went into the “sheetrock on the opposite corner of the room, again, at almost a level of horizontal trajectory from four feet and six inches, approximately the shoulder height of the mother.”

“Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the lien of the average layman. [Cits.]” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). See also Bethea v. State, 251 Ga. 328, 331 (10) (304 SE2d 713) (1983). “In many instances, inferences must be drawn from medical evidence that are beyond the capacities of average jurors. In such circumstances, . . . expert opinion [is permitted] as to factual suppositions.” Allison v. State, 256 Ga. 851, 852 (3) (353 SE2d 805) (1987). This was such a case. See also McAllister v. State, 258 Ga. 795, 797 (3) (375 SE2d 36) (1989).

3. Permitting the firing of the weapon in the courtroom as a demonstration is challenged as having a prejudicial effect far outweighing its probative value.

The objection made at trial was withdrawn and thus is not preserved for appellate review. Atkinson v. State, 170 Ga. App. 260, 262 (2), 264 (316 SE2d 592) (1984).

However, since this action of counsel is also cited as a basis for the ineffective assistance of counsel enumeration, the lawfulness of allowing the demonstration is examined and laid to rest. The stated purpose for the firing was to demonstrate for the jury the sound and physical effects of discharge of the weapon. This was to allow the jury to assess the defense that the four-year-old sister had been able to twice fire such a weapon in spite of the noise, flash, and recoil. “ ‘ “Experiments made in and out of court sometimes make a practical demonstration of the question in issue, and are often the best evidence in elucidating the truth. It is necessarily largely within the discretion of the trial court to determine whether the testimony shows that the experiments were made under such conditions as to fairly illustrate the point in issue.” . . . (Emphasis supplied.) (Cit.)’ [Cit.]” Id. at 263 (2). There was no abuse.

4. Appellant contends the trial court erred in allowing testimony by a Department of Family & Children’s Services’ employee about “prior difficulties and bad acts.”

The testimony at issue did not involve prior acts but rather the condition of appellant’s home and children following the shooting. The DFACS worker had gone to appellant’s apartment a few weeks after the shooting to remove the children pursuant to a court order. The witness testified that appellant was uncooperative about helping to ready the children to go and that the children were very unkempt and dirty.

Decided January 23, 1991.

John R. Greco, for appellant.

Such evidence was relevant to show appellant’s state of mind in regard to her son, i.e., her careless attitude even following the shooting and surgery, and thus, possibly to explain an “otherwise inexplicable assault.” See Gresham v. State, 169 Ga. App. 525, 526 (1) (314 SE2d 111) (1984). The fact that the evidence may have incidentally placed appellant’s character in issue did not render it inadmissible. See Mathis v. State, 192 Ga. App. 772, 773 (3) (386 SE2d 532) (1989).

5. Lastly, appellant contends that trial counsel’s failure to object to the medical examiner’s testimony and the test-firing of the gun along with counsel’s failure to explore a possible insanity defense due to either “prosecutorial misconduct or ineffective assistance of counsel” amounted to ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

Appellate counsel filed an amended motion for new trial raising the issue of trial counsel’s ineffectiveness and represented appellant at a hearing on the motion. While counsel did argue the ground at the hearing, there was no evidentiary showing whatsoever; trial counsel was not called and was never heard on the question of his representation. Inasmuch as appellant’s claim of ineffectiveness included matters outside the record, i.e., trial counsel’s alleged failure to investigate appellant’s alleged multiple personality disorder for the purpose of a possible insanity defense, trial counsel’s testimony was necessary. See Dawson v. State, 258 Ga. 380, 381 (3) (369 SE2d 897) (1988). The failure to produce any evidence in support of her claim of ineffectiveness on this point via trial counsel’s testimony or otherwise, even though she had ample opportunity to do so, precludes further review. Id. See also Johnson v. State, 259 Ga. 428, 429 (3) (383 SE2d 115) (1989) which discusses the need for an evidentiary hearing. As to the other two bases, we have concluded that they, being meritless, would not have supported a conclusion of counsel deficiency.

Judgments affirmed.

Pope and Andrews, JJ., concur.

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

       The trial court did exclude certain prior circumstances, namely that the little boy had failed to thrive as a baby and that appellant’s care had been lacking.


author: Sognier, Chief Judge.

text:
    A90A1574.
    DAVIS v. THE STATE.
    (401 SE2d 581)
   Sognier, Chief Judge.

Dwight Davis was convicted of theft by receiving stolen property, and he appeals.

1. We agree with appellant that the trial court erred by admitting in violation of OCGA § 17-7-210 (c) the testimony of Detective R. L. Lindsey regarding an oral statement appellant had made to the detective. The record reveals that appellant made a timely written request for a copy of any custodial statements he had made. It is uncontroverted that the statement in issue here was not furnished to appellant in compliance with the statute. At trial appellant testified that he had thought the property in issue, a tractor, scraper, and welder, belonged to an acquaintance named Larry. He stated that he allowed Larry to leave the tractor at the property of appellant’s mother in exchange for appellant’s use of it to clear the property, and that while appellant was using it the tractor became stuck and could not be removed. In rebuttal Lindsey testified that appellant had made an oral in custody statement in which appellant told Lindsey that he (appellant) gave Larry the welder in exchange for Larry’s help in attempting to free the tractor. Appellant properly objected to the introduction of the statement.

OCGA § 17-7-210 (c) provides that “[f]ailure of the prosecution to comply with a defendant’s timely written request for a copy of his statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution’s use in its case-in-chief or in rebuttal.” (Emphasis supplied.) Contrary to the State’s argument, Lindsey’s testimony was not admissible for impeachment purposes. See Garard v. State, 159 Ga. App. 248 (1) (283 SE2d 27) (1981).

2. The admission of a defendant’s statement in violation of OCGA § 17-7-210 (c) does not require reversal unless it is highly probable that the error contributed to the verdict. See Wallin v. State, 248 Ga. 29, 32 (5) (279 SE2d 687) (1981). The evidence at trial established that the tractor, with attached scraper, and a welder were stolen on August 27, 1989, and that the only key to the tractor was not taken. The tractor with the scraper still attached was recovered with a disabled battery at the home of appellant’s mother. The tractor wiring had been cut and several witnesses testified the cut wires indicated that the tractor had been “straight wired,” so as to start the tractor without the use of a key. Appellant’s mother testified she saw her son driving the tractor (with the other equipment) the afternoon of August 27, followed in a car by a man whose name she later learned was Larry. She testified that appellant was clearing debris in her backyard when the tractor became stuck. Efforts by appellant, appellant’s brother, and Larry failed to free the tractor. Two men, but not her son, returned later and tried to dislodge the tractor with a tow truck but were unable to do so. The two men left, apparently taking the welder with them.

Appellant testified he was walking to a neighborhood store on August 27 when he met Larry and another man at an intersection a few blocks from his mother’s house. His testimony was that the men had been driving a truck on which the tractor, scraper, and welder were loaded. The truck had broken down, and he helped the men push it out of the intersection. He testified he then made a deal with the two men for the use of the tractor to clear his mother’s yard in exchange for $35 or $45 and storage of the tractor at his mother’s home until the truck was repaired. He testified the key was inside the tractor when he drove it to his mother’s house, and that he was operating the tractor when it became stuck. He stated he turned the tractor off with the key, then went inside to get his brother to help him free the tractor. When they returned appellant discovered he had dropped the key, apparently in the yard, but a search by flashlight failed to reveal it. He stated that Larry tried to hot wire the tractor and managed to start it, but the engine then died and they were not able to restart the engine. He testified that Larry became upset with him for getting the tractor stuck. Two days later appellant returned to his mother’s home and found the welder missing. He denied giving the welder to Larry as any sort of payment or telling Detective Lindsey that he had given Larry the welder in exchange for help.

Our review of this evidence persuades us that the challenged oral statement by appellant was incriminatory or inculpatory, since the statement amounted to an admission that appellant so controlled the property that he was in a position to give it to another. Therefore, we find no merit in the State’s argument that the challenged statement did not fall within the ambit of OCGA § 17-7-210. Compare Furlow v. State, 172 Ga. App. 185, 186 (2) (322 SE2d 317) (1984). We also disagree with the State’s argument that admission of the challenged statement was harmless. “A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a). First, we cannot agree with the State that it presented overwhelming evidence from which it may be inferred that appellant knew or should have known that the tractor was stolen (i.e., evidence regarding the key to the tractor and the ways the tractor could be operated without a key). Second, the challenged statement had a direct impact on appellant’s sole defense to the charged crime, i.e., that he believed the property belonged to Larry and that he was in possession or control over the stolen property only because he was innocently leasing it from Larry. The challenged statement directly contradicted appellant’s trial testimony that he thought the property belonged to Larry. Hence, we are unable to say with reasonable certainty that no harm resulted from the State’s failure to obey the statutory requirements of OCGA § 17-7-210, and accordingly, we must reverse. See Ludy v. State, 177 Ga. App. 767, 768 (341 SE2d 224) (1986). Compare Wallin, supra (improperly admitted statement by defendant to sheriff that he owned car in which the stolen property was found was consistent with defendant’s testimony that he had purchased the property from another); Dickey v. State, 179 Ga. App. 383, 385 (1) (346 SE2d 864) (1986) (harmless error in admitting appellant’s statement claiming innocent involvement in another’s armed robbery where appellant was identified by victim, chased and apprehended by police who arrived during commission of crime, and found with victim’s belongings on his person).

Decided January 24, 1991.

Donna L. Avans, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment reversed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A1663.
    JONES v. THE STATE.
    (401 SE2d 584)
   Sognier, Chief Judge.

Rudolph Jones was convicted of burglary, aggravated assault with intent to rob, possession of a firearm during the commission of a crime, and attempting to elude a police officer. He appeals.

Appellant’s sole enumeration is that there was a fatal variance between the allegata and the probata as to the aggravated assault charge. He contends his conviction on that count must be reversed because the indictment charged him with committing aggravated assault with intent to rob (OCGA § 16-5-21 (a) (1)), but the State’s evidence failed to prove that intent, instead establishing either aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)) or aggravated assault with intent to murder (OCGA § 16-5-21 (a) (1)).

Decided January 24, 1991.

Langdale, Vallotton, Chapman & Linahan, William J. Linahan, Samuel F. Greneker, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

The testimony adduced at trial established that the victim drove up her driveway to her home on the afternoon of September 7, 1989, and saw an unfamiliar car with open doors parked next to her patio. Noticing broken glass strewn on the patio, she concluded her house was being burglarized. The victim began honking her truck horn, and two men, one of whom she identified as appellant, ran out of the house. She testified that appellant was brandishing a pistol and fired three shots at her as she backed down the driveway, hitting her truck twice. She drove to a neighbor’s house and called police, who apprehended appellant and his accomplice after a short chase. An inventory of the contents of the perpetrators’ car exposed a number of items the victim and her husband identified as belonging to them. They specifically identified the pistol appellant fired at the victim as belonging to the husband.

We find no merit in appellant’s argument. The uncontroverted evidence showed that at the time he fired at the victim, appellant was fleeing her house with her belongings, including the very pistol used in the assault. See Moore v. State, 190 Ga. App. 278, 282 (3) (378 SE2d 880) (1989). “The jury was authorized to conclude that appellant [fired] the gun at [the victim] to further the robbery, and they were thus authorized to convict appellant of the offense as charged. [Cit.]” Id. at 283.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A1785.
    KELLEY et al. v. BAKER PROTECTIVE SERVICES, INC. et al.
    (401 SE2d 585)
   Sognier, Chief Judge.

Forrest Kelley and Janet Kelley brought a wrongful death suit against Baker Protective Services, Inc. and its predecessor, Burns International Investigation Services, Inc., for the negligent hiring and retention of an employee, David Scott Goza, an unarmed security guard involved in the murder of Mark Stephen Kelley, the plaintiffs’ son. The trial court granted the defendants’ motion for summary judgment, and the Kelleys appeal.

We affirm. The record establishes that Goza, who began working for appellee Burns International Investigation Services, Inc. (hereinafter “appellee”) in November 1986, was the sole security guard at the Hormel Plant in Tucker, Georgia on January 19, 1987. Goza allowed appellants’ decedent and three other men (none of them Hormel employees) to enter the plant premises, apparently to conduct a drug deal. Two of the men then murdered appellants’ decedent and the fourth man. Goza did not participate in the murders but did assist in the disposal of the bodies. It is uncontroverted that a background investigation performed on Goza by appellee and various State agencies revealed that Goza had no convictions for any crimes or any record of criminal activity or dangerous propensities, or that any accusations of criminal activities or violent behavior had been made against Goza. Appellants’ own investigation into Goza’s background uncovered only a traffic warning ticket. Although appellants place great emphasis on evidence in the record indicating that Goza’s training as an unarmed security guard did not comport with OCGA § 43-38-7.1 (a) (training of unarmed private security guards) and the rules and regulations promulgated by the Georgia Board of Private Detective and Security Agencies pursuant to OCGA § 43-38-4 (d) (3), in his deposition Goza acknowledged that he knew, without being so instructed by anyone at appellee, that he was not supposed to participate in illegal drug transactions or in murdering anyone while on his job.

“ ‘For [appellee] to be negligent in hiring and retaining any employee with violent and criminal propensities, it would be necessary that [appellee] knew or should have known of those dangerous propensities alleged to have resulted in [appellants’ decedent’s death.] (Cits.) The record contains absolutely no evidence which would authorize a finding that appellee knew or should have known that [Goza] was violently or criminally prone.’ [Cit.]” Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 666 (307 SE2d 129) (1983). See also Big Brother/Big Sister &c. v. Terrell, 183 Ga. App. 496, 497 (1) (359 SE2d 241) (1987); Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 880 (298 SE2d 600) (1982). The submission of evidence by appellee that it did not know of Goza’s criminal propensities after investigating his criminal and employment record and the absence of any evidence controverting appellee’s evidence or indicating that appellee should have known of Goza’s criminal propensities entitled appellee to summary judgment. Southern Bell, supra at 667 (1).

We are not persuaded by appellants’ arguments that the trial court’s judgment was erroneous. First, we do not agree with appellants that the training Goza was required by statute and agency regulations to receive was designed to uncover the trainee’s latent character defects for purposes of placing the employer on notice that the trainee possessed violent or criminal propensities. Thus, appellee’s failure to provide that training does not avail appellants. Next, in view of Goza’s testimony that he was totally aware that illegal drug transactions and murder were not part of his employment with appellee, we cannot agree with appellants that appellee, in its training, was negligent in failing to state these prohibitions to Goza explicitly. Finally, we cannot agree that a question for jury resolution was created by appellants’ supposition, unsupported by any evidence in the record, that Goza would not have allowed the men onto the Hormel plant premises where the murder of their son occurred had appellee informed Goza during his training that participating in drug deals and murder was not appropriate while he was on the. job. Appellants having failed to counter appellee’s evidence by setting forth specific facts showing that there is a genuine issue for trial, the trial court did not err by granting summary judgment in favor of appellee. OCGA § 9-11-56 (e).

Decided January 24, 1991.

Charles E. Moore, Jr., for appellants.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Robert W. Browning, for appellees.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A1909.
    HURST v. THE STATE.
    (401 SE2d 348)
   Sognier, Chief Judge.

Hayward Hurst was charged with ten counts of child molestation and convicted of five of those counts. He appeals.

1. The record reveals that all three molestation victims, ranging in age from nine to 13 at the time of trial, testified in court. Thus, statements made by the children describing the sexual acts committed by appellant were admissible in evidence by the testimony of the persons to whom made. OCGA § 24-3-16. See also Reynolds v. State, 257 Ga. 725 (1) (363 SE2d 249) (1988). Accordingly, we find no merit in appellant’s first and third enumerations contending error in the admission of testimony by numerous persons to whom the victims had made statements. Appellant raised no objection at trial to the court’s failure to make a finding that the victims’ statements possessed sufficient indicia of reliability, and thus we will not address that argument made for the first time on appeal. See generally Brinson v. State, 191 Ga. App. 151, 152 (3) (381 SE2d 292) (1989).

Decided January 24, 1991.

Kirbo & McCalley, Thomas L. Kirbo III, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred by excluding his evidence concerning the eldest victim’s alleged sexual predispositions and prior sexual behavior. The rule is well established that where the testimony does not involve expert testimony or the child abuse syndrome, the past sexual experience of a child is irrelevant to the issue whether molestation was committed by the defendant on trial. Chastain v. State, 180 Ga. App. 312, 313 (2) (349 SE2d 6) (1986), aff’d 257 Ga. 54 (354 SE2d 421) (1987). We are not persuaded by appellant’s arguments that the facts of this case require a modification of that rule.

3. We have reviewed the evidence adduced at trial, including the testimony of the victims describing the acts of molestation and identifying appellant as the perpetrator of those acts, the testimony by the adults who investigated the eldest victim’s disclosure of the molestation, and the expert medical testimony regarding the physical manifestations of the molestation. We find this evidence sufficient to have enabled a rational trier of fact to find appellant guilty of the five counts of molestation under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Fields v. State, 194 Ga. App. 149, 150 (1) (390 SE2d 71) (1990). Therefore, we find no error in the trial court’s denial of appellant’s motion for a new trial.

4. This court will not consider factual allegations in the briefs of parties which are not supported by evidence contained in the record. Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988). Since the record reveals that the trial court imposed one sentence for counts 1, 2, 3, and 6, we find no merit in appellant’s final enumeration that the trial court erroneously sentenced appellant on each of these counts.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A1534.
    SHARPE v. THE STATE.
    (401 SE2d 586)
   Pope, Judge.

Defendant Eugene Stanley Sharpe was convicted of the offenses of driving under the influence of alcohol and failure to yield right-of-way in the probate court on August 22, 1986. On August 28 defendant filed a supersedeas bond indicating his intention to file an appeal to the superior court. The probate court file contains a document entitled “Appeal to the Superior Court,” giving notice of appeal. The document is dated August 22 and signed by defendant’s attorney but contains no notation that the document was ever filed with the clerk of the probate court.

The probate court judge originally issued an order finding no appeal had been filed and, because the period for filing an appeal to the superior court had expired, ordering defendant to appear to abide by the sentence imposed upon conviction. This order was later vacated and the record transmitted to the superior court for review. The superior court dismissed the appeal due to defendant’s failure to file a timely notice of appeal. We affirm.

1. “ ‘The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.’ Jordan v. Caldwell, 229 Ga. 343 (191 SE2d 530) (1972). (Emphasis supplied.)” Hester v. State, 242 Ga. 173, 175 (249 SE2d 547) (1978). That a notice of appeal appeared in the probate court file is no indication when or if the document was properly filed. “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file, and a certificate of the clerk, entered upon the paper at the time it is filed, is the best evidence of such filing.” (Citation and punctuation omitted.) Bailey v. Bonaparte, 125 Ga. App. 512, 514 (188 SE2d 119) (1972). In this case no evidence whatsoever was presented to show when or if the document was filed. Thus, the superior court properly dismissed the appeal for failure to file a timely notice of appeal.

We reject defendant’s argument that the supersedeas bond was sufficient to serve as a notice of appeal pursuant to OCGA § 5-3-21 (a). It is true this Code section does not require any particular form for the notice of appeal. Although a notice of appeal serves as supersedeas unless a bond is ordered by the court (OCGA § 5-3-22 (b)), a supersedeas bond is not, of itself, a notice of appeal. A bond may be required for security as a prerequisite to bringing an appeal but the bond does not, itself, commence the appeal.

We also reject defendant’s argument that the failure of defendant’s attorney to file a timely appeal is a procedural mistake and that the appellate court is required by the holding of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), to reach the merits of defendant’s appeal. A majority of this court has held that Euitts u. Lucey does not pertain to jurisdictional prerequisites such as the timely filing of a notice of appeal. Snelson v. State, 190 Ga. App. 320 (378 SE2d 723) (1989).

2. Because we hold the superior court correctly dismissed defendant’s appeal, we need not address the merits of defendant’s appeal.

Decided January 25, 1991.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.