author: Andrews, Judge.

text:
    A95A0148.
    BUFORD et al. v. TOYS R’ US, INC.
    (458 SE2d 373)
   Andrews, Judge.

The Bufords filed suit on-behalf of their minor son for injuries suffered when the bicycle he was riding separated at a weld, causing serious injury. They appeal from the trial court’s grant of summary judgment to Toys R’ Us (the seller).

Viewed with all inferences in favor of the Bufords and under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence was that the seller sold bicycles made by several manufacturers in its stores. Bikes from more than one manufacturer, including SamChuly Bicycle, bore the name “Rallye” at the direction of the seller. There is no evidence that the seller required compliance with any specifications before a bike was so designated. The Rallye bikes were not the only type sold by seller.

In November 1990, the Bufords purchased a Rallye bike for their son from seller. On April 21, 1991, while the boy was riding the bike, the steer tube separated from the front fork, throwing him face first to the pavement.

SamChuly shipped the bikes to the seller semi-assembled, i.e., all tubing was welded together and the seller merely had to install the pedals, seat, handlebars, and adjust the brakes and gears. The bicycle bore, on the tubing beneath the seat, SamChuly’s name as manufacturer and listed a serial number.

The seller’s expert witness, who had been in the bicycle manufacturing business for years, stated that the welding of the steer tube to the front fork would have been done by SamChuly and, once welded, would have been painted. Further, he stated that it was not the practice in the industry, before selling the bikes, to inspect welds like the one which gave way. He opined that the weld was inadequate when done.

Purchase orders used by the seller and signed by the manufacturer contained language stating that the bicycles met all safety requirements imposed by the Consumer Products Safety Commission and included an indemnification clause.

The Bufords alleged strict liability, negligence against the seller, and breach of the implied warranty of merchantability.

1. Regarding the claim for strict liability, OCGA § 51-1-11 (b) (1) provides for strict liability with respect to the manufacturer of personal property sold as new. It is not contested that SamChuly was the “manufacturer” of the bicycle, and, more specifically, the one which performed the welding of the tubing.

The Bufords attempt to circumvent this requirement, contending that, by requiring use of the “Rallye” mark, the seller became an “ostensible” manufacturer. As pointed out in Alltrade v. McDonald, 213 Ga. App. 758, 759 (445 SE2d 856) (1994), the case relied upon by the Bufords for this proposition, Pierce v. Liberty Furniture Co., 141 Ga. App. 175, 179 (4) (233 SE2d 33) (1977), predated the 1987 tort reform act. Under that act, OCGA § 51-1-11.1, a “product seller” is not a manufacturer and this includes a seller who merely labels a product as its own prior to sale. Alltrade, supra; Ream Tool Co. v. Newton, 209 Ga. App. 226, 227 (3a) (433 SE2d 67) (1993).

2. The Bufords allege that the seller was negligent in failing to inspect the bicycle and discover the defective weld. Such a claim is premised on the finding of a duty on seller to test or inspect the welds, which is absent under these circumstances. A dealer or seller, not the manufacturer, which purchases and sells an article in common and general use, such as a bicycle, in the usual course of trade and without knowledge of any dangerous quality, i.e., a latent defect, is not negligent for failing to determine the defect. Id. at 228 (3c); Ryals v. Billy Poppell, Inc., 192 Ga. App. 787, 788 (386 SE2d 513) (1989); Lowe v. American Machine &c., 132 Ga. App. 572, 576 (1) (208 SE2d 585) (1974).

Decided May 25, 1995

Reconsideration denied June 9, 1995

Furlong & Franco, Walter W. Furlong, Leonard L. Franco, for appellants.

Freeman & Hawkins, Kathryn A. Thurman, Warner S. Fox, for appellee.

3. Finally, the Bufords claim summary judgment was improperly granted on their claim for breach of the implied warranty of merchantability set out in OCGA § 11-2-314 (2) (c), i.e., that the goods were not “fit for the ordinary purposes for which such goods are used.”

The argument made by the Bufords is that the establishment of this implied warranty on a dealer/seller “clearly places the same strict liability” on the seller as applies to the manufacturer.

As discussed in Alltrade, supra, however, liability on the seller under the implied warranty is not the same as the strict liability imposed on the manufacturer.

Even assuming a viable claim, however, under OCGA § 11-2-607 (3) (a), when goods have been accepted, as the bicycle was in 1990, the buyer must give notice to the seller within a “reasonable time after he discovers or should have discovered any breach. . . .” Here, although the accident occurred on April 21, 1991, no notice was received by seller until the complaint was served upon it two years later. We conclude that, under the circumstances, such notice was not “reasonable” as a matter of law. See Cobb County &c. v. Mat Factory, 215 Ga. App. 697, 703 (2) (452 SE2d 140) (1994); Intl. Multifoods v. Nat. Egg &c., 202 Ga. App. 263, 266 (4) (414 SE2d 253) (1991).

The grant of summary judgment to the seller was proper.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Several parties were originally named as defendants. The suit against SamChuly Bicycle of Korea remains pending.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A95A0457.
    HUGHES v. BROWNE.
    (459 SE2d 170)
   Blackburn, Judge.

Martha Browne Hughes appeals the trial court’s order finding her in contempt of the terms of the divorce decree and modifying visitation rights of her former husband, Stephen L. Browne, with respect to their six-year-old child.

1. On appeal Hughes contends the trial court erred by finding her in contempt of a vague, non-specific, and aspirational portion of her 1988 divorce decree. At the time of the parties’ divorce, the trial court adopted their written agreement as part of the divorce decree. Their agreement contained the following language: “Each party shall exert every reasonable effort to maintain free access and unhampered contact between [the child] and the other party, and to foster a feeling of affection between [the child] and the other party. Neither party shall do anything which may estrange [the child] from the other party or which may hamper the free and natural development of [the child’s] love and respect for the other party.”

“Before a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him, and the [command must therefore be express] rather than implied. . . . Indefiniteness and uncertainty in a judgmentf, decree,] or order may constitute a good defense in proceedings for contempt based on the violation of such judgments decree,] or order.” 17 AmJur2d 511-512, Contempt, § 157. Furthermore, the very nature of the proceeding in either civil or criminal contempt for an alleged disobedience of a court order requires that the language in the commands be clear and certain.

This case is distinguishable from those cited by Browne. In Nolan v. Moore, 241 Ga. 156 (244 SE2d 10) (1978), the Georgia Supreme Court determined that an order which required payment of living and maintenance expenses was enforceable by a contempt action. In Hunnicutt v. Sandison, 223 Ga. 301 (154 SE2d 587) (1967), the Court determined that an order which required payment of necessary and reasonable expenses for the support, maintenance, and education of a minor child was enforceable by a contempt action. Maintenance and living expenses can be calculated; however, in the present case, the divorce decree does not proscribe any certain conduct, nor does it provide definite terms or duties with which Hughes must comply. Therefore, we find that the trial court abused its discretion in finding Hughes in contempt of the indefinite language contained in her divorce decree.

2. In her second enumeration of error Hughes contends the trial court abused its discretion in modifying custody in a contempt action where movant presented no evidence as to the best interest of the child.

The original visitation order was entered when the child was six months old and limited all visitation to the mother’s residence. The child is now six years old, and Browne, the child’s father, now resides in California. Nancy Aldridge, a licensed clinical social worker, interviewed the child in connection with the child’s allegation that her paternal grandfather, Browne’s father, had “rubbed [her] pee pee.” Molestation charges were brought against Harry Browne and were nol prossed in the Recorder’s Court. Aldridge testified that an increase in visitation would not be in the best interest of the child. She explained that the child was voicing anxiety and apprehension about her contact with Browne and that an increase in such contact would not be in her best interest. Although Aldridge recommended that the present visitation schedule be kept consistently in a productive and constructive manner, she admitted she was unaware that the child’s mother was monitoring the father’s telephone calls with the child. Aldridge conceded that such tactics would, contribute to problems the child was experiencing in visitation with her father and would impede the development of the father-daughter relationship. Aldridge testified that the child would benefit from an expanded and closer relationship with her father. The trial judge questioned Aldridge regarding her recommendation and her knowledge of the difficulties between the parents.

Decided May 18, 1995

Reconsideration denied June 9, 1995.

The determination to modify visitation is governed by the best interest of the child. Worley v. Whiddon, 261 Ga. 218, 219 (403 SE2d 799) (1991). “On appeal, an increase or decrease in visitation will be affirmed unless it is shown that the trial court abused its discretion. [Cits.]” Gazaway v. Brackett, 241 Ga. 127, 129 (244 SE2d 238) (1978). The trial court heard the testimony, observed the witnesses, and exercised its discretion in fashioning a visitation schedule which provided for initial visitation in the mother’s home before allowing Browne visitation outside the home. Under these circumstances, we cannot say that the trial court abused its discretion in this matter.

3. Hughes argues that the trial court modified visitation to such an extent as to equal a modification of custody. This argument is without merit. The original divorce decree awarded custody to Hughes and provided for visitation by Browne every fourth Sunday from 3:00 p.m. to 6:00 p.m. and alternate holidays from 3:00 p.m. to 5:00 p.m., at Hughes’ residence. The trial court modified visitation to allow Browne visitation on every Saturday or Sunday for which he is in Atlanta from 8:00 a.m. to 6:00 p.m. This change did not amount to a change in custody.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Andrews, J., concur.

Freisem, Swann & Malone, C. Cyrus Malone III, for appellant.

Rubin, Winter, Rapoport & Hall, Joseph M. Winter, for appellee. Jeanney M. Kutner, amicus curiae.


text:
    A95A1202.
    REYNOLDS v. THE STATE.
    (458 SE2d 855)
   Blackburn, Judge.

Chadwick Eugene Reynolds, a juvenile, was indicted in superior court on two counts of aggravated child molestation, two counts of aggravated sodomy, and five counts of child molestation. Reynolds appeals his conviction by a jury of four counts of child molestation.

1. In his first enumeration of error, Reynolds contends the trial court erred in overruling his motion to transfer his case to juvenile court. Reynolds asserts that his case should have been transferred to juvenile court pursuant to OCGA § 15-11-5 (b) (2) (B) because the State introduced evidence of offenses which occurred prior to the effective date of OCGA § 15-11-5 (b) (2) (A) which gave exclusive jurisdiction to superior court over aggravated sodomy and aggravated child molestation charges.

OCGA § 15-11-5 (b) (2) (A), as enacted by Ga. L. 1994, p. 1012, § 14 and became effective May 1, 1994, applies to all offenses committed on or after that date, and provides, in relevant part, that “[t]he superior court shall have exclusive jurisdiction over any matter concerning any child 13 to 17 years of age who is alleged to have committed . . . [aggravated sodomy [or] [aggravated child molestation.” OCGA § 15-11-5 (b) (2) (B) provides that the superior court may transfer any case brought in superior court pursuant to subsection (A) if the offense charged “is not punishable by loss of life, imprisonment for life without possibility of parole, or confinement for life in a penal institution.”

In the present case, on July 29, 1994, the nine-year-old victim told her father that Reynolds had molested her. Although the evidence was not specific as to the exact date each act of aggravated molestation and sodomy occurred, it did indicate that such acts occurred during the summer months of 1994. The superior court obtained exclusive jurisdiction over Reynolds, pursuant to OCGA § 15-11-5 (b) (2) (A), upon the allegations of aggravated sodomy and aggravated child molestation against him. Thereafter, the trial court is required to find “extraordinary cause” to exercise its discretion to transfer the case to juvenile court. See OCGA § 15-11-5 (b) (2) (B).

Such extraordinary cause is not presented by evidence of other acts not within the exclusive jurisdiction of the superior court. In Worthy v. State, 253 Ga. 661 (324 SE2d 431) (1985), the defendant was convicted in superior court of murder and theft by taking. On appeal, the defendant contended “that because he was a juvenile the superior court had no jurisdiction over the theft by taking count.” Id. at 661. The Georgia Supreme Court held “that the concurrent jurisdiction of the superior court over capital felonies committed by juveniles must necessarily extend to related lesser crimes which are part of the same criminal transaction. To rule otherwise would be to bisect criminal conduct artificially and require the state to follow two procedures with no substantive meaning other than to satisfy procedural requirements, with the end result that the case involving the lesser crime would be instituted in juvenile court and transferred to the superior court, OCGA § 15-11-39, and the juvenile would still be tried for the lesser crime along with the crime giving the superior court concurrent jurisdiction. There is no loss of substantive protection of the juvenile, and the public’s rights should not be impeded by meaningless procedural steps which delay the judicial process and conceivably could lead to the frustration of justice under the rigorous requirements of the double jeopardy clause.” Id. at 662.

The Supreme Court’s analysis in Worthy applies equally to the present case. As the superior court properly asserted jurisdiction over Reynolds with regard to the allegations of aggravated child molestation and aggravated sodomy occurring after the effective date of OCGA § 15-11-5 (b) (2) (A), any other offenses were also properly brought in the same court at the same time. The trial court did not abuse its discretion by overruling Reynolds’ motion to transfer his case to juvenile court.

2. Reynolds contends the trial court erred in denying his motion to limit the jury’s consideration to those acts occurring on or after May 1, 1994. This enumeration of error is a restatement of Reynolds’ first enumeration and also controlled by Worthy, supra.

3. Reynolds asserts the trial court erred in overruling his motion to transfer the case to juvenile court after he was acquitted of the aggravated child molestation and aggravated sodomy charges. OCGA § 15-11-5 (b) (2) (D) provides “[t]he superior court may transfer any case involving a child 13 to 17 years of age alleged to have committed any offense enumerated in subparagraph (A) of this paragraph and convicted of a lesser included offense not included in subparagraph (A) of this paragraph to the juvenile court of the county of the child’s residence for disposition. Upon such a transfer by the superior court, jurisdiction shall vest in the juvenile court and jurisdiction of the superior court shall terminate.” (Emphasis supplied.)

Again, Reynolds argues that the trial court abused its discretion in failing to transfer his case because the evidence and the jury charge authorized the jury to convict him of offenses committed prior to the effective date of the statute giving the superior court exclusive jurisdiction. As we discussed in Division 1, the trial court properly exercised jurisdiction over Reynolds, and all charges brought against him. Therefore, absent an abuse of discretion, which Reynolds failed to show, the trial court properly denied Reynolds’ motion to transfer brought after the verdict.

4. Reynolds contends the trial court erred in instructing the jury that Reynolds could be convicted of any offense occurring within seven years if it occurred after his thirteenth birthday. Through this enumeration, Reynolds again attacks the subject matter jurisdiction of the superior court over any acts which occurred prior to May 1, 1994. See Division 1.

5. In his final enumeration of error, Reynolds asserts the trial court erred in finding his statement during interrogation to be voluntary and admissible.

In Riley v. State, 237 Ga. 124 (226 SE2d 922) (1976), the Georgia Supreme Court enumerated several factors which must be considered in determining whether a juvenile’s statement was voluntarily given: “(1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogations; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.” (Citations and punctuation omitted.) Id. at 128.

During the Jackson-Denno hearing, Detective West with the Walker County Sheriff’s Department testified that she told Reynolds’ grandmother that she needed to talk to Reynolds. Reynolds’ grandmother brought him to Detective West’s office, and she was present during Detective West’s entire 40-minute interview with Reynolds. Detective West informed Reynolds of his Miranda rights, established he could read and write, and was in the eighth grade. Reynolds was 14 years old at the time of the interview. Reynolds signed the Miranda form and agreed to talk to Detective West without an attorney. Upon being confronted with the victim’s allegations, Reynolds initially denied any involvement with the victim. However, after Reynolds’ grandmother indicated that Reynolds would take a polygraph test, Reynolds admitted that he had engaged in certain sexual acts with the victim, but that the victim had initiated the acts. At trial, both Reynolds and his grandmother denied that he made the statements attributed to Reynolds.

“ ‘The question of whether ... a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous.’ [Cit.]” Marshall v. State, 248 Ga. 227, 231 (282 SE2d 301) (1981). Reynolds’ main objection is that he was not informed of the charges brought against him. However, prior to making any statement, Reynolds was informed of the victim’s allegations which he denied. Despite his knowledge of the victim’s allegations, Reynolds continued to discuss the allegations. After review of the totality of the circumstances surrounding Reynolds’ statements, we conclude that the trial court’s findings were not clearly erroneous.

Decided May 18, 1995

Reconsideration denied June 9, 1995

Little & Adams, Robert B. Adams, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Ruffin, Judge.

text:
    A95A0573.
    REDD et al. v. STANFIELD et al.
    (458 SE2d 394)
   Ruffin, Judge.

The appellants, administrators of the estate of decedent Jimmie Redd (“Redd”), sued Dennis Stanfield, Building Methods, Inc. d/b/a Paul Davis Systems of Augusta (“Building Methods”), Byrd’s Electric & Plumbing (“Byrd’s”), Mickey Skinner and Tom Ledbetter, alleging that the negligence of the defendants caused the ditch Redd was digging to collapse. Building Methods, Byrd’s and Ledbetter moved for summary judgment, and it is the grant of those motions which is appealed.

The background of the case follows. An insurance company accepted bids for repairs on a home, including the rerouting of a sewer line. Building Methods received the contract. It then contracted the rerouting of the sewer line to Byrd’s. Byrd’s subcontracted most of the work, including the entire rerouting project, to Skinner and Led-better. Skinner and Ledbetter hired the decedent to help reroute the sewer line. Building Methods, Byrd’s and Ledbetter (“appellees”) each filed summary judgment motions, contending that as principal, intermediate, and subcontractors, respectively, OCGA § 34-9-11 provided they were immune from suit and that the Workers’ Compensation Act was the administrators’ exclusive remedy.

1. Appellants contend the trial court erred in granting summary judgment because none of the three appellees performed “substantial services” in connection with the construction project. But OCGA § 34-9-8 (a) provides that “[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract. ...” The quid pro quo for the potential liability of these “statutory employers” is immunity from suit. Wright Assoc. v. Rieder, 247 Ga. 496 (1) (277 SE2d 41) (1981). The Supreme Court has clearly stated that the secondary liability and ensuing immunity imposed by OCGA § 34-9-8 applies to “those who contract to perform certain work ... for another, and then sublet in whole or part such work.” (Citations and punctuation omitted; emphasis supplied.) Yoho v. Ringier of America, 263 Ga. 338, 339 (434 SE2d 57) (1993). Here, all three appellees owed a contractual obligation of performance and were therefore statutory employers potentially liable for workers’ compensation benefits and immune from tort liability. Id. Accordingly, summary judgment was appropriate.

Decided June 12, 1995

Stephen E. Curry, Elwyn G. Beddingfield, for appellants.

2. Appellants also urge us to reverse the grant of summary judgment for policy reasons because none of the appellees faced actual exposure to a compensation claim (the record does not indicate that a claim was ever filed) and any such claim is now time barred. In other words, they argue that having incurred no liability, it is unjust for appellees to receive the trade off of immunity. It is well established, however, that “statutory immunity from suit includes the statutory employer regardless [sic] whether that statutory employer . . . actually paid the workers’ compensation benefits.” Modlin v. Swift Textiles, 180 Ga. App. 726, 731 (2) (350 SE2d 273) (1986).

3. The appellants’ last argument appears to be that appellees are not entitled to immunity because the decedent’s work was inherently dangerous and the appellees were in violation of OSHA guidelines and licensing requirements. But the appellants cite no authority to support an argument that such facts create an exception to the Act’s exclusive remedy provisions. See Court of Appeals Rule 15 (c). In addition, we have held that an employer’s “failure to furnish its employees with a safe place to work must be redressed under the Act.” Bryant v. Wal-Mart, 203 Ga. App. 770, 771 (1) (417 SE2d 688) (1992).

For the foregoing reasons, the trial court’s order granting summary judgment is affirmed.

Judgment affirmed.

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

Samuel W. Cruse, for appellees.


text:
    A95A0763.
    YOUNG v. THE STATE.
    (458 SE2d 391)
   Ruffin, Judge.

Steven Young a/k/a Kevin Bell was convicted of aggravated assault and burglary and appeals following the denial of his motion for a new trial.

1. Young argues that the trial court erred in failing to grant his motion for a mistrial after a witness, Terry Johnson, testified Young had previously been in trouble with the police. Young argues this testimony impermissibly placed his character in issue and was not rectified by the court’s curative instructions. We disagree.

During Johnson’s redirect examination, the State asked him about his references during cross-examination to an individual named Stevie. Johnson pointed to Young and testified that Stevie Young and Kevin Bell were the same person and that he and Young had created the fictitious name. When asked by the State whose idea it was to change Young’s name to Kevin Bell, Johnson responded “[n]o, we just called him that. No. We — when he came down here, he say he was in trouble, so we ain’t want the police to know what happened.” Young then moved for a mistrial, arguing that his character had been impermissibly placed into evidence. The court denied the motion and instructed the jury that they were to disregard the response and draw no inferences whatsoever from it.

Young contends the court erred in failing to grant a mistrial because this testimony about his prior troubles with the police left a lasting impression on the jury which could not be remedied by a curative instruction. We disagree and do not find that Johnson’s response was so prejudicial that the court’s curative instructions were ineffective. “Motions for mistrial are largely in the discretion of the trial judge, especially where the cause of the motion lies in the voluntary remark of a witness not invited by the court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court’s discretion will not be overturned.” (Citations and punctuation omitted.) Spears v. State, 213 Ga. App. 235 (444 SE2d 152) (1994).

Here, Johnson’s answer was nonresponsive, and the trial court instructed the jury that they were to disregard the response and draw no inferences whatsoever from it. Given these facts, we find that the trial court did not abuse its discretion in denying Young’s motion for a mistrial. See Eagle v. State, 264 Ga. 1 (2) (440 SE2d 2) (1994) (no abuse of discretion in denying mistrial because nonresponsive answer did not place defendant’s character in issue).

Young’s appellate brief alludes to several other instances when Johnson testified about Young’s previous troubles with the police, three of which he fails to identify. Such argument cannot serve to enlarge this enumeration of error to encompass issues not contained in the original enumeration. Burton v. State, 212 Ga. App. 100 (1) (441 SE2d 470) (1994).

Finally, Young argues that the court erred in denying the motion because the State elicited this testimony after withdrawing its notice of intent to present evidence of similar crimes pursuant to Uniform Superior Court Rule 31.3 (C). There is no evidence, however, that the State attempted to introduce evidence of similar transactions, and Young did not object to Johnson’s response on this ground. Accordingly, this argument presents nothing for review. See, e.g., Woods v. State, 212 Ga. App. 544 (1) (442 SE2d 22) (1994).

2. Young contends the trial court erred in ruling that he placed his character in issue by his own testimony and consequently in allowing the State to impeach him with evidence of a prior conviction. However, the record demonstrates that not only did Young’s attorney fail to object to the trial court’s ruling on this issue, he actually acquiesced in the court’s judgment that Young had “opened the door” to such impeachment. “[A] litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. Acquiescence deprives him of the right to complain further.” (Citations and punctuation omitted.) Watkins v. State, 206 Ga. App. 701, 705 (4) (426 SE2d 238) (1992). Moreover, an error blended with blame by Young affords no grounds for reversal.

3. Young also contends that the State’s method of impeaching him was improper in two respects. Although Young quotes many pages of the transcript in Part One (Statement of Facts) of his brief, he fails in the argument portion of the brief to cite where in the record the alleged error occurred. Further, he contends that his attorney repeatedly objected to the method of impeachment, without ever showing us where the alleged error was actually preserved as required by Court of Appeals Rule 27 (a) (1). Nonetheless, we have examined the record to determine if there was error. The first impeaching questions Young complains of, which concerned whether he was being investigated by Miami police, were never objected to by his attorney and thus will not be reviewed. See id.

Young also complains that the court admitted a copy of a prior drug conviction over the continuing objection of his attorney. But the record demonstrates that when Young’s attorney initially objected to admission of the conviction, he could not articulate a basis for the objection. See Price v. State, 204 Ga. App. 288 (1) (419 SE2d 126) (1992) (objections to evidence not raised at trial will not be considered on appeal). Moreover, when the State later sought to introduce the conviction, the attorney specifically agreed to its admission without objection. Accordingly, this enumeration is also without merit. See Watkins, supra.

Decided June 12, 1995.

M. Ross Becton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Tepper, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A95A0106.
    SPEAGLE v. THE STATE.
    (458 SE2d 852)
   Beasley, Chief Judge.

A jury convicted Speagle of two counts of burglary. OCGA § 16-7-1.

1. Speagle enumerates as error the trial court’s denial of his motion to suppress evidence of the fruits of a warrantless search. The following principles apply:

“ ‘The trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Where there is evidence to support the decision of a trial judge on motion to suppress evidence, that decision will not be disturbed on appeal.’ [Cit.]” Leonard v. State, 213 Ga. App. 503, 504 (445 SE2d 330) (1994).

On the afternoon of February 2, 1994, the police were called to investigate burglaries at two homes. Responding to the first call, Detective Davis found a door had been kicked in, the house ransacked, and items such as jewelry, silver, a silver chest, and a video camera in an orange bag were missing. A neighbor provided the tag number and description of a pickup truck in the driveway at 3:00 that afternoon when a tall, slim white male carrying an orange bag and gray pillowcase ran from the house, jumped in the truck, and drove away. Responding to the second call, Officer Hawkins found a rear kitchen door had been forced open and the house had been ransacked. The victim testified that a man’s wristwatch and several distinctive pieces of jewelry were missing.

At a hearing on Speagle’s motion to suppress evidence, Detective Boyd testified that the pickup truck described by the neighbor was registered to Speagle’s mother and was located outside their condominium. Three detectives went to the condominium and were admitted by Mrs. Speagle, who told them her son Ronald drove the truck although it was titled in her name. She showed the officers to her son’s bedroom, and they informed Speagle his truck was involved in a burglary earlier in the day. Noting Speagle fit the neighbor’s physical description of the burglar and observing on top of his dresser a plastic bag containing jewelry, Detective Boyd requested and received Speagle’s permission to search the room. After arresting Speagle, detectives also obtained Mrs. Speagle’s written consent to search the bedroom. Many items reported stolen in the two burglaries were recovered and returned to the victims.

Arguing that the vehicle description and license number provided by one victim’s neighbor were analogous to an anonymous tip, Speagle first contends there was insufficient indicia of the neighbor’s reliability to justify the officers’ actions.

The neighbor, a long-time resident who came forward and identified himself to police, witnessed an unidentified male leave the residence with pillowcases holding items and drive off in a truck. He provided a description of the pickup, its driver, and its contemporaneously noted tag number, later verified by the Department of Motor Vehicles as being a tag number for that vehicle and registered to Janet Speagle. The information was not from an anonymous person but rather from an identified concerned citizen, and it was materially confirmed. Considering the source, the nature of the information, and its degree of accuracy, police reasonably relied on the neighbor to investigate further.

Speagle contends that he did not consent to the search and that even if he did, it was not voluntary because when the police arrived, he was dressed only in a towel and was in no position to leave. He further contends that his mother’s consent was coerced by the officers’ statement that a search warrant would be sought if she did not consent and that as his landlord, Mrs. Speagle was not authorized to consent to a search.

“When a motion is made to suppress the fruits of a consensual search, ‘the burden is upon the state to “demonstrate that the consent was voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances.” [Cits.]’ Code v. State, 234 Ga. 90, 93 (214 SE2d 873) (1975).” Miller v. State, 194 Ga. App. 338, 339 (390 SE2d 291) (1990). Detective Boyd testified that Speagle consented to a search of his room and that Mrs. Speagle also consented to such a search after her son was arrested. The evidence supports the court’s finding that Speagle voluntarily consented. His consent was sufficient authority to search without a warrant. His mother’s was not necessary, but since it is challenged, we address its validity as well.

As to Mrs. Speagle’s consent, the law is that “[a] law enforcement officer’s statement that a search warrant will be sought if consent is not given is permissible provided the officer has probable cause to obtain a warrant. ...” (Citation and punctuation omitted.) Id. Consent was not required because probable cause to search the room was present: detectives knew jewelry had been taken in a burglary involving the Speagle truck, they observed a plastic bag of jewelry on Speagle’s dresser, and Speagle fit the neighbor’s description of the burglar. As to Mrs. Speagle’s authority to consent to a search of her son’s room, she testified that she owns the condominium where her son lived with her, that they kept his room locked, that she had a key to the room, and that he gave her $100 to $150 a month “to help with expenses.” Even if we were to find Mrs. Speagle was not authorized to consent to a search of her son’s room, she admitted the officers to the condominium, showed them to her son’s room, and when he had been taken into custody, signed a written consent to the search. The officers reasonably believed Mrs. Speagle had sufficient control of the residence to authorize her to consent to a search of her son’s room. Ford v. State, 214 Ga. App. 284 (3) (447 SE2d 334) (1994).

It was not error to deny the motion to suppress and admit the results of the search into evidence.

2. Speagle next enumerates as error the trial court’s admission of similar transaction evidence on grounds that the 1980 offense was not identical to the 1994 offenses and the earlier conviction is too remote to show his mindset in 1994.

“The general rule in this state is that evidence of other criminal acts by a defendant is inadmissible unless the defendant chooses to put his character in issue. [Cit.] However, in some circumstances, evidence of independent crimes may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. Before such evidence may be admitted, the state must show that the defendant was the perpetrator of the independent crime, and that there is sufficient similarity or connection between the independent crime and the offense charged, so that proof of the former tends to prove the latter. [Cit.] It must also be emphasized that evidence of independent crimes is never admissible unless its relevancy to the issues on trial outweighs the prejudice it creates. [Cit.]” Brunson v. State, 207 Ga. App. 523, 524-525 (428 SE2d 428) (1993).

The State established that Speagle pled guilty to a 1980 burglary in which the victim’s house was entered by kicking in a back door, the house was ransacked, drawers were emptied, and items including a pillowcase, jewelry, firearms, and Christmas gifts were stolen. “ ‘There is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.’ [Cit.]” Gonzalez v. State, 213 Ga. App. 667 (445 SE2d 769) (1994). Although different items were taken and Speagle wrote a letter of apology to the victim in 1980, the earlier offense was sufficiently similar so as to tend to show Speagle’s identity, motive, and course of conduct.

Decided May 12, 1995

Reconsideration dismissed June 13, 1995

William T. Hankins III, for appellant.

Ronald S. Speagle, pro se.

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

Regarding the 14-year period between the offenses, the State established, out of the jury’s presence, that Speagle was incarcerated following his 1980 conviction and released in 1984; he was convicted for another offense in 1988 and returned to prison; after he was released, his probation was revoked in 1991. Under such circumstances, the 1980 offense was not too remote to be admissible. In this instance, “ ‘the lapse of time between the prior occurrence! ] and the offenses charged goes to the weight and credibility of such testimony, not its admissibility. [Cit.]’ [Cit.]” Brunson, supra at 525.

3. Speagle also enumerates as error the insufficiency of the evidence to support his conviction of either burglary. Viewed in a light to support the verdict, the evidence was sufficient to support the conviction for the two burglaries beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Johnson, Judge.

text:
    A95A0141.
    ALLISON v. THE STATE.
    (459 SE2d 557)
   Johnson, Judge.

Keith Allison appeals from his conviction of possessing cocaine with intent to distribute.

1. Allison argues the court erred in denying his motion to suppress cocaine found by a police officer during illegal searches of Allison and his automobile. “On review of a decision on a motion to suppress, we will construe the evidence most favorably to uphold the trial court’s findings, and we will adopt the trial court’s determinations on disputed facts and credibility if there is any evidence to support them. [Cit.]” Popham v. State, 214 Ga. App. 775, 777 (449 SE2d 150) (1994). Construed most favorably to uphold the trial court’s findings, the evidence in the current case shows the police officer, who knew Allison’s driver’s license had been suspended, observed Allison driving his automobile. After Allison stopped and exited his car, the officer approached Allison and placed him in the back seat of the offleer’s patrol car. While Allison was in the patrol car, the officer searched the passenger compartment of Allison’s automobile and found cocaine under the driver’s seat. The officer then searched Allison and found cocaine hidden in his underwear.

Contrary to Allison’s argument, this evidence shows the officer’s searches of Allison and his car were valid. “Once a defendant has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband.” (Citation and punctuation omitted.) Causey v. State, 208 Ga. App. 389, 390 (3) (430 SE2d 594) (1993). Likewise, “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. This court has held that a search is valid as an incident to a lawful custodial arrest where the defendant has been handcuffed and placed in a patrol car while the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a recent occupant of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search.” (Citations, punctuation and emphasis omitted.) Sims v. State, 197 Ga. App. 214, 215 (2) (398 SE2d 244) (1990).

Here, the police officer lawfully arrested Allison, by placing him in the back seat of the patrol car, for driving with a suspended license. See Freeman v. State, 195 Ga. App. 357, 358 (1) (393 SE2d 496) (1990); State v. McCloud, 187 Ga. App. 580, 582-583 (370 SE2d 831) (1988). The officer was then authorized to search incident to that lawful arrest both Allison’s person and automobile. Because the searches of Allison and his car were incident to Allison’s lawful arrest, the court did not err in denying Allison’s motion to suppress the cocaine found during those searches. See Bagwell v. State, 214 Ga. App. 15, 17 (446 SE2d 739) (1994); Daniel v. State, 199 Ga. App. 180, 182 (404 SE2d 466) (1991).

2. In his second enumeration of error, Allison claims the court improperly admitted evidence of his bad character. In his brief, Allison has not stated the method by which this enumeration of error was preserved for consideration, as required by Court of Appeals Rule 15 (a) (l). Instead, Allison refers to several pages of the trial transcript concerning the state’s cross-examination of him and another defense witness, and the state’s presentation of four rebuttal witnesses. A review of those pages reveals that Allison objected to the evidence on the grounds of relevance, hearsay and being beyond the scope of Allison’s testimony, but Allison never raised any objection to the evidence on the ground that it improperly placed his character in issue. “In Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) (1991), this court refused to consider a claim of improper character evidence where that specific ground of objection was not made when the evidence was offered at trial. ‘Reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make.’ [Cit.] Likewise, in the absence of a specific objection below, it was waived.” Lewis v. State, 208 Ga. App. 656, 658 (1) (431 SE2d 445) (1993). Because Allison failed to specifically object to the evidence on the ground that it impermissibly placed his character in issue, he may not raise that objection for the first time on appeal. See Perry v. State, 214 Ga. App. 444, 445 (1) (448 SE2d 74) (1994); Dunn v. State, 208 Ga. App. 197 (3) (430 SE2d 50) (1993).

3. Allison complains the court erred in admitting the cocaine into evidence over his chain of custody objection because the state’s witnesses gave differing testimony as to the number of pieces of cocaine seized from Allison. The arresting officer testified that he counted 292 pieces of cocaine, put those pieces in a labeled evidence bag, sealed the bag and placed it in the police department’s evidence storage bin. He also stated that he could have miscounted the number of pieces of cocaine. A police lieutenant testified that he and a detective removed the sealed bag from the evidence storage bin and delivered it to the state crime lab. A forensic chemist at the crime lab testified she received the sealed bag from the police lieutenant and detective; she opened the bag and counted 237 pieces of cocaine; she tested 20 of the pieces, which were positive for cocaine; she placed all the pieces back in the bag and resealed it; and she kept the resealed bag in her locker and then a storage vault until trial.

Contrary to Allison’s complaint, the state adequately proved the chain of custody of the cocaine. The discrepancy between the testimony of the arresting officer and the forensic chemist as to the number of pieces of cocaine did not render the cocaine inadmissible. “Disparities in the testimony of the witnesses are an issue for resolution by the factfinder. Where the State’s evidence concerning the chain of custody of evidence was in conflict: The fact that the testimony of the state’s witnesses does not agree in all details goes to the weight but does not affect the admissibility of the evidence.” (Citations and punctuation omitted.) Thomas v. State, 208 Ga. App. 476 (1) (430 SE2d 849) (1993). The trial court in the present case did not err in overruling Allison’s chain of custody objection and in admitting the cocaine into evidence. See Langham v. State, 196 Ga. App. 71, 72 (1) (395 SE2d 345) (1990); Wilson v. State, 193 Ga. App. 183 (1) (387 SE2d 413) (1989).

Decided May 17, 1995

Reconsideration dismissed June 13, 1995.

Ruby J. Thomas, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, William C. Akins, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

       For appeals docketed in this court after January 1, 1995, the requirement that the appellant state the method by which an enumeration of error was preserved for appellate review is now contained in Court of Appeals Rule 27 (a) (1). Former Court of Appeals Rule 15 (a) (1), which contained the same requirement, applies to the instant appeal because it was docketed before the effective date of the new rules.


author: Smith, Judge.

text:
    A95A0190.
    LEIGH v. THE STATE.
    (458 SE2d 376)
   Smith, Judge.

Stacey Bernard Leigh was charged with trafficking in cocaine, OCGA § 16-13-31 (a) (1), and possessing less than an ounce of marijuana. OCGA §§ 16-13-2 (b); 16-13-31 (a) (1). He moved in limine to suppress evidence seized after he was stopped and he and the car he was driving were searched. The trial court denied his motion to suppress but certified the order for immediate review; we granted Leigh’s application for interlocutory review.

In his application for interlocutory review, Leigh contended the contraband found in his car should have been suppressed because the search of his person and his car were warrantless and were not lawful under any of the recognized exceptions to the warrant requirement. Leigh’s car was stopped after he drove away from an apartment that was under surveillance by the Marietta/Cobb/Smyrna Narcotics Unit (MCS). The evidence presented at the hearing on Leigh’s motion showed that the MCS had received a tip from a confidential informant that an individual named Hosea Benton was storing crack cocaine at the apartment in Cobb County and selling it in Atlanta. The informant described to agent P. J. Coalson of MSC the vehicles usually used to transport the contraband and offered to make a “controlled buy,” which was arranged immediately by Coalson. Coalson left the scene to obtain a search warrant for the apartment and the vehicles, while another agent accompanied the informant into the apartment and the transaction was completed.

After the “buy” was completed, and before Coalson obtained the search warrant, Leigh drove up in front of Benton’s apartment in a car that resembled but was not identical to one previously described by the informant. Agents on the scene telephoned Coalson with the description of the car, and it was added to her affidavit for the search warrant. Agents observed Leigh enter the apartment and remain inside more than 15 minutes. Leigh then left the apartment carrying a small, light-colored package, entered his car, and drove away. He was stopped by officers in a marked patrol car pursuant to the order of a supervisor, who suspected he was a drug courier. The stop was effected before Leigh had left the apartment complex. When Leigh was patted down for weapons approximately a quarter-ounce of suspected marijuana was discovered in his right front pants pocket. A search of the trunk revealed 62.3 grams of crack cocaine and $3,800 in currency. The agents who remained at the apartment complex executed the search warrant after Leigh had been taken into custody, finding approximately six or seven ounces of crack cocaine and thirty-five grams of suspected marijuana in the apartment.

Decided May 30, 1995

Reconsideration denied June 13, 1995

Daniel E. Gavrin, for appellant.

Thomas J. Charron, District Attorney, Irvan A. Pearlberg, Donald T. Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

We granted Leigh’s application for interlocutory review based upon the facts as stated in Leigh’s application. Significantly, though, the fact that officers observed Leigh emerge from Benton’s apartment bearing a package was not mentioned in his application for interlocutory review. Regardless of whether this omission was deliberate or inadvertent, we do not agree with the characterization of the omitted fact by Leigh’s counsel during oral argument as having no bearing on the issue. We have no hesitation in stating that had this fact been included, Leigh’s application for interlocutory review would not have been granted. Consequently, this interlocutory appeal is dismissed as having been improvidently granted. See generally Podskoc v. State, 187 Ga. App. 669 (372 SE2d 11) (1988).

Appeal dismissed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A0350.
    LUMBER CITY EGG MARKETERS, INC. v. PIERCY.
    (458 SE2d 364)
   Beasley, Chief Judge.

While employed by Lumber City, Piercy was injured and began to receive workers’ compensation benefits under Lumber City’s self-insurance plan. Lumber City then controverted the claim, contending Piercy was ineligible because he was a farm laborer. OCGA § 34-9-2 (a). An administrative law judge awarded benefits, which the Appellate Division of the State Board adopted and the superior court affirmed. Permission to appeal was granted.

The Workers’ Compensation Act “shall not apply ... to farm laborers . . . nor to employers of such employees. . . .” OCGA § 34-9-2 (a). Lumber City challenges the ALJ’s conclusion that the exempt tion did not apply. OCGA § 34-9-105 (c) (5); see Transus, Inc. v. Fleck, 204 Ga. App. 306 (418 SE2d 817) (1992).

Lumber City’s operations included an egg farm and a processing plant, which were on the same property but kept separate. The farm contained chicken houses, cattle and hay fields. At the processing plant, eggs from the farm and eggs purchased from other farmers were cleaned, boxed and prepared for shipment. The eggs, and other foods for which Lumber City served as wholesaler, were also shipped and sold from this site. The farm accounted for over half the revenue.

The ALJ found that Piercy worked on the farm. Around the time of his injury, he serviced the equipment used to feed and water the chickens in the chicken houses, operated the machine that removed manure from the chicken houses, and picked up eggs when so directed. He was shoveling manure when his injury occurred. There was evidence he did some work in the egg processing plant, after his injury. Lumber City reported him as an agricultural worker on the correct tax form only after the injury, due to a general accounting change. The ALJ did not find Lumber City’s late defense on the grounds of no coverage unreasonable.

The award stated: “Where an enterprise is engaged only in the business of farming and marketing its own crops, an agricultural exemption under the code applies but not otherwise,” citing Glen Oak’s Turf v. Butler, 191 Ga. App. 840 (383 SE2d 203) (1989). The ALJ found Lumber City was not primarily in the business of farming and the designation of Piercy as a farm laborer was primarily for accounting purposes. He concluded Piercy was “not a full-time farm laborer within the meaning of the Act” so that exemption from the Act did not apply.

Glen Oak’s does not stand for the proposition that the exemption applies only if the employer is engaged exclusively in farming. Rather, exclusivity of the employer’s operations may be used to determine whether a worker who performs a non-farming function is doing work incidental to farming and therefore falls within the exemption. Glen Oak’s, supra; Culpepper v. White, 52 Ga. App. 740 (1) (184 SE 349) (1936). The focus of the exemption is the status of the employee, not the total activities of the employer. The question is whether Piercy was a farm laborer, not whether Lumber City engaged in activities other than farming.

“The term ‘farm laborers’ must be given its ordinary signification, and it signifies the cultivation of agricultural crops.” Oft v. Sims, 142 Ga. App. 9 (235 SE2d 41) (1977) (dairy worker could not be claimant under the Act). Farming “includes the growing of livestock . . . chickens, turkeys, swine, etc.” Ga. Power Co. v. Fletcher, 113 Ga. App. 559, 562 (2a) (148 SE2d 915) (1966). It also includes raising and keeping chickens for the production of eggs.

Decided May 16, 1995

Reconsideration denied June 13, 1995

Saveli & Williams, John M. Williams, Kimberly F. Weiss, for appellant.

Luman C. Earle, for appellee.

A farm laborer under the Act need not work exclusively as such. “A farmer or farm laborer who tills the soil and raises crops would not cease to be such if he did some cleaning out of a well as an incident to farming.” Utica Mut. Ins. Co. v. Winters, 77 Ga. App. 550, 553 (1) (48 SE2d 918) (1948). The issue is whether an employee who performs some other duties retains his general character as a farm or non-farm laborer; the character of the work does not change with every temporary duty assignment. Id. at 554-555 (2). If Piercy performed non-farm duties, they would have to be such as to change the general character of his work, or the exemption would remain. His contention, that Lumber City’s actions concerning his tax status and initial treatment of his claim show he was not a farm laborer, fails. Those actions are consistent with a recognition that Piercy was not a farm laborer, but they do not address the actual character of his work.

The ALJ’s award was contrary to law in that it relied on incorrect legal standards concerning whether Lumber City was engaged exclusively in farming and whether Piercy was a full-time farm laborer. The award does not reveal whether the ALJ found the general character of Piercy’s work was that of a non-farm laborer. Thus the case is remanded for further factual findings and proceedings consistent therewith.

Judgment reversed and case remanded.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A0587.
    GEORGE v. SOUTHWIRE COMPANY.
    (458 SE2d 362)
   Beasley, Chief Judge.

George was employed by Southwire Company as a truck driver when he hit another vehicle which pulled in front of his truck after running a stop sign. The driver of the other vehicle was found approximately 75 feet from the accident, and the female passenger was killed instantly. George observed her head coming into the grill of his truck. He was taken to the hospital and treated for a contusion to his right knee, injuries to his hip, and a bruised chest. He was put in the same room with the other driver, whose lung had collapsed, whose face was mangled, and who was gurgling and hollering for the deceased woman. George had to be removed from the room because he became so upset as a result of this.

After George returned to work, he asked for a couple of days off because his knee and hip were still bothering him and he needed to compose himself. When his supervisor asked him to drive again, he could not mentally make himself do it.

George’s panel physician placed him on light-duty work and referred him to an orthopedist and psychiatrist. The orthopedist found that the accident aggravated prior problems with George’s knee but released George from his care without any work restrictions on May 11, 1993, four days after the incident. He has been treated by the psychiatrist, who diagnosed George as suffering from post-traumatic stress disorder, since April 2. He testified it was primarily caused by what George saw during the accident but was intensified and prolonged by the knee injury, which acted as a recurrent reminder.

The ALJ found that the psychological problems stemming from the accident resulted in George’s inability to perform any driving job and were caused by witnessing the events, not by specific physical trauma to George’s knee. For this reason, the ALJ concluded that under W. W. Fowler Oil Co. v. Hamby, 192 Ga. App. 422 (385 SE2d 106) (1989), and Hanson Buick v. Chatham, 163 Ga. App. 127 (292 SE2d 428) (1982), George is not entitled to disability benefits after May 11. The appellate division of the board adopted the ALJ’s award, and the superior court affirmed it. Permission was given to appeal. OCGA § 5-6-35 (a) (1).

The Workers’ Compensation Act protects employees from “injury by accident arising out of and in the course of the employment.” OCGA § 34-9-1 (4). The Act does not exclude psychological injury and, by its terms, contains no requirement that in order to be compensable a psychological injury must be the result of physical trauma. Nonetheless, the Court has not recognized that psychological injury precipitated by psychic trauma is compensable to the same extent as physical injury. Chatham, supra, 163 Ga. App. at 128.

However, in Indemnity Ins. Co. of N. A. v. Loftis, 103 Ga. App. 749, 751 (1) (120 SE2d 655) (1961), it was recognized that “ ‘[t]he human body consists of bones, flesh, ligaments, and nerves, controlled by the brain’ ” and that “ ‘[t]he law does not state which of these particular elements must produce the disability.’ ” Thus, “[i]f a disability exists, whether or not it is psychic or mental, if it is real and is brought on by the accident and injury, this being a humane law and liberally construed, it is nevertheless compensable.’ ” Id. Following the same theme in Howard v. Superior Contractors, 180 Ga. App. 68, 69 (1) (348 SE2d 563) (1986), post-traumatic stress syndrome resulting from an accidental on-the-job physical injury was held to be compensable.

In Chatham, the claimant had a history of psychological and psychiatric problems. After being terminated without warning for poor performance in his duties, he began suffering psychotic episodes and became disabled. There was evidence that these problems were in part due to events other than the unexpected loss of his job. The Court held that a disability which has neither its origin nor its effect in some discernible physical occurrence is not compensable under the Workers’ Compensation Act. Chatham, supra. Brady v. Royal Mfg. Co., 117 Ga. App. 312 (160 SE2d 424) (1968), and Sawyer v. Pacific Indem. Co., 141 Ga. App. 298, 300 (2) (233 SE2d 227) (1977), were cited as precedent for denying compensation for psychic trauma precipitated by psychic stimuli. Id.

The cited cases, like Chatham, must be compared with the present one. The claimant in Brady became emotionally upset after a dispute with her superiors concerning a day of absence. As a consequence, she developed a conversion reaction which resulted in what she thought to be paralysis of her left arm.

The claimant in Sawyer suffered from a psychosis which began developing while he was a counselor at an institution for boys with social and behavioral problems. It was held that this did not qualify as an accident but might qualify as an occupational disease. Sawyer, supra at 301 (3). The Court noted that Brady was decided before the enactment of the occupational disease statute.

Hamby held that the mere touching of the head of an employee with a gun by an armed robber, without any physical injury, is an insufficient discernible physical occurrence to support compensation for the resulting emotional and psychic problems experienced by the employee.

Unlike Hamby, Chatham, Sawyer, or Brady, but like Howard and Loftis, claimant George’s mental disability was brought on by a compensable accident in which he was physically injured. Although this physical injury is not the cause of his mental disability, it is part of the reason for its continuation. Under these circumstances, Howard and Loftis support a determination of compensability for psychic trauma precipitated by psychic stimuli. The other cited cases do not require a different result. The policy reasons for excluding such coverage, articulated in Chatham, supra at 129-130, do not pertain here.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

Decided May 10, 1995

Reconsideration denied June 13, 1995

Charles H. Lumpkin, Jr., for appellant.

Kenneth A. Smith, for appellee.


text:
    A95A0695.
    EVANS v. THE STATE.
    (458 SE2d 665)
   Ruffin, Judge.

Deon Evans was tried and convicted of violating the Georgia Controlled Substances Act. He appeals the judgment of conviction following the denial of his motion for new trial.

1. Evans, who is black, contends the trial court erred in seating juror number seven, a white female, after his attorney articulated a reasonable race-neutral reason for striking the juror. We agree with Evans and reverse.

The record shows that Evans’s attorney used a peremptory strike for juror number seven and the State made a “reverse Batson” (Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986)) challenge. Evans’s attorney responded that his reason for striking the juror was race-neutral and that he used the strike in order to get to individuals at the bottom of the jury list whom he thought would make good jurors.

In Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987), our Supreme Court held that “[t]he explanation for striking each . . . juror must be evaluated in light of the explanations offered for the . . . other peremptory strikes. . . .” Similarly, this court has held that although striking a particular juror in order to get to other jurors further down the list appears to be a race-neutral explanation, “only in the context of application can we determine whether such an explanation is in fact racially-neutral.” Covin v. State, 215 Ga. App. 3, 4 (449 SE2d 550) (1994).

Thus, we examine the context in which the defense attorney attempted to strike juror number seven. The record shows that the attorney had already seated three black jurors and struck two white jurors. However, the court ruled and the State concedes that the articulated reasons for striking the two white jurors — both jurors had been on the opposite side of the attorney in prior litigation — were race-neutral. In addition, immediately prior to striking juror number seven, the defense seated juror number six, a white female.

Evans’s attorney explained that he struck juror number seven in order “to get to people at the bottom of the list that I think will be good jurors. And that causes me to exercise strikes early on. . . . It has nothing to do with the woman’s race. I just sat a woman of approximately the same age and precisely the same race. . . .” In addition, the court later noted the defense had indicated that the two jurors further down on the list whom it wanted to reach were a white female and a black male.

Evans’s attorney further stated that he might not have been forced to strike the juror if the court had opted to pass the jury list back and forth between the parties as is done in civil trials rather than requiring action on the jurors in the sequence they appeared on the jury list. That way, the parties could exercise their strikes randomly rather than being forced to exercise strikes in the order the names appeared on the list. It is not necessary to address the order in which jurors in criminal cases must be considered and struck inasmuch as it appears that Evans’s reason for striking juror number seven was sufficient and that the trial court erred in ruling otherwise.

As we scrutinize the sufficiency of the reason offered by the attorney and the context in which the strike occurred, “we are [also] mind-r ful that the explanation need not rise to the level justifying exercise of a challenge for cause, but it must be neutral, related to the case to be tried, and a clear and reasonably specific explanation of [the attorney’s] legitimate reasons for exercising the challenges.” (Citations and punctuation omitted.) Covin, supra at 4.

We find that defense counsel’s explanation met all three of these criteria, but more importantly, viewed in context, the explanation was in fact race-neutral: The attorney had unquestionably race-neutral reasons for his prior strikes (see Gamble, supra), had just seated a white juror and was attempting to reach both a black and a white juror at the bottom of the list. Thus, we find that in the context of application, the attorney’s proffered desire to get to other jurors was reasonable and race-neutral. Accordingly, under these particular facts, it was error for the trial court to seat juror number seven.

2. Given our holding in Division 1, we need not address Evans’s remaining enumeration of error.

Judgment reversed.

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

Decided May 16, 1995

Reconsideration denied June 13, 1995

Lawrence & Ford, Francis N. Ford, for appellant.

Joseph H. Briley, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

       In State v. Mayweather, 262 Ga. 727 (425 SE2d 659) (1993), the Georgia Supreme Court adopted the United States Supreme Court’s ruling that criminal defendants are likewise “prohibited from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” Id.


text:
    A95A0224.
    SING v. THE STATE.
    (458 SE2d 493)
   Smith, Judge.

Miguel Sing was found guilty by a jury of possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). His motion for a new trial was denied. He appeals, raising challenges to the sufficiency of the evidence to support his conviction and to the trial court’s denial of a motion for mistrial. We affirm.

The evidence presented at trial showed that Chamblee police officers observed a large amount of foot traffic going in and out of an apartment and received information from a confidential informant that drugs were being sold out of that apartment by several Hispanic men. They arranged for the informant to make a controlled buy with a marked twenty-dollar bill. After buying the drugs, the informant described the seller as a “heavy-set Hispanic male” who was short and in his twenties.

The officers obtained a search warrant for the apartment and executed it approximately a week after the controlled buy. They found Sing in the living room of the apartment. Three other men were found in a bedroom. Three “hits” of crack cocaine were found in the trouser pockets of one of the men in the bedroom. No other drugs were found on the person of any of the other occupants, including Sing. None of the men present in the apartment met the description of the seller given by the informant, and the officers concluded that the seller was not present in the apartment when the warrant was executed. A crack pipe was found in a couch in the living room and 45 individually packaged “hits” were discovered in a wicker basket containing plastic ivy hanging on the living room wall. Two officers testified Sing informed them it was his apartment, and that he knew drugs were being sold there but would not disclose the identity of the seller.

Sing denied telling the officers it was his apartment. He testified he told them he lived there but shared the apartment with three other men, all of whom contributed to the rent and utilities. Only the gas bill was in Sing’s name. Although he testified he “would suspect” the large number of visitors to the apartment came to buy drugs, he claimed he never saw the drugs or anyone selling them in the apartment, and it was “a surprise” to him that such a large amount of drugs was in the apartment. He denied knowledge of the seller’s identity. He testified he was arrested after the officers threatened to arrest him if the four men found in the apartment did not reveal the owner of the drugs found in the basket.

1. Sing argues this evidence was insufficient to support his conviction. He maintains the State proved nothing but his mere presence at premises where drugs were found. We do not agree.

Sing correctly states that where it is affirmatively shown that others had equal access or opportunity to commit the crime, a defendant’s mere presence at premises where contraband is discovered, without more, is insufficient to support a conviction. See, e.g., Paden v. State, 216 Ga. App. 188, 189-190 (1) (453 SE2d 788) (1995). Where there is evidence connecting the defendant to the contraband other than his own equal access, however, it is for the jury to determine his guilt or innocence. Williams v. State, 207 Ga. App. 782, 784 (4) (429 SE2d 153) (1993). Sing relies heavily upon Williams, in which we reversed the conviction of one of four people charged with possession of cocaine with intent to distribute. The facts in Williams are distinguishable from those here, however. In Williams, the search of a mobile home revealed contraband located in a locked bedroom to which the defendant whose conviction we reversed had no access. In addition, her co-defendant claimed ownership of the cocaine and exculpated her. Id. In Paden, we reversed the conviction because no evidence of the defendant’s guilt was introduced other than his presence on premises where contraband was found.

Here, however, despite Sing’s testimony that he had no knowledge of the presence of large amounts of cocaine in the apartment at which he lived for approximately five months, he conceded that the apartment had many visitors and that he suspected drugs were being sold. In addition, although Sing denied making such a statement, two officers testified he admitted it was his apartment, he knew drugs were being sold there, and he knew who was selling them but would not disclose the seller’s name. Because evidence other than mere presence implicated Sing, it was for the jury to determine his guilt or innocence. Williams, supra at 784 (4). The evidence was sufficient to authorize the jury to find him guilty.

2. At the beginning of the trial, defense counsel stated to the court that he believed any mention of Sing’s illegal immigration status would be prejudicial. The trial court agreed that it saw no need for that to come up, and the prosecutor concurred that at that moment he did not, either. The matter was then dropped.

The State never brought up Sing’s immigration status. On cross-examination, however, defense counsel inquired whether a police officer ever asked Sing for identification, such as a driver’s license. The officer immediately replied: “He [Sing] stated he was here illegally.” Sing then moved for a mistrial, which the trial court denied.

Decided May 31, 1995

Reconsideration denied June 14, 1995

Miguel Sing, pro se.

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

The trial court found that the witness’s answer was responsive to defense counsel’s question when he quoted Sing. The court also pointed out that it had once before become necessary for the court to step in to prevent mention of this matter in response to a question posed by defense counsel. Witnesses were advised to make no further mention of Sing’s illegal status, and the court gáve a curative instruction, informing the jury that “the remark about this man’s status in the country has nothing whatsoever to do with the guilt or innocence in this case. And I’ll instruct you to let it play no part in your deliberations in the case.”

Evidence of illegal immigration status is, of course, inadmissible under these circumstances, as stated by the Georgia Supreme Court recently in Sandoval v. State, 264 Ga. 199, 200 (2) (a) (442 SE2d 746) (1994). After the trial judge informed counsel that he proposed to deny the motion for mistrial and informed him of the substance of the curative instruction he would give the jury, counsel stated his “objection continues then,” but he did not renew his motion for mistrial after the curative instruction was given. Even if his “continuing objection” was sufficient to preserve an issue regarding the effectiveness of the instruction, it did not serve to preserve the issue regarding the denial of the motion for mistrial, which is the error enumerated on appeal. Garcia v. State, 207 Ga. App. 653, 657 (2) (a) (428 SE2d 666) (1993). Sing waived this issue by failing to renew his motion for mistrial after the instruction was given. McBride v. State, 213 Ga. App. 857, 858 (3) (b) (446 SE2d 193) (1994).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A0025.
    BOYETTE v. THE STATE.
    (458 SE2d 397)
   Beasley, Chief Judge.

Boyette was charged with two counts of rape, aggravated sodomy and burglary. Following a hearing, the trial court determined Boyette was competent to stand trial. Represented by a public defender, Boyette entered a negotiated plea of guilty but mentally ill to one count of rape and burglary. He received the recommended sentences of life in prison for rape and 20 years concurrent for burglary. The appeal is from the order denying Boyette’s motion to withdraw his plea of guilty.

1. Boyette challenges the trial court’s refusal to appoint counsel not employed by the public defender’s office to represent him at the hearing on his motion to withdraw the guilty plea. Relying on Ryan v. Thomas, 261 Ga. 661, 662 (409 SE2d 507) (1991), he argues that a conflict of interest required appointment of a private attorney to assert a claim of ineffective assistance of counsel by a member of the same office. He does not allege with any particularity how counsel was constitutionally ineffective with respect to entry of the plea, but merely states that another attorney would have more fully developed the factual basis supporting withdrawal of the plea. Appellant does not explain why the office which handled the plea cannot present its underlying factual basis or deficiencies. As to the particularities of ineffectiveness urged below, they relate primarily to the effectuation of the sentence, and the trial court properly resolved them.

There is no doubt that “[d]efense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial.” Cuyler v. Sullivan, 446 U. S. 335, 346 (100 SC 1708, 64 LE2d 333) (1980). On the matter of appointed counsel, “[t]he choice ... is a matter governed by the trial court’s sound exercise of discretion and will not be disturbed on appeal unless [that discretion is] abused.” Davis v. State, 261 Ga. 221, 222 (403 SE2d 800) (1991).

Before the hearing on the motion to withdraw the plea, Boyette’s counsel, a member of the public defender’s office, alerted the court that she perceived a conflict of interest in asserting the ineffectiveness of a former colleague in the office and requested appointment of an independent attorney. The court heard argument and, relying on Jefferson v. State, 209 Ga. App. 859, 861-862 (434 SE2d 814) (1993), denied the request. In Jefferson, a pending ineffectiveness claim based on counsel’s pretrial performance created no conflict of interest relevant to the issues addressed at sentencing. Accordingly, the court held there was no valid reason for Jefferson to discharge trial counsel and demand appointment of a different attorney for resentencing.

Neither Ryan nor the federal constitution, invoked by appellant, demands a different result in this case. The Supreme Court in Ryan addressed whether a defendant was procedurally barred from raising an effectiveness claim in a habeas corpus action when he had been represented at trial by a public defender, on motion for new trial by a second public defender, and on direct appeal by a third attorney, also a public defender in the same office, both of whom failed to complain of trial counsel. The court stated, “[I]t would not be reasonable to expect one member of a law firm to assert the ineffectiveness of another member,” Ryan, supra at 662, and held that “attorneys in a public defender’s office are to be treated as members of a law firm for purposes of raising claims of ineffective assistance of counsel.” Id.

Unlike the public defender in Ryan, the public defender who negotiated Boyette’s guilty plea was no longer employed by the public defender’s office when the motion to withdraw the plea was heard. Secondly, on appeal to this court Boyette’s attorney, yet a third member of the public defender’s staff, acknowledged during oral argument that the office itself budgets funds to employ outside counsel in conflict cases; if the need for such were indicated, it would have been done without intervention by the court. Thirdly, as noted earlier, only a bald assertion of ineffectiveness is made. This does not give rise to a right to appointment by the court of other counsel to pursue the assertion. With these facts in mind, we conclude that it was not an abuse of discretion for the court to deny Boyette’s request for appointment of a different attorney to represent him.

2. Boyette next enumerates as error the denial of his motion to withdraw the guilty plea because it was not knowing and voluntary since he was not competent when it was entered. The record shows that the issue of competence to stand trial was fully litigated in a bench trial. The plea transcript further shows that Boyette’s plea was voluntarily and intelligently entered in open court, with the assistance and advice of counsel. “Whether to allow the withdrawal of a voluntary, intelligently entered guilty plea after the pronouncement of sentence remained within the sound legal discretion of the trial court. [Cit.] ” Paino v. State, 209 Ga. App. 87, 88 (432 SE2d 599) (1993). There was no abuse of that discretion.

Georgia law provides that a person convicted pursuant to a plea of guilty but mentally ill must be evaluated “by a psychiatrist or a licensed psychologist from the Department of Human Resources after sentencing and prior to transfer to a Department of Corrections facility.” OCGA § 17-7-131 (g) (1). The statute further provides for an inmate to be transferred from a penal facility to the Department of Human Resources whenever such a transfer “is psychiatrically indicated for [treatment of] his mental illness.” OCGA § 17-7-131 (g) (3). Boyette’s testimony at the hearing on withdrawal of the plea was to the effect he is dissatisfied with the treatment he has received for his mental illness while incarcerated. A motion to withdraw a guilty plea is not a proper vehicle to pursue a claim for alleged noncompliance with OCGA § 17-7-131.

The trial court’s order is well-reasoned and deals appropriately with all the issues. Appellant shows no grounds for its reversal.

Decided June 14, 1995.

Jill L. Anderson, Elizabeth A. Geoffroy, for appellant.

David McDade, District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A0433.
    CROOM v. THE STATE.
    (458 SE2d 679)
   Beasley, Chief Judge.

Following denial of his motion for new trial, Croom appeals his convictions for trafficking in cocaine, OCGA § 16-13-31 (a) (1); possession of less than one ounce of marijuana, OCGA §§ 16-13-30 (j) (1), 16-13-2 (b); possession of a firearm during commission of a felony, OCGA § 16-11-106; and possession of a weapon by a convicted felon, OCGA § 16-11-131. He was tried along with co-defendant Cooper, who was found guilty only of the misdemeanor possession of marijuana.

1. Croom contends that the trial court erred in failing to suppress evidence seized in the warrantless search of his vehicle because it was the result of a pretextual stop. The State’s evidence at the suppression hearing and at trial shows otherwise.

On April 10, 1992, Officer Smith of the Alma Police Department was in uniform en route to his evening shift as a patrolman when he came up behind the vehicle in which Croom and Cooper were riding. Smith’s attention was drawn to the vehicle because it was “weaving” across the white and yellow lines and at one point left the highway. Passenger Cooper looked upset and continuously turned in his seat to look at the officer. The vehicle pulled into a roadside store and Officer Smith travelled on toward Alma. He stopped at another store four or five miles down the road and saw Croom’s vehicle pass as he was leaving. Smith entered the roadway behind the vehicle. Croom and Cooper looked “very upset” to see the officer and continued to stare at him. Their vehicle was “continuously weaving” and “all over the road.” Suspicious that Croom and Cooper had been drinking, Smith radioed ahead for officers to meet him at the city limits.

Officers Roberts and Brinson met Smith and he reported to them the driving behavior and Croom’s license tag number. The two officers saw Croom’s vehicle pass and pulled out behind it. Croom and Cooper exited and entered a convenience store, where Roberts and Brinson observed Croom taking a headache powder. Croom and Cooper got back in their car and drove across the street to the drive-through window of a fast food restaurant, did not order, and exited back onto the street. Roberts and Brinson followed for several blocks. Croom pulled up to a stop sign, turned on his left turn signal, then right, and then again left; when the light turned green, Croom proceeded to go straight even though his turn signal was still on. The officers stopped Croom for illegal use of turn signal. They also believed he was intoxicated.

Croom exited his vehicle and the officers explained the reasons for the stop. One officer walked up to the driver’s side and observed some “rolling papers.” Another spotted a marijuana “joint” inside the car. Croom appeared nervous and kept requesting to be allowed to go to the trash can. Croom was asked for consent to search the car and executed a written consent to search form. The officers found inside the car 31.2 grams of cocaine with a purity of 77.3 percent, less than one ounce of marijuana, and a nine millimeter handgun. After Croom was arrested, a pipe for smoking crack cocaine was found in his sock.

The officers’ decision to stop Croom’s car was expressly based on Croom’s erratic driving and odd behavior, which they suspected was due to alcohol consumption, and his observed outright violation of the traffic laws. The erratic driving alone was sufficient to raise the reasonable suspicion that the driver was driving while under the influence of alcohol, which justified an investigatory stop. See Streicher v. State, 213 Ga. App. 670, 672 (445 SE2d 815) (1994). Moreover, “ ‘[t]he stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense. [Cits.]’ [Cit.]” Jones v. State, 200 Ga. App. 666 (1) (409 SE2d 251) (1991). The fact that the stop ultimately led to the discovery of drugs does not in retrospect render it pretextual.

2. Croom contends that the trial court erred in failing to strike for favor a potential juror who was the fiance of Officer Brinson.

As Croom acknowledges, the juror was not subject to disqualification for principal cause. Brinson was not the prosecutor in the case, although he was one of the involved officers and a witness. See Spence v. State, 238 Ga. 399, 400 (233 SE2d 363) (1977). Even if he had been the prosecutor, the juror was not yet related by marriage to Brinson. “OCGA § 15-12-163 does not disqualify [even] relatives of police officers, [cit.]; nor does it disqualify relatives of State’s witnesses, [cits.].” Jones v. State, 184 Ga. App. 4, 6 (2) (360 SE2d 599) (1987). “Relationship to a witness is not per se a ground for excusing a prospective juror. [Cits.]” Brantley v. State, 262 Ga. 786, 788 (2) (d) (427 SE2d 758) (1993). Of course, the trial court must take care not to approach “the fine line when it comes to assuring that the members of the jury are fair and impartial, as guaranteed by Ga. Const. 1983, Art. I, Sec. I, Par. XI. . . .” See the writer’s special concurrence in Jones, supra at 8.

Croom urges that the juror was not impartial because she stated she would give more credence to testimony from her fiance and admitted she had prior knowledge of the case through discussions with Brinson. Such characterization of the juror’s testimony is misleading because it is incomplete.

Initially, defense counsel asked the juror if she would give added credit or credibility to Brinson’s testimony because of her relationship with him. The juror responded affirmatively. Defense counsel moved to strike the juror and the court questioned her: “Would you give more weight to [Brinson’s] evidence just because you plan to marry him than you would give to the other witnesses?” The juror responded, “no.” Defense counsel explored whether the juror had discussed the case with Brinson. She stated that she had done so at the time Croom was arrested but probably did not remember what was said. She related that she had talked to Brinson the day before about his coming to court for the trial but gave no indication that they discussed the substance of the case. The court asked the juror if she would “be able to lay aside all of that conversation and reach a verdict based solely upon the testimony given during this trial.” She responded that she could. The court asked if she would be influenced by what Brinson had told her about the case, and the juror stated, “I would be willing to judge it by what I hear.” The court asked the juror if she could “lay aside” what her fiance had said to her. Again the juror responded affirmatively. Once more the court asked if she could disregard any prior knowledge and again the juror stated without reservation that she could.

The Supreme Court has held that “(b)efore a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. [Cits.] Further, the decision to strike a juror for cause lies within the sound discretion of the trial court. [Cit.]” Garland v. State, 263 Ga. 495, 496 (1) (435 SE2d 431) (1993).

The refusal to strike the juror did not amount to an abuse of discretion. Ultimately, the juror responded that she would give no more credibility to the testimony of her fiance than to that of the other witnesses. There was no indication that she brought any substantive knowledge or any opinion of the case. Her only discussion with Brinson occurred much earlier, and she had no recollection of its substance. She affirmed repeatedly that she could and would base her decision only on the evidence presented at trial.

3. Lastly, Croom contends that the trial court erred in refusing to allow him to pursue cross-examination of co-defendant Cooper. He wanted to introduce evidence of an April 1993 drug-related civil action for forfeiture of currency and jewelry allegedly belonging to Cooper and two others plus a copy of the complaint. His argument, made for the first time here, is that the court’s action limited presentation of his sole defense, i.e., that the contraband was not his but belonged to Cooper. At trial defense counsel stated the reason for seeking admission of the evidence was to “impeach [Cooper] as to a specific statement,” i.e., Cooper’s testimony that he did “not carry around large sums of money.” Thus, there is nothing to review inasmuch as Croom failed to object below on the specific ground he now raises. Weaver v. State, 179 Ga. App. 641, 642 (7) (347 SE2d 295) (1986).

Decided June 14, 1995.

Charles E. Bagley, Jr., for appellant.

Richard E. Currie, District Attorney, George E. Barnhill, Assis tant District Attorney, for appellee.

Even considering the ruling in light of the present argument, it was not error to refuse this evidence. “ ‘Generally, accused may introduce evidence tending to show that another person committed the crime with which he is charged, if a proper foundation is laid, unless the probative value of the evidence is substantially outweighed by actual risk of undue delay, prejudice, or confusion.’ ” Bradford v. State, 204 Ga. App. 568, 569 (420 SE2d 4) (1992). This evidence must be such as is relevant to the accused’s trial and limited to facts “ ‘inconsistent with his own guilt’ ” and “ ‘raise a reasonable inference or presumption as to his own innocence.’ ” Id. It “ ‘must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides accused as the guilty person. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible. . . .’” Id.

The copy of the condemnation action was not relevant and admissible for it did not directly connect Cooper with the crimes on trial. Moreover, admissions of a party in a civil matter should not be treated as evidence against the party unless shown to have been authorized by him. See Chester v. State, 162 Ga. App. 10, 13 (7) (290 SE2d 117) (1982). The complaint for forfeiture did not constitute an admission by Cooper to drug-related activity. It did not state which, if any, of the money or property was owned by Cooper. Additionally, the eventual order of forfeiture was the result of default for failure to answer. Its admission would have had no effect other than at most to cast a bare suspicion upon Cooper. Bradford, supra at 570.

Judgments affirmed.

Pope, P. J., and Ruffin, J., concur.