text:
    A95A1258.
    RICE v. THE STATE.
    (458 SE2d 368)
   Blackburn, Judge.

Christopher Allen Rice appeals his conviction by a jury of burglary, possession of a firearm during the commission of a felony, two counts of armed robbery, and two counts of kidnapping. On appeal, Rice contends the trial court erred in permitting the introduction of evidence regarding a similar transaction and erred in instructing the jury regarding the purpose of the similar transaction evidence. Because the evidence was properly admitted and the jury instruction was not harmful, we affirm the trial court.

1. The proper admission of similar transaction evidence requires that the State make three affirmative showings: (1) that the evidence is sought for a proper purpose; (2) that sufficient evidence exists to establish that the accused committed the similar transaction; and (3) that sufficient connection exists between the similar transaction and the crime charged “so that proof of the former tends to prove the latter. [Cit.] ” Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991).

During the Rule 31.3 (B) hearing, the State contended the similar transaction evidence was admissible to prove identity, plan, scheme, and bent of mind. The State explained that Rice allegedly robbed an elderly couple at gunpoint while they were unloading their luggage from their car and putting it in their hotel room. Rice forced his way into the hotel room and put the female victim in the bathroom. As the male victim came into the hotel room with more luggage, Rice forced him to empty his pockets and sit on the floor between the beds. Rice told the victims, “Don’t look at me.” Rice searched the female victim’s purse and took money and a credit card. Rice was wearing a dark-colored jacket with the word “Officer” imprinted on the back.

During the commission of the similar transaction, Rice wore a baseball hat with a Coastal Correctional Institute insignia. Again, the victims were elderly and were in the process of unloading their luggage from their car to their hotel room. Rice, holding a knife in each hand, told the victims not to look at him. He placed the male victim’s wheelchair to face a wall. Rice took money and credit cards from the female victim’s purse. The police happened to be at the scene and attempted to apprehend Rice, but were unable to do so. However, the police did recover Rice’s car at the scene and picked him up at a later time near his residence.

The State asserts that the similar transaction evidence was logically related to the present case to show identity, plan, scheme, and bent of mind. With regard to the second element, the State contends the evidence sufficiently established that Rice committed the similar transaction because his car was recovered at the scene, the victim picked him out of a photo spread, and the police officer who confronted him at the scene also picked him out of a photo spread. Finally, the State argues that the similarities between the two crimes establish that proof of the defendant’s identity in the second burglary tends to prove his identity in the burglary charged in the present case.

Although Rice argues that the two crimes contain distinct and important differences, the law does not require exact factual circumstances. “There is no requirement that, to come within the other transaction exception, the other transaction must be identical in every respect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. . . . [I]t should also be emphasized that before such evidence is admissible, it must be shown that the evidence’s relevancy to the issues at trial outweighs the inherent prejudice it creates.” (Citations and punctuation omitted.) Cantrell v. State, 210 Ga. App. 218, 220 (435 SE2d 737) (1993).

In the present case, the State was concerned with proving the perpetrator’s identity because only one of the victims positively identified the defendant as the perpetrator. Therefore, the evidence was particularly relevant to the issues in this case. As the State met its burden, contained in Williams, supra, we find that the trial court’s findings were not clearly erroneous, and that it did not err in allowing the introduction of the similar transaction evidence.

2. Rice contends the trial court erred in charging the jury that it could consider the similar transaction evidence as relevant to his state of mind and intent at the time of the incident which formed the basis of the present charges against him. Rice argues that similar transaction evidence is admissible to prove the defendant’s intent, motive, or state of mind only when the charged acts would be legal in the absence of those elements. See OCGA § 24-2-2; Thomas v. State, 239 Ga. 734, 736-737 (5) (238 SE2d 888) (1977); Larkins v. State, 230 Ga. 418, 420-421 (2) (197 SE2d 367) (1973). We agree.

After the 31.3 (B) hearing on the admissibility of similar transaction evidence, the trial court ruled that the evidence was admissible to establish identity, plan, scheme, or bent of mind. Before the introduction of similar transaction evidence, the trial court instructed the jury that their consideration of this evidence was strictly limited for the purpose of identity and state of mind of the defendant. Rice made no objection to this instruction. At the close of evidence, the trial court further charged the jury regarding similar transaction evidence: “Ordinarily, such evidence may not be used because it brings the defendant’s character into question, which is not a valid criteria for you to use in deciding his innocence or guilt; however, the law provides that evidence of other offenses which may have been committed by this defendant that are similar in terms of common design, scheme, plan, course of conduct, motive, or other factors connected to the offense for which the defendant is now on trial, may be admissible and may be considered by you for the limited purpose of showing, if it does, the identity of the perpetrator and his state of mind, meaning his knowledge or intent, regarding the crimes charged in this case you are now trying. Such evidence, if any, may not be considered by you for any other purpose.” The defense counsel then reserved objections to the court’s charge.

“It has long been the rule that where the trial court’s charge as a whole is an accurate statement of the law, it is generally not a good ground for a new trial that the charge includes a statement, one portion of which is applicable and one portion of which is inapplicable or not adjusted to the facts. However, the instructions in a criminal trial should be tailored to the indictment and adjusted to the evidence admitted in court. Any instruction should stand upon a base founded in the evidence or the lack thereof.” (Citations and punctuation omitted.) Hightower v. State, 210 Ga. App. 386, 388 (436 SE2d 28) (1993).

In the present case, the similar transaction evidence was properly admitted for the purpose of identity. The trial court’s inclusion of intent as a proper purpose, although erroneous, was clearly harmless. “We will not impute an inability on the part of the jury to identify that portion of the limiting instruction which was obviously applicable to the facts and issues presented. Rowles v. State, 143 Ga. App. 553, 557 (3) (239 SE2d 164).” Hightower, supra at 388. See also Peterson v. State, 212 Ga. App. 147, 150 (441 SE2d 481) (1994).

Decided May 18, 1995.

M. Ross Becton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A95A1319.
    ROYAL v. THE STATE.
    (458 SE2d 366)
   Blackburn, Judge.

Following a trial by jury, the appellant, John T. Royal, Jr., was found guilty of child molestation and aggravated child molestation. His motion for new trial was denied by the trial court, and this appeal followed.

The evidence adduced at trial showed that Royal was married to the mother of the victim and resided with the victim and her mother at the time that the acts of molestation occurred. The victim, who was 15 years old at the time of trial, testified that she was sexually abused by Royal from October 5, 1991, to October 19, 1991. She specifically recounted an incident in which Royal made her undress and lie on top of him while he was naked during a purported game of truth or dare. Royal also required the victim to dress in her mother’s lingerie and dance around the room. He placed his mouth on the victim’s breast and asked the victim to kiss his penis. On another occasion, Royal fondled the victim’s breast and vagina while the two were traveling from a store in his vehicle. The victim also recalled a similar incident during which Royal took her to a field in Albany and made her perform oral sex on him. A psychologist who subsequently evaluated the victim opined that the results of tests conducted on the victim were consistent with child sexual abuse. Royal did not testify at trial and did not present any evidence.

1. The evidence produced at trial was sufficient to authorize a rational trier of fact to find Royal guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Roberson v. State, 214 Ga. App. 208 (1) (447 SE2d 640) (1994). While Royal challenges the credibility of the State’s witnesses, particularly the victim, “[t]he weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.” (Citations and punctuation omitted.) York v. State, 207 Ga. App. 494, 495 (428 SE2d 113) (1993). Moreover, there is no requirement that the testimony of a child molestation victim be corroborated. Adams v. State, 186 Ga. App. 599 (1) (367 SE2d 871) (1988).

2. Royal asserts that the trial court erred in admitting over objection a photograph of the victim which was taken months after the acts of molestation occurred. Royal argues on appeal as he did below that the photograph was irrelevant and prejudicial. As this court held in Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987), “[a]n objection to evidence on the ground that it is irrelevant, immaterial and prejudicial is entirely too vague and general to present any questions for determination by the trial court, and the overruling of this objection d[oes] not constitute reversible error.” (Citations and punctuation omitted.) See also Rauls v. State, 209 Ga. App. 101 (2) (432 SE2d 677) (1993). “Assuming arguendo that the photograph was erroneously admitted, it is highly probable that any error in the admission of this evidence did not contribute to the judgment. [Cit.]” Billings v. State, 212 Ga. App. 125, 129-130 (441 SE2d 262) (1994). In addition, the photograph complained of was merely cumulative evidence since another photograph of the victim taken after the incidents involved herein was admitted without objection. See Knight v. State, 207 Ga. App. 846 (3) (429 SE2d 326) (1993).

3. Lastly, Royal contends that the trial court erred in failing to grant his motion for mistrial after the court learned that a juror had a map in the jury room and displayed the map to other jurors. The map was reviewed prior to the submission of the case to the jury and prior to the court’s charge to the jury.

Upon inquiry from the court in chambers, the juror stated that she pulled out the map from her purse when other jurors asked about the location of the road on which the victim lived. The juror stated that the map did not have an effect on any members of the jury. Upon further inquiry of the trial court, all of the jurors indicated that they would disregard any information they received from observing the map and that they each could reach a verdict based solely on the evidence presented from the witness stand under the rules of law as charged by the court.

Based upon the jurors’ responses to the court’s inquiry, the trial court was authorized to find that no harm occurred. Jordan v. State, 207 Ga. App. 710 (1) (429 SE2d 97) (1993). The jurors’ responses clearly show that “there is no reasonable possibility that the improperly [reviewed] evidence contributed to the conviction and reversal is not required.” (Citation and punctuation omitted.) Chadwick v. State, 164 Ga. App. 102, 103 (2) (296 SE2d 398) (1982). Consequently, the trial court did not abuse its discretion in overruling Royal’s motion for a mistrial. Therefore, Royal’s convictions must be1 affirmed.

Decided May 18, 1995.

Brimberry, Kaplan & Brimberry, Jerry W. Brimberry, for appellant.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A95A0725.
    In the Interest of T. M. R. et al., children.
    (458 SE2d 148)
   McMurray, Presiding Judge.

Defendant Ray appeals an order of the juvenile court terminating his parental rights in his children, T. M. R. and J. G. R. These children had initially been taken into the custody of the Berrien County Department of Family & Children Services (DFCS) following an incident in which J. G. R. had been physically abused by the children’s natural mother and stepfather. Defendant was not involved in that incident and was at that time incarcerated for theft by conversion and forgery. Termination proceedings were initiated against the natu-. ral parents, and the mother’s parental rights were terminated. This court affirmed termination of the mother’s parental rights in In the Interest of T. M. R., 208 Ga. App. 499 (430 SE2d 865). The juvenile court deferred its decision with regard to the father, defendant Ray, directing that he have visitation with the children for a period of time after release from prison before a determination concerning his parental rights. After the period of visitation and a subsequent evidentiary hearing, an order terminating defendant’s parental rights in the children was entered, and this pro se appeal followed. Held:

The enumerations of error complain of the admission into evidence and the juvenile court’s reliance upon defendant’s criminal convictions, including particularly convictions on four counts of child molestation. The child molestation convictions pre-dated the birth of defendant’s children and obviously did not involve them, and there is nothing in the record to suggest any misconception by the juvenile court concerning this fact.

In considering the termination of parental rights, the juvenile court was required to first determine whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). This determination is made by finding that the child is deprived, that the cause of that deprivation is lack of proper care or control by the parent, that the cause of deprivation will likely continue, and that the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). In determining whether a child is without proper parental care and control, the juvenile court was authorized to consider the conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship. OCGA § 15-11-81 (b) (4) (B) (iii). Upon a showing by clear and convincing evidence of such parental misconduct or inability, the juvenile court was authorized to then consider whether termination of parental rights is in the best interest of the children. OCGA § 15-11-81 (a).

A conviction of a crime and incarceration does not always compel a termination of parental rights but will support such a ruling when adequate aggravating circumstances are shown to exist. In the Interest of S. K. L., 199 Ga. App. 731, 733 (405 SE2d 903); In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666). Such aggravating circumstances are shown when a parent has a history of repetitive incarcerations for the commission of criminal offenses or parole violations since this past conduct of the parent is viewed as illustrative of the probable conduct of the parent in the future. In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344). The evidence of the criminal convictions of defendant Ray was therefore relevant and properly admitted into evidence so that the convictions might be considered by the juvenile court as trier of fact on these issues. The evidence as to defendant’s criminal record also included conviction and incarceration for theft and forgery and additional convictions for forgery, escape, entering an automobile, and theft by taking.

The child molestation convictions were also relevant for an additional reason. In determining whether the children were without proper parental care and control, the juvenile court was authorized to consider those incidents involving physical, mental, or emotional neglect of other children pursuant to OCGA § 15-11-81 (b) (4) (B) (v).

The period of visitation following defendant Ray’s release from prison provided further evidence of defendant Ray’s inability to care for the children. After unsupervised visits began, both children began demonstrating emotional distress. J. G. R. became hyperactive and hostile towards other children, would begin to whine and cry when taken for her visit, and stated she did not want to visit defendant. T. M. R. began having sleep disturbances and hiding in closets.

Decided May 19, 1995.

J. Reese Franklin, for appellant.

James N. Ray, pro se.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Shalen A. Sgrosso, Assistant Attorneys General, Simpson, Gray & Carter, Joseph I. Carter, for appellee.

After approximately one month of unsupervised visits, a psychological evaluation was conducted on J. G. R. Based on this evaluation and observations of caseworkers, the DFCS sought and obtained a modification requiring supervision of the visits.

Also, several incidents of inappropriate behavior on the part of defendant were noted during the visitation period, including several matters which appeared to have caused an adverse emotional reaction in one or both of the children. Defendant told a DFCS psychologist that he was remarried. During one of the supervised visits, he showed J. G. R. a photograph of a woman and infant and told her that the picture was of her new mother and baby sister. However, defendant later acknowledged that these representations were untrue.

T. M. R. has been diagnosed with certain food allergies, and defendant was informed of this problem. Nonetheless, he continued to feed T. M. R. foods which were inappropriate due to these allergies.

The juvenile court determined that the children were without proper parental care and control as a result of defendant’s actions and that it was in the best interest of the children that defendant’s parental rights be terminated. As an appellate court we must defer to the juvenile court in the area of fact finding and should affirm unless the appellate standard of review is not met. As we find that any rational trier of fact could have found by clear and convincing evidence that defendant’s rights to custody were lost, the juvenile court did not err in terminating the parental rights of defendant Ray. In the Interest of L. F., 203 Ga. App. 522, supra.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Beasley, Chief Judge.

text:
    A95A0023, A95A0024.
    WRIGHT v. MILLINES; and vice versa.
    (458 SE2d 488)
   Beasley, Chief Judge.

Wright sued Millines, a resident of Fulton County, and McMichael, a resident of Douglas County, to recover for personal injuries sustained in a vehicular collision.

Wright was a passenger in a car driven by Millines. When Mil-lines proceeded into an intersection regulated by a traffic-control signal, her car was struck by a truck driven by McMichael. Wright charged both Millines and McMichael with “acts of negligence, including, but not limited to, failure to stop at a traffic control device, failure to yield the right of way, failure to operate (their vehicles) in a safe manner, failure to maintain a proper lookout, and such other and further acts of negligence as may be shown at trial.” Wright testified the traffic signal was green in Millines’ direction but that he saw McMichael’s truck was not stopping and yelled to Millines that the truck was going to hit them. Both defendants testified the light was green in their respective directions and offered witnesses to support their testimony. Both filed cross-claims, alleging that the negligence of the other was the sole proximate cause of any damage suffered by Wright.

At trial, Millines moved for a directed verdict at the close of Wright’s evidence, which the court took under advisement. The motion was renewed, and denied, at the close of the case. The jury returned a $250,000 verdict in Wright’s favor against both defendants jointly and severally.

Without entering judgment on the verdict, the court sua sponte granted the directed verdict sought by Millines, notwithstanding the jury’s verdict. Wright appealed, and Millines cross-appealed. We held that the trial court should not have entered a j.n.o.v. prior to the entry of judgment on the verdict; we reversed the judgment with the direction that judgment be entered on the jury verdict, with Wright then being entitled to pursue his post-judgment remedies; and we dismissed the cross-appeal. Wright v. Millines, 204 Ga. App. 111 (418 SE2d 453) (1992), overruled Continental Ins. Co. v. State Farm &c. Co., 212 Ga. App. 839, 840 (1) (443 SE2d 509) (1994).

On remand, the court entered judgment on the verdict and later granted Millines’ motion for j.n.o.v. based upon its error in denying her motion for directed verdict at the close of Wright’s evidence. Because of the latter ruling, the court did not consider Millines’ motion for new trial, but it denied McMichael’s similar motion. McMichael then moved for the transfer of the action to Douglas County on the ground that venue was no longer proper in Fulton County, and the court set aside the verdict against McMichael and transferred the case as requested.

Wright filed direct appeals from the order granting Millines’ motion for j.n.o.v. and from the transfer order. We dismissed those appeals on the grounds that there was no final judgment because the case remained pending in the Douglas Superior Court, and Wright had not complied with the interlocutory appeal procedure of OCGA § 5-6-34 (b). Wright v. Millines, 212 Ga. App. 453 (442 SE2d 304) (1994). Wright did not raise any issue as to the trial court’s failure to comply with Uniform Superior Court Rule 19.1 (C). In accordance with this rule, when the trial court granted McMichael’s motion to transfer venue, it should have severed the claim against Millines so that the order granting Millines’ motion for j.n.o.v. would be final for purposes of appeal.

On remand, the Douglas Superior Court entered an order certifying the order granting Millines’ motion for j.n.o.v. as a final judgment under OCGA § 9-11-54 (b).

In Case No. A95A0023, Wright appeals the grant of Millines’ motion for j.n.o.v. In Case No. A95A0024, Millines has filed a cross-appeal.

Case No. A95A0023

1. Wright contends the court erred in rejecting his argument that it was required to consider the entire record at the close of the trial in order to determine whether a j.n.o.v. should have been granted. This is correct. DeLoach v. Myers, 215 Ga. 255, 256 (1) (109 SE2d 777) (1959); Bullard v. Carreras, 183 Ga. App. 539, 541-542 (3) (a) (359 SE2d 429) (1987); Wooten v. Life Ins. Co. of Ga., 93 Ga. App. 665, 670 (92 SE2d 567) (1956). Where the plaintiff’s evidence is insufficient as a matter of law and the trial court erroneously denies a motion for directed verdict made at the close of the plaintiff’s evidence but the defense later submits evidence remedying the insufficiency in' plaintiffs proof, the error by the court in denying the motion is cured.

The trial court took a contrary view because of the holding that “the sole purpose of a motion for judgment notwithstanding the verdict is to permit the court to review and reconsider [its] ruling on the antecedent motion for a directed verdict.” Shetzen v. C. G. Aycock Realty Co., 93 Ga. App. 477, 479 (1) (b) (92 SE2d 114) (1956). OCGA § 9-11-50 (b) states: “Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” See Steinberg v. City of Atlanta, 213 Ga. App. 491, 492 (1) (444 SE2d 873) (1994); Horton v. Ammons, 125 Ga. App. 69 (1) (186 SE2d 469) (1971). On motion for j.n.o.v. the court is to review its ruling on the motion for directed verdict made at the close of all the evidence rather than the one made at the close of plaintiff’s evidence.

McMichael presented evidence from which the jury was authorized to find Millines negligent in failing to yield the right-of-way to him, in that the traffic light was green in his direction. Consequently, even if Wright’s testimony was insufficient to authorize an inference that Millines was negligent in some other regard, the court erred in granting Millines’ motion for j.n.o.v. Bullard, supra at 542. Where the evidence does not demand a particular finding, a j.n.o.v. may not be granted. Coates v. Mulji Motor Inn, 178 Ga. App. 208, 209 (2) (342 SE2d 488) (1986).

Case No. A95A0024

2. Millines contends that the court erred in not giving her request to charge the jury, under the authority of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (343 SE2d 680) (1986), that the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when self-contradictory.

Millines did not seek the requested charge because of a contradiction in Wright’s testimony, but because of an asserted contradiction between the allegation in his pleadings that she was negligent and his testimony that she had the right-of-way, was in the proper lane of traffic, and was not speeding. Allegations in pleadings are not evidence. Moreover, Wright also testified that he saw that McMichael’s truck was coming too fast to stop and alerted Millines to this fact; his theory of recovery is that she was negligent in failing to heed his warning. Since there was no contradiction in his testimony, the court did not err in refusing to give the requested charge.

3. In related enumerations, Millines contends that she is entitled to judgment because no evidence was introduced to prove that orthopedic surgery performed on Wright was related to collision injuries.

These enumerations are premised on the absence of any testimony by the orthopedic surgeon. Wright testified that prior to the collision, he had a perfect work attendance record and did not suffer any physical problems or disabilities. In the collision, a metal rod lodged in his right shoulder. Several days later, he was seen by his primary care physician, who testified that he had substantial damage to his right shoulder and was unable to maintain his arm while it was abducted, a clear sign of probable rotator cuff tear. This physician testified that he then referred Wright to the orthopedist and that after Wright had undergone physical therapy, it was decided that surgery was indicated. This testimony authorized the jury to find that there was a causal connection between the surgery and the incident injuries. Compare Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352 SE2d 832) (1987).

4. Millines contends the deposition testimony of a radiologist was inadmissible because: (1) no foundation was laid to show that the MRI film which he interpreted was that of Wright, and (2) he could not state that what he found was caused by the collision.

At trial, Millines objected to the deposition on the ground that the MRI film had not been properly authenticated as that of Wright. The court reserved ruling on the objection.

During his deposition, the radiologist testified that although he did not personally examine Wright, he interpreted the MRI study of Wright’s right shoulder, which study was submitted to him for evaluation pursuant to an established hospital protocol. He further testified that the history he was provided was right shoulder contusion and that this history, in conjunction with indications of edema found by him, evidenced a partial rotator cuff tear constituting a recent injury. On cross-examination, he also testified that rotator cuff tear can be caused by repetitive exertion such as that engaged in by Wright in his job or by degenerative changes and that he could not medically rule these out as causes of Wright’s injury. At the conclusion of the reading of the radiologist’s deposition, the MRI film, identified as Wright’s, was offered into evidence without objection.

Millines thus waived her objection on the ground that there was no foundation for admission of the MRI film, and the radiologist’s testimony authorized the jury to find that the rotator cuff tear was caused by the recent collision.

5. Millines contends that the court erred in failing to give her request to charge the jury that if it found from the evidence that plaintiff’s pain and suffering was not due to the collision but was due to a pre-existing injury, it would be authorized to find for the defendant.

She maintains that such a charge was raised by the radiologist’s testimony that he could not medically rule out repetitive exertion or degenerative changes as causes of Wright’s injury, and by like testimony from Wright’s primary care physician.

Wright testified that he did not in fact have any pre-existing injury, and neither of these doctors nor any of defendant’s witnesses testified otherwise. There being no evidence of any pre-existing injury, the court did not err in refusing to give the jury this charge. Anthony v. Anthony, 120 Ga. App. 261, 265 (4) (170 SE2d 273) (1969).

6. Millines contends that the $250,000 verdict was excessive as a matter of law.

Wright submitted evidence of approximately $23,400 in past lost wages and of approximately $220,000 in future lost wages, as well as medical expenses in the approximate amount of $11,900. This evidence authorized the verdict, which does not fall upon application of the test: “ ‘[a] verdict will not be set aside by this court as excessive, unless it manifestly appears from the record that it was the result of prejudice, bias, corruption, or gross mistake.’ [Cit.]” Atlanta Veterans Transp. v. Cagle, 106 Ga. App. 551 (3) (127 SE2d 702) (1962).

Decided May 22, 1995.

Brent, Woodland, Redic & Sweetnam, Dennis J. Redic, for appellant.

Greer, Klosik & Daugherty, Richard E. Greer, Robert J. Mc-Cune, for appellee.

7. Millines contends that the court erred in allowing the deposition testimony of McMichael’s witness to be read into evidence, inasmuch as she was not shown to be dead, out of the county, unavailable, or under subpoena as required by OCGA § 9-11-32.

The court allowed the deposition to be used after McMichael’s attorney stated in his place that this witness resided out of the county. This was a sufficient showing of unavailability. Sheffield v. Lockhart, 151 Ga. App. 551, 553 (2) (260 SE2d 416) (1979). It not appearing that the absence of this witness was procured by McMichael, the court did not err in allowing her deposition to be used under OCGA § 9-11-32 (a) (3) (B).

8. Finally, Millines contends that the Douglas Superior Court erred in certifying the Fulton Superior Court’s order granting her motion for j.n.o.v. as a final judgment, since the order was final in the absence of such certification.

This contention is laid low by our decision in Wright v. Millines, 212 Ga. App. 453, supra.

Judgment affirmed in Case No. A95A0024.

Judgment reversed in Case No. A95A0023. Pope, P. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A95A0290.
    A95A0291.
    BOWERS et al. v. GREENE et al. OWENBY v. BOWERS et al.
    (458 SE2d 150)
   Ruffin, Judge.

Real estate brokers James Bowers and William Humphlett sued Darrell Greene, Paul Owenby and Al Hallman, Jr. (“the owners”) to recover a real estate commission allegedly due upon the sale of the owners’ property.

In early 1987, Bowers and Humphlett learned the United States Postal Service (“Postal Service”) was interested in purchasing property in east Cobb County and contacted the owners concerning a possible sale of approximately eight acres they owned. The owners informed Bowers and Humphlett they were interested in selling the property, and on February 19, 1987, the parties entered into a listing agreement. The listing agreement described the land, stated that Bowers and Humphlett were offering it for sale to the Postal Service at $130,000 per acre and provided that if a sale were consummated, the sellers would pay Bowers and Humphlett a ten percent brokerage commission. The agreement did not contain a termination date. On February 25, 1987, Bowers sent the Postal Service an offer to sell the property on behalf of the owners providing that the offer would remain open for 60 days. Although the offer was not accepted within 60 days, Bowers and Humphlett continued meeting with the owners, Postal Service representatives and other parties concerning the surveying, appraisal and rezoning of the property.

In October 1987, the Postal Service notified Bowers that due to budgetary problems, purchase of the property was put “on hold.” At some point thereafter, the owners instructed Bowers and Humphlett to cease contact with Postal Service representatives and told them the owners’ attorney would handle future negotiations. The owners then submitted a new contract to the Postal Service without the assistance of Bowers and Humphlett. That contract provided the offer would remain open until October 25, 1988, and that the owners would pay Bowers and Humphlett the real estate commission. On February 15, 1989, the Postal Service sent the owners a letter informing them that although the property was “attractive for postal development” and they “had every intention of acquiring [the] site,” budget restraints necessitated using space in an existing facility that would be “adequate for the foreseeable future.”

In February 1990, Humphlett presented the owners with a proposed contract from another entity desiring to purchase the property. This purchaser, however, could not acquire the necessary permits and the sale was not consummated. On December 10, 1990, in response to an inquiry from the Postal Service made directly to them, the owners executed another offer to sell the property for $110,000 per acre. Bowers and Humphlett did not help negotiate this offer and did not learn about the offer until the spring of 1991 when a Postal Service appraiser contacted Humphlett regarding property values in the area.

In his deposition, Humphlett testified that after learning of the negotiations, he telephoned Greene who told him to do whatever he “could to facilitate the sale.” Bowers and Humphlett also met with Greene at his office to ask “if there was anything else that he wanted [them] to do and also to reconfirm the commission situation.” In his deposition, Bowers testified that at the meeting, Greene instructed him to “keep in touch with the post office now, and to inform him of all matters that [he] could determine and find out relating to their interest in the property.” Bowers further stated that Greene told him and Humphlett that they “had certainly done [their] duty and . . . that the real estate fee was due ...” but that they needed to contact Owenby. When Bowers contacted Owenby and told him that he and Humphlett were entitled to the commission under the 1987 listing agreement, Owenby told him no commission was due.

The Postal Service consummated its purchase of the property on October 11, 1991, and Bowers and Humphlett were not paid any commission. Bowers and Humphlett sued for breach of contract and quantum meruit. The trial court granted the owners’ motion for summary judgment on the contract claim but denied their motion on the quantum meruit claim. Both parties appealed from the order.

Case No. A95A0290

1. Bowers and Humphlett assert the trial court erred in granting the owners’ motion for summary judgment on their claim for breach of contract. We agree. “[A] broker is entitled to a commission whenever negotiations conducted by him on behalf of the principal culminate in the purchase of the property ... or would have so culminated but for the principal’s interference. The agreement between the parties [in this case] did not provide that [Bowers and Humphlett] were the exclusive agents for [the owners]. Thus, as nonexclusive agents, [Bowers and Humphlett] were entitled to recover the commissions . . . claimed only upon proof that they were the procuring cause of the [sale], which can be established by showing that negotiations for the sale were set on foot through their efforts, that they performed every service required by their employment which it was possible to perform, and that the failure on their part to personally consummate the trade was due to the interference of the [owners].” (Citations and punctuation omitted.) Realty World &c. v. Hooper Properties, 191 Ga. App. 773, 775 (2) (383 SE2d 164) (1989). Even if a purchaser buys directly from the owner at a price less than that given to the broker, if the broker’s effort was the procuring cause of the sale, the owner is liable for the commission. Tidwell & Yarbrough Realty Co. v. Foster, 123 Ga. App. 192 (1) (180 SE2d 259) (1971).

Construing the evidence most strongly against the owners and giving the benefit of all reasonable doubts and all favorable inferences to Bowers and Humphlett, we cannot say as a matter of law that Bowers and Humphlett were not the procuring cause of the sale of the property to the Postal Service. See Realty World, supra at 776. Although the owners argue that Bowers and Humphlett abandoned their efforts and did not participate in the negotiations that ultimately resulted in the sale, the record shows that both brokers actively negotiated with the Postal Service, obtained the necessary surveys, appraisals, and zoning and otherwise continued their marketing efforts until the owners instructed them to cease contact and that their attorney would handle future negotiations. At that point the owners continued their efforts to sell the property to the Postal Service, despite being informed that budget problems would delay the sale.

These efforts, which were a continuation of Bowers’ and Humphlett’s efforts, eventually resulted in a sale. The fact that Humphlett presented the owners with a contract from a different entity in February 1990, indicates the brokers did not intend to abandon their marketing efforts. Whether the sale was consummated without further assistance from Bowers and Humphlett could be attributed to the owners’ directive to cease contact with the Postal Service, and the question of whether Bowers and Humphlett would have ultimately consummated the sale to the Postal Service but for the owners’ interference are questions for the jury. See id.

Finally, although a significant period of time elapsed between execution of the listing agreement and consummation of the sale, since no time limit was fixed by the listing agreement, it continued for an indefinite period of time, giving Bowers and Humphlett a reasonable period of time to sell the property. See Spence v. Walker, 92 Ga. App. 609 (1) (89 SE2d 668) (1955). What is a reasonable time under the circumstances of this case is a question of fact for the jury. Id. Accordingly, the trial court erred in granting the owners summary judgment on Bowers and Humphletts’ claim for breach of contract.

Case No. A95A0291

2. The owners assert the trial court erred in ruling that a quantum meruit cause of action existed. “ ‘Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.’ OCGA § 9-2-7. ‘Generally, an action of this type is one upon quantum meruit.’ [Cit.]” Futch v. Guthrie, 176 Ga. App. 672, 673 (1) (337 SE2d 384) (1985). The record reflects that the owners engaged Bowers and Humphlett to sell the property and that Bowers and Humphlett informed the Postal Service the property was available. In that regard, Bowers and Humphlett submitted an offer to sell on behalf of the owners, negotiated sale terms with the Postal Service, and continuously met with Postal Service representatives and other parties concerning the surveying, appraisal and rezoning of the property. These services, which were accepted by the owners, ultimately resulted in the profitable sale of their property. “ ‘Under these circumstances, the jury [would be] allowed to decide whether [Bowers and Humphlett are] entitled to any recovery in quantum meruit.’ [Cit.]” Id. Accordingly, the trial court did not err in denying the owners’ motion for summary judgment on Bowers’ and Humphletts’ quantum meruit claim.

Decided May 23, 1995.

Harris, Phillips & Harris, R. Britt Harris, Jr., for appellants.

H. Darrell Greene & Associates, Patrick H. Head, Peterson, Dillard, Young, Self & Asselin, Dick Wilson, Jr., Susan W. Housen, for appellees.

3. While the owners further assert the trial court erred in relying on an unreported opinion of this court, this reliance is of no relevance since a judgment of the trial court that is right for any reason will be affirmed on appeal. DeLoach v. Ga. Firemen’s Pension Fund, 213 Ga. App. 202 (2) (444 SE2d 137) (1994).

Judgment affirmed in part and reversed in part.

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


author: Andrews, Judge.

text:
    A95A0687.
    HUCKEBA v. THE STATE.
    (458 SE2d 131)
   Andrews, Judge.

Huckeba was convicted of aggravated assault with intent to rape and of false imprisonment and appeals.

Viewing the evidence in the light most favorable to the verdict, it was that the victim was a foreign exchange student who had lived with Huckeba and his wife for two-and-one-half years. At about 6:20 a.m. on February 27, 1992, the victim, who had been asleep in her bedroom, was lying in her bed waiting to arise. She heard a noise and looked up to see Huckeba wearing a ski mask with eye and mouth holes cut out. Huckeba maced the victim, hurting her eyes and burning her throat and nose.

Huckeba covered the victim’s face with the bed sheets and turned on the lights and, after struggling out from under the sheets, she was able to see him. Huckeba placed his hands over her nose and mouth and tied her hands behind her back, causing visible rope burns. He then straddled her.

The victim shouted for Huckeba’s wife. She then called out Huckeba’s name. He continued the assault and tried to tie her legs together with a bathrobe sash and tried to pull off her underwear. Huckeba’s dog, which usually barks at strangers, stood staring at the victim and did not bark until Huckeba jumped on her and she started screaming. The victim stated that she thought that Huckeba was going to rape and kill her.

After Huckeba left, the victim was able to cut the rope and she jumped out of her window and ran for help. Later investigation showed that the Huckeba house was not ransacked and there was no evidence of forced entry.

The victim testified that she recognized the attacker as Huckeba 15 to 20 seconds after he jumped on her, by recognizing the smell of sealant-asphalt from his business on him. The victim also recognized Huckeba’s regular rough and heavy breathing, and she saw his mouth through the mouth hole in the mask. She stated that she also recognized his large stomach and his distinctive hands. She recalled that she had taken note of his hands the night before the attack and had noticed that they were very small and rough. The victim stated that she had seen a mask like the one the attacker wore in Huckeba’s closet and had previously seen Huckeba wear it. She recognized the mace spray from seeing it in the living room. The victim was absolutely certain that Huckeba was her attacker.

The neighbor to whose house the victim ran after the attack testified. He stated that the victim ran to his house after the incident on February 27 at about 7:00 a.m. The victim appeared to be very upset, she was shaking, and she told the neighbor that her “exchange father” had tried to rape her. The victim stated that she knew her attacker was Huckeba because he had small distinctive hands. This witness also stated that the Huckeba family owned a dog which barked at strangers.

Officers from the Douglas County Sheriff’s Department who responded to the victim’s call testified. One stated that he arrived at the Huckebas’ house and that there were no cars at the residence on the morning of the incident. The victim told the officer that someone had tried to rape her. The officer observed items in the room which were consistent with the victim’s account of the incident.

Another officer testified that Huckeba returned to the residence on the morning of the incident and was very cooperative. The officer stated that Huckeba did not inquire as to the victim’s well being, nor did he ask whether his house had been broken into. The officer stated that he was present when Huckeba was read his Miranda rights and that he witnessed Huckeba consenting to the search of his house.

Officer Ashcraft testified that she received a call regarding the incident at 7:30 a.m. on February 27. She testified that a rope was still hanging off of the victim’s arm when she arrived. She testified that Huckeba consented to the search of his residence and signed a consent form to that effect. She stated that he also signed a form acknowledging that he was read his Miranda rights. She stated that Huckeba stated that he had nothing to hide and gave her the keys to his residence.

Ashcraft stated that Mrs. Huckeba came to the residence shortly after she arrived and that after being told the victim’s account of the attack, Mrs. Huckeba stated that she was “not surprised.”

Ashcraft conducted a search of the residence which revealed a videotape of Huckeba and his wife engaging in various sexual activities. Ashcraft also testified that several current Playboy magazines were found on the premises. She also found rope, self-defense surveillance spray, a razor, a bathrobe sash, a pair of Size A Sheer Energy Legg’s pantyhose, and a curtain sash in the victim’s bedroom. There was testimony that the pantyhose found in the victim’s bedroom were the size and type of pantyhose which Mrs. Huckeba wore.

Ashcraft testified that later on that same date, she took statements from the victim, Mrs. Huckeba and Huckeba.

The videotaped statement which Officer Ashcraft took with Officer Copeland from Huckeba was played for the jury. In that statement, Huckeba stated that he was out of town on business at the time of the incident. Officer Copeland testified that during the investigation, Huckeba did not ask any questions regarding the attack and that this lack of curiosity was very unusual.

Mrs. Huckeba testified. She stated that when she left the house at 6:30 a.m. on February 27, the victim’s car was in the driveway. She also testified that the doors to the house were locked when she left for work that morning. After the incident, she recalled that the house was not ransacked and that no items had been stolen. She stated that she owned a mace-type spray, which was moved on the day of the attack. Mrs. Huckeba also stated that her husband’s hands were rough and that he had a fungus on them.

Mrs. Huckeba admitted that during the two-and-one-half year period in which the victim lived in her home, she had sometimes been jealous of the victim’s relationship with Huckeba. Mrs. Huckeba stated that sometimes she felt “left out” of Huckeba’s relationship with the victim. She stated that she did not like the way the victim walked around the house in a shirt and underwear —“half dressed.”

There was testimony that a security video from a company about half a mile from the Huckeba home showed that the Huckebas’ car was in the parking lot of that company at about 4:25 a.m. on the morning of February 27. At about 6:52 a.m. that same date, the Huckeba car was gone.

The victim’s car was reported stolen on February 27. It was located in the same company parking lot at which the Huckebas’ car had been parked. The videotape of that parking lot showed that the victim’s car turned up in the lot by 6:52 on February 27 in the space next to the one in which the Huckeba car had been parked. When the victim’s car was recovered, various items including a camera and the victim’s purse, which contained $45, were found inside. Five dollars was taken from the victim’s purse. There was no evidence of any forced entry into the car, and the car was locked when it was recovered.

Huckeba’s defense was alibi. Although Huckeba did not testify at trial, in his statement Huckeba denied any involvement in the crimes charged. He stated that he was out of town at the time of the crimes.

1. Huckeba claims that the evidence was insufficient to convict him of aggravated assault with intent to rape. Although he concedes that there was evidence of an assault, he argues that there was no evidence of intent to rape. We disagree and find that a rational trier of fact could find from the evidence adduced at trial proof of appellant’s guilt of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see generally OCGA § 16-5-21.

2. Huckeba argues that the offenses of aggravated assault and false imprisonment merged as a matter of law and fact and that the conviction for both violated double jeopardy. Citing Weaver v. State, 178 Ga. App. 91, 94 (4) (341 SE2d 921) (1986), Huckeba claims that the evidence of the victim being held against her will during the attempt to tie her is evidence necessary to establish the charge of aggravated assault with intent to rape and that the factual basis for false imprisonment was “used up” in making the case for the aggravated assault charge.

We disagree and, pretermitting the issue of whether this enumeration was properly preserved, we find Huckeba’s argument without merit. Given the instant facts, the state did not “use up” the evidence establishing false imprisonment in proving the charge of aggravated assault. See Gilbert v. State, 176 Ga. App. 561, 562 (2) (336 SE2d 828) (1985). The false imprisonment offense was complete upon Huckeba tying the victim’s hands behind her back. The facts regarding the aggravated assault with intent to rape were separate and included Huckeba’s actions in spraying mace on the victim, jumping on her, pulling the sheets off of her, straddling her, trying to pull off her underpants, and trying to tie her legs together. See generally OCGA §§ 16-1-6; 16-1-7.

3. Citing Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994), Huckeba claims that the trial court erred in failing to charge, after written request, on the lesser included offense of simple battery. We find no error in the trial court’s failure to so charge. In Edwards, supra, the Supreme Court stated: “[t]he complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” Id. at 133. Here, Huckeba’s defense was alibi. The State’s evidence established the elements of aggravated assault with intent to rape. Contrary to Huckeba’s argument, the evidence showed the commission of the completed offenses as charged or the commission of no offense, and there was no error in the court’s failure to charge the lesser offense. See Leaver v. State, 211 Ga. App. 876 (2) (440 SE2d 760) (1994).

Moreover, assuming arguendo, that there was evidence that Huckeba committed the lesser offense, in light of the overwhelming evidence against him, “it is highly probable that the failure to give this charge did not contribute to the verdict.” Edwards, supra at 133.

4. Huckeba argues that the trial court erred and violated due process in admitting the videotape depicting a sexual encounter between him and his wife. He claims that the videotape put his character into evidence and was not otherwise admissible.

The trial court admitted the videotape in reliance on Helton v. State, 206 Ga. App. 215 (424 SE2d 806) (1992), in which the court stated: “[t]he true issue is whether the evidence sought to be excluded by the defendant is admissible to show defendant’s bent of mind toward the sexual activity with which he was charged or defendant’s lustful disposition. [Cits.]” Helton, supra at 216-217. Here, the court concluded that the videotape was admissible to show Huckeba’s “lustful disposition.”

Although the videotape was available at the jurors’ discretion for viewing, it was never played for the jury. Huckeba has failed to show harm to him from the introduction of the tape, and we find no reversible error. See generally Caldwell v. State, 263 Ga. 560, 564-565 (13) (436 SE2d 488) (1993); Ingram v. State, 211 Ga. App. 252, 256 (6) (438 SE2d 708) (1993).

5. In his fifth enumeration, Huckeba claims that the court erred in allowing into evidence Copeland’s repeated comments on the victim’s truthfulness, Huckeba’s guilt and lack of alibi, as well as Huckeba’s comments on the victim’s credibility. These alleged errors were all contained in the videotape of Copeland’s interrogation of Huckeba. Prior to allowing the tape into evidence, the court determined that it would not allow the prosecution to present audio evidence which would not be permitted during cross-examination.

Despite the fact that portions of the tape were excised, Huckeba argues that portions of the remaining tape were impermissibly admitted. For instance, Huckeba objects to a portion of the interview in which Copeland states that he “knows” Huckeba committed the crime and that he thinks Huckeba is “about to bust.” Huckeba cites several cases including Smith v. State, 259 Ga. 135 (2) (377 SE2d 158) (1989), and Fordham v. State, 254 Ga. 59 (2) (325 SE2d 755) (1985), and argues that one witness may not testify regarding the truthfulness of another and that the admission of Copeland’s testimony here was erroneous.

We reject these arguments. The “testimony” to which Huckeba objects consists of Copeland’s interrogation of Huckeba. Huckeba’s arguments ignore the fact that the videotape was of Copeland’s interrogation of Huckeba. Copeland testified that he used various interrogation techniques in interviewing suspects and that his goal in interrogation was to get a reaction and a confession from the suspect. Thus, Copeland’s comments during the videotaped interrogation were part of an effort to elicit a response — they were not, as Huckeba maintains, Copeland’s opinion regarding Huckeba and the victim. Huckeba’s statements within the videotape were also properly admitted. See generally Burley v. State, 190 Ga. App. 75, 78-79 (3) (378 SE2d 328) (1989).

Moreover, even assuming arguendo that the evidence was erroneously admitted, the error, if any, was harmless. “In addition, a conviction will be affirmed despite error if it is highly probable that the error did not contribute to the verdict. [Cits.]” Vincent v. State, 264 Ga. 234, 235 (442 SE2d 748) (1994). Here, in the absence of Copeland’s testimony there was overwhelming evidence of Huckeba’s guilt, and thus the error, if any, was harmless.

6. Finally, Huckeba claims that his motion to suppress was erroneously denied in that his consent to the search was not knowing and voluntary; the search exceeded the scope of the consent given; the search was overly broad; and the evidence seized was not related to the crime for which he was charged.

Evidence at the hearing on the motion to suppress was that at about 9:00 a.m. on February 27, Officer Ashcraft was en route to the Huckeba residence when she met Huckeba who had already been taken into custody. Ashcraft read Huckeba his Miranda rights, and he signed a form confirming this fact. Ashcraft asked Huckeba for consent to search his residence. He consented to the search stating that “he had nothing to hide.” Huckeba then read and signed a waiver of constitutional rights to a search warrant form. Huckeba gave Ashcraft the keys to his home. Ashcraft stated that Huckeba did not hesitate to consent to the search. She testified that he was not threatened and that there were no attempts to coerce him. There was no evidence that Huckeba’s consent was ever revoked or withdrawn.

Ashcraft also testified that Mrs. Huckeba, who resided with Huckeba, was present for most of the search. She recalled that Mrs. Huckeba had stated that “it was fine” that her husband had given the officers permission to search.

We reject Huckeba’s argument that his consent to the search was not knowing and voluntary. “Consent searches are valid but where the State relies upon consent, it has the burden to demonstrate from all the circumstances that the consent was voluntary and not the result of duress or coercion, express or implied. If it appears that a valid consent was given to search, such consent eliminates the need for either probable cause or a search warrant. In determining whether a search and seizure was reasonable, an appellate court can consider all relevant evidence of record, wherever located, including that adduced at a suppression hearing before trial and that adduced during trial. [Cits.] Moreover, the trial court’s decision, express and implied, as to credibility and disputed questions of fact at a suppression hearing must be accepted on appeal unless clearly erroneous.” Garcia v. State, 207 Ga. App. 653, 654 (1) (a) (428 SE2d 666) (1993).

Decided May 2, 1995

Reconsideration denied May 24, 1995

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

David McDade, District Attorney, Bradley R. Malkin, Assistant District Attorney, for appellee.

Viewing the totality of the circumstances, see Allen v. State, 200 Ga. App. 326, 327 (1) (408 SE2d 127) (1991), we find that the trial court’s decision that Huckeba’s consent was valid was not clearly erroneous. Similarly, Huckeba’s arguments that the scope of the search exceeded the scope of the consent given and that the evidence which was seized was not related to the crime for which he was charged are misplaced. See generally Allen, supra.

Judgment affirmed.

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

       Huckeba does not argue here that the statement was inadmissible because it was not voluntary, although he did raise this argument below.


text:
    A95A0088.
    In the Interest of L. S. F. et al., children.
    (458 SE2d 370)
   Ruffin, Judge.

The Fulton County Department of Family & Children Services (DFACS) petitioned the juvenile court to terminate the parental rights of the mother in three of her children. The children’s father has surrendered his parental rights. The court ruled that despite the long history of deprivation, it was in the best interest of the two older children to reserve ruling on the petition for six months. The court did, however, terminate the mother’s rights in the youngest child, N. T. F., and the mother appeals this part of the ruling contending there was not clear and convincing evidence that her parental rights should be terminated.

“If parental rights have been terminated by the lower court, upon appellate review this court must determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost.” (Citations and punctuation omitted.) In the Interest of J. C. J., 207 Ga. App. 599, 601 (428 SE2d 643) (1993). The evidence before the juvenile court follows.

In March 1989, when N. T. F. was one month old, DFACS filed a deprivation petition on his behalf. In July of that year, the juvenile court found the child to be deprived pursuant to OCGA § 15-11-81 et seq. and transferred legal custody to DFACS. At that time, the whereabouts of N. T. F.’s mother were unknown as she had failed to stay in contact with DFACS. In 1991, the custody order was extended for another two years, and in February 1993, upon a finding that the child remained deprived, the court ordered that custody remain with DFACS. Approximately three months later, DFACS filed the petition for termination of parental rights which is the subject of this appeal.

Caseworkers testified that since N. T. F. was first placed in its care, DFACS prepared case plans with specified goals to help reunite the mother and N. T. F. The plans were updated and reviewed at six-month intervals. Beginning with the first plan in 1989, each plan articulated three major goals for the mother in order to reunite with N. T. F.: 1) finding stable, suitable housing; 2) visiting the child on a regular, bi-monthly, or monthly basis; and 3) receiving psychological counseling. However, none of these goals was achieved in the ensuing five years. The mother testified that she had attempted to secure housing with three different men to whom she had been married or with whom she had been involved, but one man was imprisoned for rape, the second man left her, and the third, N. T. F.’s natural father, manages prostitutes and was a “bad influence” on her. At the time of the hearing, the mother still had not obtained housing.

In addition, the mother had not established regular visitation of N. T. F. as specified in all of the case plans. At best, her visitation could be described as sporadic, ranging from no visits to three visits in each six-month period since N. T. F. first came under the care of DFACS. Despite the mother’s contention that she is making progress toward becoming a fit parent, in the seven-month period prior to the termination hearing, she made only three visits.

Finally, in 1991, the court ordered that child support of $5 per week per child be paid, but the mother failed to make any payments, save a single payment of $100 which was made one month prior to the termination hearing. Additionally, the mother failed to receive any counseling and completed only two of four parenting classes.

As recognized in the juvenile court’s order, “OCGA § 15-11-81 (a) provides a two-step procedure to be followed in considering the termination of parental rights. First, the court shall determine whether there is present clear and convincing evidence of such parental misconduct or inability as provided by OCGA § 15-11-81 (b). [Second], if there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child. Parental misconduct is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. Among the factors which may be considered with regard to a child lacking proper parental care or control [is] . . . whether the parent without justifiable cause failed significantly for a period of one year or longer to comply with a court ordered plan designated to reunite the child with the parent.” (Citations and punctuation omitted.) In the Interest of M. M., 207 Ga. App. 722, 724 (1) (429 SE2d 132) (1993).

As to the first two factors, the evidence clearly showed that N. T. F. was deprived due to parental inability, such having been declared when N. T. F. was only five months old. Furthermore, there was clear and convincing evidence of these two factors by virtue of the fact that the mother failed to comply with virtually every condition of the reunification plans. Finally, “no appeal was taken from the order of the juvenile court entered in [1989] finding [N. T. F.] to be deprived and thus [the mother] is bound by that determination. [Cit.]” In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993).

The mother contends that N. T. F. cannot be declared deprived because DFACS did not make reasonable efforts to prevent or eliminate the need for the child’s removal as required by OCGA § 15-11-41 (b). This argument is without merit, given that N. T. F. was first removed from his mother’s home and found to be deprived when the mother was arrested for solicitation of sodomy. Further, the record is replete with efforts by DFACS to reunite N. T. F. with his mother via eight specific case plans designed to get the children out of foster care. There was also evidence of attempts to help the mother obtain housing and arrange for counseling. In short, the juvenile court was presented with clear evidence that N. T. F. was deprived and that the cause for his deprivation was lack of parental care and control.

Having determined that the court’s finding with regard to the first two factors was correct and supported by clear and convincing evidence, we turn to the third and fourth factors in the determination of parental inability. Despite the court’s recognition of the mother’s progress in certain areas, her failure to comply with significant elements of the plans over a five-year period demonstrates that the deprivation is likely to continue and will cause serious harm to the child. The mother contends that her past deprivation cannot justify termination when there was evidence that she is currently attempting to become a fit parent. She cites, inter alia, her attempts to travel out of state to obtain her birth certificate in order to obtain public housing, her willingness to attend counseling, and the fact that she began work to obtain a GED. However, “the past conduct of the parent is properly considered by the court in determining whether such [past] conditions of deprivation are likely to continue.” (Citations and punctuation omitted.) In the Interest of J. C. J., supra at 602. In addition, “[t]he decision as to a child’s future must rest on more than . . . promises” and hopes which belie past behavior. In the Interest of J. L. Y., 184 Ga. App. 254, 257 (2) (361 SE2d 246) (1987).

Decided May 24, 1995.

Hassett, Cohen & Beitchman, Daniel S. Glickman, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Kevin M. O’Connor, Assistant Attorneys General, Vivian D. Egan, Mary D. Hermann, for appellee.

Based on the evidence of the mother’s past behavior and her inability to comply with significant requirements of the plan, we find that a rational factfinder could have found by clear and convincing evidence that N. T. F.’s deprivation was likely to continue and have a detrimental effect on him. Compare In the Interest of R. M., 194 Ga. App. 888 (392 SE2d 13) (1990), in which the father underwent two years of court-ordered mental health treatment, completed a parenting course, regularly visited his children, paid the court-ordered child support of $200 per month, and had steady employment.

In considering the second part of the test, the best interest of the child, the trial court may consider the need for stability in the child’s life. In the Interest of J. C. J., supra. See also In the Interest of M. R., 213 Ga. App. 460 (1b) (444 SE2d 866) (1994). “A termination hearing seeks above all else [to protect] the welfare of the child, with due regard for the rights of the natural . . . parents.” (Punctuation omitted.) Id. at 465. At age five, N. T. F. has been in three foster homes. The court heard testimony from Dr. Moye, a child psychologist who had seen the child 14 times since 1992. Dr. Moye testified that N. T. F. had an excellent relationship with his present foster parents and considered them to be his family. She also testified that he was an anxious, “special needs” child who may have Attention Deficit Disorder. Dr. Moye further described N. T. F. as a child “at risk” who was very worried about the possibility of being taken away from his foster family. Based on the foregoing, the juvenile court’s decision terminating the parental rights in N. T. F. was supported by clear and convincing evidence, and we find no abuse of discretion despite attempts by the mother to become a more fit parent.

Judgment affirmed.

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


text:
    A95A0204.
    HOLCOMB v. THE STATE.
    (458 SE2d 159)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of alternative counts of driving under the influence of alcohol. The counts were merged for sentencing, so that defendant was “[sentenced on Count II only.” His motion for new trial was denied and this appeal followed. Held:

1. In his seventh enumeration, defendant contends the trial court erred in denying his motion to suppress the results of the State-administered breath test. He argues the implied consent warning he received is deficient because it did not advise him that he had the right to an independent chemical test by a “qualified person of his own choosing.” We agree.

The transcript of the hearing on defendant’s motion to suppress shows that defendant stopped his automobile at a roadside check for driver’s licenses and insurance papers. Officer J. W. Greer of the College Park police spoke with defendant and detected alcohol on his breath. When defendant exited his car, he was “unsteady on his feet, kind of like he was lost. His eyes were bloodshot.” Defendant failed field sobriety tests for finger dexterity and balance. A preliminary breath test was positive for the presence of alcohol. Defendant was placed under arrest and read an implied consent warning that informed defendant, in part: “If you submit to testing and the results indicate a blood alcohol level of 0.10 grams or more, your driver’s license may be suspended for a minimum period of one year. After submitting to the required testing you are entitled to an additional chemical test at your own expense. Will you submit to the State-administered chemical test of your breath under the Implied Consent Law?” Defendant was transported to the College Park police station, where he submitted to a breath test. After that test was given, defendant never asked for an additional test of his blood, breath, or urine. If defendant had requested an independent test, he would have had a “choice of Grady or South Fulton [hospitals].” Defendant testified that, while he was at the roadside, he twice demanded a blood test when Officer Greer asked him to take the preliminary breath test. However, he affirmed that he never demanded any additional testing after taking the State test at the police station.

“OCGA § 40-6-392 (a) (3) provides: ‘The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.’ (Emphasis supplied.) At the time of arrest, the officer must advise the arrested person of this right to have an independent test. OCGA § 40-6-392 (a) (4); Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). ‘Failure to give the advice renders the results . . . inadmissible in evidence. (Cits.)’ State v. Peters, 211 Ga. App. 755, 756 (440 SE2d 515) (1994).” State v. Causey, 215 Ga. App. 85 (449 SE2d 639). In the case sub judice, since “the implied consent warning given to [defendant] failed to inform him he could have an additional test administered by a qualified person of his own choosing, the results of the [S]tate-administered breath test are inadmissible. See Nelson v. State, 135 Ga. App. 212 (217 SE2d 450) (1975).” State v. Causey, 215 Ga. App. 85, 86, supra. Accord Moore v. State, 217 Ga. App. 536 (1). The trial court erred in failing to suppress this inadmissible evidence. Exclusion of the results of this breath test means that there is no competent evidence that defendant operated a moving vehicle at a time when his blood alcohol level was 0.10 grams percent or greater, as alleged in Count II of the accusation. Consequently, the judgment of conviction and sentence for Count II, alleging a violation of OCGA § 40-6-391 (a) (4) must be reversed. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). This disposition renders defendant’s sixth enumeration moot.

2. In his first enumeration, defendant contends the trial court erred in allowing Officer Greer to testify that defendant was a less safe driver. He argues this opinion testimony was without adequate foundation because it was “based solely upon the result of [an] alcosensor test. . . .”

At trial, Officer Greer testified that defendant was given a roadside test with a hand-held alco-sensor device, and that the result “read positive” for the presence of alcohol. Over defendant’s objection to “any interpretation . . . about what [that positive result] may have indicated,” Officer Greer was permitted to testify as follows: “From my dealings in the past... it would lead me to believe that he was a less safe driver, but I’m not going to base my opinions on that one machine.” Officer Greer explained that any opinion he formed about defendant’s capabilities was made in conjunction, with defendant’s observed inability to perform the field sobriety finger dexterity test and balance test.

“A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether [that person] was under the influence to the extent it made him less safe to drive. [Cits.]” Lewis v. State, 214 Ga. App. 830, 831 (1), 832 (449 SE2d 535). In the case sub judice, “[t]he foundation for [Officer Greer’s] opinion was his experience dealing with and testing individuals who had consumed quantities of alcohol, as well as his observations of [defendant]. This evidence was admissible [over defendant’s foundation objection]. See OCGA § 24-9-65; Gilbert v. State, 150 Ga. App. 339 (258 SE2d 27) (1979); Grier v. State, 72 Ga. App. 633 (34 SE2d 642) (1945).” Clapsaddle v. State, 208 Ga. App. 840, 842 (2) (432 SE2d 262).

3. The trial court erroneously charged the substance of OCGA § 40-6-392 (b) on the conclusions that may be drawn according to various blood alcohol levels by using the prohibited term “presumption.” See Lattarulo v. State, 261 Ga. 124 (1) (401 SE2d 516); Ellerbee v. State, 215 Ga. App. 102, 104 (5) (449 SE2d 874). When this error was brought to the attention of the court, the jury was brought back and informed by the court that the court “was wrong in charging on presumption. It has to be an inference.” The trial court amended its charge by substituting the term inference for presumption, i.e., if defendant had an “alcohol concentration of .08 grams or more it shall be inferred that the person was under the influence of alcohol. However, whether or not you make such an inference is for you to decide.” (Emphasis supplied.) Defendant renewed his motion for mistrial, arguing “the damage cannot be undone. . . .” In his eleventh enumeration, defendant contends the trial court erred in denying his motions for mistrial and new trial, arguing the initial error in the charge “must have left the jury in a confused condition of mind. . . .” We agree that a new trial must be held on Count I of the accusation.

“ ‘Having given the erroneous instruction, it could only be corrected by the judge expressly withdrawing it and instructing the jury to disregard it. [Where] this [is] not done, harmful error [results] therefrom.’ Salisbury v. State, 221 Ga. 718 (2)[, 719] (146 SE2d 776) (1966); [Cits.]” Murray v. State, 254 Ga. 351, 352 (2), 353 (329 SE2d 485). In the case sub judice, the attempted correction using “shall be inferred” in lieu of “presumed” was itself burden shifting and therefore erroneous. It “ ‘is just as mandatory as an instruction that “the law presumes fact x from fact y.” In either event, the jury is told that a finding of fact. . . legally follows from proof of (another) fact. . . .’ (Emphasis omitted.) Isaacs v. State, 259 Ga. 717, 734 (35b), 735 [(386 SE2d 316)].” Ellerbee v. State, 215 Ga. App. 102, 105, supra.

We cannot say this erroneous instruction was harmless. The State is not required to prove a defendant’s alcohol concentration to establish that he was a less safe driver under OCGA § 40-6-391 (a) (1). See Gilbert v. State, 262 Ga. 840, 841 (2) (426 SE2d 155). That inference is, however, permissible under OCGA § 40-6-392 (b) and is precisely what the State wished the jury to believe in this case. Since we have already held in Division 1 that the results of the State-administered breath test are not admissible, any instruction — even a correct instruction — on the substance of OCGA § 40-6-392 (b) is unauthorized in the case sub judice. “Where the inapplicable instruction authorizes the jury to reach a finding of guilty by a theory not supported by the [competent] evidence of record, we cannot say as a matter of law that the charge was neither confusing nor misleading. (Stanley v. State, 153 Ga. App. 42, 47 (264 SE2d 533) (1980).)” Anderson v. State, 262 Ga. 26 (1), 27 (1b) (413 SE2d 732). In the case sub judice, the trial court’s unsuccessful attempt at corrective instructions did not cure the defect in charging the jury on an inapplicable theory of guilt. This error requires a new trial as to Count I of the accusation alleging defendant operated an automobile while under the influence of alcohol to the extent he was a less safe driver.

Decided May 25, 1995.

Steven E. Lister, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

4. Although the general grounds are not enumerated, the circumstantial evidence that defendant was a less safe driver is sufficient under the standard of Jackson u. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of violating OCGA § 40-6-391 (a) (1) as alleged in Count I of the accusation. Porter v. State, 195 Ga. App. 388 (1) (393 SE2d 513).

5. Defendant’s remaining enumerations have been considered and are found to be without merit or unlikely to recur upon retrial.

Judgment reversed as to Count II; judgment reversed and case remanded for new trial as to Count I.

Andrews and Blackburn, JJ., concur.


text:
    A95A0492.
    JACKSON v. THE STATE.
    (458 SE2d 153)
   Andrews, Judge.

Jackson appeals from the judgment entered on a jury verdict finding him guilty of burglary. He challenges the sufficiency of the evidence and the trial court’s action on various motions, evidentiary issues, and jury charges. Because we find no basis for reversal under any of the enumerations of error, we affirm the judgment.

Evidence showed that a house in Fayette County was burglarized sometime between 11:45 a.m. and 1:00 p.m. on July 26, 1993 while the residents were not at home. There were no witnesses to the burglary. At about 1:30 p.m. on the same day, Jackson and two other men were arrested in an adjacent county by a Georgia Bureau of Investigation (GBI) agent and initially charged with possession of stolen goods.

The agent, who had no knowledge of the recent burglary at the time of the arrests, observed Jackson and Lewis in a car backed up near the door of a closed store. As the agent passed by in his unmarked car, he saw Jackson, who was seated in the driver’s seat, pass something to a third man, Lovett, who was standing next to the car. The agent testified that, because of the location of the car in front of the closed store, and, because the area was known for illegal drug sales, his suspicions were aroused, and he decided to investigate to determine if any illegal drug activity was afoot.

Upon approaching the car and identifying himself as a GBI agent, he saw Jackson reach down to pull something from the floorboard of the car. Thinking that Jackson might be reaching for a weapon, the agent drew his service weapon and approached Jackson on the driver’s side of the car. From this vantage point, the agent saw a pillowcase opened at the top on the floorboard of the car next to Jackson’s feet. The agent saw an open book of checks at the top of the pillowcase along with assorted jewelry. Jackson had two passports in his hand, which he threw down when the agent approached.

Jackson and the two other men identified themselves at the agent’s request, and, when asked what they were doing there, all three responded that they were just sitting there doing nothing. When asked about the passports, Jackson said they were not his. When asked to explain the pillowcase in the car containing the checkbook and the jewelry, Jackson and Lewis responded that they did not know anything about it and that it did not belong to them. The names on the checks observed by the agent did not correspond with Jackson, Lewis, or Lovett.

Based on their responses to his questions, and on his observation of the goods in the car, the agent arrested Jackson and the other two men for apparent possession of stolen goods. After they were placed under arrest and given their Miranda rights, Lovett volunteered that there were TVs, VCRs, and guns in the trunk of the car. A subsequent phone call to the persons named on the checks and passports found in the car revealed that the residence of these persons had been burglarized about an hour or two earlier. Jackson, Lewis and Lovett were charged with the burglary. Lovett pled guilty, and Jackson and Lewis were subsequently tried as co-defendants and convicted.

At trial, a resident of the burglarized house testified and identified the checks, passports, jewelry, and other items subsequently found in the trunk of the car as property stolen in the burglary. Jackson testified that he was not involved in the burglary. He said that Lovett told him about the stolen property in his car just moments before the GBI agent arrived. Jackson explained that, earlier in the day, he had allowed Lovett to use his car for an errand, and that, while he was not present, Lovett placed the stolen property in his car without his knowledge. Lovett, who had already pled guilty to the burglary, testified as a witness for Jackson. Lovett claimed that he acted alone when he burglarized the house and stole the property, and that he put the stolen property in Jackson’s car without Jackson’s knowledge.

1. Jackson claims the evidence was insufficient to support the convictions.

The evidence was sufficient to show that Jackson was in possession of the goods stolen in the burglary about an hour before they were found in his car, even though there was also evidence that Lovett had equal access to the car. See Knox v. State, 216 Ga. App. 90, 92 (453 SE2d 120) (1995); Cannon v. State, 211 Ga. App. 835, 836 (440 SE2d 723) (1994). Although the evidence was circumstantial, evidence of Jackson’s unexplained possession and concealment of goods stolen in the burglary, which had occurred an hour or two prior to his arrest, was sufficient to exclude any reasonable hypothesis save that of guilt. See Moore v. State, 202 Ga. App. 476, 478 (414 SE2d 705) (1992). Although Jackson presented evidence to the contrary, it was the duty of the jury to determine the credibility of witnesses and resolve conflicts in the evidence. Davis v. State, 203 Ga. App. 227, 228 (416 SE2d 771) (1992). There was sufficient evidence for the jury to find Jackson guilty beyond a reasonable doubt, and the trial court did not err by denying his motion for a directed verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We find no error in the trial court’s denial of Jackson’s motion to suppress evidence of the burglary discovered after the GBI agent’s investigatory stop and subsequent arrest of Jackson.

On appeal, Jackson’s sole argument is that the GBI agent had no basis for the initial investigatory stop, which led to the subsequent arrest and search. Given the physical location of Jackson’s car, which was backed up in front of a closed store, and given the apparent transaction the agent observed between Jackson and Lovett in an area known for illegal drug sales, the agent articulated a reasonable suspicion that illegal drug activity might be afoot. This was sufficient to stop Jackson, Lewis, and Lovett to investigate their activities. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Thereafter, the response given to the agent’s questions, and his observations at the scene, were sufficient to give the agent probable cause for the arrest and search. Durden v. State, 199 Ga. App. 397, 398-399 (405 SE2d 50) (1991).

The trial court’s findings as to the motion to suppress were supported by the record, not clearly erroneous, and, therefore, must be accepted on appeal as correct. Bryan v. State, 197 Ga. App. 207, 208 (398 SE2d 230) (1990).

3. Jackson claims that the trial court erroneously refused his request for an in camera inspection of the State’s file, and erroneously refused to seal a copy of the file for review on appeal. See Tribble v. State, 248 Ga. 274 (280 SE2d 352) (1981).

The record shows that Jackson moved for the trial court “to conduct an in camera inspection of the District Attorney’s file” and that “a copy of the State’s file be sealed ... for possible appellate review.” Subsequently, the trial court entered an order stating that it had conducted an in camera inspection of the State’s file in the case, and that nothing exculpatory was found in the file. Although Jackson argued prior to trial that the trial court failed to inspect the State’s entire file in the case, there is nothing in the record showing that the trial court failed to inspect the State’s file as requested.

As to the contention that the trial court failed to preserve the inspected file for appellate review, Jackson has not demonstrated any harm by pointing out what material he claims he was denied access to and how the suppression of this material prejudiced his defense. Williams v. State, 251 Ga. 749, 788-789 (312 SE2d 40) (1983).

Accordingly, we find no merit in these allegations.

4. As part of its case, the State introduced similar transaction evidence showing that Jackson had been convicted of four prior burglaries. Jackson contends on various grounds that this evidence was erroneously admitted.

(a) Jackson asserts that the four prior burglaries were not sufficiently similar to the present burglary so that proof of the prior burglaries tended to prove his participation in the present burglary. See Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

After the State provided Jackson with notice that it intended to introduce the similar transaction evidence, the trial court conducted a pre-trial hearing at which the State made an affirmative showing establishing the admissibility of the prior offenses. Although Jackson made a lack of similarity objection at the hearing, he waived this ground by failing to make this objection when the similar transaction evidence was introduced at trial. Hunter v. State, 202 Ga. App. 195, 197-198 (413 SE2d 526) (1991). Jackson’s objection to lack of similarity raised after the State had rested its case was too late. Curtis v. State, 212 Ga. App. 237, 239 (441 SE2d 776) (1994); Hunter, supra. “[I]t is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Citations and punctuation omitted.) Curtis, supra at 239.

Nevertheless, we have reviewed the similar transaction evidence and find that the prior offenses were sufficiently similar to warrant their admission.

(b) Jackson contends that the State failed to comply with USCR 31.3 (B) because a copy of the convictions was not attached to the notice of the State’s intention to present evidence of similar transactions.

Although the State was not in technical compliance with the rule, which requires that “[c]opies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice,” the notice did inform Jackson with respect to each burglary, the county in which it was prosecuted, the date of the offense, and the name of the victim. The purpose of the rule is to provide the defendant with fair and adequate notice of the listed transactions so that questions of admissibility may be raised and addressed prior to trial. Sweatman v. State, 181 Ga. App. 474 (352 SE2d 796) (1987). Jackson does not claim that he lacked adequate notice of the similar transactions. Since there was substantial compliance with the rule, and Jackson has made no claim that he was prejudiced by the State’s failure to fully comply, any error was harmless. Id.; Todd v. State, 189 Ga. App. 538, 539 (376 SE2d 917) (1988).

(c) Jackson argues that none of the similar transaction evidence should have been admitted because the State relied on hearsay to establish all four prior burglaries.

The State relied on the testimony of an investigator with the Spalding County Sheriff’s Department to establish the similarity of all four prior offenses. Since the investigator actually investigated and had personal knowledge of three of the four burglaries, his testimony as to those three offenses was not hearsay. See Jackson v. State, 205 Ga. App. 827, 828 (424 SE2d 6) (1992); compare Bowdry v. State, 211 Ga. App. 626 (440 SE2d 59) (1994). But the investigator admitted during the similar transaction hearing that he did not investigate the fourth prior burglary and had no personal knowledge about it. The State relied solely on this hearsay testimony to prove the similarity of the fourth burglary. Since the hearsay had no probative value, the similar transaction evidence as to this burglary was erroneously admitted. Bowdry, supra.

Nevertheless, since the fourth burglary occurred at about the same time and closely resembled the three other properly admitted prior burglaries, we find it highly probable that the erroneous admission of hearsay testimony regarding one of four similar prior offenses did not contribute to the guilty verdict. Wheat v. State, 205 Ga. App. 388, 389 (422 SE2d 559) (1992); Bowdry, supra. Accordingly, the error was harmless, and the trial court properly denied Jackson’s motion for a mistrial.

(d) The introduction of the similar transaction evidence did not violate his right to due process, a fair trial, and presumption of innocence, as contended by Jackson.

5. Jackson contends there was a fatal variance between the charging terms of the indictment and the facts proved at trial.

The indictment charged that the burglary occurred at the dwelling house of “Bobby Jackson, located at 1892 Highway 92 South. . . .” The State produced evidence showing that the burglary occurred at the residence of Bobby Jackson located at 1889 Highway 92 South, and that Bobby Jackson did not own another residence at any other address.

The variance between the indictment and the proof did not misinform or mislead Jackson in any manner that surprised him at trial or impaired his defense. Nor can he be subjected to another prosecution for the same offense. Accordingly, there was no fatal variance between the allegations and the proof. DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969). The trial court properly denied Jackson’s motion for a directed verdict on this ground.

6. Jackson claims that, after the State attempted to discredit a defense investigator on cross-examination by asking who paid him, the trial court erroneously refused to allow him to rehabilitate the witness on re-direct by showing that the investigator was paid by the State under a court order.

When asked on cross-examination who paid his bill, the investigator said he was paid by the investigating firm he worked for, and that he was not sure who paid the firm’s bill. On re-direct, the trial judge interrupted defense counsel’s attempt to have the investigator identify the court order authorizing State payment by commenting that he did not believe the order was relevant. Without objection, defense counsel directed the witness to come down and ended the examination. Assuming, without deciding, that the State’s cross-examination made the source of payment for the investigation relevant, defense counsel did not object in the trial court that his examination of the witness had been improperly curtailed, so we will not address this claim on appeal. Tanthongsack v. State, 265 Ga. 88 (453 SE2d 468) (1995).

7. Jackson contends that the trial court erroneously charged the jury on the essential elements of the offense, on the separate application of the facts and law to Jackson and his co-defendant, Lewis, and on its charge on equal access.

(a) The trial court’s instructions fully and accurately informed the jury of the essential elements of the offense charged in the indictment. There is no merit to this enumeration.

(b) As the charge pertained to Jackson and his co-defendant, Jackson claims the trial court erred by charging the jury that: “If . . . you should entertain a reasonable doubt as to the guilt of these defendants, it would be your duty to acquit the defendants. On the other hand, if you believe from the entire evidence that the defendants or either of them are guilty beyond a reasonable doubt, it would be your duty to convict.” Specifically, Jackson contends that the use of the phrase “the defendants or either of them,” the court’s use of the plural “defendants,” and the failure of the court to instruct the jury that conviction of one defendant did not necessitate conviction of the other, misled the jury as to their duty to consider the charges against each co-defendant separately and requires reversal of his conviction.

“[T]he better practice would be for the trial court to give a separate instruction detailing the jury’s duty to consider each charge in the indictment against each defendant separately and reminding the jury that the guilt of one defendant did not require the return of a similar verdict against the co-defendant. . . .” George v. State, 260 Ga. 809, 811 (400 SE2d 911) (1991). Here, the judge specifically instructed the jury that there were two separate defendants charged with the same offense under two separate indictments, and that they had a duty to consider the evidence and law and apply them separately to each defendant and reach a separate verdict as to each defendant. The trial court also cautioned the jury that even if the plural “defendants” was used in portions of the charge, they should recall their duty to consider each defendant separately.

Considering the charge as a whole, it was complete and accurate and did not confuse the jury in their consideration of the charges against the co-defendants. George, supra; Ledbetter v. State, 202 Ga. App. 524 (414 SE2d 737) (1992).

(c) The trial court’s charge substantially and adequately covered the principle of equal access as it applied in the automobile context in this case. The charge adequately informed the jury that evidence showing that a person or persons, other than the owner or driver of the car, had equal access to contraband found in the car may or will, depending on the evidence, overcome the presumption that the contraband was exclusively possessed by the owner or driver. Dickerson v. State, 200 Ga. App. 366, 367 (408 SE2d 137) (1991); see Jones v. State, 200 Ga. App. 519, 520-521 (408 SE2d 823) (1991). Failure to give the specific charge requested was not error.

8. Jackson claims that, during the presentence hearing, the trial court improperly considered convictions for sentencing purposes which were not his convictions.

The State presented certified copies of the convictions at issue, and the trial court noted that the record reflected that the convictions were included as recidivist counts to indictments against Jackson which were admitted as similar transaction evidence during the trial. Although defense counsel stated that his client was not the same Jackson named on the convictions, no evidence was presented to support this claim. In the absence of any evidence to contradict the record, the trial court properly considered the documents introduced by the State as prior criminal convictions of Jackson in aggravation of punishment. OCGA § 17-10-2 (a); see Banks v. State, 201 Ga. App. 266, 268-269 (410 SE2d 818) (1991).

Decided May 25, 1995.

Steven L. Harris, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Blackburn, J., concurs in judgment only.