author: Beasley, Judge.

text:
    A98A1314.
    WHITE v. THE STATE.
    (505 SE2d 228)
   Beasley, Judge.

Patrick White pled guilty to being a habitual violator (OCGA § 40-5-58) and driving under the influence of alcohol (OCGA § 40-6-391). On October 18, 1991, he was sentenced to five years probation on the habitual violator charge and twelve months probation on the DUI charge, to be served consecutively. He now appeals an order revoking or modifying his probation, because the order sent him to a state detention center for two years, four months and twenty-three days, the remainder of his sentence. He does not challenge the revocation itself but only the sentencing order which resulted, claiming it exceeds the period allowed by OCGA § 42-8-34.1.

The order on appeal was precipitated by a petition for “modification/revocation of probation” filed by White’s probation officer on March 10, 1997 in which it was alleged that White “reported to the Probation Officer intoxicated, and registered .105 grams blood/alcoIhol concentration . . .” in violation of a condition of his probation. A hearing was held the next day and the court entered an order finding that the terms of probation had been breached by both technical violations of probation conditions and “serious infraction of rules/regulations in a Community Corrections facility.” The court ordered White be “[r]emanded to a State Detention [Center] for 2 yrs, 4 months, & 23 days.”

Six months later White moved the court to “vacate void sentence” on the ground that to be confined in a state detention center, an “alternative to confinement” under OCGA § 42-8-34.1, for that length of time is the equivalent of incarceration and that it is improper for a court to impose any period of continuous and uninterrupted incarceration as a condition of probation. The court denied the motion and White appealed.

The State moves to dismiss the appeal on the ground that an appeal of an order revoking probation is discretionary under OCGA § 5-6-35 (a) (5) and White failed to follow the procedure mandated by OCGA § 5-6-35 (b). White argues this would be true “if he was attacking the revocation of his probation, [but] the same is not true where [he] is attacking only the sentence received as a result thereof.”

The Supreme Court instructed in Self v. Bayneum: “In determining the proper procedure to follow in pursuing an appeal, the underlying subject matter generally controls over the relief sought. Rebich v. Miles, 264 Ga. 467 (448 SE2d 192) (1994).” Thus, in Rebich, the Supreme Court dismissed a direct appeal from denial of a writ of mandamus where the underlying subject matter was subject to discretionary review despite the fact that denial of a writ of mandamus ordinarily may be appealed directly. Similarly, in Bayneum the Supreme Court dismissed an appeal of the denial of a petition for writ of prohibition which asserted that certain orders entered in a divorce case were null and void. Because the underlying subject matter, divorce, was subject to the discretionary appeal procedure, Self could not avoid it by filing a writ of prohibition.

It is true that if a trial court determines a sentence is void, “then a new and valid sentence can be imposed by the trial judge at any time,” and that a defendant may appeal such an order. But we must follow the rule of Rebich and Bayneum; the underlying subject matter determines which appellate procedure is required. White cannot avoid this by appealing only the second part of the two-part order, i.e., the section which followed the revocation.

The underlying subject matter of White’s appeal is the probation revocation from which White failed to apply for a discretionary appeal and therefore his appeal must be dismissed.

As stated in Rebich: “A party should review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5-6-35. This approach fulfills the legislature’s intent to give appellate courts more discretion in managing their caseload. Otherwise, any party could avoid the discretionary review procedure by seeking relief, however inappropriate, that would trigger the right to a direct appeal.” This Court has refused to treat a direct appeal as an application, even where requested.

Decided July 30, 1998

Reconsideration denied August 14, 1998.

William G. Snider, Craig L. Cascio, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

White contends Dunlap v. State confirms this Court’s authority to hear a direct appeal when revocation results in a void sentence which is subsequently challenged in a motion to vacate the sentence. Apparently the reason Dunlap is cited even though it is silent on this issue is that the same lawyer represented defendant and believes a direct appeal was achieved in that case. Dunlap does not mention the avenue on which the case traveled to this Court. Dunlap involved the revocation of a suspended sentence, not the revocation of probation. OCGA § 5-6-35 (a) (5) on its face applies only to “orders revoking probation.”

Appeal dismissed.

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

       See State v. Wilbanks, 215 Ga. App. 223 (450 SE2d 293) (1994) (this Court lacks jurisdiction of direct appeals from probation revocation hearings because jurisdiction lies upon application only); Gazaway v. State, 178 Ga. App. 318 (343 SE2d 135) (1986); Farlar v. State, 173 Ga. App. 622 (328 SE2d 436) (1985).

       265 Ga. 14 (453 SE2d 27) (1995).

       OCGA § 5-6-34 (a) (6).

        Bayneum, supra.

       Id.

       (Citations and punctuation omitted.) McCranie v. State, 157 Ga. App. 110, 111 (2) (276 SE2d 263) (1981).

        Gonzalez v. State, 201 Ga. App. 437 (411 SE2d 345) (1991).

        Rebich, supra, 264 Ga. at 469.

        Akins v. Life Investors Ins. &c., 197 Ga. App. 574 (399 SE2d 584) (1990).

       231 Ga. App. 82 (497 SE2d 640) (1998).

       See generally Hughes v. Town of Tyrone, 211 Ga. App. 616 (440 SE2d 58) (1994) (suspension and probation are not the same); Hudson v. State, 248 Ga. 397 (283 SE2d 271) (1981) (there are distinctions between the two).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A1268.
    A98A1269.
    PHILLIPS v. JACKSON. BIGELOW v. JACKSON.
    (506 SE2d 158)
   Ruffin, Judge.

In separate actions, Damiana Nicola Phillips and Tony Teras Bigelow sued Benji Jackson for injuries they allegedly suffered in an automobile collision involving Jackson. Jackson moved for summary judgment in both cases, asserting that neither plaintiff properly served him in accordance with the Nonresident Motorists Act, OCGA § 40-12-1 et seq. The trial court granted summary judgment to Jackson in each action. Phillips appeals the grant of summary judgment in Case No. A98A1268, and Bigelow appeals the grant of summary judgment in Case No. A98A1269. For reasons which follow, we affirm.

“The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) [(1991)]. When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. [Cit.] Further, when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. [Cits.]” Stacey v. Jones, 230 Ga. App. 213, 214-215 (1) (495 SE2d 665) (1998).

Viewed in the light most favorable to Phillips and Bigelow, the nonmovants, the evidence reveals that on November 30, 1992, Phillips was driving a Nissan automobile in Muscogee County with Bigelow as her passenger. According to the plaintiffs, Jackson failed to yield at an intersection and struck the right side of the Nissan, resulting in injuries to both plaintiffs. Both Phillips and Bigelow filed their actions on November 15, 1994. On January 3, 1995 Jackson was personally served with notice of the lawsuits at his residence in Brandon, Mississippi.

Jackson raised the issue of insufficiency of service of process in his answer to both actions. In support of his summary judgment motions, Jackson asserted that he has always been a resident of Mississippi and was a resident of Mississippi in 1992 when the collision occurred and in 1995 when the plaintiffs served him with notice of their actions. In affidavits, Jackson testified that “I have been a resident of Mississippi for my entire life, and have physically lived in Mississippi all of my life except for periods of time when I have served in the military.” Jackson further stated that from the end of August 1992 to January 1993, he rented an apartment in Columbus, Georgia because he was attending an infantry officer advanced course at Fort Benning in accordance with orders from the Mississippi National Guard. He testified that he has never resided or intended to reside in any state other than Mississippi. Finally, Jackson pointed out in support of his motion for summary judgment that while the accident report completed in connection with the collision listed his temporary Columbus address, it also listed his car’s Mississippi license plates and his Mississippi driver’s license.

Jackson argued that because he was never a Georgia resident, the plaintiffs were required to serve him in accordance with the Nonresident Motorists Act. See OCGA § 40-12-2. The trial court agreed and granted Jackson summary judgment in each case because Phillips and Bigelow failed to comply with the Act.

On appeal, Phillips and Bigelow assert that Jackson had more than one residence and, accordingly, was properly served under Georgia’s long arm statute, OCGA § 9-10-91. Further, the plaintiffs claim that Jackson was estopped from asserting insufficiency of process because (1) he gave the investigating police officer his temporary Columbus address and (2) he failed to leave a forwarding address with the office manager of the apartment complex where he was staying in Columbus upon returning to Mississippi. In response, Jackson maintains that he was not a resident of Georgia at the time of the collision, but merely a sojourner. See Davis v. Holt, 105 Ga. App. 125 (1) (123 SE2d 686) (1961).

1. “ ‘The difference between three conceptions, that of sojourn, residence, and domicil ... is one purely of intention. To become a sojourner, no intention whatever is necessary, merely the fact of personal existence in the place. For residence there is an intention to live in the place for the time being. For the establishment of domicil the intention must be not merely to live in the place but to make a home there.’ [Cit.]” Id. at 129-130. “A person may reside in one place and be domiciled in another ([cit.]), and may have more than one residence ([cit.]), [and] as long as one residence is in Georgia, he is not a nonresident for purposes of the [Nonresident Motorists] Act. [Cit.]” Carroll v. Americal Corp., 207 Ga. App. 651, 652 (1) (428 SE2d 811) (1993). “The term, ‘sojourn,’ as a noun, is defined as meaning a temporary stay or a temporary residence, as that of a traveler in a foreign land, a sojourner. [Cit.]” Davis, supra at 130.

“It has been the considered opinion of prior decisions of this court that a service person is a ‘temporary sojourner.’ [Cits.]” Smiley v. Davenport, 139 Ga. App. 753, 756 (2) (229 SE2d 489) (1976). In Coggins v. Rhodes, 113 Ga. App. 837 (149 SE2d 834) (1966), the defendant was enlisted in the Army at the time he was involved in an automobile collision with the plaintiff. The plaintiff served the defendant pursuant to the Nonresident Motorists Act because at the time of the collision the defendant was stationed in North Carolina. The defendant raised the issue of insufficiency of process, testifying that he was born in Georgia and that it was his intention to remain a resident of Georgia while serving in the Army. We concluded that the defendant was a Georgia resident when the collision occurred and suit was filed. Id. at 838. We further held that “the fact that he was temporarily sojourning in North Carolina while on his tour of duty with the Army at such time did not make him subject to service under the [Act]. [Cit.]” Id. See also Vinson v. Porter, 126 Ga. App. 555 (191 SE2d 297) (1972) (facts that defendant in personal injury action arising from automobile collision was enlisted in the Navy and was in Georgia at time of collision in compliance with Naval orders, but returned to Ohio upon completion of his service, raised an inference that he was only a temporary sojourner in Georgia and thus a nonresident).

In the instant actions, the evidence is uncontroverted that Jackson was a member of the Mississippi National Guard at the time of the collision, that he was in Georgia in compliance with National Guard orders, that he had always been a resident of Mississippi, that he never intended to become a resident of any other state, and that he had Mississippi license plates and a Mississippi driver’s license. We cannot conclude that Jackson maintained a residence in Georgia based upon the mere fact he gave the investigating police officer his temporary Columbus address for the accident report. Accordingly, given the evidence and the prior decisions holding that a service person stationed in Georgia temporarily is a sojourner and not a resident, we conclude that Jackson was a nonresident. Thus the plaintiffs were required to serve him in accordance with the Nonresident Motorists Act, OCGA § 40-12-2, which they failed to do. See Smiley, supra; Vinson, supra; Coggins, supra. Therefore, the trial court properly granted summary judgment to Jackson in both actions.

Decided August 14, 1998.

Worthington & Flournoy, Thomas M. Flournoy, Jr., for appellants.

Self, Mullins, Robinson, Marchetti & Kamensky, J. Ronald Mullins, Jr., Martha M. Hartley, for appellee.

2. We also find that the plaintiffs’ estoppel by conduct argument fails. “ Tn order to constitute estoppel by conduct, there must concur, first, a false representation or concealment of facts; second, it must be within the knowledge of the party making the one or concealing the other; third, the person affected thereby must be ignorant of the truth; fourth, the person seeking to influence the conduct of the other must act intentionally for that purpose; and fifth, persons complaining shall have been induced to act by reason of such conduct of the other.’ [Cits.]” Davis, supra at 132-133.

In the instant cases, Jackson did not falsely represent or conceal facts when he gave the investigating officer his temporary Columbus, Georgia address and when he failed to leave a forwarding address with the apartment complex’s office manager upon returning to Mississippi. See id. Additionally, the fourth element “is missing in [these cases], since there is nothing to show that the conduct of [Jackson] relied upon to work an estoppel was done intentionally by [Jackson] to influence the conduct of the [plaintiffs] in filing an action against him.” Id. at 133. Accordingly, this contention is meritless and the trial court properly granted summary judgment to Jackson.

Judgment affirmed.

Pope, P. J., concurs. Beasley, J., concurs in the judgment only.


author: Johnson, Presiding Judge.

text:
    A98A1349.
    EVANS v. THE STATE.
    (506 SE2d 169)
   Johnson, Presiding Judge.

Robert Evans appeals his conviction of aggravated child molestation and child molestation committed upon a four-year-old child.

1. Evans contends the trial court erred when it held his defense counsel in contempt of court and fined counsel for not being in court at a certain time. Compare In re Booker, 195 Ga. App. 561, 562 (1) (394 SE2d 791) (1990). Pretermitting whether the trial court erred in holding Evans’ trial counsel in contempt is whether such conduct prejudiced Evans. We hold that it did not.

Evans waived trial by jury and elected to be tried by the judge alone. Trial judges are presumed to be capable of separating “admissible grains of evidence from inadmissible chaff.” (Citations and punctuation omitted.) Stevens v. State, 213 Ga. App. 293, 295 (2) (444 SE2d 840) (1994). The fact that trial counsel was sanctioned was inadmissible chaff regarding the issue of Evans’ innocence or guilt and there is no showing that the trial court did not correctly recognize it as such. Both error and harm must be affirmatively shown by the record to authorize a reversal on appeal. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994). This enumeration of error is without merit.

2. Evans contends that because the state did not inform him before trial of the existence of a videotape in which a child advocate interviewed the victim, the trial court erred in admitting the tape into evidence. This contention is without merit.

The prosecutor stated on the record that Evans was informed before trial that the videotape existed and was invited to view the videotape at the district attorney’s office. Evans’ trial counsel denied that he had ever been notified of or invited to view the video. The trial judge overruled the objection, noting that he recalled that the state’s attorney did tell trial counsel the videotape was available for viewing.

Evans’ only citation of authority as to this enumerated error is Wallin v. State, 248 Ga. 29 (248 SE2d 687) (1981). He cites Wallin as direct support for his claim that if he had known about the tape before trial a suppression motion would have been submitted which “may have affected the outcome of the trial.” Wallin, however, does not support Evans’ claim of any form of prejudicial discovery error. In Wallin the defendant objected to certain information on the grounds that it should have been furnished to him pursuant to a Brady motion. Id. at 32 (6). The Supreme Court ruled in Wallin that when a defendant merely asks for all Brady material or for anything exculpatory, such a request really gives the prosecutor no better notice than if no request is made. Evans has not enumerated that any Brady error occurred and has not even mentioned Brady in his appellate brief. Further, a Brady violation does not occur when the information sought becomes available at trial. Burgeson v. State, 267 Ga. 102, 104 (2) (475 SE2d 580) (1996).

Even assuming Evans was not provided with a copy of the videotape before trial, the record reflects that he was placed on reasonable notice of its existence. On or about September 4, 1997, immediately after receiving Evans’ discovery request, the state provided his trial counsel with a complete copy of its entire case file. The case file was accompanied by a certificate of service with an attached exhibit list. Item #1 of the exhibit list contained in the case file is a three-page case summary prepared by the investigating officer. Under these additional circumstances, there is no basis for reversal of the trial court’s ruling. Moreover, Evans failed to move for a continuance to review and analyze the information contained in the videotape when it was offered, and failed to show how a reasonable probability exists that information contained in the videotape would have resulted in a different verdict if the evidence had been disclosed to the defense before trial. See also Waldrip v. State, 267 Ga. 739, 750 (17) (482 SE2d 299) (1997). Evans merely contends that if he had known sooner of the videotape, he would have filed a motion to suppress, which if granted “may have affected the outcome of the trial.” This general assertion of error is not sufficient to require reversal of his convictions. Harm as well as error must be affirmatively shown by the record to obtain reversal. Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994). Evans, at best, presents this Court with mere speculation and conjecture as to what result that motion to suppress the videotape would have yielded. Harm cannot be shown by mere speculation and conjecture unsupported by the record. See Bell v. State, 226 Ga. App. 271, 273 (4) (486 SE2d 422) (1997).

Evans’ discovery request is not contained in the trial record on appeal, and Evans does not cite to any page in the trial record or transcript where it may be found. When a portion of the record bearing upon the issues raised by the enumerations of error is not brought up so that this Court can make its determination from a consideration of all relevant evidence bearing thereon, an affirmance as to that issue must result. See Santone v. State, 187 Ga. App. 789, 790-791 (1) (371 SE2d 428) (1988).

3. The trial court did not err when it allowed into evidence a stuffed doll with male genitalia and a Penthouse and a High Society adult magazine on the ground that the items were admissible to show lustful disposition and bent of mind. See Hill v. State, 183 Ga. App. 654, 656 (3) (360 SE2d 4) (1987) (physical precedent only); Tyler v. State, 176 Ga. App. 96, 99 (1) (335 SE2d 691) (1985).

It is of some additional relevance, albeit slight, that these three items were found stored together in a box in Evans’ bedroom closet. Also, the victim testified that Evans showed her an unidentified “stuffed doll” when she was in his house and that she had not asked to see it.

Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, Georgia courts favor the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jury. Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990).

Additionally, greater latitude is permissible in the introduction of evidence in a bench trial, as the trial judge is presumed to be capable of weighing evidence without being swayed by its potentially inflammatory nature. See Graves v. State, 227 Ga. App. 628, 630 (490 SE2d 111) (1997) (trial judge is presumed to consider only legally admissible evidence).

4. Evans contends the trial court erred when it found him guilty as there is no direct evidence that he committed aggravated child molestation and child molestation as averred in the indictment. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Hendrix v. State, 230 Ga. App. 604, 607 (5) (497 SE2d 236) (1998); Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Examining the evidence in the light most favorable to the verdict, including the videotaped interview of the victim, the trial testimony of the child victim and her mother, the medical testimony of the doctor who examined the victim, and the rebuttal testimony of the victim’s older aunt, there exists sufficient evidence of the following relevant facts. The victim went to Evans’ apartment to get permission to ride one of Evans’ bicycles. While at the apartment Evans took the victim into his bedroom, fondled her breasts and placed his penis in her vagina. That evening the victim told her mother what had happened. The mother examined the victim and discovered a tear in the child’s vaginal and rectal area. The mother and an aunt gave the child a bath and put Neosporin on her. The next day the victim complained that there was a burning in her vaginal area. She was taken to the doctor who discovered a rectal tear and other physical evidence from which he concluded that the victim’s injuries were consistent with digital and/or attempted penal penetration of the rectal area.

The victim testified on cross-examination that she told her mother what Evans had done, her mother did not tell her what to say, and that Evans carried her “in the room,” showed her a stuffed doll and touched her.

Decided August 14, 1998.

Watkins & Watkins, John D. Watkins, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Assistant District Attorney, for appellee.

Guilt may be established beyond a reasonable doubt by direct evidence, circumstantial evidence or a combination of both. See generally OCGA §§ 24-1-1; 24-3-16; 24-4-5.

Evans does not enumerate as error that the statements made by the victim during the videotape interview or to her mother were given under circumstances which failed to provide a sufficient indicia of reliability. Thus, this issue is not before us on appeal. See Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649) (1993).

Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Evans was guilty of the offenses of aggravated child molestation and child molestation. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


author: Blackburn, Judge.

text:
    A98A1466.
    A98A1467.
    LIVERY v. THE STATE. CLOUD v. THE STATE.
    (506 SE2d 165)
   Blackburn, Judge.

Thomas Jerome Livery and Richard Dean Cloud appeal their convictions of armed robbery following a jury trial. We affirm the convictions.

1. In their first and second enumerations of error, they contend that the evidence was insufficient to support the verdicts of armed robbery against them and that such verdicts were contrary to the law. We disagree.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Livery and Cloud] no longer enjoy[ ] a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . The standard for reviewing [an appeal based on insufficiency of the evidence] is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.” (Punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

The record reveals that Valerie Robinson was working as a clerk at a Circle K convenience store at 10:45 p.m., February 12, 1996, when Cloud, wearing a dark sweatshirt, entered the store and robbed it. Cloud took several packs of cigarettes, $20 from the store safe, and $200 from Robinson. During the robbery, Cloud was carrying nunchucks. The nunchucks carried by Cloud consisted of two wooden sticks connected by a metal chain. At one point during the robbery, Cloud raised them in his hands, and Robinson feared that Cloud was going to strike her with them.

During the early morning hours of February 13, 1997, Officer Rad Porter was on duty when a vehicle driven by Livery and occupied by Cloud drove past him on the wrong side of the road, almost hitting him and another officer on the scene. Porter stopped the vehicle, and he smelled marijuana on Livery and inside the vehicle. Livery told Porter that he had smoked both crack and marijuana prior to being pulled over. Porter then performed a horizontal gaze nystagmus test on Livery, which he failed. After Livery failed a field sobriety test, Porter placed him under arrest for driving on the wrong side of the road. Livery voluntarily submitted to a urine test, which was positive for marijuana and cocaine.

While Livery was being arrested, Porter received a police transmission regarding the Circle K robbery. A lookout was broadcast for a male wearing a dark, hooded sweatshirt and carrying nunchucks. A search of Livery’s car revealed these items as well as several packs of cigarettes, the lot numbers of which were later determined to match the lot numbers of the cigarette packs sold at the Circle K. After these objects were found, Cloud attempted to flee, but was apprehended.

Livery then told Porter that he and Cloud had used the proceeds from the Circle K robbery to purchase crack. Cloud was identified by Robinson as the robber. Livery told Officer Porter that he had driven Cloud to the Circle K with the intent to rob it.

Both defendants contend that the State failed to prove that nunchucks are an offensive weapon, and, therefore, there was no evidence to support a required element of the armed robbery charges against them. This contention is without merit.

“The term offensive weapon . . . includes not only weapons which are offensive per se (such as firearms loaded with live ammunition), but also other instrumentalities not normally considered to be offensive weapons per se which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use. An offensive weapon is a weapon primarily meant and adapted for attack and infliction of injury, but practically the term includes anything that would come within the description of a deadly or dangerous weapon.” (Punctuation omitted.) Meminger v. State, 160 Ga. App. 509 (2) (287 SE2d 296) (1981). “Examples of normally non-offensive non-deadly objects which have been used in a manner as to support convictions of armed robbery or aggravated assault are: a beer bottle, Simmons v. State, 149 Ga. App. 830 (2) (256 SE2d 79) (1979); a ceramic statue, Banks v. State, 169 Ga. App. 571 (314 SE2d 235) (1984); a pocketknife, Hambrick v. State, 174 Ga. App. 444 (1) (330 SE2d 383) (1985); fists, Quarles v. State, 130 Ga. App. 756 (204 SE2d 467) (1974); and even a pillow and sheets, Eady v. State, 182 Ga. App. 293, 295 (355 SE2d 778) (1987).” Vicks v. State, 189 Ga. App. 835, 836 (377 SE2d 863) (1989).

In this case, the nunchucks were admitted into evidence, and Robinson testified that Cloud raised them in his hands as if preparing to strike her in the head with them. Nunchucks, by definition, are tools developed for combat. Indeed, the Georgia Code defines them as weapons, categorizing them along with pistols, knives, and other such devices. OCGA § 16-11-127.1 (a) (2) (prohibiting weapons on school property). The evidence supported the determination that nunchucks may be an offensive weapon. Therefore, under the standard of Jackson v. Virginia, supra, the evidence was sufficient to enable a rational trier of fact to find both defendants guilty of armed robbery beyond a reasonable doubt.

Both defendants, in part, argue that the trial court’s charge regarding the definition of offensive weapon was too limited. The trial court charged: “An offensive weapon is one which if used in its usual manner is likely to cause death.” Even if this definition were too limited, the limitation operated to the benefit of the defendants. Therefore, as the trial court’s charge worked to the defendants’ advantage, any error would be harmless.

2. In their third enumeration of error, both defendants contend that the trial court erroneously prevented Livery from demonstrating the usual and customary use of nunchucks to the jury. The transcript reveals that Livery was asked whether he had any training or knowledge of the martial arts, and Livery replied that he did not. Livery was then asked: “[W]ould you be capable of demonstrating to the jury how nunchucks are used?” Livery replied: “Oh, I could probably use them.” At this point the State objected on the basis that Livery had no experience or training in using nunchucks. In response, Livery’s attorney stated: “I’m following up and I’m expecting [Livery] to say no [to the question of whether he could demonstrate the nunchucks’ use].” Furthermore, Livery provided the trial court with no explanation as to why he wished to demonstrate his knowledge of the use of nunchucks either before or after the State’s objection. The admission of evidence is largely in the sound discretion of the trial court, and, absent an abuse of such discretion, an appellate court will not interfere. Brannen v. Prince, 204 Ga. App. 866, 870 (4) (421 SE2d 76) (1992). Livery provided the trial court with no foundation showing either (1) that Livery had actual knowledge of the use of nunchucks or (2) why such information would be relevant. Therefore, the trial court did not abuse its discretion in excluding Livery’s demonstration of the nunchucks to the jury under these facts.

3. In their fourth enumeration of error, both defendants contend that the trial court erred by failing to charge the jury on the law of circumstantial evidence pursuant to OCGA § 24-4-6.

The failure to charge on circumstantial evidence as set forth in OCGA § 24-4-6 is not harmful or erroneous as a matter of law where there is some direct evidence and the jury is properly charged on reasonable doubt, absent a request for such charge. Accordingly, when the State’s case includes both direct and circumstantial evidence, a defendant is not relieved of the necessity of requesting the charge and, in the absence of such a request, it is not error to fail to give it. See Yarn v. State, 265 Ga. 787 (1) (462 SE2d 359) (1995).

Cloud requested a charge on circumstantial evidence. Since the State’s case against him consisted of both direct and circumstantial evidence, the trial court erred in failing to give the requested charge. However, as indicated in Mims v. State, 264 Ga. 271, 273 (443 SE2d 845) (1994), this error is not automatically harmful. Although the error was considered harmful in Mims because the evidence was close, the error in this case was rendered harmless by the overwhelming direct evidence of Cloud’s guilt, including his positive identification by Robinson, the discovery of the sweatshirt, nunchucks, and cigarettes in his car, and the statements made by Livery regarding the planned robbery. “This evidence and all reasonable deductions therefrom were completely inconsistent with a reasonable hypothesis of innocence. To reverse this conviction would be a perversion of justice.” (Punctuation omitted.) Cornish v. State, 219 Ga. App. 884, 885 (1) (466 SE2d 919) (1996).

Livery, on the other hand, did not request a charge on circumstantial evidence. In the absence of such a request, it was not error for the trial court to fail to give it with regard to Livery. Yarn, supra. See also Valdez-Hardin v. State, 201 Ga. App. 126 (410 SE2d 354) (1991) (appellant could not orally adopt other co-defendant’s request to charge where appellant neither requested charge in writing nor objected to trial court’s denial of co-defendant’s request). Moreover, even if Livery had properly requested a charge on circumstantial evidence, any error by the court in failing to so charge the jury would have been harmless for the reasons outlined above and in light of Livery’s confessions regarding his participation in the armed robbery.

Decided August 14, 1998.

Lloyd J. Matthews, for appellant (case no. A98A1466).

Chapman & Pope, Daniel C. Chapman III, for appellant (case no. A98A1467).

Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.

4. Livery contends that the trial court erred in failing to charge theft by taking as a lesser included offense of armed robbery. Livery, however, made no written request for this charge. “A trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.” (Punctuation omitted.) Valdez-Hardin, supra.

5. Livery contends that the trial court’s charges on reasonable doubt were flawed because the trial judge did not repeat, when instructing the jury as to how to fill out the verdict form with respect to Livery, that the jurors would have a duty to acquit him if they had a reasonable doubt of his guilt. Jury instructions must be considered as a whole to determine whether a charge was erroneous. Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) (1987). Prior to the instructions complained of by Livery, the trial court clearly and completely instructed the jury with regard to the defendants’ presumption of innocence, the State’s burden of proof, and the jury’s duty to acquit if reasonable doubt existed. As such, we find no error in the charge to the jury, when considered as a whole.

Judgments affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Although Livery was also convicted of driving under the influence of a controlled substance and driving under the influence of marijuana, he makes no argument that these convictions were not supported by the evidence. Nevertheless, a review of the record shows that such convictions were amply supported by the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


text:
    A98A1613.
    STONE v. TAYLOR et al.
    (506 SE2d 161)
   Johnson, Presiding Judge.

Jacqueline Lee Stone appeals the trial court’s grant of summary judgment to Virgil Taylor, Chairman of the Bacon County Commission, and Larry Deen, Bacon County Road Supervisor, on grounds of sovereign and official immunity. We review the trial court’s order under the standard established in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), to decide whether the evidence, when taken in the light most favorable to Stone, establishes a genuine issue of fact regarding whether Taylor and Deen are entitled to immunity as a matter of law. For reasons which follow, we affirm.

Viewed in the light most favorable to Stone, the facts show as follows: In February 1994, Bacon County contracted with the Georgia Department of Transportation (hereinafter “DOT”) to resurface portions of County Road 280. The DOT, in turn, contracted with an asphalt company which actually performed the resurfacing. Under the Local Assistance Road Program (hereinafter “LARP”) agreement executed between Bacon County and the DOT, the county agreed to provide several services, including leveling the shoulders of the road “when applicable.” The LARP agreement obligated the contractor to provide low or soft shoulder warning signs, but stated that if the contractor was not responsible for shoulder construction, the duty fell on “the local government or other.”

After the repairing was completed, Taylor inspected the shoulders and testified that he found shoulder drop-offs of one to one-and-a-half inches. Taylor testified that he was responsible for weighing factors to decide what modifications, if any, needed to be made and when to make them. At the time, he took no action to level the shoulders, paint lines, or post low or soft shoulder warning signs. Taylor testified that during his inspection he “didn’t see anything that dangerous anywhere” on the road. Taylor had over ten years of experience in road construction, and his decision regarding the road shoulders was based on that experience. Bacon County had no policies or procedures dealing with the leveling or other treatment of road shoulders.

Stone states in her affidavit that on the night of March 16, 1995, she was driving down the newly paved section of County Road 280, veered off the road and struck a tree. Stone asserts that the drop-off from the road surface to the shoulder was between four and seven inches at the site of her accident, and that the steep drop-off prevented her from safely steering back onto the pavement after she left the road. After Stone’s accident, the shoulders of County Road 280 were leveled.

Stone sued Taylor and Deen individually and as officials of Bacon County, alleging negligent failure to carry out their “specific contractual duty” with regard to the safety of the shoulders of County Road 280. The trial court granted summary judgment to Taylor and Deen, finding them protected by sovereign and official immunity. This is an appeal from that order.

1. Sovereign immunity is the immunity provided to governmental entities and to public employees sued in their official capacities. Gilbert v. Richardson, 264 Ga. 744, 749-750 (4) (452 SE2d 476) (1994). To the extent applicable, official immunity protects individual public officials and employees for torts they commit in performing their official functions. Id. at 752. Stone does not address the sovereign immunity of Taylor and Deen as Bacon County officials in her enumeration of errors or her brief submitted in support of this appeal. Instead, she focuses on the distinction between ministerial and discretionary duties necessary for deciding the individual liability of Taylor and Deen. We therefore need not address any issues deciding the sovereign immunity of Taylor and Deen as Bacon County officials and turn instead to the question of official immunity.

2. In her first enumeration of error, Stone asserts that Taylor and Deen are not protected by official immunity because the acts involved in this case are ministerial rather than discretionary. We disagree.

“Official immunity ... is applicable to government officials and employees sued in their individual capacities.” Hemak v. Houston County School Dist., 220 Ga. App. 110, 112 (469 SE2d 679) (1996). “Damage suits are maintainable in this state against government officers and agents for failure to perform ministerial duties, but such officers and employees are immune from negligence claims when the acts complained of involve a discretionary function of an office. [Cit.]” Nelson v. Spalding County, 249 Ga. 334 (2) (a) (290 SE2d 915) (1982). Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case. Id.

“A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. [Cit.]” Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). “A government employee who is invested with discretion and empowered to exercise his judgment in the course of execution of his duties is . . . immune from liability when performing discretionary tasks. . . . [Cit.] The question whether a duty is ministerial or discretionary turns on the character of the specific act, not the general nature of the official’s position. [Cit.]” Vertner v. Gerber, 198 Ga. App. 645, 646 (402 SE2d 315) (1991).

We find the circumstances present in this case analogous to the ones presented to this Court recently in Coffey v. Brooks County, 231 Ga. App. 886 (2) (500 SE2d 341) (1998). In Coffey, we held that decisions by county employees regarding if and when to barricade roads during heavy rains were discretionary. Id. The decisions involved deliberations based on the officials’ observations of the road surfaces and other conditions, and on decisions regarding proper allocation of available resources. Id. Taylor’s act in this case when he inspected the shoulders of County Road 280 and decided not to modify them or post warning signs was similarly discretionary. He also observed the conditions of the road and, based on his experience, made the decision not to modify the shoulders. As the County Commissioner, no one supervised him in his work or imposed upon him any specifications which had to be met. Furthermore, Stone failed to argue or provide any evidence that Deen deviated from Taylor’s orders, and his proper compliance with orders protects him from suit as well. Compare Joyce, supra at 95.

Stone relies heavily on Joyce, supra, to support her assertion that the acts involved in this case were ministerial. In that case, the Board of Commissioners of Emanuel County instructed their road superintendent to close a defective bridge, and the plaintiff was injured when her car crashed because the bridge was not properly barricaded. Id. We find that case factually distinguishable from the one at issue because the road superintendent in Joyce had received specific instructions from his superiors and had no room to exercise his own discretion. Id. The person upon whom liability is predicated in Joyce is not the person who made the original decision to do the work. In this case, Taylor occupies the same position as the Emanuel County Commissioners who ordered the bridge closed in Joyce. Taylor’s decision regarding the shoulders of County Road 280 was not controlled by instructions from his superiors or by any county policy or procedure.

Stone asserts that Taylor and Deen are liable under Joyce because they were engaged in the physical execution of work in such a way as to make any actions taken with regard to the road shoulders ministerial in nature. Id. This argument is unpersuasive. Stone’s argument would have more merit if Taylor had ordered some modification to the road shoulders and Stone was alleging negligence in the performance of the work. Absent some action by Taylor to initiate work on the road shoulders, we find that he was not engaged in the physical execution of work as to fall under Joyce.

Stone asserts that the existence of the LARP agreement makes Taylor’s act a ministerial one. However, this Court has recently ruled that the existence of a contract does not per se define a duty of a county official as ministerial or discretionary. Ross v. Taylor County, 231 Ga. App. 473 (2) (498 SE2d 803) (1998). Contrary to Stone’s allegation, the language of the agreement between the DOT and Bacon County does not make Taylor’s act a ministerial one. Stone contends that the LARP agreement imposed a duty on Taylor and Deen when it listed shoulder leveling among the services the county would provide. However, the language does not remove the decision regarding leveling the shoulders from Taylor’s discretion. While it is certainly possible for a contract to contain language removing all discretion from its performance, the contract under which Taylor and Deen were acting does not. The words “when applicable” allowed Taylor the discretion to decide whether leveling the shoulders was warranted under the circumstances. Ross, supra at 474. Based on Taylor’s experience and judgment, he decided it was not.

Decided August 14, 1998

Blackwood, Matthews & Steel, James B. Matthews III, for appellant.

Fendig, McLemore, Taylor, Whitworth & Durham, James B. Durham, Beth M. Duncan, for appellees.

Because we find that Taylor exercised discretion when deciding not to modify the shoulders of County Road 280, paint lane lines or post warning signs, we must affirm the trial court’s grant of summary judgment to Taylor and Deen in their individual capacities.

3. Stone further asserts that Taylor and Deen were negligent in performing their duties when they measured the shoulders of County Road 280. Because of our holding in Division 2 that this was a discretionary function, Taylor and Deen can only be liable if the acts were performed with actual malice. Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512) (1997). Stone does not allege and we do not find that Taylor’s acts regarding County Road 280 rose to the level necessary for liability under the standard established for discretionary functions.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A98A1353.
    RICHARDSON v. THE STATE.
    (505 SE2d 57)
   Judge Harold R. Banke.

Eugene B. Richardson, Jr., was convicted of aggravated assault, pointing a pistol at another, and carrying a firearm to a public gathering. In his sole enumeration, Richardson challenges the sufficiency of the evidence, claiming he acted in self-defense.

This case arose after Richardson met his daughter at a local sports bar and consumed two or three drinks. As he prepared to leave, his daughter expressed concern over his driving ability. When Richardson rejected her effort to drive him home, she snatched his keys from him. The two then wrestled over the keys until Richardson retrieved them and left.

The scuffle attracted the attention of two bouncers the tavern employed. When they approached the daughter and asked if Richardson was bothering her or trying to pick her up, she explained their relationship and her concerns about his driving.

At this, the bouncers, who were wearing black T-shirts with “Security” imprinted in neon yellow on the front and back, followed Richardson out to the parking lot. After finding him swaying back and forth unsuccessfully attempting to unlock his car, they announced their status as security guards and offered to call him a cab. After several minutes of discussion in which Richardson adamantly expressed his intent to drive, one of the bouncers took Richardson’s keys. The two bouncers then started toward the bar to call a cab. At that point, Richardson stated, “Well, I don’t care. I have got another set.” When one of the bouncers turned back, Richardson pulled a pistol from his pocket, stuck it in the bouncer’s face, and demanded his keys. Both bouncers then wrestled Richardson to the ground and disarmed him.

The police arrived shortly thereafter and arrested Richardson. At that time, Richardson told the arresting officer that, “[t]hese son-of-a-b — ches took my keys off me and all I want to do is drive home. And I told them I had another set of keys. So I pulled my gun and showed it to them.” Richardson’s permit to carry the weapon had expired. Held:

Richardson claims the evidence was insufficient to support the guilty verdict because he acted in self-defense, believing he was being robbed. We disagree.

On appellate review, we are bound to view the evidence in the light most favorable to the verdict. Morris v. State, 228 Ga. App. 90, 91 (1) (491 SE2d 190) (1997). Our review here is limited solely to sufficiency. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Although Richardson seeks a reweighing of the evidence and a reassessment of the witnesses’ credibility, this we cannot do. Blackwell v. State, 229 Ga. App. 452, 455 (3) (494 SE2d 269) (1997).

Here, the security guards’ testimony refuted Richardson’s claim of self-defense and was clearly sufficient to establish each element of the offenses beyond a reasonable doubt. See Hightower v. State, 224 Ga. App. 703, 704-705 (2) (481 SE2d 867) (1997); OCGA §§ 16-5-21 (a) (2); 16-11-102; 16-11-127 (a). Thus, the jury’s decision to disbelieve Richardson’s version of the events at issue must be upheld. Weems v. State, 267 Ga. 182, 183 (1) (476 SE2d 585) (1996).

Judgment affirmed.

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

Decided July 29, 1998

Reconsideration denied August 17, 1998.

Farless & Newton, William H. Newton III, for appellant.

Tambra P. Colston, District Attorney, Bryant G. Speed II, Lisa W. Tarvin, Assistant District Attorneys, for appellee.


text:
    A96A1938.
    BAZEMORE v. THE STATE.
    (506 SE2d 177)
   Judge Harold R. Banke.

The case is again before this Court because our Supreme Court granted certiorari in Bazemore v. State, 225 Ga. App. 741 (484 SE2d 673) (1997), which affirmed Bazemore’s convictions for driving with an unlawful alcohol concentration and speeding, and remanded the case for reconsideration in light of Price v. State, 269 Ga. 222, 224 (2) (498 SE2d 262) (1998). Held:

1. The State’s motion to certify to the Supreme Court a question concerning the relationship of the Price decision to OCGA § 17-16-1 et seq. is denied.

2. Division 5 of Bazemore, which affirmed the trial court’s order quashing a subpoena for production at trial of documents from the GBI Crime Lab, is the only section of Bazemore affected by the Price decision. Bazemore, supra at 745-746. Division 2 of Price, 269 Ga. at 224, reversed Price’s conviction because the trial court quashed a subpoena to the GBI Crime Lab for the printed results of the gas chromatograph and the analyst had testified that the results were readily available. Id. at 224. The Supreme Court found that Price was entitled to the results under OCGA § 40-6-392 (a) (4): “Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney.”

The Supreme Court held that this discovery provision was broader than the former criminal discovery provisions and that such documents connected to alcohol tests were now discoverable. Price, 269 Ga. at 224. Price also relied upon Eason v. State, 260 Ga. 445, 446-447 (396 SE2d 492) (1990), which held that an appellant has the right to subpoena certain documents and data from the GBI Crime Lab for the purpose of cross-examination. Id.

Bazemore’s subpoena sought much more than that in Price. Bazemore’s subpoena required a Crime Lab chemist to appear at trial and bring copies of “all chain of custody documents and all notes and information generated by the chemist pertaining to standards and controls he used; all manuals, training materials, written techniques, methods, procedure or protocols referred to by him.” Bazemore, 225 Ga. App. at 745 (5). The subpoena also specifically sought copies of the chromatographs. Upon the State’s motion, the subpoena was quashed.

When a motion to quash is filed, the party serving the subpoena has the initial burden of showing the documents sought are relevant. OCGA § 24-10-22; Morris v. State of Ga., 246 Ga. 510, 512 (2) (272 SE2d 254) (1980). If that is done, the party moving to quash has the burden of showing that the subpoena is unreasonable and oppressive. OCGA § 24-10-22 (b); Morris v. State, 246 Ga. at 512 (2). We cannot determine from the trial court’s ruling whether the trial court based its decision to quash the subpoena on Bazemore’s failure to carry his burden or upon the State’s showing that the subpoena was unreasonable or oppressive. Consequently, we must vacate the judgment in this case and remand to the trial court for reconsideration of its ruling on the motion to quash in light of the Supreme Court’s decisions in Price and Eason. Because the testimony of the State’s chemist was evidence of Bazemore’s unlawful blood level, we cannot state with any certainty from the record before us that any error in quashing the subpoena would be harmless. Henderson v. State, 255 Ga. 687, 689 (1) (341 SE2d 439) (1986).

Upon remand, the trial court should reconsider its earlier ruling on the motion to quash taking into consideration our Supreme Court’s decisions in Price and Eason. In taking this position, we express no opinion on how much, if any, of the documents subpoenaed should be produced. As Eason states, Bazemore is not entitled to unlimited access to the work product of the expert, nor is he entitled to an unlimited “fishing expedition.” Eason, 260 Ga. at 447, n. 2.

The judgment of the superior court regarding the charge of driving with an unlawful blood alcohol content is vacated, and the case is remanded to the trial court for reconsideration of its ruling on the State’s motion to quash. Bazemore’s conviction for speeding is affirmed.

Accordingly, the clerk of this Court will remove this appeal from the appellate docket and remand it to the trial court. If, after the trial court has reconsidered its decision on the State’s motion to quash, the trial court may grant a new trial or enter a new judgment of conviction. If a new judgment of conviction is entered, Bazemore may, within 30 days of the trial court’s ruling, file a notice of appeal from that decision.

Judgment vacated in part and remanded with direction.

Beasley and Blackburn, JJ., concur.

Decided August 17, 1998.

Monte K. Davis, for appellant.

Ralph T Bowden, Jr., Solicitor, Noah H. Pines, W. Cliff Howard, Thomas E. Csider, Assistant Solicitors, for appellee.


text:
    A98A1004.
    NATIONSBANK OF TENNESSEE, N.A. v. HARDWICK CARPETS INTERNATIONAL, INC. et al.
    (506 SE2d 174)
   Beasley, Judge.

The question in this case is whether a bank’s perfected security interest in the inventory of a carpet manufacturer has priority over a third-party’s later-acquired mechanic’s lien.

In 1991, Hardwick Carpets International, Inc. began using the services of Georgia Carpet Finishers, Inc. to back and finish the carpet it manufactures. Georgia Carpet ships the finished carpet to Hardwick’s customers after performing its work. In the process, Georgia Carpet acquires a commission and a mechanic’s lien on the carpet in its possession to secure payment for its services.

In 1993, NationsBank of Tennessee, N.A., loaned Hardwick $600,000 on a revolving line of credit, and Hardwick granted the bank a security interest in various collateral, including its inventory. The bank’s perfected security interest was evidenced by financing statements filed from 1989 through 1993. The NationsBank loan was declared in default in 1995. Later that year, the bank was awarded a default judgment against Hardwick in the principal amount of $490,000.

In 1996, the bank filed a petition for writ of possession of its collateral, including carpet held by Georgia Carpet. Georgia Carpet was served with the writ and filed a motion to intervene. It claimed its mechanic’s lien was superior to NationsBank’s security interest to the extent it secured $27,062.42 in unpaid finishing charges accruing from the time the bank loan was declared in default until Georgia Carpet was served with the writ. After the trial court allowed intervention, Georgia Carpet filed a cross-claim against Hardwick and a counterclaim against NationsBank. The parties entered into a consent writ of possession, allowing NationsBank to recover and liquidate the inventory in Georgia Carpet’s possession without prejudice to Georgia Carpet’s cross-claim or counterclaim. NationsBank liquidated the collateral and received $79,000, but a balance remained on Hardwick’s total indebtedness.

NationsBank sought summary judgment on Georgia Carpet’s counterclaim, on the ground that its perfected security interest was superior to the mechanic’s lien. The court denied the motion, holding that under Georgia law a mechanic’s lien has priority over a perfected security interest of which the mechanic did not have actual notice before the work was done or material furnished. The trial court refused to grant a certificate of immediate review. Following a bench trial, the court entered judgment in favor of Georgia Carpet in the principal amount of $27,062.42, finding that it had no actual notice of NationsBank’s security interest and that its mechanic’s lien was thus superior.

Georgia’s statutory liens are set forth in OCGA § 44-14-320. Subsection (a) (7) establishes “[l]iens in favor of mechanics on real and personal property.” OCGA § 44-14-363 (a) grants mechanics a lien for improvements or repairs on personal property. For over 100 years, OCGA § 44-14-363 (a) and its predecessors granted mechanic’s liens superiority over “all liens except liens for taxes and . . . such other liens as the mechanic may have had actual notice of before the work was done or material furnished.” After the Uniform Commercial Code was enacted in Georgia in 1962, the General Assembly amended UCC § 9-310 (OCGA § 11-9-310) in 1963 to give perfected security interests priority over the liens described in OCGA § 44-14-320 and thus mechanic’s liens. Through this enactment, the legislature obviously intended to favor perfected security interests over other statutory liens. OCGA § 44-14-363 (a) was struck in its entirety in 1972, and a new Code section was adopted which retained the priority provision for mechanic’s liens.

In United States v. Crittenden, the Fifth Circuit Court of Appeals applied the principle that the most recent legislative pronouncement prevails and held that, as a result, mechanic’s liens had priority over perfected security interests under the 1972 reenactment of OCGA § 44-14-363 (a). But in Newton Ford Tractor Co. v. J. I. Case Credit Corp., this Court noted that Crittenden did not consider a 1978 amendment to § 11-9-310. As so amended, § 11-9-310 (1) provides that a perfected security interest in collateral takes priority over all liens described in § 44-14-320 “as now or hereafter [provided].” Newton Ford held that the quoted language “ ‘clearly indicates the legislative intent to conclusively establish the priority of a perfected security interest over [the mechanic’s lien set forth under § 44-14-363 (a)] and further expresses the intention of the legislature that future amendments to the lien statutes should not be construed as repealing the priority provisions of [§ 11-9-310].’ ”

The courts in both Crittenden and Newton Ford could have determined that no conflict existed between the 1972 re-enactment of OCGA §§ 44-14-363 (a) and 11-9-310, simply by holding that a perfected security interest is not a “lien” within the meaning of the former statute. This approach was not taken in either case.

OCGA §§ 11-9-310 and 44-14-363 were again amended in 1985. Section 1 of the 1985 Act amended subsection (1) of OCGA § 11-9-310 and added a subsection (2), and section 2 of the Act amended § 44-14-363 (a).

As amended, OCGA § 11-9-310 (2) gives a mechanic’s lien on farm equipment and machinery priority over any perfected security interest unless the secured party has filed a financing statement describing the particular piece of machinery or equipment to which the security interest applies. OCGA § 11-9-310 (1) now states: “Except as is expressly provided to the contrary elsewhere in this article and in subsection (2) of this Code section, a perfected security interest in collateral takes priority over [the liens described in § 44-14-320] as now or hereafter amended. . . .” (Emphasis supplied.)

OCGA § 44-14-363 (a) was amended in two respects. First, a provision was added stating that if mechanic’s liens “are asserted by retention of the personal property, the mechanic shall not be required to surrender the property to the holder of a subordinate security interest or lien.” Second, recognition was given to the change in § 11-9-310. In this regard, § 44-14-363 (a) now provides that mechanic’s liens “shall be superior to all liens except liens for taxes and, except as provided in subsection (2) of Code Section 11-9-310, such other liens as the mechanic may have had actual notice of before the work was done or material furnished.” (Emphasis supplied.)

In this case, the superior court found the same conflict between OCGA §§ 11-9-310 (1) and 44-14-363 (a) as did the Fifth Circuit court in Crittenden. Consistent with both Crittenden and Newton Ford, the court determined that a security interest is a “lien” within the meaning of § 44-14-363 (a), rejecting NationsBank’s argument to the contrary. The court concluded that mechanic’s liens now have general priority over perfected security interests, reasoning that the 1985 Act made a substantive change to § 44-14-363 (a) but not to § 11-9-310 (1).

Decided August 17, 1998.

Wilson, Strickland & Benson, L. Lou Allen, John K. Rezac, for appellant.

Jones & Ledbetter, Howard W. Jones, Hiñe & Niedrach, Edward Hine, Jr., for appellees.

The 1985 Act effects substantive changes to both OCGA §§ 11-9-310 and 44-14-363 (a). The amendment to § 11-9-310 gives mechanic’s liens on farm equipment and machinery priority over perfected security interests unless the secured party has filed the requisite financing statement. The amendment to § 44-14-363 (a) recognizes this limited priority for mechanic’s liens and makes clear that even if the mechanic has actual notice of a security interest in farm machinery and equipment, his lien still has priority unless the financing statement has been filed. The 1985 Act retains the “as now or hereafter [provided]” language in § 11-9-310 (1), which formed the basis for the Newton Ford court’s determination that perfected security interests continue to have priority over mechanic’s liens. The 1985 Act continues in effect this general priority.

Consequently, NationsBank’s security interest takes priority over Georgia Carpet Finisher’s mechanic’s lien. Based on the undisputed facts and the facts as found, the finisher is not entitled to any judgment against the bank. The judgment of the trial court is reversed, and the court is directed to enter judgment in favor of the bank on the counterclaim.

Judgment reversed.

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

       See Ga. L. 1884-1885, p. 43, § 1.

       600 F2d 478 (5th Cir. 1979).

       163 Ga. App. 497 (294 SE2d 723) (1982).

       Id. at 498.

       Ga. L. 1985, p. 1107.

       See Goodin v. South Atlantic Production Credit Assn., 201 Ga. App. 35, 36 (1) (410 SE2d 159) (1991) (holding that a financing statement contained a sufficient description of farm equipment and machinery so as to give the holder of the perfected security interest priority over a mechanic’s lien).

       See Southern Horizons Aviation v. Farmers & Merchants Bank &c., 231 Ga. App. 55 (497 SE2d 637) (1998).


author: Eldridge, Judge.

text:
    A98A1693.
    BURGOS v. THE STATE.
    (505 SE2d 543)
   Eldridge, Judge.

The defendant, Hector Perez Burgos, was convicted by a Fulton County jury of theft by taking (auto) and DUI and was acquitted of two counts of kidnapping. The defendant was sentenced on the theft by taking to ten years to serve and on the DUI to twelve months to serve consecutive to the ten years with a $1,000 fine. The trial court denied the defendant’s motion for new trial on January 28, 1998, and the defendant appeals.

In the light most favorable to the verdict, the evidence shows the following: On December 3, 1995, Steven Highfill and Tara Glynn were passengers in a limousine driven by Glen Williams. They arrived at Club Anytime, located at 1055 Peachtree Street, Atlanta, Fulton County, between 2:30 and 3:00 a.m. Upon arriving, Williams parked the limousine in front of the club and exited the vehicle leaving the doors unlocked and the motor running so that the passengers would have power in the back. After stopping at the passenger window to get money from Highfill, Williams walked up to the front door of the club to try and gain entrance for his passengers.

While Williams was walking back toward the limousine, the defendant got into the driver’s seat of the limousine and drove off with Highfill and Glynn in the back seat. Williams banged on the front passenger window of the limousine as it was leaving in an attempt to get the defendant to stop. Once the defendant drove the car away from Club Anytime, Williams ran across the street to a pay phone and called the police.

Highfill and Glynn testified that they heard the driver’s side door shut and saw Williams running after the vehicle. At the intersection of Peachtree Street and Fourteenth Street, the limousine hit a taxicab, knocking the taxicab into a telephone pole and rendering the driver unconscious for a few minutes. Highfill was thrown to the floor of the limousine, but was only slightly injured. Glynn was thrown forward into the front seat and broke her arm. The limousine did not stop or slow down after the collision, but accelerated to a higher rate of speed. Highfill testified that it felt as if the limousine was traveling at “highway speeds.”

After the first collision, Glynn began to scream and unsuccessfully tried to get her seatbelt on. Highfill, however, was able to secure his seatbelt. The limousine made a sharp right-hand turn onto Seventeenth Street and continued at a high rate of speed until it crashed into an embankment at the end of Seventeenth Street at Peachtree Circle. Glynn was thrown forward again, and her face hit the divider behind the driver’s seat. Glynn was hospitalized for two weeks and required surgery three times on her arm and once to reconstruct her nose.

The distance that the limousine traveled from the club until the second wreck was about five and one-half blocks. Officer Terry Joyner of the City of Atlanta Police Department testified that when he arrived at the scene of the second collision, the defendant was unconscious in the driver’s seat and smelled of alcohol. The defendant testified that when he got off work at 11:30 p.m. on December 2, 1995, he started drinking and consumed two to three bottles of Hennessy liquor.

1. In his first enumeration of error, the defendant alleges that the trial court erred in granting the State’s motion in limine to exclude testimony from an expert witness, Dr. Tommie Richardson, regarding voluntary intoxication in support of the defendant’s lack of intent defense.

“In reviewing a trial court’s decision on a motion in limine, we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) Davis v. State, 226 Ga. App. 83, 84 (485 SE2d 508) (1997).

So construed, the evidence shows the following: Dr. Richardson is a medical doctor who is board-certified in family medicine and is certified by the American Society of Addiction Medicine. His current specialization is in family practice and addiction medicine. On June 6, 1996, Dr. Richardson interviewed the defendant for approximately 45 minutes to an hour. According to Dr. Richardson, the defendant informed him in the interview that he did not remember taking the limousine and the two subsequent collisions because he had been consuming alcohol all day and suffered a blackout; that in the past, people had told him that he had done things when he was drinking that he could not remember; that he had been diagnosed with post-traumatic stress syndrome unrelated to alcohol; and that he had been hospitalized on four occasions and that three of these hospitalizations were for matters other than alcohol abuse. Dr. Richardson further testified that he had not examined the defendant’s previous medical records; that he did not know what the defendant had been treated for previously and could only state that, based on the medications defendant said he was given, the defendant was probably treated for some type of psychiatric disorder; and that such medications were often used to treat post-traumatic stress syndrome. Dr. Richardson farther testified that the patient informed him that, when he drank, he heard voices and that he had been seeing and hearing things in his jail cell.

Dr. Richardson stated that he had not performed any tests on the defendant to determine if the defendant had organic brain damage. The only test he performed on the defendant was a mental status exam which determined the defendant’s mental functioning at the time he spoke with the defendant. Based on this test, Dr. Richardson stated that the defendant was “oriented times four,” i.e., that he knew the day, the date, where he was, and Dr. Richardson’s name. Dr. Richardson further stated that the defendant’s thought processes were goal-directed; that he did not appear to have suicidal or homicidal ideation; that his insight and judgment were intact; that his immediate, recent and remote memory was good; and that he appeared to know right from wrong.

Dr. Richardson’s determination that the defendant had a blackout at the time of this incident was based solely on the defendant’s statements that he could not remember taking the limousine and the subsequent collisions and that, in the past, he had been told he had done things when drinking which he could not remember. Dr. Richardson further admitted that it was possible that the defendant could be lying about the blackout episodes and loss of memory of this incident. Dr. Richardson testified that when a person has a blackout, brain cells die and the memory contained therein is lost, and that if a person has enough blackouts they can lead to dementia, i.e., the inability to function appropriately from a mental standpoint. Dr. Richardson did not know if the defendant had dementia or if the defendant had organic brain damage from chronic alcohol abuse.

“In Horton v. State, 258 Ga. 489, 491 (8) (371 SE2d 384) (1988), the Georgia Supreme Court determined that voluntary intoxication was not a defense to a crime unless such intoxication had resulted in the alteration of brain function so as to negate intent. Even then, the brain function alteration must be more than temporary.” (Punctuation omitted.) Sydenstricker v. State, 209 Ga. App. 418, 420 (433 SE2d 644) (1993). Any clinical signs described by Dr. Richardson are the same as those of any individual who has consumed alcohol to the point of intoxication, i.e., three bottles of Hennessy, and does not have permanent brain damage. A history of alcohol abuse, alcohol abuse on the night of the crime, depression, speculations by the doctor based on defendant’s statements about prior medical or psychological treatment, and professed lack of memory, without further clinical and objective signs or testing by diagnostic procedures and psychometric tests, do not demonstrate permanent brain injury. See Bright v. State, 265 Ga. 265, 273 (455 SE2d 37) (1995). Moreover, the likelihood of the defendant having permanent brain injury is further negated by Dr. Richardson’s testimony that the defendant’s thought processes were goal-directed; his insight and judgment were intact; his immediate, recent, and remote memory was good; and he appeared to know right from wrong. See Bright v. State, supra at 273.

The defendant has failed to carry the burden of showing that an alteration of his brain function caused by intoxication was more than temporary. See Couch v. State, 229 Ga. App. 151 (493 SE2d 577) (1997); Sydenstricker v. State, supra at 420. Based upon Dr. Richardson’s limited examination, any opinion that he could have presented would have been mere speculation. Therefore, there was no error in the trial court’s exclusion of Dr. Richardson’s testimony.

2. The defendant asserts that the trial judge erred in denying his written request for a charge on good character.

“The good character of an accused person is a substantive fact, and evidence of such good character should be weighed and considered by the jury in connection with all the other evidence in the case. When there is an appropriate request, a proper instruction should be given in every case where the accused person puts his character in issue.” (Citations omitted.) Braddy v. State, 172 Ga. App. 386, 389 (323 SE2d 219) (1984), aff’d, 254 Ga. 366 (330 SE2d 338) (1985).

The defendant testified that he had never been arrested prior to this incident, and that, once when he woke up, he was told he had been arrested, but he was in a mental hospital. The defendant further testified that he was employed, that he had three children, and that he had served in Vietnam for a year and one-half and was discharged to a hospital for treatment for alcohol abuse and psychiatric problems. The defendant did not state if his discharge was an honorable discharge.

Viewing the defense as a whole, it does not appear that the issue of character played a significant role during the trial. Therefore, even if we deem the defendant’s testimony sufficient to raise the character issue, we cannot conclude that the trial court’s failure to charge on good character constitutes reversible error. See Cooper v. State, 206 Ga. App. 292, 293 (424 SE2d 896) (1992). Compare Chastain v. State, 200 Ga. App. 473 (408 SE2d 421) (1991) and Braddy v. State, supra (finding reversible error when the trial court found that the defendant’s testimony would entitle the State to introduce evidence of bad character, but nevertheless refused to charge the jury on good character).

Further, in light of the overwhelming evidence against the defendant, we find it highly probable that any error did not contribute to the verdict. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

3. The defendant further alleges that the trial court erred in imposing a sentence which was grossly disproportionate to the nature of the crime and the circumstances of the defendant. The defendant argues that his sentence violates the Eighth Amendment’s guarantee against cruel and unusual punishment. The defendant does not contend that the sentence parameters fixed by the legislature are unconstitutional.

“The Eighth Amendment protects against cruel and unusual punishment, a concept which prohibits, among other things, arbitrary and disproportionate sentences. Lambeth v. State, 257 Ga. 15, 16 (354 SE2d 144) (1987). Unless a sentence ‘is so overly severe or excessive in proportion to the offense as to shock the conscience,’ a legislatively authorized punishment does not ordinarily exceed the constitutional bound. Gordon v. State, 257 Ga. 439, 440 (360 SE2d 253) (1987). It could, if the court abused its discretion in imposing a sentence which is excessive and disproportionate in a specific case.” McClure v. State, 218 Ga. App. 365 (460 SE2d 884) (1995).

Decided August 17, 1998.

Suparna Malempati, for appellant.

Paul L. Howard, Jr., District Attorney, Cari K. Johanson, Assistant District Attorney, for appellee.

The sentence imposed by the trial court falls within the statutory limits set by the legislature. See OCGA §§ 40-6-391 (c); 16-8-12 (a) (4) (A). “Consecutive sentences are permitted where separate and distinct crimes are charged. OCGA § 17-10-10; Hart v. State, 137 Ga. App. 644 (3) (224 SE2d 755) (1976).” McClure v. State, supra at 366. Under the facts and circumstances of this case, especially in light of the property damage and the personal injuries, the defendant’s sentence was not so overly severe or excessive as to shock the conscience. This enumeration is without merit.

4. Finally, the defendant alleges the evidence was insufficient to support the verdict. We disagree. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993). The evidence presented at trial was sufficient to authorize the jury to find the defendant guilty of DUI and theft by taking (auto) beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

       In order to show permanent brain damage, a defendant must show proof of such permanent impairment by physical and coordination/cognition tests that have been conducted by a neurologist, neurosurgeon, physiological psychologist, learning psychologist, psychiatrist, or other expert witness who can testify as to their clinical and diagnostic findings that evidence of brain damage exists. At a minimum, a defendant must show that either paper and pen tests, motor/cognition tests, or other physical tests show some permanent loss of memory or hand-eye coordination. The better method of showing permanent brain damage would be through a CAT scan, MRI, or EEG.

       “A statute is presumed to be valid and constitutional until the contrary appears. . . . [Cits.]” Williams v. Ragsdale, 205 Ga. 274, 277 (2) (53 SE2d 339) (1949). A presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment. Such presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience. See Bowers v. Hardwick, 478 U. S. 186 (106 SC 2841, 92 LE2d 140) (1986) (Powell, J., concurring).


text:
    A98A1776.
    DEPARTMENT OF TRANSPORTATION v. WALLACE ENTERPRISES.
    (505 SE2d 549)
   Eldridge, Judge.

Wallace Enterprises (“Wallace”) owns and operates a gasoline convenience store and car wash at the intersection of Maddox Street (State Highway 120) and Old Norcross Road in Alpharetta, Fulton County, Georgia. The property consists of .921 acre of improved land containing a gasoline convenience store, car wash, and parking area.

On September 19, 1995, the Department of Transportation (“DOT”) brought a quick-take condemnation procedure against the property to obtain immediate title and possession to the part taken of the property, as well as the easement area. The take involved real estate, fixtures, and improvements: (1) 5,296 square feet (.122 acre) of land in fee simple; (2) 3,110 square feet (.071 acre) of land for a permanent slope and maintenance easement; and (3) personal property, fixtures, and improvements, i.e., concrete pavement, parking spaces, curbing, a detention pond, landscaping, and lighting. The business contains two pump islands with three pumps each located perpendicular to the existing right-of-way. Neither of the pump islands nor the convenience store was taken. Prior to the take, there was one commercial driveway which DOT replaced with two commercial driveways.

After the taking, the remainder suffered permanently impaired access, permanently impaired traffic flow within the site, reduced capability to handle multiple gasoline customers, insufficient parking, and inadequate visibility from the road. Wallace had to incur the expense of applying for and obtaining a variance from the City of Alpharetta’s setback requirements as a result of the taking.

At trial, Wallace’s expert appraisal testimony and other evidence showed actual and substantial consequential damages of between $844,805 and $859,761.

DOT contended that there were no consequential damages and that the actual damages were $211,250. DOT contended that Wallace should mitigate any consequential damages and tendered a plan that their expert witness contended would eliminate any consequential damages by implementing its cost to cure plan. Under DOT’s plan, the pump islands would be moved back to improve site circulation. Parking and light poles would also have to be relocated. Such plan was contended to result in only four feet in loss between each pump island and the interior of the property’s concrete curbing. Such plan would cost an estimated $95,097. At the time of trial, Wallace had taken no measures to mitigate any damages to the remaining property.

Wallace’s expert appraisal testimony showed consequential damages to the remainder of the property, above and beyond any mitigation damages, of between $470,600 and $483,758. Such consequential damages were based upon conditions of the property immediately after the take. In addition to appraisal testimony, Wallace presented evidence to corroborate that there had been consequential damages; a gasoline convenience store site expert testified that the sales at the property had dramatically declined as a result of the take and not from the temporary construction or competition. No evidence of business expenses was tendered.

The jury returned a verdict for $612,000, which was entered as a judgment on May 23, 1997.

DOT filed a timely motion for new trial. On December 16, 1997, the trial court denied the motion. A timely notice of appeal was filed.

1. DOT’s first enumeration of error is that the trial court erroneously admitted evidence of a temporary reduction in gross sales that resulted from the temporary period of construction. We do not agree.

The trial court properly denied such objection when there existed a material issue of fact as to whether the reduction in gross sales was temporary or permanent and whether such reduction in gross sales was caused by consequential damages or caused by construction and/ or competition. Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825, 827 (387 SE2d 877) (1990), held “that evidence of any business losses which result in a diminution of the value of a condemnee’s business is admissible. However, evidence of temporary loss of business is admissible not for the purpose of recovering for the temporary loss of business but for the limited purpose of demonstrating fair market value of the land not taken immediately after the taking. ... It is up to the trier of fact to determine whether the business losses suffered as a result of a temporary easement were a mere inconvenience or whether they resulted in a diminution of the value of the condemnee’s interest in the land not taken.” (Emphasis in original.) Accord Timmers Chevrolet v. Dept. of Transp., 261 Ga. 270, 271 (1) (404 SE2d 121) (1991). “Where a part of the property is condemned and the business continues to operate on the remaining property, the business may suffer damages during the construction of the public project; if the business losses are caused primarily by severe inconveniences from the construction of the project and the business will return to normal after completion of construction, evidence of business losses is not admissible. [Cits.]” Bill Ledford Motors v. Dept. of Transp., 225 Ga. App. 548, 550-551 (484 SE2d 510) (1997). Unlike either Timmers Chevrolet or Ledford Motors, the trial court properly denied the objection when there existed a material issue of fact between the opinions of opposing experts as to whether or not these were temporary losses and the causes and whether the business would ever return to normal. DOT, while admitting that there would be consequential damages, claimed that through mitigation there would be no remaining consequential damages. In the face of such denial of consequential damages, loss of sales became relevant in corroboration of testimony as to the consequential damages. See Buck’s Svc. Station v. Dept. of Transp., supra; Dept. of Transp. v. Baxley, 194 Ga. App. 29, 30 (2) (389 SE2d 519) (1989); State Hwy. Dept. v. Hood, 118 Ga. App. 720 (165 SE2d 601) (1968). “Evidence of ‘business losses’ has been held admissible . . . where such evidence is relevant to the valuation of the amount of consequential damages to [the] remainder. [Cits.]” Ledford Motors, supra at 550.

2. DOT’s second enumeration of error is that the trial court erroneously admitted evidence of a temporary reduction in gross sales where it was established that the losses began on the date of construction rather than the date of taking. We do not agree. Such enumeration was decided by Division 1; in any event, it was a jury issue decided adversely to DOT.

3. DOT’s third enumeration of error is that the trial court erred in admitting evidence of a temporary reduction in gross sales to prove consequential damages to the remaining property when the condemnee did not present evidence of business expenses. We do not agree.

“DOT moved to strike this testimony [as to business losses] on the ground that, in the absence of business expenses, evidence as to gross sales is inadmissible. [Cit.] This would be true if the sole purpose of the testimony was to establish lost profits. However, loss of business and profits from a business located on the property not taken but resulting from the condemnation may be considered as to its effect on the market value of the remainder, as a factor in determining consequential damages. [Cit.]” Dept. of Transp. v. Baxley, supra at 30 (2).

4. DOT’s fourth enumeration of error is that the trial court erroneously admitted evidence of a temporary reduction in gross sales to prove consequential damages where no witness could identify consequential damages resulting from the temporary reduction of gross sales. We do not agree. Such enumeration of error is controlled by Division 1 as a factual question for the jury.

5. DOT’s fifth enumeration of error is that the trial court erroneously admitted evidence of a loss in gross sales for the limited purpose of proving consequential damages without an instruction appropriately limiting the jury’s consideration of the evidence. We do not agree.

After Wallace’s expert witness was excused, having testified regarding sales losses that evidenced consequential damages, DOT moved to strike his testimony in its entirety, because it was premised on the sales loss and upon denial. DOT moved for a curative instruction on the grounds that the jury should be instructed that the evidence as to sales loss was inadmissible and should not be considered for any purpose by the jury, which was an incorrect statement of the law under the facts and circumstances of this case. DOT failed to make contemporaneous objections but chose to make a motion to strike the testimony. Failure to object contemporaneously waived the objection and the right to request untimely curative instructions. See Sharpe v. Dept. of Transp., 267 Ga. 267 (476 SE2d 722) (1996). Further, the requested limiting instruction was erroneous, because it would tell the jury not to consider such testimony for any purpose. Had the limiting instruction told the jury that they were to consider the sales losses only for the purpose of corroboration of the existence of consequential damages, such would be a proper instruction.

6. DOT’s final enumeration of error is that the trial court erroneously denied DOT’s motion in limine to exclude evidence of a reduction in gross sales. We do not agree.

Divisions 1 through 4 control adversely to DOT so that the trial court properly denied the motion in limine. “A motion in limine is a pretrial method of determining the admissibility of evidence, as a party may secure a pretrial ruling on the admissibility of evidence or a ruling prohibiting any reference to certain evidence until its admissibility can be assessed in the context of the trial as it unfolds. [Cit.] By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. [Cit.] In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.” Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817) (1995). Here, the trial judge wisely exercised restraint in denying such motion under the circumstances of this case.

Decided August 17, 1998

Thurbert E. Baker, Attorney General, Cathy A. Cox-Brakefield, Senior Assistant Attorney General, Dwyer, White & Sapp, William W. White, Anne W. Sapp, for appellant.

Holt, Ney, Zatcoff & Wasserman, Joseph S. Jacobson, Jay F. Castle, for appellee.

Judgment affirmed.

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


text:
    A98A1874.
    KINNEY v. THE STATE.
    (505 SE2d 553)
   Eldridge, Judge.

A Clarke County jury found James Kinney guilty of robbery by force and aggravated battery. He appeals challenging (1) the sufficiency of the evidence as to his identity as the perpetrator of the robbery, and (2) the sufficiency of the evidence to sustain his conviction for aggravated battery.

On April 19, 1997, at approximately 7:30 p.m., the 65-year-old victim was leaving the Athens Regional Medical Center after visiting a sick member of her Sunday School class, the “Senior Ladies.” As she was walking through the parking lot toward her car, she saw a man walking toward her. When he was beside her, he stepped in front of her and grabbed her purse, which was hanging from a shoulder strap around her left shoulder. The victim struggled to maintain possession of her purse. The man jerked the purse back and forth and swung the victim around by the shoulder strap; during the struggle, the victim fell to the ground, spraining her ankle and breaking two bones in her foot. After he gained possession of the purse, the man ran across the hospital parking lot toward Hill Street. Several bystanders came to the victim’s aid, and she was treated at the hospital.

The police were given the'perpetrator’s physical and clothing descriptions and were told that the perpetrator ran toward Hill Street. Approximately ten to fifteen minutes after the incident, the police asked the victim to view a possible suspect. James Kinney was in the back of the police patrol car, and the victim positively identified him as the perpetrator based upon her view of him as he approached her in the parking lot. The victim also made a positive in-court identification of Kinney as the perpetrator.

In addition, several persons who came to the victim’s aid identified Kinney:

Moments before the robbery, Dorothy McDonald and her daughter-in-law were walking to their car in the hospital parking lot when a man “came out from behind two parked cars and was following after us.” He approached and asked for the time. After McDonald told him the time, he followed the two ladies to their car and asked for the time again, “[a]nd I said I told you one time it’s seven-thirty. I hurried up and got in the car and we locked the doors.” Almost immediately thereafter, the victim was robbed. Dorothy McDonald identified Kinney as the man who approached her in the parking lot.

Coley Rittenberry was pulling into the parking lot of the hospital and had stopped his car to allow the victim to cross in front of him. Rittenberry saw Kinney “roaming the parking lot.” Kinney ‘looked like he was getting into something.” As Rittenberry pulled into a parking space, he saw Kinney approach the victim. When he looked back, the victim was on the ground. Both in and out of court, Rittenberry positively identified Kinney as the man who approached the victim.

In addition, Randy Farmer was waiting for his wife in the parking lot of the hospital. He heard a voice, turned, and saw the victim lying on the ground. When he got out of the car to help her, he spotted a man running from the parking lot down Hill Street. Farmer ran after him. The man slowed down when he thought he was not being followed. At that point, Farmer had almost caught him and called out to him. The man turned around, and Farmer “got a real good look at him.” Farmer then lost sight of the man when the man “took off across the street.” In court, Farmer identified Kinney as the man he chased from the parking lot of the hospital.

A resident of Hill Street flagged down a patrolling police vehicle that was looking for the perpetrator of the robbery. The resident told the officer that a suspicious person had run across his backyard and jumped his back fence. The victim’s purse was found in the backyard; it contained no money. The resident gave the officer the general direction in which the man had fled, and the officer headed in that direction.

Thereafter, the officer spotted Kinney. He fit the perpetrator’s description that had been put out over police radio. The officer detained Kinney, put him in the back of his patrol car, and returned him to the Athens Regional Medical Center for possible identification. The victim, McDonald, Rittenberry, and Farmer all identified Kinney. Further, the victim’s purse had contained “four to six dollars,” $2 of which was in quarters; Kinney was carrying $5.23 in his pocket which consisted of two $1 bills and loose change, the majority of which was in quarters. Held:

On appeal the evidence must be viewed in the light most favorable to support the verdict, and Kinney no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

1. A review of the transcript reveals ample evidence from which any rational trier of fact could have found proof beyond a reasonable doubt of Kinney’s identity as the perpetrator of the robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Kinney enumerates as error the sufficiency of the evidence to sustain his conviction for aggravated battery. Kinney asserts that the evidence failed to show the requisite element of “maliciousness” so as to prove the offense of aggravated battery, and under this same enumeration, Kinney contends that the evidence was insufficient to sustain an aggravated battery conviction because such evidence merged with evidence of the robbery by force. “Either way, the State did not prove beyond a reasonable doubt that the assailant committed Aggravated Battery.” We find the evidence was sufficient to prove the offense of aggravated battery beyond a reasonable doubt. However, we find that a requisite merger of offenses precludes Kinney from being convicted and sentenced therefor.

One crime is included in another as a matter of fact if it is established by proof of the same or less than all of the facts used to prove the other. OCGA § 16-1-6 (1). A defendant may be tried for both offenses under such circumstances, but may not be convicted of both. OCGA § 16-1-7 (a) (1). See generally State v. Estevez, 232 Ga. 316, 317 (1) (206 SE2d 475) (1974). “This right to be free of multiple convictions for the same conduct has been referred to as the substantive bar against double jeopardy, and it is not waived either by the defendant’s entry of a guilty plea or by his failure to assert it in the trial court. Blackledge v. Perry, 417 U. S. 21 (94 SC 2098, 40 LE2d 628) (1974); McClure v. State, 179 Ga. App. 245 (345 SE2d 922) (1986).” Redding v. State, 188 Ga. App. 805 (374 SE2d 339) (1988).

Accordingly, a trial court is without subject matter jurisdiction to sentence on an offense that has merged into another offense as a matter of law and/or fact. Such a sentence would be a mere nullity because the conviction on a merged offense is against the law. An appeal may be taken from such a void sentence, even if no objection was made in the court below, because “a void sentence is one which imposes punishment the law does not allow. [Cits.]” Noble v. State, 220 Ga. App. 155, 158 (469 SE2d 307) (1996). See also State v. Baldwin, 167 Ga. App. 737, 738 (2) (307 SE2d 679) (1983); Jarrett v. State, 217 Ga. App. 627, 628 (1) (458 SE2d 414) (1995). “A judgment which is void for any cause is a mere nullity and it may be so held in any court where it becomes material to the interest of the parties to consider it.” (Citation omitted.) State v. Sheahan, 217 Ga. App. 26, 27 (1) (456 SE2d 615) (1995).

Decided August 17, 1998.

William C. Bushnell, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

Here, “[i]t is clear from the indictment and from the transcript ... in the present case that the appellant’s aggravated [battery] conviction was based on the identical acts of violence through which he effected the taking of the victim’s [purse]. Compare Coaxum v. State, 146 Ga. App. 370 (3) (246 SE2d 403) (1978) (where the aggravated assault conviction was based on violent acts which were ‘gratuitous and unconnected with the theft of the victim’s money’). Thus, while it was possible to prove the aggravated battery without establishing all of the conduct needed to prove the [forceful] robbery, it was not possible to prove the [forceful] robbery without simultaneously establishing all of the conduct upon which the aggravated battery conviction was predicated. It follows that the aggravated battery merged with the greater offense of [forceful] robbery, and the sentence imposed for the aggravated battery is consequently vacated. [Cits.]” Redding v. State, supra at 805.

Judgment affirmed as to robbery. Judgment and sentence vacated as to aggravated battery.

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