text:
    A95A2818.
    RAMSAY v. THE STATE.
    (469 SE2d 814)
   McMurray, Presiding Judge.

Defendant Ramsay appeals his conviction of the offense of armed robbery. Held-.

1. Defendant’s first enumeration of error raises allegations of ineffective assistance of trial counsel. “ ‘In order to prevail defendant must meet two tests: 1) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the “counsel” guaranteed defendant by the Sixth Amendment; 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. (Cit.)’ Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987).” Cofield v. State, 216 Ga. App. 623, 627 (5) (455 SE2d 342).

The first argument is that trial counsel was ineffective in that counsel failed to investigate and present substantive evidence of defendant’s innocence by demonstrating that the actual perpetrator of the crime was another. The State’s evidence was that defendant and an accomplice robbed the occupants of a convertible automobile which had stopped at a stop sign. Defendant was identified as the gunman who held a pistol to the head of the vehicle’s driver while the accomplice took a wallet from a passenger.

Defendant maintains that trial counsel should have done more to develop information counsel received that the gunman was a person other than defendant. Trial counsel also received information as to the identity of the accomplice to the gunman.

In the order denying defendant’s motion for new trial, the trial court states that: “[Trial counsel] knew about [K. A., the supposed gunman], as evidenced by the fact [counsel] called [K. A.’s] mother as a defense witness at trial, but could not interview him because he had left Georgia and gone to New York and [counsel] could not find him. Neither could [counsel] interview [C. C., the supposed accomplice], because his grandmother would not permit it. Both [K. A. and C. C.] were and still are minors. [Trial counsel] could not have proved [the supposed gunman and the supposed accomplice] were the robbers by putting [them] on the witness stand and extracting confessions from them, á la Perry Mason, because as shown at the motion for new trial hearings, they both would have invoked their right to remain silent. [Counsel] tried to elicit testimony from Jason Smith and Moses Chandler that [K. A. and C. C.] bragged about committing the robbery, but [counsel’s] efforts were thwarted by the State’s hearsay objection. [Trial counsel] did establish on cross-examination of Detective Holmes that [C. C.] was a suspect in the case, and that Jason Smith and Moses Chandler said [K. A.], and not the defendant, was the robber with the gun. The defendant has failed to show how he would have profited from further investigation by [trial counsel], or how [counsel] could have proved that it was [K. A. and C. C.] who did the robbery.”

On appeal, defendant’s argument continues to lack any indication of how he would have benefited from further investigation by trial counsel or how counsel could have proven that K. A. rather than defendant was the gunman. The substance of the argument in support of this enumeration of error is entirely speculation and conjecture based on an aspiration that if trial counsel had done more to keep pressure on K. A. and C. C., they would have relinquished their Fifth Amendment rights. The trial court’s conclusion that trial counsel had exhausted all reasonable avenues for developing and presenting this defense theory is supported by ample evidence and is not clearly erroneous. Hearst v. State, 212 Ga. App. 492, 494 (441 SE2d 914).

During the trial of the case sub judice, defendant’s trial counsel was subpoenaed to testify in federal court. The subpoena was served at approximately midnight, and the next morning defendant’s trial was delayed while his trial counsel appeared as a witness in the unrelated federal trial. Trial counsel’s absence was in violation of the directions of the trial court which explained to the jury that the delay in defendant’s trial was caused by the absence of his trial counsel. While defendant contends that he was thus abandoned by trial counsel, the trial court was authorized to conclude that there was no prejudice to defendant. No proceedings took place in the absence of trial counsel other than the trial court’s explanation of the delay to the jury. The trial court also established on the record that the jury would put aside any frustrations concerning the delay and decide the case on the evidence presented at trial. We find no merit in the contention that trial counsel was ineffective because counsel was late to court one day.

Nor does the fact that trial counsel was highly stressed by giving testimony in the federal trial imply that counsel was ineffective. As noted by the trial court, all trial lawyers have personal lives which cause stress at times, but such stress does not necessarily affect their performance in court, and even if trial counsel believed counsel’s performance was not at counsel’s best after testifying in federal court, that does not mean counsel’s performance fell to a level of ineffectiveness.

Next, defendant contends that trial counsel was ineffective in connection with a second statement given by defendant following his arrest. In his first statement defendant said that he and C. C. ran up to the victim’s car and robbed them while C. C. held a gun on them. At the preliminary hearing defendant denied participating in the robbery, and afterwards trial counsel asked the investigating detective to interview defendant again. Subsequently, defendant gave a second statement saying that the robbery was committed by C. C. and K. A. Trial counsel was not present when the second statement was given and did not learn of it until during defendant’s trial.

Defendant maintains that trial counsel was ineffective in urging the second interview, in not being present when it was conducted, and in failing to learn of the statement prior to trial. Yet trial counsel’s suggestion of a second interview was clearly an attempt to create some doubt of defendant’s guilt on the part of the detective, and trial counsel could not have been present for an interview of which counsel had no knowledge. If failing to obtain knowledge of the statement through the use of former OCGA § 17-7-210 was an oversight on the part of trial counsel, it was of no consequence since the second statement was exculpatory and consistent with defendant’s statement at the preliminary hearing.

Nor was trial counsel ineffective because counsel did not have an audiotape of the preliminary hearing transcribed. Trial counsel and counsel’s staff listened to the tape and made notes. The information on the tape was thus available in preparation for trial. While defendant complains of the absence of the availability of a transcript for impeachment purposes, this is speculative and defendant has not identified any specific instances in which a transcript would have been useful at trial for this purpose.

Defendant also maintains that trial counsel failed to prepare defense witnesses, including defendant, for direct examination and cross-examination at trial, resulting in the witnesses becoming confused during their testimony. But the only factual predicate for this contention seems to be the confusion of the witnesses at trial which does not serve to rebut the uncontroverted testimony of trial counsel concerning efforts to prepare the defense witnesses for trial. This enumeration of error lacks merit.

The State’s primary identification witness was the passenger in the vehicle at the time of the robbery. Defendant next contends that trial counsel was ineffective in allowing that witness to view defendant in one-on-one “showups” prior to trial. While the witness testified that she had seen defendant three or four times in the interval between the offense and trial, only two incidents can be identified from the record, both of which occurred after the witness’s positive identification of defendant in a photographic lineup. One incident occurred outside the courthouse on the morning of a hearing in the case and was beyond the control of trial counsel. The other incident occurred at the preliminary hearing when trial counsel chose to have defendant present to aid counsel in the cross-examination of the witness. Such was a strategic and tactical decision within the exclusive province of trial counsel and which did not constitute ineffective representation. Cofield v. State, 216 Ga. App. 623, 627 (5), supra.

Another tactical decision, which defendant now claims was ineffectiveness, was the presentation of evidence which placed defendant’s character in issue. This evidence revealed that at the time of the armed robbery defendant was out on bond for a misdemeanor charge and permitted the prosecution to elicit evidence that the misdemeanor was a weapons offense. Yet defendant testified that being out on bond caused him to be deterred from committing a crime. It was for trial counsel to determine whether the revelation of the misdemeanor charge was more helpful or harmful to defendant. Hutson v. State, 216 Ga. App. 100, 103 (10) (453 SE2d 130).

Trial counsel’s failure to impeach the detective who received defendant’s statements did not constitute ineffective assistance. While trial counsel had received information that the detective had acted inappropriately in other cases, such evidence did not provide a proper means of impeachment. Haynes v. State, 180 Ga. App. 202, 203-204 (349 SE2d 208). Nonetheless, trial counsel attempted to present such evidence, and it was correctly excluded. There was no harm in trial counsel’s failure to further investigate and develop such irrelevant evidence.

Nor was trial counsel ineffective because two bench conferences were not reported. Trial counsel testified that counsel thought that everything being said in open court was being reported and had no knowledge that the two bench conferences would not be reported.

A conviction will not be reversed on the basis of ineffective assistance of counsel unless the proper functioning of the adversarial process has been so undermined that the trial cannot be relied upon as having produced a just result. In this case, the trial court has found that defendant has been afforded effective assistance of counsel, and since that finding is not clearly erroneous, it must be upheld. Cofield v. State, 216 Ga. App. 623, 627 (5), supra.

2. The second, fourth, and seventh enumerations of error arise from the incident in which trial counsel was late arriving for court because counsel was testifying in federal court. Defendant maintains that he was denied his constitutional right to counsel, that the trial court erred in conducting part of the trial in the absence of both defendant and his attorney, and that the trial court’s explanation to the jury concerning the reason for the delay of trial invaded his constitutional rights.

The trial court had instructed all parties to be ready to resume trial at 9:00 a.m. At 9:20 a.m., court was commenced for the purpose of permitting the trial court to explain the delay to the jury. Court was recessed and commenced again at 10:00 a.m. to permit the trial court to check on the comfort of the jury. Both of these sessions were extremely brief, directed primarily to the delay in resuming trial, and are set forth on less than three pages of transcript.

When court was commenced, defendant was not present although he had been present earlier. The defendant’s voluntary absence after jeopardy attached is viewed as a waiver of the right of confrontation. Pollard v. State, 175 Ga. App. 269, 270 (333 SE2d 152).

The trial court’s explanation of the delay to the jury was not a critical stage of the trial, and defendant has not pointed out any harm that could have resulted due to the absence of his attorney during these brief sessions. Under these circumstances no basis for reversal has been shown. Poker v. State, 262 Ga. 220, 222 (5) (416 SE2d 281).

Nor do we find any merit in defendant’s assertion that the comments of the trial court were improper. It was within the trial court’s discretion to explain the reason for delay to the jury, and in this instance the trial court wisely established on the record that the jury would not allow the delay to affect their proper consideration of the case.

3. Defendant’s third enumeration of error states that the defendant has a constitutional right to call all witnesses who can establish his innocence. Such a statement is hardly a proper enumeration of error since it fails to identify any error on the part of the trial court. Furthermore, the supporting argument in the brief relates a hypothetical sequence of harmful consequences resulting from limitations imposed by the trial court on the examination of certain witnesses at the hearing on the motion for new trial, but seems to maintain that the culmination of this sequence of error has resulted in error at trial. Since we view this as chronologically impossible, we have attempted to lend some rational meaning to this argument, but have discovered no harmful error.

4. The fifth enumeration of error fails to comply with the requirement of OCGA § 5-6-40 that each error shall be set out separately. Instead, two unrelated allegations of error are combined, thereby risking “our enforcing that law and declining to consider the merits. . . .” Hayes v. State, 189 Ga. App. 39 (1) (375 SE2d 114). Nonetheless, as in Hayes we proceed to consider the apparent allegations of error.

The first matter argued is that defendant’s character was improperly placed in evidence during the prosecution’s questioning of the law enforcement officer to whom defendant made his statements. This issue was not preserved by any objection at trial and is deemed to have been waived. Allison v. State, 217 Ga. App. 580, 581 (2), 582 (459 SE2d 557).

The remaining issues arise from defendant’s tardy return from a lunch break taken during his cross-examination. When the cross-examination resumed, the assistant district attorney sought to elicit an explanation for the delay of the trial. Defense counsel objected to the line of questioning without stating any grounds therefor and noted, that through defense counsel, defendant had offered an explanation to the trial court. In an unreported bench conference, the prosecuting attorney apparently argued that the State was entitled to develop evidence upon which the prosecution could later argue flight to the jury. The trial court overruled defense counsel’s objection, and the cross-examination continued. Défense counsel stated two more objections, first that defense counsel was being placed in the position of being a potential witness in the case (since counsel had been in communication with defendant during his absence), and the second objection complained of the prosecuting attorney’s characterization of an interval of time.

None of defendant’s objections at trial raised the issue he is now arguing on appeal, that the queries concerning defendant’s tardy return from lunch were intended to improperly elicit evidence of defendant’s bad character. We are limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at trial. Ellison v. State, 216 Ga. App. 639, 641 (3) (455 SE2d 361).

5. Upon completion of a bench conference concerning defendant’s final objection with regard to his cross-examination about his tardy return from lunch and immediately before the resumption of cross-examination, defense counsel requested permission to approach defendant. Defendant enumerates as error the denial of this request, arguing that the trial court’s refusal to permit defense counsel to confer with defendant was a denial of defendant’s right to counsel. But, a defendant has no constitutional right to confer with his attorney during a brief break in his testimony. Perry v. Leeke, 488 U. S. 272 (109 SC 594, 102 LE2d 624). See also Robinson v. State, 258 Ga. 279, 280 (3), 281 (368 SE2d 513).

6. In his eighth enumeration of error, defendant contends that the prosecution has improperly failed to disclose several items of exculpatory evidence. In order to establish such a violation of defendant’s due process rights in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) and its progeny, the defendant must show “(1) that the State possessed evidence favorable to the defense; (2) that the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different. See United States v. Meros, 866 F2d 1304 (11th Cir.), cert. denied 493 U. S. 932 [(107 LE2d 312, 110 SC 322)] (1989).” Zant v. Moon, 264 Ga. 93, 99 (3), 100 (440 SE2d 657). Examining the list of items which defendant contends should have been provided to him, we find that defendant has failed to satisfy his burden under this four-part test as to any of these items; therefore, we conclude that defendant has failed to show the violation alleged by this enumeration of error.

7. “A trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless they are clearly erroneous. White v. State, 255 Ga. 210, 212 (336 SE2d 777) (1985).” Peebles v. State, 260 Ga. 165, 166 (4) (391 SE2d 639). We find no error in the trial court’s denial of defendant’s motion to suppress his statements.

8. Defendant contends that the photographic lineup was impermissibly suggestive and tainted the in-court identification because, of the six photographs in the lineup, only his was of a person with braided hair. Only one of the three victims was able to identify defendant, and that witness had described the perpetrator as having braided hair. Under very similar facts in Nicholson v. State, 265 Ga. 711, 712 (2) (462 SE2d 144), the Supreme Court assumed that such a photographic display was “suggestive” but held that the suggestiveness of the identification procedure alone will not render the witness’s pre-trial identification inadmissible if under the totality of the circumstances, there was no substantial likelihood of irreparable misidentification. Considering the factors listed in the Supreme Court decision we note that the witness viewed the photographic lineup six days after the armed robbery. Upon viewing the photographic lineup containing defendant’s photograph she immediately identified him. This witness’s attention was drawn to defendant during the robbery because he had the gun and she viewed him for approximately three minutes. The site of the robbery was well lighted by streetlights and lights from a nearby shopping center, and the witness gave a description consistent with defendant’s appearance including the fact that he had braids.

Under the totality of these circumstances, there was no substantial likelihood of irreparable misidentification. Therefore, testimony concerning the pre-trial identification was properly admitted, and the witness’s in-court identification testimony was not tainted thereby.

9. The evidence at trial was sufficient to authorize defendant’s conviction. Since defendant was identified as the gunman in the armed robbery, a rational trier of fact was authorized to find defendant guilty beyond a reasonable doubt of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

10. The twelfth enumeration of error complains of several alleged errors in the jury charge. We have examined each of the alleged errors and found defendant’s contentions to be without merit.

11. There was no error in the trial court’s refusal to excuse a juror who expressed his concern regarding delays in the progress of the trial and with the processes of the trial court. The juror assured the trial court that he could set aside his frustrations and continue conscientiously as a juror in the case. Croom v. State, 217 Ga. App. 596, 597 (2), 598 (458 SE2d 679).

12. The trial court did not err in sustaining the prosecution’s hearsay objection when defendant sought to elicit testimony that K. A. and C. C. had made statements that they had committed the armed robbery for which defendant was on trial. On appeal, defendant argued for the first time that this testimony should have been admitted under the necessity exception to the hearsay rule.

Pretermitting any questions concerning whether defendant has properly preserved this issue below, we find that the testimony at issue was not admissible under the necessity exception to the hearsay rule. “The two prerequisites for the admission of hearsay because of necessity are 1) necessity, and 2) particularized guarantees of trustworthiness. McKissick v. State, 263 Ga. 188 (429 SE2d 655) (1993).” Roper v. State, 263 Ga. 201, 202 (2) (429 SE2d 668). As to the second requirement, “ ‘there must be something present which the law considers a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is offered.’ . . . [Cits.]” Turner v. State, 216 Ga. App. 896, 898 (2) (456 SE2d 241).

This second requirement is not satisfied in the case sub judice. Indeed, while defendant urges that because the statements had indicia of reliability because they were against the penal interests of the declarants, this contention is contrary to the long standing position of Georgia’s appellate courts that declarations, to third persons against the declarant’s penal interest, to the effect that the declarant, and not the accused, was the actual perpetrator of the offense, are not reliable but likely to reflect an attempt to subvert justice. Thus, such statements are inadmissible except when the declarant is available to testify. Guess v. State, 262 Ga. 487 (2) (422 SE2d 178). See also Turner v. State, 216 Ga. App. 896, 899 (2), supra. Of the remaining circumstances urged by defendant as indicia of reliability, one lacks any factual basis. The remaining circumstance, that the declarant and defendant are not co-indictees, is not alone sufficient to establish the reliability of the declarant’s statement. This enumeration of error lacks merit.

13. While defendant maintains that he was denied his rights under OCGA § 17-8-5 and under a number of state and federal constitutional provisions because certain bench conferences were not reported, he has not attempted to demonstrate any harm or prejudice resulting from this failure to transcribe. Nor has defendant fulfilled his duty to have the record completed by reconstruction pursuant to OCGA § 5-6-41. Under these circumstances, defendant has shown no grounds for reversal. Davis v. State, 242 Ga. 901, 902 (1) (252 SE2d 443); Mapp v. State, 204 Ga. App. 647, 648 (2) (420 SE2d 615).

14. In the sixteenth enumeration of error, defendant has again deviated from the requirement of OCGA § 5-6-40 that each error shall be set out separately. Under this enumeration of error, defendant has attempted to argue a large, but undeterminable, number of errors which are related only in that they occurred during the hearing of defendant’s motion for new trial. We have reviewed defendant’s argument and considered all allegations of error which can be identified, but find no harmful error.

15. The seventeenth and final enumeration of error presents nothing for review as it contains only a general assertion of defendant’s innocence and does not contest any action or inaction of the trial court. Since we are a court of law for the correction of legal errors, this factual assertion presents nothing for review.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Decided March 12, 1996

Michael K. McIntyre, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A95A2002.
    JORDAN et al. v. THE STATE.
    (470 SE2d 242)
   Andrews, Judge.

Elaine Jordan and Jack McGhee-Lane appeal from a jury verdict finding them guilty on three counts of theft of services and three counts of issuing bad checks. The evidence at trial, viewed in the light most favorable to the jury’s verdict, was as follows.

The event from which the charges arose was “Indian Fest ’93,” put on by Jordan and McGhee-Lane on June 26 and 27, 1993, at the Gilmer County Fairgrounds. The charges relate to three agreements defendants made for services to be provided at Indian Fest by Paul Eddy, John Standingdeer, and Charles Irvin. The one-page contract with Paul Eddy provided he would be responsible for dancing, storytelling, blessing and setting up the arena, providing lists of dancers and drummers, giving autographs and talking to the children, being in the parade, checking on vendors, and overseeing arena protocol. The contract stated Eddy would be paid $3,500 for these services, with a $500 bonus upon “completion of a successful festival.”

John Standingdeer’s contract was essentially the same, with the exception of responsibility for providing lists of dancers and drummers, and he was to be paid $3,000 for Saturday and Sunday, with a $500 bonus if the festival was successful. Both Eddy and Standingdeer were paid $1,000 before the festival, with the balance due after the event. Charles Irvin verbally agreed to provide bleachers for the festival for $1,000, to be paid after the event.

On Sunday, June 27, after the festival closed, defendants wrote Eddy a check for $2,500, Standingdeer a check for $2,000, and Irvin a check for $1,000. It is undisputed that, at the time they wrote the checks, defendants were aware there were insufficient funds in the account to cover the checks. Further, all three recipients of the checks sent defendants notice that the checks had been dishonored. Defendants never made good the checks or paid any of the money owed.

At trial, Eddy testified that he requested assurances from the defendants that the Native American performers and workers would be paid. He said he told them about other festivals where there was not enough money to pay everyone when it was over and advised them they needed to have between $17,000 and $19,000 available to them. Eddy stated that defendants assured him this would be taken care of. When defendants gave him the $2,500 check for his services on Sunday after the festival, Eddy stated they told him the check would be good on Thursday.

John Standingdeer testified he specifically told defendants they could not count on making any profit, especially the first year, and asked how the dancers and workers were to be paid. He stated the defendants assured him the money was in the bank. Standingdeer admitted he was angry when he heard there were money problems but denied threatening Jordan in order to force her to write a check. He could not remember if he was asked to delay cashing the check.

Irvin testified he was not told to delay cashing the check, but he heard there were problems with insufficient funds. Irvin stated he was never told that payment for the bleachers was contingent on the outcome of the festival.

Defendant Jordan testified she told all three men at the close of the festival that there was not enough money to pay what was owed them. She claimed she wrote the checks because Standingdeer was very angry and was threatening her. But, Sheriffs Deputy Phillips, who was helping with security at the festival and was present when the workers came to get paid, testified that, although people were upset, no one made any physical threats and no one was in danger. Jordan admitted that Phillips asked her if she wanted him to do anything and she told him “it was under control.” Jordan testified they had $10,000 set aside and made another $18,000 at the festival, for a total of $28,000. She also testified they had budgeted around $18,000 for expenses. When questioned as to why this was not enough to pay everyone, Jordan responded that expenses for the performers brought in for the event were more than expected.

1. Defendants contend the evidence was insufficient to support the verdict. After reviewing the record and in light of the testimony as outlined above, we find there was sufficient evidence to support the verdict of the jury.

Once a jury renders a guilty verdict, defendants on appeal no longer enjoy the presumption of innocence and the evidence must be viewed in the light most favorable to the verdict. Gazaway v. State, 207 Ga. App. 641, 642 (428 SE2d 659) (1993). “The weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight.” (Citations and punctuation omitted.) Johnson v. State, 204 Ga. App. 277, 278 (3), 279 (419 SE2d 118) (1992). Accordingly, we find that a rational trier of fact could find from the evidence adduced at trial proof of appellants’ guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Next, defendants contend the court erred in denying their special demurrer to Counts 4, 5 and 6, charging theft of services. Defendants contend these counts are not set out with the sufficient certainty required by OCGA § 17-7-54.

Count 4 of the indictment charged, in pertinent part, as follows: “charge and accuse Jack McGee Lane and Elaine Jordan with the offense of THEFT OF SERVICES for that the said accused between June 1, 1993 and June 28, 1993, in the county aforesaid, did unlawfully then and there by deception and with the intent to avoid payment, accused did knowingly obtain services, accommodations, entertainment, and use of personal property for the function known as Indian Fest ’93 from Charles Irvin, with a value exceeding $500.00, which was available only for compensation, contrary to the laws of this State, the good order, peace and dignity thereof.” Counts 5 and 6 are identical, with the exception that the name of Paul Eddy is used in Count 5, and the name John Standingdeer in Count 6.

We find no error in the trial court’s denial of defendants’ special demurrer. “[T]he true test of the sufficiency of the indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” (Citation and punctuation omitted.) State v. Black, 149 Ga. App. 389, 390 (254 SE2d 506) (1979). While each count was not specifically individualized to each person named in the count, we find they contained the elements of the offense charged and defendants cannot claim the charges were so insufficient that they were surprised by evidence introduced at trial or were unable to prepare a defense. Hopper v. Hampton, 244 Ga. 361, 362 (260 SE2d 73) (1979); Carter v. State, 155 Ga. App. 49, 50 (270 SE2d 233) (1980).

3. Defendants also claim that during the trial, the trial judge frequently interposed in the proceedings in such a way as to prejudice the defense, in violation of OCGA § 17-8-57. Defendants cite to one instance where the court admitted a piece of evidence over defendants’ objection. However, defendants do not cite, and we do not find, any expression or opinion made by the trial judge in admitting this evidence which violates OCGA § 17-8-57. As to the other two instances cited by defendants, “the question of whether OCGA § 17-8-57 has been violated is not reached unless an objection or motion for mistrial is made.” (Citations and punctuation omitted.) Mathis v. State, 194 Ga. App. 498, 499-500 (3) (391 SE2d 130) (1990). Here, neither was made. Further, we find the questions were addressed to relevant issues and were designed to assist the jury in ascertaining the truth. Id.

4. Defendants also object to the trial court’s refusal to give their Request to Charge No. 16 and the court’s decision to omit a sentence from their Request to Charge No. 15. The sentence omitted from No. 15 provided, “the State must in addition prove beyond a reasonable doubt that the Defendants secured such services through specific acts of deception.” Defendants’ Request to Charge No. 16 read: “[deception means deliberately giving false impression of an existing fact or past event. The mere promise to pay at some time in the future even a false promise of such performance is not an act of deception with regard to an existing fact or past event.”

Specifically, defendants contend they were prejudiced because, without the requested charge, the jury would be confused and the legal concept of deception as an element that must be proved in a charge on theft of services would be lost. But, “[i]t is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required.” (Citations and punctuation omitted.) Brantley v. State, 199 Ga. App. 623, 626 (9) (405 SE2d 533) (1991). Further, the trial court charged the applicable statutes on bad checks and theft of services and also charged “the State is required to prove beyond a reasonable doubt that the defendant or defendants, at the time they obtained the services, had a specific intent to avoid payment for such services.” Accordingly, we find the jury charge as a whole substantially presented the issues in a way not likely to cause confusion to the jury. Beck v. State, 211 Ga. App. 125, 127 (438 SE2d 391) (1993). Thus, the trial court did not err in refusing to give defendants’ requests to charge.

5. Lastly, defendants claim the trial court erred in denying defendants’ motion for new trial without holding a hearing. The record shows that, after the sentencing, the judge took up defendants’ motion for new trial, stating he would rule on it then since it was based on the general grounds and he remembered the facts and evidence at trial very well. Defendants’ counsel then requested leave to file a revised motion for new trial and the court stated that it would look at the motion. The court discussed with defense counsel the exceptions to the jury charge, and defense counsel again requested the court to wait until the record was available before ruling on the motion for new trial. The judge reiterated that he remembered the evidence presented very well and overruled the amended motion for new trial.

When a motion for new trial is filed on the day of sentencing and prior to preparation of the transcript, it is not error for the trial court to hold the hearing immediately after the motion is filed and while the evidence is fresh in the court’s mind. Thompson v. State, 175 Ga. App. 645, 650 (334 SE2d 312) (1985). Here, however, defendants contend this was not a “hearing” on the motion. Pretermitting the issue of whether or not the court gave defendants’ counsel the opportunity to be “heard” on his motion, we find the error, if any, was harmless in light of our ruling that the evidence was sufficient to support the verdict and defendants are not entitled to a new trial. Thompson, supra at 650-651.

Decided February 28, 1996

Reconsideration denied March 13, 1996.

Gerald D. Hegstrom, for appellants.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A95A2465.
    INTEGON GENERAL INSURANCE COMPANY v. THOMPSON et al.
    (469 SE2d 346)
   Birdsong, Presiding Judge.

Integon General Insurance Company appeals from the judgment of the trial court denying its motion for summary judgment and dismissing its claim against Peggy S. Duncan. After Duncan was in an automobile accident with other parties, she filed suit against them to recover for her injuries and also served Integon as her uninsured motorist insurance carrier. Integon denied liability because Duncan had rejected uninsured motorist coverage, but also filed a counterclaim against Duncan for reimbursement of $5,000 it had paid her previously under the medical payments provision in the policy that provided coverage for reasonable and necessary medical expenses caused by bodily injury.

After the parties filed cross-motions for summary judgment, the trial court denied Integon’s motion and dismissed the counterclaim. Subsequently, Duncan settled her claim against the other tortfeasors for $15,000. Integon contends the trial court erred by ruling that the reimbursement clause in Integon’s policy constitutes an invalid assignment of a personal injury claim and also erred by ruling that the insurance policy requires an insured to be fully compensated as a condition precedent before the reimbursement provision may be enforced. Held:

1. Although the trial court denied Integon’s motion in part because it found that the reimbursement provisions constituted an unauthorized assignment of a personal injury cause of action (see Govt. Employees Ins. Co. v. Hirsh, 211 Ga. App. 374 (439 SE2d 59)), examination of the contract provision in question shows that it does not concern the assignment of a personal injury cause of action. The policy states: “A. If we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another, we shall be subrogated to that right. That person shall do: 1. Whatever is necessary to enable us to exercise our rights; and 2. Nothing after loss to prejudice them. However, our rights under this paragraph do not apply under Part D against any person using your covered vehicle while that person is doing so within the course and scope of the named insured’s permission. B. If we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall: 1. Hold in trust for us the proceeds of the recovery; and 2. reimburse us to the extent of our payment.” In addition, the insurance policy’s medical payments coverage section also contained the following provision: “Any amounts otherwise payable for expenses under this coverage shall be reduced by any amounts paid or payable for the same expenses under any auto liability, uninsured motorists, or personal injury protection coverage provided by any policy.”

Although Part A of this provision concerns subrogation, Integon did not proceed under Part A against a third party, but instead proceeded under Part B seeking reimbursement from its insured, Duncan. Consequently, our law applicable to assignment of personal injury causes of action is not applicable; Part B is not an assignment of a personal injury cause of action.

As the words in this contract are plain and obvious, they must be given their literal meaning. OCGA § 13-2-3; United States Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (355 SE2d 428). Consequently, this contract provision merely allows Integon to seek reimbursement from Duncan for amounts paid to her under the policy if she recovers damages from another. Shook v. Pilot Life Ins. Co., 188 Ga. App. 714 (373 SE2d 813).

2. Further, we find that the trial court also erred by engrafting onto these proceedings the complete compensation rules. This action is more analogous to actions for reimbursement under health insurance plans (see Shook, supra) or subrogation actions after the 1984 amendment to OCGA § 33-34-3 (d) (1) allowing subrogation for no-fault payments under certain circumstances. See Southern Guaranty Ins. Co. &c. v. Ga. Farm &c. Ins. Co., 195 Ga. App. 784, 785 (395 SE2d 264); Southern Gen. Ins. Co. v. Cotton States Mut. Ins. Co., 193 Ga. App. 240, 241 (387 SE2d 435). The payments made to Duncan under this policy were to pay for her reasonable and necessary medical expenses incurred as a result of the accident. They were not intended to reimburse her for other economic or non-economic losses. Therefore, under the terms of this policy Integon was entitled to be reimbursed for the payments it made regardless whether Duncan was completely compensated for her other losses.

Decided February 14, 1996

Reconsideration denied March 13, 1996

Smith, Howard & Ajax, Michael D. St. Amand, for appellant.

Paul C. Parker & Associates, William S. Sarandis, Philip L. Westee, for appellees.

Butler, Wooten, Overby & Cheeley, Albert Pearson III, amicus curiae.

Accordingly, the trial court erred by dismissing Integon’s complaint and denying its motion for summary judgment. The judgment of the trial court is reversed and the case remanded to the trial court with instruction to enter summary judgment in favor of Integon on its counterclaim for reimbursement.

Judgment reversed and remanded.

Johnson and Smith, JJ., concur.


author: Ruffin, Judge.

text:
    A95A1978.
    MORRIS v. THE STATE.
    (469 SE2d 848)
   Ruffin, Judge.

Robert Morris was convicted of aggravated assault and driving under the influence of alcohol in connection with an automobile collision. The evidence shows that Morris ran the victim’s car off the road after she flashed her high beams at him in response to his reckless driving. Morris appeals from the judgment of conviction and sentence and the denial of his motion for new trial on the grounds that his trial counsel was ineffective and that the trial court erred in sentencing him despite determining he was intoxicated in court. For reasons which follow, we affirm.

1. Morris contends his trial counsel was ineffective because she failed to investigate, interview and subpoena the victim’s passenger. Morris argues that because he did not testify at trial, the passenger’s testimony, as one of only three eyewitnesses to the accident, was critical to his defense. Although trial counsel did not interview the passenger, she testified at the hearing on Morris’s motion for new trial that she reviewed his taped preliminary hearing testimony and that her notes reflected that the passenger merely stated that he did not “know if defendant acted deliberately, [it] could have been an accident.”

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [Cit.] Here, [Morris] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.] ‘To establish ineffective assistance of counsel, (a defendant) must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. (Cits.)’ The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. [Cit.]” Jones v. State, 217 Ga. App. 722, 723-724 (2) (458 SE2d 894) (1995).

At the hearing on Morris’s motion for new trial, his trial counsel testified that she did not interview the passenger because she relied on notes contained in the State’s file which indicated that his whereabouts were unknown. Counsel stated that she did not independently seek to locate the passenger because she “didn’t feel the need to duplicate [the District Attorney’s] efforts in looking for him.” The prosecutor testified that his efforts to locate the passenger included calling the passenger at the telephone number listed in the State’s file, sending a subpoena to his last known address, and speaking with the victim regarding his whereabouts. He also stated that the victim told him that the passenger had moved and that she had neither heard from him nor knew where he had gone. In addition, the prosecutor indicated that he documented his attempts to locate the passenger in the file.

Under the circumstances of this case, we cannot say that trial counsel’s reliance on the State’s efforts to locate the passenger was unreasonable. Morris argues that counsel’s performance was deficient because she failed to locate the passenger by independent means such as using an investigator or exhausting all of the methods set forth in his appellate brief. However, Morris did not locate the passenger by any of these means nor did he demonstrate that any of the methods were likely to succeed. Furthermore, Morris has not demonstrated that the outcome of the trial would have been different if the passenger had testified.

“ ‘It is rank speculation to suggest that it is reasonably probable that [the passenger’s testimony, as recorded by trial counsel, or other testimony from the passenger] would have resulted in [Morris’s] acquittal.’ [Cit.]” Randall v. State, 207 Ga. App. 637, 641 (3) (428 SE2d 616) (1993). Moreover, as opinion testimony of a legal conclusion, it is unlikely the testimony would have been admitted at trial. See Nichols v. State, 177 Ga. App. 689, 692 (2) (340 SE2d 654) (1986).

2. Morris also contends he was denied effective assistance of counsel because his trial counsel failed to inform the court of his condition when she detected the smell of alcohol each morning of the trial and suspected he had been drinking. Morris argues that the trial court should have been informed of his condition and acknowledges that such action might have resulted in the revocation of his bond or contempt proceedings. Morris also argues that counsel’s knowledge of his condition influenced her decision not to permit him to testify at trial.

Counsel testified that she detected the smell of alcohol about Morris, that his eyes appeared “glassy,” that she believed that he had been drinking, but that she concluded he was not “overly impaired” because he was not unsteady, “ranting or raving,” or slurring his speech. She also stated that Morris denied drinking prior to appearing in court, claiming that the smell was from the night before. Counsel testified that his condition did not influence her decision because prior to trial, she had already decided that she did not want him to testify. She indicated that, drunk or sober, she was opposed to Morris testifying because she believed he would not make a good impression on the court. Counsel based her opinion on Morris’s admission that he did not remember the accident and her impression that he was smug and arrogant and would give the jury the impression that he was the kind of person who might become angered while driving and run someone off the road, especially if he had been drinking. She also acknowledged that Morris wanted to testify, but stated that they ultimately agreed that he would not. Counsel also testified that if they had not agreed, Morris’s choice would have prevailed, and she would have entered into the record a statement indicating that he was testifying against advice of counsel.

Morris has not cited any evidence which demonstrates that he was impaired at trial and therefore unable to participate in his own defense such that counsel should have so informed the trial court. See generally Jackson v. State, 180 Ga. App. 774 (1) (350 SE2d 484) (1986). In fact, the evidence shows the contrary. The evidence also shows that counsel’s decisions were strategic and that the conduct of which Morris complains was within the range of reasonable professional conduct. Hutson v. State, 216 Ga. App. 100 (10) (453 SE2d 130) (1995); Jones, supra.

The foregoing demonstrates that Morris did not satisfy his burden of showing in either of the preceding enumerations of error that the trial court was clearly erroneous in finding that he was not denied effective assistance of counsel.

3. Finally, Morris contends the trial court erred in sentencing him despite determining that his blood alcohol level was .06 percent at the sentencing hearing. However, the notice of appeal reveals that Morris did not direct the clerk below to transmit the transcript of the sentencing hearing as a part of the appellate record. “[A]bsent a transcript, this court can only presume that [the sentencing hearing] was conducted in a regular and proper manner. When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter. Thus, we con-elude that the trial court did not abuse its discretion in [sentencing Morris].” (Citations and punctuation omitted.) Powell v. State, 198 Ga. App. 509, 512 (2) (402 SE2d 108) (1991).

Decided March 13, 1996.

Manning & Leipold, Calvin A. Leipold, Jr., for appellant.

J. Tom Morgan, District Attorney, Richard S. Moultrie, Jr., Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A95A2112.
    SHUMAN v. ENGINEERED FABRICS et al.
    (469 SE2d 847)
   Judge Harold R. Banke.

Deborah Shuman, the claimant in this workers’ compensation case, herniated a disc in her neck in July 1991. The injury occurred during the course of her employment as a sewer of parachutes for Engineered Fabrics, which accepted the injury as compensable and voluntarily commenced payment of benefits to her. In June 1992, Shuman squatted down to pick up an eggshell off her kitchen floor and her legs gave way, injuring her lower back, which subsequently required surgery.

At issue in this appeal is whether treatment for Shuman’s lower back disc herniation is compensable. The administrative law judge (“ALJ”) determined that it was, finding that Shuman’s employment aggravated her pre-existing degenerative disc disease. The appellate division of the Workers’ Compensation Board (the “Board”) reversed, finding that: (1) Shuman’s injury resulted from a specific “at home” accident; and (2) degenerative disc disease alone is not a compensable injury in the absence of an employment-related triggering event which aggravates the underlying condition. On appeal, the superior court affirmed this finding, denying Shuman compensation. Shuman then successfully applied for a discretionary appeal to this Court. Held:

1. On appeal, “[t]he findings of the Board are conclusive, OCGA § 34-9-105 (c), and . . . [this Court] is bound by the ‘any evidence’ standard of review and is not authorized to substitute itself as a fact-finding body.” Young v. Columbus Consolidated Govt., 263 Ga. 172 (1) (430 SE2d 7) (1993); North v. Floyd County Bd. of Ed., 212 Ga. App. 593, 594 (442 SE2d 809) (1994). Applying this standard, we find the evidence was sufficient to support the Board’s finding that Shuman’s lower back injury resulted from a specific accident at home and not a pre-existing condition. Shuman testified that as she bent down to pick up an eggshell, her legs went out from under her, she hit her bottom on the floor, experienced severe pain, and sought emergency medical treatment. The medical testimony reflects that the vast majority of Shuman’s complaints of lower back pain occurred after June 19, 1992, the date of the kitchen incident, and her prior complaints arose in conjunction with a urinary tract infection. Dr. Cindy Shumpert testified that on June 24, 1992, Shuman stated she had fallen and hurt her back.

Decided March 13, 1996.

Robert K. Finnell, for appellant.

Shaw, Maddox, Graham, Monk & Boling, Thomas H. Manning, for appellees.

2. We reject Shuman’s argument that the Board and the superior court misapplied the law to her case. Although the workers’ compensation statute reaches employees whose injuries are the result of the aggravation of a pre-existing condition, the aggravation must arise out of and in the course of employment. OCGA § 34-9-1 (4); St. Regis Flexible Packaging Corp. v. Helm, 172 Ga. App. 251, 254 (1) (322 SE2d 549) (1984). No liability arises from disability resulting from a new accident unrelated to the worker’s employment. See Garrard v. Pitts Plumbing Co., 163 Ga. App. 457, 459 (294 SE2d 658) (1982). The new accident which occurred in Shuman’s kitchen distinguishes the authority on which she relies. Compare Colonial Stores v. Hambrick, 176 Ga. App. 544 (336 SE2d 617) (1985) (gradual deterioration of pre-existing lung disease aggravated by work in freezer); Thornton Chevrolet v. Morgan, 148 Ga. App. 711 (252 SE2d 178) (1979) (preexisting emphysema aggravated by inhaling isocyanates at work).

3. We reject Shuman’s contention that the ruling appealed from contravenes undisputed testimony by her medical providers that the injury arose from an on-the-job injury. Dr. Tim Holt testified only that there was “a possibility” that Shuman’s lower back problem was work-related, and a rehabilitation nurse admitted that degenerative disc disease affects almost the entire population and that she was not certain whether Shuman’s work exacerbated her disc disease. Such equivocal testimony does not demand a different result. Shuman’s final argument, that the Board and superior court assumed facts not in evidence by stating that she fell rather than squatted and had her legs go out from under her, is irrelevant.

Judgment affirmed.

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


text:
    A95A2667.
    BRINSON v. MARTIN et al.
    (469 SE2d 537)
   Ruffin, Judge.

Robert Brinson filed suit in the Superior Court of Cobb County against his former employer, Woodmen of the World Life Insurance Society (“Woodmen”), a Nebraska-based business, and four Woodmen employees (collectively “Martin”), all Georgia residents. Brinson’s complaint alleged causes of action against Woodmen for breach of contract and invasion of privacy, and against Martin for interference with economic relations and unjust enrichment. The trial court dismissed Brinson’s complaint due to improper venue, and Brinson appeals. For reasons which follow, we affirm.

Woodmen hired Brinson as a field representative to solicit and sell insurance in 1972, and he remained associated with Woodmen until Woodmen terminated him shortly after he filed this complaint in 1995. Brinson’s employment with Woodmen was governed by a written “Full-Time Field Representative Contract” (“field representative contract”). The field representative contract provides in part: “12. Venue and Construction. The Society [Woodmen] and Field Representative [Brinson] agree that this■ contract is to be construed according to the laws of the State of Nebraska and that the exclusive venue for the pursuit of any legal proceeding or remedy arising out of this contract shall be Douglas County, Nebraska.”

Based on the forgoing venue provision, the trial court concluded the only proper venue for Brinson’s complaint was in Douglas County, Nebraska. Accordingly, the court dismissed Brinson’s complaint in its entirety.

1. Brinson contends the trial court erroneously granted Woodmen’s motion to dismiss for improper venue because the venue clause is unreasonable, unjust, overreaching, and unenforceable, in that it violates Georgia public policy. Before we address this argument, however, we must first examine the field representative contract’s choice of law provision to determine whether Georgia or Nebraska law governs the venue issue.

(a) “ ‘The traditional method of resolving choice-of-law issues is through a tripartite set of rules, which are lex loci contractus, lex loci delicti, and lex fori. . . . Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought. (Cit.)’ [Cit.]” Lloyd v. Prudential Securities, 211 Ga. App. 247, 248 (1) (438 SE2d 703) (1993).

Contract provisions and statutes governing the place of bringing a suit do not affect the parties’ substantive rights, but rather are a matter of procedure. See Harry S. Peterson Co. v. Nat. Union &c. Co., 209 Ga. App. 585, 588 (3) (a) (434 SE2d 778) (1993). Thus, although under its own terms, the field representative contract dictates that it is to be construed according to Nebraska law, because questions of venue are procedural, the rule of lex fori demands a different result. “[W]e are aware of no precedent in this state, standing for the proposition that a choice-of-law provision, if otherwise valid, controls the remedy and procedure to be applied in the forum state as well as the substantive law of the case.” Lloyd, supra. Accordingly, we conclude that Georgia law governs the issue of venue in this case. Id.

(b) “[Brinson] relies on Fidelity &c. Co. of Maryland v. Gainesville Iron Works, 125 Ga. App. 829 (189 SE2d 130) (1972) and Cartridge Rental Network v. Video Entertainment, 132 Ga. App. 748 (209 SE2d 132) (1974), for the proposition that all venue selection contract clauses are against Georgia public policy and will not be enforced by Georgia courts. However, both of these cases deal[t] with intrastate transactions [,]” and the complaints were premised on violations of a specific state insurance law with its own venue provision. Harry S. Peterson Co., supra at 590. In cases like this, however, where no Georgia law specifically governs venue, and where more than one state and its citizens are involved, “ ‘such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be “unreasonable” under the circumstances. . . . This approach is substantially that followed in other common-law countries including England. It is the view advanced by noted scholars and that adopted by the Restatement of the Conflict of Laws. It accords with ancient concepts of freedom of contract and reflects an appreciation of the expanding horizons of American contractors who seek business in all parts of the world.’ . . . [Cit.]” Id.

We do not find that enforcement of the venue clause is unreasonable under the circumstances of this case. Although Brinson asserts that he had no notice of the clause and that it was the result of the disparate bargaining powers between the parties, the record does not support either assertion.

First, the record does not support Brinson’s argument that he had no notice of the clause because it was buried in a 45-page printed form contract. Rather, the field representative contract consists of six pages covering fourteen enumerated paragraphs (the remaining pages attached to the contract consist of various compensation schedules). The table of contents specifically refers to paragraph 12 as “Venue and Construction.” The title to paragraph 12 as it appears within the body of the contract is in large, capitalized, boldface print and no different from the title headings of the other paragraphs in the contract. Under these circumstances, we must conclude that the clause was not hidden. Accordingly, Brinson’s contention “that he had no specific knowledge of the clause is of no moment.” Stephens v. Entre Computer Centers, 696 FSupp. 636, 641 (N.D. Ga. 1988). Moreover, “ ‘one who signs a contract is presumed to know its contents. . . .’” Intl. Indem. Co. v. Smith, 178 Ga. App. 4, 5 (1) (342 SE2d 4) (1986).

Likewise, the record does not support Brinson’s assertion that there was a manifest disparity of bargaining positions. Although Brinson cites his affidavit in support of this contention, there is nothing in the affidavit addressing the relative bargaining positions of Woodmen and Brinson. Moreover, there is nothing in the record indicating that Woodmen obtained Brinson’s assent to the forum selection clause by fraud or overreaching, or that Brinson did not retain the option of refusing to sign the contract containing the clause. See id.; Carnival Cruise Lines v. Shute, 499 U. S. 585, 595 (111 SC 1522, 113 LE2d 622) (1991). Accordingly, this argument is without merit.

Because Brinson, as the party challenging the clause, has failed to show that its enforcement would be “unreasonable” under the circumstances of this case, the trial court did not err in dismissing his complaint against Woodmen for improper venue. See Harry S. Peterson Co., supra.

2. Brinson also contends the court erred in dismissing his claims against Martin. He argues that regardless of whether the venue clause is applicable to Woodmen, the clause would not apply to his claims against Martin for tortious interference with economic relations and unjust enrichment because those claims do not arise out of the contract and involve parties who were not signatories to the contract. Accordingly, he argues these claims should be adjudicated in Georgia.

This same argument was rejected by the court in Stephens, supra. In Stephens, the court reviewed authority from several other jurisdictions and concluded that because the claims against the other defendants arose directly or indirectly from a single contract connecting the plaintiffs with all the defendants, the other defendants were transaction participants entitled to rely on the forum selection clause. Id. at 638-640.

Although we are unaware of any Georgia appellate decision holding that transaction participants may also rely on forum selection clauses, we have held that such individuals may rely on contract arbitration clauses. In Paine, Webber &c. v. McNeal, 143 Ga. App. 579 (239 SE2d 401) (1977), the plaintiff sued both Paine Webber and an account representative for securities violations and fraud. Paine Webber moved to compel arbitration based on an arbitration clause in the contract between itself and the plaintiff. The trial court held that the arbitration clause did not apply to the account representative because he was not a signatory to the contract. We found that if the account representative could not rely on the clause, then the actions would likely be decided in separate forums, a result that we determined may “ ‘result in varying decisions, discreditable to the administration of justice.’ [Cit.]” Id. at 582. We concluded “that the ends of justice are more nearly met by holding that [the nonsignatory] must be allowed to participate in the arbitration. . . .” Id.

Decided March 13, 1996.

Decker & Hallman, Robert D. Feagin, for appellant.

Rogers & Hardin, Richard H. Sinkfield, Liane A. Schleifer, for appellees.

We believe the same considerations demand that Martin be permitted to rely on the forum selection clause in this case. First, despite Brinson’s attempt to characterize his claims against Martin as falling outside the business relationship he had with Woodmen, it is clear from his complaint that the claims arose either directly or indirectly from his contract with Woodmen. Under these circumstances, we are persuaded that if Martin were not entitled to rely on the clause, separate actions would likely be brought, possibly resulting in varying decisions, inconsistent with the administration of justice. For these reasons, we conclude that the trial court did not err in ruling that Martin may rely on the forum selection clause in this case. We note, however, that we do not intend for this decision to apply to actions filed only against nonsignatories, where the same considerations may or may not be present.

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A95A2825.
    TANKESLEY v. THOMPSON.
    (469 SE2d 853)
   Pope, Presiding Judge.

Richard Tankesley, Robert Tankesley, William Tankesley and John Tankesley are the adult sons of Stella Lee Kays, who died intestate on July 24, 1992. During the administration of Kays’ estate, Richard and the court-appointed administrator, Mary Thompson, asserted that Kays had advanced approximately $70,000 to Robert during the last two years of her life. Robert denied this assertion. After extensive discovery and several hearings on the matter, the probate court ruled that the $70,000 disbursed to Robert was not an advancement, but rather constituted loans or investments made to Robert and/or businesses he had started — primarily Southern Broasted Foods, Inc. (SBF). Concluding that the probate court did not err in reaching its determination, we affirm.

“An advancement is any provision made by a parent out of his estate, for and accepted by a child, either in money or property, during the parent’s lifetime, over and above the obligation of the parent for maintenance and education.” OCGA § 53-4-50 (a). In this state, when a parent dies intestate, a substantial gift of money or property from the parent to his or her child during the parent’s lifetime is ordinarily presumed to be an advancement. See Bowen v. Holland, 184 Ga. 718, 720 (1) (193 SE 233) (1937); Neal v. Neal, 153 Ga. 44, 45 (3) (111 SE 387) (1922). This presumption, however, is rebuttable. Id. The relevant inquiry in cases such as this is the decedent’s intent at the time of the transactions in question. Berry v. Berry, 208 Ga. 285, 289 (2), 290 (66 SE2d 336) (1951). The determination as to the decedent’s intent is to be made by the finder of fact — either the jury, or a judge in a case tried without a jury. See Smith v. Varner, 130 Ga. App. 484 (203 SE2d 717) (1973).

Decided March 13, 1996.

In the instant case, all of the money in question was disbursed in the form of numerous checks written by Kays. All of the checks except one were either payable to SBF or named SBF or another business entity in the memo portion thereof. Many of the checks also included the notation “investment” or “loan.” Robert testified by affidavit that at the time Kays wrote each check, she indicated that the money was an investment. Robert further testified that at various times during her life, Kays expressed her intent that at the time of her death her estate should be divided equally between her four children, regardless of any gifts she previously may have given to any particular child. The affidavits of William and John corroborate that this was Kays’ intent, as do the various wills, though not valid, that Kays executed during her life. Additionally, Kays’ attorney testified by affidavit that as far as he was aware, “at the time of her death, [Kays] contemplated that her estate, as it existed at the time of her death, would be divided equally between her four sons, notwithstanding any gifts she may have made to them during her lifetime.” The record also shows that Kays was a shrewd business woman who often invested in other businesses, and there is some evidence that she expected a return on her investment in SBF.

Based on the above evidence, we hold that the probate court, as the sole factfinder and judge of witness credibility in this case, did not err in concluding that Robert had met his burden of rebutting the presumption that the disbursements constituted advancements. The probate court was authorized to conclude that Robert had demonstrated with clear and satisfactory evidence that Kays’ intent when she made the disbursements was that they be treated as loans or investments rather than advancements. Accordingly, we affirm the probate court’s ruling.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

Michael S. Katz, Robert G. Nardone, for appellant.

Joyner & Burnette, John C. Joyner, Rich, Smith & McCoy, Michael T. Smith, Mary J. Thompson, Adam R. Gaslowitz, for appellee.


author: Smith, Judge.

text:
    A96A0051.
    GOSS et al. v. TOTAL CHIPPING, INC. et al.
    (469 SE2d 855)
   Smith, Judge.

After a vehicular accident in which a car driven by Mary Gail Goss struck the rear of a wood chip hauling truck, Goss and her husband brought suit against the owner of the truck, Total Chipping, Inc., and the driver, Steven Hesson. Goss alleged she was following the truck when it stopped suddenly after traversing a railroad crossing. She contended she was unable to stop in time to avoid the collision because the truck’s brake lights were not functioning. The complaint, as amended, sought damages resulting from the incident, including pain and suffering, past and future medical expenses, lost wages, and punitive damages. Her husband sought damages for loss of consortium. At trial, the jury returned a verdict in favor of Goss in the amount of $3,300 on all her claims and in favor of the defendants on her husband’s consortium claim. Judgment was entered on the jury’s verdict, and. the Gosses appeal following the denial of their motion for new trial.

1. Goss presented evidence of medical expenses and lost wages in excess of $33,000, but the verdict awarded only ten percent of that amount; the Gosses therefore contend the verdict was “completely contrary to the evidence.” Although this issue was enumerated as error, the Gosses have failed to present argument or citation of authority on this issue. Pursuant to Court of Appeals Rule 27 (c) (2), it is deemed abandoned.

2. The Gosses contend the trial court erred in excluding evidence from two former employees of Total Chipping. The two witnesses formerly drove trucks for Total Chipping and would have testified that the trucks were poorly maintained and unsafe, that continuing problems existed with the lights and the brakes, and that on several occasions the owner had instructed them to drive the trucks after the drivers had called his attention to these problems.

(a) The Gosses contend that this evidence of poor maintenance practices in the past was relevant to show causation, a previously existing dangerous condition, and a course of conduct by Total Chipping. We do not agree. As a general rule in negligence actions, evidence of similar acts or omissions is not admissible. In actions to recover damages sustained in vehicular collisions, the issue before the court is whether any of the parties was negligent. That must be ascertained in each incident from the circumstances surrounding that incident, not by the reputation or past acts of the parties. Wright v. Dilbeck, 122 Ga. App. 214, 217 (176 SE2d 715) (1970). An exception to this rule exists if the evidence tends to prove some pertinent fact in the case on trial, such as showing knowledge of the defect claimed or causation, if it rebuts a particular contention regarding how the accident happened or shows that the same dangerous condition existed previously. Gunthorpe v. Daniels, 150 Ga. App. 113 (1), 114 (257 SE2d 199) (1979). Even under this exception, the evidence not only must be relevant but must also be examined to ensure that it will not consume too much time, confuse the issues, or present a potential for undue prejudice or unfair surprise. Dimarco’s, Inc. v. Neidlinger, 207 Ga. App. 526 (1), 527 (428 SE2d 431) (1993).

“Generally speaking, questions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal. The rule is usually stated that the judge may exercise his discretion in excluding relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.” (Citations and punctuation omitted.) Kane v. Cohen, 182 Ga. App. 485, 486 (2), 487 (356 SE2d 94) (1987).

In this case, the excluded evidence showed no prior accidents caused by faulty maintenance, and no other evidence of prior accidents caused by poor maintenance was presented or offered. The excluded testimony did not pertain to the truck driven by Hesson on the date of the accident in issue. In addition, the parties’ differing contentions regarding the manner in which the accident occurred were fairly presented to the jury and supported by other evidence. As a consequence, evidence of Total Chipping’s poor maintenance practices in the past was only marginally related to any fact in this case, and the trial court properly concluded that the probative value of the excluded evidence was far outweighed by its prejudicial effect.

The Gosses argue that similar past transaction evidence was held admissible in Central of Ga. R. Co. v. Butts, 211 Ga. App. 619 (440 SE2d 218) (1994) and Seaboard Coastline R. Co. v. Delahunt, 179 Ga. App. 647, 650 (8) (347 SE2d 627) (1986). Their reliance upon these cases is misplaced. Both cases may be distinguished on their facts. In Butts, we emphasized that such evidence is generally inadmissible, but in that case, objection to its admission was waived. Id. at 619-620 (1). In Delahunt, the error enumerated was not the admission of the testimony but the failure of the trial court to rule on the motion to strike the challenged testimony about past transactions. Id. at 650 (8). Similarly, the line of cases typified by Browning v. Paccar, Inc., 214 Ga. App. 496 (448 SE2d 260) (1994), relied upon by the Gosses, has no application here. Those cases involve dangerous defects in manufacturing or packaging mass-produced items. A defect in one such item in its design or manufacture would necessarily occur in thousands of identical products. In such cases, proving that the defect existed in other products and caused accidents in the past is highly relevant to proving the facts of the case on trial. That is not so here. Even if it proves a pattern or course of conduct, establishing that Total Chipping was negligent in repairing other trucks in the past does not bear on the issue of what caused this particular collision.

(b) The Gosses also maintain that the evidence was admissible for the purpose of impeaching the testimony of Hesson and James Ware, the principal shareholder of Total Chipping. It is true that a witness may be impeached by disproving the facts testified to by him. OCGA § 24-9-82. But a witness may not be impeached with regard to a matter irrelevant to the issues being tried. “A witness’ possible lack of credibility concerning matters otherwise irrelevant to any issue in dispute does not thereby become material to the case as an issue of impeachment. [Cits.]” E. H. Siler Realty &c. Broker v. Sanderlin, 158 Ga. App. 796, 797 (1), 798 (282 SE2d 381) (1981). We have held that the trial court properly ruled the excluded testimony insufficiently relevant to the issues in this case to be admitted. It was therefore not admissible for impeachment purposes.

3. The Gosses assert the evidence was also admissible on the limited issue of punitive damages, and they argue that the trial court erred in failing to admit this evidence in the liability phase of the trial, as directed by OCGA § 51-12-5.1 (d) (1). We do not agree.

Since punitive damages were sought, OCGA § 51-12-5.1 (d) (1) directs that the jury must “first resolve from the evidence produced at trial whether an award of punitive damages” should be made by deciding this question on a special verdict form. This Court has held, however, that notwithstanding the enactment of OCGA § 51-12-5.1, the trial court still possesses the authority to control the course of the trial. OCGA § 9-11-42 (b) specifically authorizes the trial court to exercise its discretion to avoid prejudice, and “nothing in OCGA § 51-12-5.1 suggests the legislature intended any restriction on OCGA § 9-11-42 (b).” Hanie v. Barnett, 213 Ga. App. 158, 160 (1) (444 SE2d 336) (1994). Neither does the holding in City of Monroe v. Jordan, 201 Ga. App. 332 (411 SE2d 511) (1991), relied upon by the Gosses, strip the trial court of that authority. Hanie, supra. Here, as in Hanie, although the challenged evidence may have been relevant to the issue of punitive damages, its admission was potentially prejudicial. The trial court did not abuse its discretion in excluding the evidence.

In this case, although the challenged evidence was excluded, some evidence relevant to the claim for punitive damages was admitted because it was also relevant to the claim for compensatory damages. The jury heard evidence from two police officers and a friend of Goss’s husband that Hesson commented after the accident about Total Chipping’s faulty maintenance practices and the unsound condition of this particular truck. This evidence was contradicted by Hes-son, Ware, and another Total Chipping employee. After being properly charged on punitive damages, the jury concluded that no punitive damages were awardable and specifically so found.

Hanie involved a comparable fact situation because evidence of prior transactions pertinent to punitive damages would have been highly prejudicial to the defense on the issue of liability for compensatory damages. The procedure used in Hanie, supra, was different, however, because the trial court there essentially “trifurcated” the trial and allowed the jury to decide the issue of liability for compensatory damages before hearing any evidence on or deciding the issue of liability for punitive damages. That is perhaps the better practice in these circumstances. In this case, however, the jury returned a verdict in an amount far less than the amount sought by the Gosses. They awarded Goss compensatory damages in an amount less than ten percent of her special damages and awarded her husband nothing on his claim for loss of consortium. We conclude, therefore, that even if the procedure employed here was error, it is highly unlikely that it contributed to the verdict, and we deem it harmless.

4. The Gosses contend that no evidence was presented showing that Goss could have discovered or avoided the defendants’ negligence and that the trial court therefore erred in charging the jury on avoidance of consequences. The Gosses correctly note that when no evidence is presented from which a jury could find the plaintiff could have avoided the accident, it is reversible error to instruct the jury on the avoidance doctrine. See Carrandi v. Sanders, 188 Ga. App. 562 (1), 563-564 (373 SE2d 661) (1988). But to justify a charge on any given subject, direct evidence on that point is not necessary. It is sufficient if some evidence exists from which the jury may engage in a legitimate reasoning process to reach an inference on that point. Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 471 (2), 472 (433 SE2d 398) (1993).

In this case, Goss herself testified that it was light outside, that she followed Hesson’s truck for some distance, and that both she and the truck were proceeding very slowly. Evidence was presented that when the brakes “lock” on a large, empty trailer such as the one pulled by Hesson’s cab that morning, the brakes emit a great deal of smoke and noise. From this evidence, the jury could have inferred that even if no lights warned Goss of the truck’s braking, she could have noticed the stopping truck and avoided the accident. The trial court did not err in charging the jury on the avoidance doctrine.

5. Goss also complains of the trial court’s direction of a verdict against her on two issues.

(a) The trial court properly directed a verdict against Goss on her claim for property damage. “As a general rule recovery for damages to an automobile may be based on the difference in the value before the injury and the value afterwards; alternatively, it may be based on the reasonable value of necessary repairs together with hire value of the vehicle while incapable of use and the value of permanent impairment, provided the aggregate amount of those items does not exceed the value of the automobile before the accident, with interest.” (Citations, punctuation, and emphasis omitted.) Bowling v. Gober, 206 Ga. App. 38, 39-40 (3) (424 SE2d 335) (1992).

The only evidence presented regarding property damage was the estimated cost of repairs. This evidence was insufficient to permit the jury to calculate damages for this claim. Although the trial court granted the motion for directed verdict based upon the argument that this claim was not included in the pretrial order, the motion was also made on the ground that the evidence was insufficient. We therefore affirm that ruling under the principle that a trial court’s ruling right for any reason will be affirmed. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 590 (452 SE2d 159) (1994).

(b) The court also granted defendants’ motion for a directed verdict on the issue of future medical expenses.

At trial, the testimony of Goss’s treating physician, Dr. Carl Herring, was presented by video deposition. Dr. Herring diagnosed Goss’s neck pain as thoracic outlet syndrome. He testified that, generally, thoracic outlet syndrome is a chronic degenerative condition usually not caused by trauma, per se. Dr. Herring was “not sure” whether Goss would suffer permanent impairment from the accident. He opined that it was possible she would continue to suffer from accident-related problems, but he believed “they’d be of a more diminished nature.”

Evidence had also been presented at trial that approximately one month before the accident, Goss had visited her family physician complaining of back pain, and that Goss had experienced neck pain off and on since she was ten years old.

Even the tentative nature of Dr. Herring’s testimony as to future medical expenses was undermined by his lack of awareness, when that opinion was given, of any history of previous problems. When informed of them, he testified that if Goss was complaining of back pain before the accident “it’d be hard to implicate her car accident as a direct cause of the low back pain.” He also stated that if she had been complaining of neck, shoulder, and arm pain intermittently for some years, he could not state to a reasonable degree of medical certainty that the accident directly caused the thoracic outlet syndrome. He also admitted that a consulting neurologist concluded either that Goss was “embellishing” the description of her pain or that her pain was due to somatization of other complaints, defined as “the neurotic conversion of emotional strain and conflicts into symptoms.”

Decided March 13, 1996.

York, McRae & York, Michael D. McRae, Robert T. Monroe, for appellants.

Kinney, Kemp, Pickett, Sponcler & Joiner, Henry C. Tharpe, Jr., Douglas W. Brown, for appellees.

To warrant an award for future medical expenses, evidence must be presented that the injury will require future medical attention. Massie v. Ross, 211 Ga. App. 354 (1) (439 SE2d 3) (1993). A claim for medical expenses must fail when no evidence is presented from which the jury can ascertain, except by mere speculation and conjecture, that the plaintiff would actually have those expenses. Given Dr. Herring’s testimony, especially Dr. Herring’s inability to testify that Goss would actually incur any medical expenses in the future, the trial court properly directed a verdict against Goss on her claim for future medical expenses.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       Although none of appellants’ enumerations specifically addresses the verdict on the consortium claim, error is contended as to the judgment of the trial court and the verdict in general, which includes the zero verdict on the consortium claim. Under Boatner v. Kandul, 180 Ga. App. 234 (1) (348 SE2d 753) (1986), this case is therefore properly brought as a direct appeal.


text:
    A96A0186.
    MIKE’S GARAGE DOOR COMPANY v. DEWS.
    (469 SE2d 855)
   Smith, Judge.

Henry Dews brought this action against Mike Ratterree and Mike’s Garage Door Company for damages after a garage door allegedly malfunctioned, injuring Dews. Summary judgment was granted to Mike Ratterree, and the action against Mike’s Garage Door Company proceeded to a bench trial. The trial court found for Dews in the amount of $15,000. No transcript of the proceedings below was prepared.

Mike’s Garage Door Company appeals the judgment, contending the trial court erroneously failed to consider evidence of Dews’ negligence and evidence of its affirmative defenses. These contentions cannot be determined judicially, as no transcript or statutorily authorized substitute appears in the record before us. See, e.g., Alexander v. Jones, 216 Ga. App. 360 (1), 361 (454 SE2d 539) (1995). “[T]he burden is on the party alleging error to show it affirmatively by the record. . . . [W]hen the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Citations and punctuation omitted.) Spires v. Glencastle, Inc., 208 Ga. App. 901, 902 (432 SE2d 567) (1993). Because no transcript or statutorily prescribed substitute was prepared and transmitted to this Court, we assume the judgment below was correct, and we affirm.

Decided March 13, 1996.

Phillips & Messer, Arthur L. Phillips, for appellant.

Mullís, Marshall, Lindley & Powell, Julius A. Powell, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


text:
    A96A0245.
    KIER v. THE STATE.
    (469 SE2d 851)
   Smith, Judge.

Appellant Louis Kier was indicted by a Lowndes County grand jury on one count of burglary, OCGA § 16-7-1 (a). A jury found him guilty, his motion for new trial was denied, and he appeals, enumerating the general grounds.

Construed to support the verdict, the evidence shows that an automobile business was burglarized between 11:00 p.m. and 1:30 a.m. on September 3-4, 1994. The owner of the business testified that when he left around 11:00 p.m. to answer a wrecker call, a side entrance storm door to a storage building on the premises was locked and the glass was still in place. He returned around 1:30 a.m. and discovered that the glass in that door had been knocked out and the door ripped open. Various items were missing from the storage building. At approximately 10:30 or 10:45 p.m. on September 3, Kier was seen by two witnesses on the sidewalk adjoining the burglarized business; he then “disappeared” from their view. Because Kier was no longer on the sidewalk and had not crossed the road, one witness concluded he had entered the area between the burglarized business and the business next door. The business owner knew Kier, testified he had “probably” seen him come by the shop during business hours, and believed he had spoken to him once but never saw him that night.

The sheriff’s department investigated the burglary and dusted the storm door for latent fingerprints. A detective lifted a partial palm print, later identified as Kier’s, from the broken storm door. The print was found on the upper outside edge of the door, not near the handle but in the damaged area which resulted from the door having been pulled forcibly open. The State’s fingerprint expert testified that the palm print matched Kier’s on 19 points of identification. He also testified that the print was fairly “clean,” as it appeared to have no other prints superimposed upon it.

In challenging the sufficiency of the evidence to support his conviction, Kier relies solely upon Barnett v. State, 153 Ga. App. 430 (1) (265 SE2d 348) (1980): “To warrant a conviction based solely on fingerprint evidence, the fingerprints corresponding to those of the defendant must have been found in the place where the crime was committed, and under such circumstances that they could only have been impressed at the time when the crime was committed. [Cits.]” Id. Kier contends that the palm print evidence is the only evidence linking him to the burglary and that the State failed to exclude every other reasonable hypothesis for the impression of the palm print. Because the State’s fingerprint expert testified that a latent print could remain on a surface for up to one year, Kier argues it was as reasonable for the jury to infer that his palm print was left during a legal entry to the business as to infer that it was impressed on the door during a burglary.

Kier’s reliance on Barnett is misplaced for several reasons. Most importantly, the rule in Barnett by its terms applies only to “a conviction based solely on fingerprint evidence.” (Emphasis supplied.) 153 Ga. App. at 430. It is inapplicable where the conviction is “not based solely on evidence showing defendant’s fingerprint had been found at the scene of the crime.” Hamilton v. State, 205 Ga. App. 422, 424 (3) (422 SE2d 263) (1992) (defendant also found in possession of stolen property). In this case, in addition to the fingerprint evidence, testimony was presented regarding Kier’s presence and unusual behavior near the site of the burglary shortly before it took place.

Moreover, Barnett took the stand at his trial and offered an explanation, corroborated by the testimony of another witness, as to how he could have innocently left his fingerprints at the scene of the crime. Barnett, supra, 153 Ga. App. at 431 (2). Kier, in contrast, never took the stand and never offered an explanation as to how the print could have been impressed at any time other than during the burglary. Instead, he relies entirely upon testimony elicited from the victim during cross-examination that Kier had “probably” come by his place of business during the day on some unidentified earlier occasion. Kier’s argument that this testimony supplies an innocent explanation for the presence of his palm print is without merit. The door on which Kier’s print was found was not shown to be one ordinarily used by customers during regular business hours; the only evidence elicited was that it was a side door to a storage building on the victim’s property. No evidence was presented that Kier entered that building or used the side door on any other occasion. Finally, Kier’s palm print was not found on the door handle, but on the outside of the door above the handle and in the damaged area caused by the forcible opening of the door during the burglary.

Decided March 13, 1996.

Closson & Bass, J. Michael Bass, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

When viewed in the light most favorable to the verdict, ample evidence was presented to enable a rational trier of fact to find that Kier was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       It was later closed up.


text:
    A95A2125.
    THE STATE v. NIX.
    (469 SE2d 497)
   Andrews, Judge.

The State appeals the trial court’s order granting Roy Gene Nix’s special demurrer to Counts 1, 3 and 4 of the Accusation against him. Nix was charged with two counts of vehicular homicide and three counts of failure to yield right of way. The trial court struck one count of vehicular homicide and two counts of failure to yield right of way. We affirm.

The charges against Nix arose from a traffic accident in which Nix, turning left from the middle of an intersection, struck a car coming from the opposite direction. The first count of the Accusation charged Nix with vehicular homicide due to failure to yield the right of way as required by OCGA §§ 40-6-21 and 40-6-1. Count 2 charged Nix with vehicular homicide due to failure to yield the right of way as required by OCGA §§ 40-6-71 and 40-6-1. Count 3 charged failure to yield the right of way in violation of OCGA §§ 40-6-21 (a) (1) (A) and 40-6-1. Count 4 charged failure to yield the right of way in violation of OCGA §§ 40-6-21 (a) (1) (B) and 40-6-1. Count 5 charged failure to yield the right of way in violation of OCGA §§ 40-6-71 and 40-6-1.

The three counts struck by the trial court were the three that alleged violations of OCGA §§ 40-6-21 and 40-6-1. The trial court found that OCGA § 40-6-21 defined the meaning given to highway traffic signal indications but did not define any violation of the law. The court also found that OCGA § 40-6-1 did not set out any specific violation, but merely stated that, unless otherwise provided for, it was a misdemeanor to violate any provisions of the Chapter.

1. OCGA § 40-6-21 is titled “Meaning of traffic signals.” Subpart (a) (1) states: “[g]reen indications shall have the following meanings. ...” Subpart (A) describes procedures when traffic is faced with a “CIRCULAR GREEN” and subpart (B) gives directions to drivers when faced with a “GREEN ARROW.”

The State claims the language in OCGA § 40-6-21 (a) (1) (A) and (B) which provides vehicular traffic “shall yield” the right of way, does define a violation of the law. The State contends that this language in OCGA § 40-6-21, when coupled with OCGA § 40-6-1, makes failure to yield a misdemeanor. OCGA § 40-6-1 states: “[i]t is unlawful and, unless otherwise declared in this chapter with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this chapter.”

In resolving this issue, we look to the literal language of the statute, the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute so as to give effect to the legislature’s intent. Atlanta Cas. Co. v. Flewellen, 164 Ga. App. 885, 888 (300 SE2d 166) (1982). “[W]here the literal language . . . does not square with reason or intent, then the literal must yield.” Id. Further, Code sections must be construed so as to make all the parts harmonize with each other. Cedartown Nursing Home v. Dunn, 174 Ga. App. 720, 726 (330 SE2d 905) (1985). “While statutes in pari materia may not be resorted to where the language of the statute under consideration is clear, it is equally as well settled that, where the terms of the statute to be construed are ambiguous or its significance is of a doubtful character, it becomes necessary to give proper consideration to other related statutes in order to ascertain the legislative intent in reference to the whole system of laws of which the doubtful statute is a part.” (Citations and punctuation omitted.) Collins v. C. W. Matthews Contracting Co., 213 Ga. App. 109, 110 (444 SE2d 100) (1994).

Thus, in looking at Chapter 6, Uniform Rules of the Road, it is apparent that, in OCGA § 40-6-20, titled “Obedience to traffic-control devices required; presumptions,” the legislature intended to make it an offense to disobey a traffic signal, and, in OCGA § 40-6-21, titled “Meaning of traffic signals,” the legislature intended to define the meanings to be given to the traffic control signals. We decline to apply the strained construction urged by the state which would require us to find that the legislature intended to make the offense of failure to yield the right of way chargeable under both Code sections. In addition, we note that, in the caption to Chapter 6 of Title 40, as amended in 1995, the stated purpose in relation to the amending of OCGA § 40-6-21 is “to change the provisions relating to the meaning of traffic signals; . . .” Ga. Laws 1995, p. 229. As the caption of the act is an index to the contents of the statute as construed by the legislature itself, Wimberly v. Ga. Southern &c. R. Co., 5 Ga. App. 263, 265 (2) (63 SE 29) (1908), this supports our conclusion that the legislature intended OCGA § 40-6-21 to be a definitional section only.

Further, the case law cited by the State in support of its proposition that this Court has recognized a distinction between OCGA § 40-6-20 and OCGA § 40-6-21 does not demand a different result. Three of the cases involve charges under both OCGA § 40-6-20 and OCGA § 40-6-21 and two of the cases have charges only under OCGA § 40-6-20. The one case cited which discusses only OCGA § 40-6-21 does so in the context of jury charges, and does not apply.

Therefore, we find that, while there is language under both sub-parts (A) and (B) of OCGA § 40-6-21 which states that vehicular traffic “shall yield,” this literal language does not square with the stated and obvious intent of the Code section. Further, in looking at OCGA § 40-6-20, we note that this section does require drivers to obey the instructions of traffic control devices, and, therefore, can be the basis for a charge of vehicular homicide or failure to yield the right of way.

2. In addition, we find OCGA § 40-6-1 cannot be the sole basis for a charge in the Accusation, because, as the trial court correctly found, it does not set out any proscribed conduct, but instead, specifies the penalty for a violation of any of the provisions in this Chapter which do not provide their own penalty. Accordingly, we find no error in the trial court’s granting of Nix’s special demurrer as to Counts 1, 3 and 4.

3. The State also contends the trial court erred in granting the demurrer to these counts because OCGA § 40-6-393 (b) provides that a violation of any provision of Title 40, other than those enumerated in OCGA § 40-6-393 (a) may form the basis of misdemeanor vehicular homicide. But, implicit in that directive is the requirement that the provision set forth a specific violation. Since we find that OCGA § 40-6-21 does not set out a violation, it cannot form the basis for misdemeanor vehicular homicide under OCGA § 40-6-393 (b). This enumeration of error is without merit.

Decided March 1, 1996

Reconsideration denied March 14, 1996

Kenneth W. Mauldin, Solicitor, for appellant.

Drew, Eckl & Farnham, Mary H. Hines, for appellee.

4. In light of our holding in Division 1, we do not address the remaining enumerations of error.

Judgment affirmed.

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