text:
    A92A1206.
    HUG v. THE STATE.
    (423 SE2d 700)
   Johnson, Judge.

Donald F. Hug was indicted on two counts of aggravated assault and one count of burglary. A jury returned a verdict of guilty but mentally ill as to both of the aggravated assault counts and a verdict of guilty as to the burglary count. The trial court sentenced Hug to serve consecutive terms of 20 years in confinement on each of the aggravated assault counts and to serve 20 years on probation for the burglary, concurrent to one of the aggravated assault counts. Hug appeals, challenging his sentences on the aggravated assault counts and the trial court’s denial of his motion for a directed verdict of acquittal as to the burglary. We affirm.

1. Hug contends that he should not have been sentenced on both counts of aggravated assault because the offenses merged. One count charged Hug with shooting the victim with a pistol and the other count charged him with hitting her on the head with an object likely to cause serious bodily injury. Hug relies on Davis v. State, 186 Ga. App. 491 (2) (367 SE2d 884) (1988), in which a series of shots fired by the defendant while chasing the victim was held to be a continuous and uninterrupted act. The evidence in the instant case, however, did not show a continuous, uninterrupted act. The evidence showed that Hug entered the victim’s home, ordered her to lie face down on the floor, sat on her back and hit her in the head with a blunt object, probably a hammer he admitted taking to the victim’s home. The victim then ran to her kitchen, where Hug shot her in the chest as she attempted to either activate her burglar alarm or phone for help. The act of assaulting the victim with the hammer was completed before the shooting occurred. “The crimes charged here were completed one after the other, but are separate and distinct. Although occurring sequentially, one after the other, each of these transactions constituted a separate offense since each was established by proof of different facts; i.e., each offense was a completed crime when the next was perpetrated upon the victim. Under the circumstances of this case, the same conduct is not being punished twice nor is one act included in the other so as to proscribe the separate conviction and punishment for each act.” (Citations and punctuation omitted.) Butler v. State, 194 Ga. App. 895, 896-897 (1) (392 SE2d 324) (1990). See Moore v. State, 190 Ga. App. 278, 281 (2) (378 SE2d 880) (1989). Accordingly, we find no error in the trial court’s sentence.

2. Hug complains that the trial court erred in denying his motion for a directed verdict of acquittal on the charge of burglary because there was insufficient evidence that he lacked authority to enter the victim’s condominium unit. “ ‘The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. (Cit.)’ [Cit.]” Johnson v. State, 201 Ga. App. 88, 89 (1) (410 SE2d 189) (1991). Here, the evidence showed that the victim had given Hug a key to her condominium unit. The victim, however, changed the locks to her residence because of personal problems she had with Hug. She did not give Hug a key to her new locks. Thereafter, several items were stolen from the victim’s home and she suspected Hug of taking them. The victim testified that when she accused Hug of the theft, he admitted taking the items and he admitted having a copy of her new condominium key made without her permission. Reviewing the evidence in the light most favorable to the trial court’s denial of Hug’s motion and the jury’s verdict, we find that a rational trier of fact could have found Hug guilty beyond a reasonable doubt of bur-, glary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Decided October 7, 1992.

Bruce S. Harvey, Robert G. Rubin, for appellant.

Thomas J. Charron, District Attorney, Benjamin F. Smith, Jr., Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A1358.
    SWEARINGEN v. THE STATE.
    (423 SE2d 305)
   Johnson, Judge.

James E. Swearingen, Jr. consented to consolidation at trial of several charges against him which arose in four separate incidents occurring over a five-month period. He was convicted of three counts of DUI, three counts of driving a motor vehicle after having been declared an habitual violator, and one count of no proof of insurance. His motion for a new trial was denied, and he appeals.

1. Swearingen first contends that the jury erred in finding him guilty in that the state failed to meet its burden to show sufficient compliance with the implied consent law. Specifically, Swearingen argues that the state failed to prove sufficient compliance because it presented no evidence to affirmatively show that Swearingen had not requested an independent chemical test. The duty to affirmatively show a waiver of the statutory right to an additional test, if it ever existed, was clearly abrogated in State v. Dull, 176 Ga. App. 152 (335 SE2d 605) (1985). “[T]he failure to inform a defendant of the right to an additional chemical test, and not the failure to obtain and show a waiver affirmatively, renders inadmissible the results of a chemical test administered at the request of the arresting officer.” Id. at 154. Swearingen’s reliance on Norfleet v. State, 196 Ga. App. 548 (396 SE2d 237) (1990), is misplaced. In Norfleet, the appellant affirmatively made a request for an independent test and the officers failed to act reasonably to accommodate that request. A review of the record in this case does not reveal any request for an independent test. Swearingen attempts to persuade us that when the booking officer told him to keep his mouth shut, he was effectively barred from making a request for an additional test. The record indicates, however, that Swearingen did not comply with the booking officer’s request, and further shows that he did not ever request an additional test. It is uncontroverted that Swearingen was given timely notice of his implied consent rights. There being no evidence that he requested an additional test, we conclude that there was sufficient evidence to show compliance with the implied consent statute. See Martin v. State, 176 Ga. App. 871, 872 (338 SE2d 298) (1985); accord Burks v. State, 195 Ga. App. 516, 517 (2) (c) (394 SE2d 136) (1990).

Decided October 7, 1992.

Nancy A. Atkinson, for appellant.

Joseph H. Briley, District Attorney, Fredric D. Bright, Assistant District Attorney, for appellee.

2. In his second enumeration of error, Swearingen argues that the state failed to prove a material element of the offense of habitual violator by failing to show that he was the same person who was declared an habitual violator and the same person served with habitual violator notice. This argument is without merit. Notice of his classification as an habitual violator was sent to Swearingen certified mail, return receipt requested. State’s Exhibits 1 and 2 were certified copies of the official notice of revocation and a copy of the receipt bearing Swearingen’s signature. Swearingen offered nothing to rebut the State’s evidence that the notice had been properly given, nor did he offer any evidence that he was not the person identified in the notice. “ ‘ “(N)otice (of habitual violator status) given by certified mail with return receipt requested mailed to the person’s last known address shall be prima facie evidence that such person received the required notice.” ’ [Cit.]” Johnson v. State, 194 Ga. App. 501, 502 (2) (391 SE2d 132) (1990). There is no merit to Swearingen’s argument regarding notice or identity.

3. Finally, Swearingen argues that the trial court erred in failing to charge the jury on the general principles of law with respect to the weight to be given the testimony of a co-defendant. The testimony which gave rise to the charge at issue was offered by Margie Reynolds, Swearingen’s companion. She testified that she agreed to switch seats with Swearingen after they saw that he had been observed driving by the police. As in Oliver v. State, 159 Ga. App. 154 (282 SE2d 767) (1981), no objection was made at the time the testimony was given, nor was there an objection at the close of the court’s charge. Swearingen reserved no exceptions to the charges as given. Therefore any objection to the evidence or the charge was effectively waived. Further, as in Oliver, the purported co-defendant testified at trial in this case. “The provisions of Code § 38-414 [OCGA § 24-3-52] have no application where the joint offender or conspirator is sworn and testifies as a witness. [Cits.]” Id. at 156. Therefore, we find no error.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0966.
    BARNES et al. v. COLLINS.
    (423 SE2d 308)
   McMurray, Presiding Judge.

Jesse Collins, Jr. filed this action in the Magistrate Court of Bibb County against Carl Barnes and Lisa Barnes seeking to recover a fee for a survey of certain land. Collins’ claim against Carl Barnes was predicated on a contract, while his claim against Lisa Barnes was predicated on a theory of quantum meruit. The Barneses filed separate counterclaims seeking awards of damages which exceeded the jurisdiction of the magistrate court. Upon the trial of the case, the magistrate court determined that the counterclaims were non-compulsory and transferred them to the Superior Court of Bibb County while retaining jurisdiction of Collins’ claims and entering a judgment in favor of Collins on his claims.

In the superior court, Collins as defendant in counterclaim filed his defensive pleadings and answer. Collins also moved to dismiss the counterclaims for failure to state a claim upon which relief can be granted. An amendment to the counterclaims was filed alleging that Homer Stewart was the successor to claims by Carl Barnes and Lisa Barnes. Collins moved to dismiss the amendment to the counterclaims on the grounds that the assignment of the Barneses’ claims was invalid. Before a ruling on Collins’ motions, a second amendment to the counterclaims was filed which purported to strike the allegations of the first amendment to the counterclaims, incorporated the remaining previous counterclaims, and added several additional allegations of injury to the persons and property of Carl Barnes and Lisa Barnes, and to the person of their minor child. The second amendment to the counterclaims also alleged that the Barneses have assigned and transferred any causes of action, which may be transferred under the law, to Stewart and that the balance of said claims are retained by Carl Barnes and Lisa Barnes.

The superior court granted Collins’ motion to dismiss for failure to state a claim upon which relief can be granted, holding that the counterclaims pled a personal injury action and as such were not transferable from one individual to another. Stewart, Carl Barnes, and Lisa Barnes appeal the superior court’s dismissal of their claims against Collins. Held:

“ ‘ “When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, ‘the . . . rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.’ (Cits.)” (Cit.)’ Storm Systems v. Kidd, 157 Ga. App. 527, 528 (3) (278 SE2d 109) (1981); OCGA § 9-11-12 (b) (6).” Morgan v. Ga. Vitrified Brick &c. Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49).

Before applying this familiar black letter rule in the case sub judice some attention must be given to the unusual posture of the case. Neither Stewart nor the Barneses are represented by counsel. The first and second amendments to the counterclaims are signed only by Stewart. The record is not clear as to whether the pleadings signed only by Stewart are intended to speak for the Barneses. Nonetheless, under our view of the case it is not necessary to resolve this issue.

There is nothing in the record which suggests that Carl Barnes and Lisa Barnes have abandoned any claim. All claims raised by or on behalf of this couple were either retained by them or assigned to Stewart. Under the circumstances of the case sub judice, the question of in which plaintiff in counterclaim a specific claim is vested is not essential to a consideration of whether there was a claim upon which relief could be granted.

The original counterclaims of Carl Barnes and Lisa Barnes, as well as the amendments to the counterclaims signed by Stewart state several claims upon which relief may be granted. Carl Barnes alleged in part that Collins had caused him mental and physical damages as well as a loss of the companionship of his wife. Lisa Barnes’ original counterclaim includes an allegation of trespass upon her property by Collins and his agents. She also alleges injuries to her minor child. Other claims are stated in the original counterclaims and in the amendments signed by Stewart although more particularly in many of the claims would be useful.

The superior court was correct in recognizing that a right of action for personal torts or for injuries arising from fraud may not be assigned. However, a right of action involving a property right is assignable, including a cause of action for a tort to property. OCGA § 44-12-24; Ernest L. Miller Co. v. Gauntt, 93 Ga. App. 178, 179 (1) (91 SE2d 104). Insofar as the superior court may have concluded that the claims of the plaintiffs in counterclaim were exclusively for personal injuries, it was incorrect. For example, in her original counterclaim Lisa Barnes alleged that Collins and his agents had trespassed on and to her property and interfered with her enjoyment of her real and personal property. This allegation clearly states a property injury claim upon which relief can be granted, and, thus, a claim which may be assigned.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.

Decided October 8, 1992.

Carl Barnes, pro se.

Lisa Barnes, pro se.

Homer Stewart, pro se.

Horace L. McSwain III, for appellees.


author: Cooper, Judge.

text:
    A92A0976.
    DEWBERRY v. THE STATE.
    (423 SE2d 310)
   Cooper, Judge.

Appellant was convicted of conspiracy to traffic in cocaine. He appeals from the trial court’s denial of his motion for new trial.

1. Appellant enumerates as error the admission into evidence of a prior guilty plea to a charge of possession of cocaine. Appellant argues that the State failed to establish any similarity or connection between the two offenses.

“In two recent cases, Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991) and Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991), the Supreme Court outlined the procedure to be followed by the State when seeking to admit evidence of prior criminal transactions. First, the trial court must hold a hearing pursuant to Uniform Superior Court Rule 31.3 (B) out of the presence of the jury. At this hearing the State must affirmatively show that (1) it seeks to introduce evidence of an independent crime or offense for an appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) the evidence is sufficient to establish that the accused committed the independent offense; and (3) there is sufficient similarity between the independent offense and the charged crime so that proof of the former tends to prove the latter. [Cit.] The trial court must then make and include in the record a determination that each of these elements has been satisfactorily shown by the State. [Cit.] Second, in its presentation during trial the State must present to the trier of fact ‘evidence establishing both that the accused committed an independent offense or act and that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter.’ [Cits.]” Little v. State, 202 Ga. App. 7 (1) (413 SE2d 496) (1991).

In the instant case, in a hearing out of the presence of the jury at the close of the State’s case, the prosecutor failed to state the purpose for which the conviction was offered and set forth no facts demonstrating the similarity between the offenses. The State only argued that the cases were similar because the conspiracy to traffic charge was technically a conspiracy to possess more than 400 grams of cocaine and the only difference between appellant’s prior conviction and the current charge was the amount of cocaine involved. The State then introduced a certified copy of the indictment and guilty plea, which the trial court admitted without making the requisite findings. “While the certified copy may have been enough to establish that [appellant] committed the independent offense, it did not establish similarity or connection between that independent offense and the crime charged. Indeed, the state presented no evidence to the jury to establish that similarity or connection.” Williams, supra at 643. Therefore, the trial court erred in admitting appellant’s prior conviction. In addition, contrary to the State’s contention on appeal, “we cannot say that the evidence was so overwhelming as to make the erroneous admission of the evidence harmless, [cit.], and accordingly we reverse.” Little, supra at 8.

Decided October 8, 1992.

Mullins & Whalen, Harold A. Sturdivant, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

2. We need not address appellant’s remaining enumerations of error because they are unlikely to recur upon retrial.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A92A1042.
    THOMAS v. JOHNSON et al.
    (423 SE2d 306)
   Andrews, Judge.

Johnson et al. sued Thomas for damages allegedly sustained in an automobile accident. Thomas filed an answer preserving the defenses of lack of personal jurisdiction and defective service of process. He moved for summary judgment and dismissal on grounds that the statute of limitation has expired, and he has never been properly served with the action. We granted this interlocutory appeal to review the trial court’s December 9, 1991 order denying Thomas’ motions.

The accident occurred on July 16, 1989, and suit was filed on June 18, 1991. A two-year statute of limitation applies. OCGA § 9-3-33. The return of service form shows that after several failed attempts at personal service, Thomas was served by tacking the summons and complaint to the front door of his residence on July 25, 1991. A subsequent affidavit filed by the process server reflects that he went to Thomas’ residence on several occasions and attempted to locate Thomas. The affidavit does not indicate that the server ever saw or spoke to Thomas, or that Thomas was otherwise aware of his presence when service was attempted. Although the process server speculates that Thomas was attempting to avoid service, there are no facts in the record to support such a claim. The affidavit confirms that after several attempts the process server “tacked the summons and complaint on the door.” The record does not reflect that any further efforts were made to serve Thomas.

Decided October 8, 1992.

A. Cullen Hammond, for appellant.

Walker & Associates, Betty B. Walker, for appellees.

Tacking service to the door of Thomas’ residence was clearly not sufficient to comply with the personal service requirements of OCGA § 9-11-4 (d). Benton v. Modern Finance &c. Co., 244 Ga. 533 (261 SE2d 359) (1979). The failure to accomplish personal service in a manner which complies with the statutory scheme requires that the complaint against Thomas be dismissed. Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). The statute of limitation for this action expired on or about July 16, 1991, and no personal service has been perfected on Thomas. The plaintiff has failed to act diligently to perfect service, and Thomas was entitled to summary judgment in his favor. Acord v. Maynard, 198 Ga. App. 296 (401 SE2d 315) (1991); McManus v. Sauerhoefer, 197 Ga. App. 114 (397 SE2d 715) (1990).

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1245.
    HYDE v. THE STATE.
    (424 SE2d 39)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of driving under the influence and of felony operation of a motor vehicle notwithstanding the revocation of his license as an habitual violator. He appeals from the judgments of conviction and sentences entered on the jury’s guilty verdicts.

1. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal as to the felony habitual violator charge.

“[I]t shall be unlawful for any person to operate any motor vehicle in this state after such person has received notice that his driver’s license has been revoked as provided in subsection (b) of [OCGA § 40-5-58], if such person has not thereafter obtained a valid driver’s license.” (Emphasis supplied.) OCGA § 40-5-58 (c) (1). Notice to the habitual violator is an essential element of the offense. “It is driving a vehicle after receiving notice that one’s license has been revoked as [an] habitual violator that is prohibited by [OCGA § 40-5-58 (c) (1)]. [Cit.] Thus, it is notice of one’s status as a non-licensed habitual violator, not the driving record underlying that status, zzzthat is an ‘essential element’ of [OCGA § 40-5-58 (c) (1)].” (Emphasis in original.) Hester v. State, 159 Ga. App. 642, 644 (2) (284 SE2d 659) (1981).

The date upon which the requisite notice was given to the habitual violator is relevant to whether his subsequent act of driving is punishable as a felony or a misdemeanor. A non-licensed habitual violator who drives within five years of notification of his status as such is punishable for a felony, whereas a non-licensed habitual violator who drives more than five years after the notification of his status as such is punishable for a misdemeanor. OCGA § 40-5-58 (c) (1).

In the instant case, the State adduced sufficient evidence to authorize a finding that, in August of 1991, appellant drove a motor vehicle without a valid driver’s license. Accordingly, to demonstrate that this act was punishable as a felony the State was further required to show that appellant had been notified of his habitual violator status within five years of August 1991. The State did not do so. The State’s evidence showed only that, pursuant to certified mail with return receipt requested, appellant had been notified of his habitual violator status in July of 1983. This evidence would authorize a finding that appellant was guilty of a misdemeanor violation of OCGA § 40-5-58 (c) (1), but it would not authorize a finding that he was guilty of a felony violation of that statute. See Connelly v. State, 181 Ga. App. 261 (351 SE2d 702) (1986).

The State did show that, in 1989 and again in 1990, the Department of Public Safety issued additional official declarations of appellant’s renewed status as an habitual violator. If the State had further shown that notice of these declarations had ever been given to appellant pursuant to any of the methods authorized by OCGA § 40-5-58 (b), his instant act of driving without a license within five years thereof would be punishable as a felony. However, the State showed only the issuance of these declarations in 1989 and 1990, not that appellant had ever been given the requisite notification of their issuance. In the absence of any evidence that notification was given to appellant, the mere existence of the 1989 and 1990 declarations would not authorize a finding that he had committed any violation of OCGA § 40-5-58 (c) (1) in August of 1991 and those declarations would, therefore, be totally irrelevant in the instant case. “[I]t is important to note that in a prosecution under [OCGA § 40-5-58 (c) (1)], the [S]tate has the burden of proving that the defendant was given notice of revocation of his driver’s license because of his having been declared [an] habitual violator. [Cit.]” (Emphasis supplied.) Smith v. State, 248 Ga. 828, 831 (3) (286 SE2d 709) (1982).

The State urges that there is evidence that appellant had actual knowledge of his status as an habitual violator during the five years preceding August 1991. However, appellant’s knowledge of his mere status as an habitual violator is irrelevant. It is the official declaration of appellant’s status as an habitual violator that is the material issue. There is no evidence that appellant had actual knowledge that he had been redeclared an habitual violator at any point in time subsequent to July 1983. Compare Waits v. State, 194 Ga. App. 284 (390 SE2d 296) (1990); Cooper v. State, 156 Ga. App. 108 (274 SE2d 112) (1980).

Likewise, the State’s reliance upon OCGA § 40-5-60 is misplaced. That statute provides: “All revocations and suspensions provided for in this chapter shall be effective on the day the driver receives actual knowledge or legal notice thereof, whichever occurs first. Notice of suspension by operation of law shall be considered legal notice.” (Emphasis supplied.) What is relevant in the instant case is the suspension of appellant’s license based upon his status as an habitual violator. Compare Hale v. State, 188 Ga. App. 524 (1) (373 SE2d 250) (1988). There is no statutory provision authorizing notice by operation of law of suspension as an habitual violator. Compare Hale v. State, supra. OCGA § 40-5-58 (b) provides the methods for the giving of notice of suspension on that basis. As discussed above, the State’s evidence that appellant had been given notice pursuant to OCGA § 40-5-58 (b) in July 1983 would authorize only a finding that appellant’s act of driving without a license in August 1991 was a misdemeanor violation of OCGA § 40-5-58 (c) (1). Therefore, it was error to deny appellant’s motion for a directed verdict of acquittal as to a felony violation of OCGA § 40-5-58 (c) (1) in the absence of any evidence that he had been notified of his renewed status as an habitual violator within the five years preceding August 1991.

2. Appellant enumerates as error the admission of evidence of his prior convictions in 1989 for driving under the influence, driving notwithstanding the revocation of his license as an habitual violator, and attempting to elude a police officer.

The State’s evidence in the instant case showed the following: A motorist was being followed too closely by another vehicle and, on two occasions, was actually bumped by the following vehicle. An officer on patrol passed the two vehicles and noted that only the distance of one foot appeared to separate them. The officer decided to investigate and turned his patrol car around, but did not activate the. blue lights or siren. As the officer was approaching the two vehicles, the driver of the lead vehicle pulled to the side of the road and motioned the officer to do likewise. Responding to the motioning of the driver of the lead vehicle, the officer pulled to the side of the road, but the following vehicle continued on. When the driver of the lead vehicle told the officer that he had been bumped twice, the officer began his search for the following vehicle and radioed for assistance. Within a matter of minutes, the vehicle was discovered being driven away from appellant’s wife’s place of employment. At that time, appellant’s wife was driving and appellant, who was intoxicated, occupied the passenger seat. Appellant denied that he had previously driven the vehicle. Despite the fact that the officer positively identified appellant as the previous driver of the following car and had seen no other occupant, appellant contended that he had been driven to his wife’s place of employment by a friend.

The facts underlying the 1989 convictions are similar, but not identical. In 1989, appellant, while driving in a state of intoxication and while an habitual violator, had actually fled from a pursuing officer to avoid arrest. In the instant case, he had not. However, the evidence would nevertheless authorize a finding that appellant had attempted to avoid arrest in the instant case. A jury would be authorized to find that appellant, with actual knowledge that he had struck another vehicle twice and that a police officer had stopped to investigate, had continued to drive in violation of OCGA § 40-6-270 (a) and had used the opportunity to have his wife replace him as the driver. There is no requirement that a previous offense be absolutely identical to that which is being prosecuted. McGowan v. State, 198 Ga. App. 575, 577 (2) (402 SE2d 328) (1991). “The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence ‘may be admitted if it “ ‘is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. ...’”’ [Cit.]” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). In the instant case, evidence of appellant’s 1989 convictions was admissible to prove his bent of mind and pattern of driving while intoxicated and notwithstanding the revocation of his license as an habitual violator and of attempting to evade arrest upon discovery. See Blane v. State, 195 Ga. App. 504 (1) (393 SE2d 759) (1990).

3. During the course of the trial, appellant made a general request that, if the trial court was “going to allow [the] evidence [of the 1989 crimes] to go into the record,” the jury be instructed as to the limited admissibility of that evidence. The trial court responded that it would give such limiting instructions at the conclusion of the trial. Appellant acquiesced in this ruling and made no specific request for contemporaneous limiting instructions. At the conclusion of the trial, the trial court gave limiting instructions in its general jury charge. On appeal, appellant does not suggest that the limiting instructions that were given were not full, fair and complete. Instead, he enumerates as error-the failure of the trial court to have given additional contemporaneous limiting instructions.

“It is well recognized that when evidence is admitted for one purpose, as it was in the instant case, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. [Cits.]” (Emphasis in original.) Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). Appellant made only a general request for limiting instructions, which the trial court obviously did not construe as a specific request for contemporaneous limiting instructions. When the trial court indicated that it would, in fact, give such instructions in its subsequent general charge, appellant did nothing to indicate that the timing, as well as the giving, of such instructions was a material consideration. Accordingly, for all intents and purposes, the trial court complied with the only request that was ever made by appellant. In response to appellant’s request, the trial court gave limiting instructions. Under these circumstances, there was no error in the trial court’s failure to have given additional contemporaneous limiting instructions. “He who acquiesces at trial is not permitted on appeal to predicate error thereupon. [Cit.]” Causey v. State, 192 Ga. App. 294, 296 (1) (384 SE2d 674) (1989).

Decided October 8, 1992.

J. Russell Jackson, for appellant.

Garry T. Moss, District Attorney, A. Rebekah Teal, Assistant District Attorney, for appellee.

4. The judgment of conviction is affirmed as to driving under the influence. The erroneous failure to grant appellant’s directed verdict of acquittal as to a felony violation of OCGA § 40-5-58 (c) (1) does not require a retrial. “Because the evidence was clearly sufficient to support a conviction of [misdemeanor violation of OCGA § 40-5-58 (c) (1)], the case is accordingly remanded for resentencing for imposition of misdemeanor punishment. [Cit.]” Connelly v. State, supra at 263. Appellant’s remaining enumerations of error relate only to his felony conviction under OCGA § 40-5-58 (c) (1) and are moot by virtue of our remand for misdemeanor sentencing.

Judgment affirmed in part and judgment vacated and case remanded with direction in part.

Pope and Johnson, JJ., concur.


text:
    A92A1313.
    COLLIER v. WHITWORTH.
    (423 SE2d 440)
   McMurray, Presiding Judge.

This is an action for damages for false imprisonment by a former prisoner of the state penal system against defendant Bobby K. Whit-worth, Commissioner of the Georgia Department of Corrections. Plaintiff Jerry Larry Collier was formerly incarcerated under a sentence of two years, serve six months and the balance probated. Pursuant to an order of the Fulton Superior Court, plaintiff was given credit for time served from February 2, 1991. Plaintiff was released on August 4, 1991.

While plaintiff alleges that he was held beyond the end of his prison sentence, defendant contends that plaintiff was lawfully incarcerated until August 4, 1991. On opposing motions for summary judgment, the state court denied plaintiff’s motion and granted defend-’ ant’s motion for summary judgment. Held:

The sole issue argued by the parties is whether plaintiff’s prison term was correctly calculated by the Department of Corrections. However, we must bypass this issue since the superior court’s decision on summary judgment must be affirmed as a grant of summary judgment must be affirmed if right for any reason. In this case, the grant of summary judgment must be affirmed on the ground of the affirmative defense of official immunity, which defendant pleaded in his answer.

Since plaintiff’s claim accrued in August 1991 the applicable sovereign immunity provision is the 1991 amendment to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution. Curtis v. Bd. of Regents &c. of Ga., 262 Ga. 226 (416 SE2d 510) (1992). With that amendment, the legislature replaced the insurance waiver clause with a provision stating that the “General Assembly may waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act.” Ga. Const., Art. I, Sec. II, Par. IX (1983) (as amended January 1, 1991). See Curtis, supra at 227. The State Tort Claims Act (the “Act”), passed in 1992, “redr[e]w and redefine[d] the terms of the state’s waiver of sovereign immunity,” Curtis, supra, and was made retroactive to January 1, 1991, so that no group of plaintiffs would be left without a remedy. Id. at 228.

Rather than basing the waiver of immunity on the purchase of liability insurance as did the previous constitutional provision, the Act provides for a waiver of the state’s sovereign immunity for “torts of state officers and employees while acting within the scope of their official duties or employment,” OCGA § 50-21-23 (a), unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24. The instant claim is so excluded, as the Act provides that the state will have “no liability for losses resulting from . . . false imprisonment.” OCGA § 50-21-24 (7). Since state employees cannot be subject to liability arising from the performance of their official duties, OCGA §§ 50-21-21 (b); 50-21-25 (a), and the state may not be sued if the claim at issue is excluded by the Act, OCGA § 50-21-21 (a), defendant was entitled to summary judgment on his affirmative defense of official immunity.

Decided October 8, 1992.

Jerry L. Collier, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Melissa J. Lunsford, Staff Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1527.
    JOHNSON v. THE STATE.
    (423 SE2d 702)
   McMurray, Presiding Judge.

Defendant was indicted for violating Georgia’s Controlled Substances Act by possessing cocaine with intent to distribute. The evidence adduced at a jury trial showed that defendant and about 15 or 20 other people were occupying a house at the time of a police raid and that a search of an upstairs bathroom toilet revealed a plastic bag containing a “white chunky substance” which appeared to be crack cocaine. More specifically, Officer Ricky Morris of the City of Lavonia Police Department testified that defendant fled to the upstairs bathroom after the officer entered the house and announced that he had a search warrant and that other law enforcement officers would soon be arriving. Officer Morris explained that he immediately pursued and apprehended defendant, but that he did not then search the bathroom or look in the toilet. However, Special Agent Mark McClure of the Georgia Bureau of Investigation testified that he was in the upstairs bathroom and that he looked in the toilet and observed “a small zip-lock bag containing a white chunky substance [that he] suspected [was] crack cocaine.” Special Agent McClure further testified that he interviewed defendant the day after the search and that defendant executed the following statement:

“ T give the following statement freely and voluntarily. The cocaine found at my house at 41A Textile Street in Lavonia floating in the toilet bowl upstairs was mine. I was in the toilet as officers approached and entered my house. Allen Colbert and myself traveled to Florida last week. I spent about $500 in Florida. Last year, 1989, I made a total of approximately $3,000 working for myself in the car stereo business. I have not done much stereo work in the last six months. The Oldsmobile 98 belongs to Allen Colbert. The figures in the notebook seized at my house were my records of money I loaned out to certain people. The cocaine found in my house belongs to me, not my sister, Laura Ann Johnson. I give the above statement freely and voluntarily. I have not been threatened or promised anything.’ ”

Defendant was found guilty of possession of cocaine with intent to distribute. This appeal followed. Held:

Defendant contends the trial court erred in denying his motion for a directed verdict of acquittal, arguing the State failed to prove that the substance found in the upstairs toilet was cocaine.

The State offered no expert testimony identifying the “white chunky substance” found in the upstairs toilet as cocaine. The State relied primarily on defendant’s admission that “[t]he cocaine found at my house at 41A Textile Street in Lavonia floating in the toilet bowl upstairs was mine.” This evidence alone is not sufficient to authorize a finding that defendant is guilty, beyond a reasonable doubt, of the crime charged. OCGA § 24-3-53. Further, defendant’s admission, which was read to the jury over objection as to voluntariness, among other grounds, is insufficient to authorize a finding, beyond a reasonable doubt, that the “white chunky substance” found floating in the upstairs toilet was cocaine. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

“[T]he defendant’s confession cannot establish the corpus delicti, which must be proved beyond a reasonable doubt, independently of the confession.” Barnes v. State, 260 Ga. 398, 399 (2) (396 SE2d 207). In the case sub judice, the State presented evidence that defendant responded as many drug offenders respond to a police raid, i.e., by running to the nearest bathroom and attempting to dispose of contraband in a sink or a toilet. The State also presented testimony from an officer experienced in drug enforcement that the “white chunky substance” [appeared to be] crack cocaine.” However, the State presented no evidence indicating that the “white chunky substance” was cocaine. In fact, the State never offered the “small zip-lock bag containing a white chunky substance [which appeared to be] crack cocaine” into evidence. The record shows only that three photographs were admitted into evidence, each depicting a tiny plastic bag containing an apparently white substance floating in the blue water of a toilet bowl.

In Chancey v. State, 256 Ga. 415, 420 (III), 421 (c) (349 SE2d 717), the State failed to introduce evidence of the illegal drug the accused allegedly possessed and the Supreme Court of Georgia stated that “[w]e do not disagree that failure of the prosecution in a drug-possession case to introduce physical samples of the drug allegedly possessed does raise substantial questions with respect to whether the evidence is sufficient to authorize a verdict of guilty. See generally Jackson v. Virginia, [supra].” Id. However, the Supreme Court of Georgia concluded that evidence of the accused’s consumption of a white powdery substance in a manner characteristic with cocaine consumption (“ ‘snorting’ ”) and of the accused’s changed behavior after consumption of the white powder was sufficient to authorize a finding, beyond a reasonable doubt, that the accused was in possession of cocaine as alleged in the indictment. Chancey v. State, 256 Ga. 415, 420 (III), 421 (c), 422, supra. The case sub judice is distinguishable.

Decided October 8, 1992.

James W. Smith, for appellant.

Lindsay A. Tise, Jr., District Attorney, Francis J. George, Assistant District Attorney, for appellee.

In Chancey v. State, 256 Ga. 415, supra, there was circumstantial evidence identifying the substance the accused consumed as cocaine. The substance was white powder (apparently appearing like cocaine), it was consumed like cocaine and it apparently changed the accused’s behavior, assumingly much like cocaine. In the case sub judice, there is no evidence indicating that the substance found floating in the upstairs toilet was consumed like cocaine or that it possessed properties consistent with cocaine. In short, the State failed to prove an essential element of its case. Consequently, the trial court erred in denying defendant’s motion for directed verdict of acquittal.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1690.
    NEWTON v. THE STATE.
    (423 SE2d 707)
   McMurray, Presiding Judge.

Defendant Newton was convicted on a speeding charge before the municipal court of the City of Doraville. The municipal court fined defendant $75, which fine was paid in full without protest on the date of trial and sentencing. The Superior Court of DeKalb County overruled defendant’s petition for writ of certiorari and defendant appeals. Held:

“ ‘Although a court may exercise its discretion to decide a criminal case even after the sentence has been served ((cits.)), it is not bound to do so. (Cits.)’ Baker v. State, 240 Ga. 431, 432 (241 SE2d 187) (1978). Here, as in Baker v. State, supra at 432, if there are any ‘adverse collateral consequences’ resulting from [defendant’s] misdemeanor conviction, [he] ‘has not shown, on this record,’ their existence. Compare Parris v. State, 232 Ga. 687 (208 SE2d 493) (1974); Peach v. State, 168 Ga. App. 55 (308 SE2d 60) (1983). Likewise, any ‘question raised (in the instant case) is not one which can never be decided because it inevitably becomes moot prior to an appeal . . .’ Baker v. State, supra at 432. This is true because [defendant] was not required to pay the fine so as to avoid the immediate commencement of the [12 months] sentence. ‘At no time, either before a court of inquiry, when indicted, after a motion for a new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail.’ OCGA § 17-6-1 (a). ‘ “(O)ne convicted (of a misdemeanor) is entitled to bail as a matter of law. (Cits.)” ’ Holcomb v. State, 129 Ga. App. 86 (198 SE2d 876) (1973). Accordingly, in the absence of any evidence of ‘adverse collateral consequences’ or of ‘inevitable mootness,’ ‘(w)e decline (to exercise our discretion) to reach the merits of this appeal. . . .’ Baker v. State, supra at 432. See also Henry v. State, 148 Ga. App. 712 (252 SE2d 179) (1979). Compare Chaplin v. State, 141 Ga. App. 788 (234 SE2d 330) (1977).” Gamble v. State, 181 Ga. App. 871 (354 SE2d 174). See also Wilson v. State, 202 Ga. App. 160 (413 SE2d 504). As there is no suggestion that the record sent up from the superior court is incomplete or erroneous, defendant’s motions predicated on OCGA § 5-6-48 (d) are denied.

Decided October 8, 1992

Joseph W. Newton, pro se.

Robert E. Wilson, District Attorney, Edward E. Carter, for appellee.

Appeal dismissed.

Sognier, C. J., and Andrews, J., concur.


text:
    A92A1969.
    COPPOCK v. GOODEN.
    (423 SE2d 708)
   McMurray, Presiding Judge.

Plaintiff brought suit against defendant seeking damages for personal injuries. He alleged that he slipped and fell on defendant’s premises and landed in a negligently placed and maintained garbage pile. Defendant answered the complaint, denied liability, and, following discovery, moved for summary judgment. The trial court granted defendant’s summary judgment motion and plaintiff appeals.

Viewing the evidence in a light favorable to plaintiff, the party opposing the summary judgment motion, we find the following: Plaintiff volunteered to help defendant cut down a tree on defendant’s premises. The tree fell against and lodged in another tree and plaintiff and defendant tried to dislodge the tree by pulling on it with a cable. It had been drizzling and the ground was wet. As plaintiff pulled on the cable, he slipped and fell in the vicinity of a trash pile.

Plaintiff had observed the trash pile shortly before he started to pull on the cable. When he fell, plaintiff braced himself with his hand and received a deep cut stretching from the palm of his hand to his wrist. Plaintiff does not know what he cut his hand on and he could not state whether he actually put his hand in the trash pile. He acknowledged that he could have cut his hand on a can, a bottle or a tree root. Held:

Decided October 8, 1992.

Jack F. Witcher, Maryellen S. Mitchell, for appellant.

Downey, Cleveland, Parker, Williams & Davis, G. Lee Welborn, for appellee.

Because plaintiff could not state what caused the injury to his hand, we must conclude that the trial court properly granted defendant’s motion for summary judgment. Defendant’s negligence is not established by the mere fact that plaintiff sustained an injury. Harmon v. Reames, 188 Ga. App. 812, 813 (374 SE2d 539); Roberts v. Gardens Svcs., 182 Ga. App. 573 (356 SE2d 669).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A2016, A92A2017.
    COLLIER v. EVANS et al. (two cases).
    (423 SE2d 704)
   McMurray, Presiding Judge.

Jerry Larry Collier (plaintiff) brought a false imprisonment action against the former Commissioner of the Georgia Department of Corrections and the former Warden of Georgia State Prison (defendants). The parties filed opposing motions for summary judgment and the trial court denied plaintiff’s motion for summary judgment and granted defendants’ motion for summary judgment. Plaintiff filed an appeal in Collier v. Evans, 199 Ga. App. 763 (406 SE2d 90), and this Court affirmed the denial of plaintiff’s motion for summary judgment and reversed summary judgment in favor of defendants, finding that defendants failed to pierce plaintiff’s allegations of false imprisonment. Collier v. Evans, 199 Ga. App. 763, 765 (3), supra.

Upon remand, defendants filed a demand for jury trial and plaintiff filed a motion in opposition, arguing the jury trial demand was not timely filed. The trial court denied plaintiff’s motion in opposition to the jury trial demand and granted plaintiff “a certificate of immediate review, finding that the issues regarding Defendants’ entitlement to trial by jury are of such importance that immediate review is warranted.”

On January 29, 1992, plaintiff filed an application for interlocutory appeal in Case No. A92I0034 from the order denying his motion in opposition to the demand for jury trial. On February 3, 1992, plaintiff filed a direct appeal in Case No. A92A2016 from the same order. On February 21, 1992, plaintiff’s application for interlocutory appeal was denied in Case No. A92I0034.

On March 3, 1992, a “DISMISSAL” was entered in the trial court, indicating that plaintiff is dismissing his action “with prejudice based upon the settlement agreement of the parties.” Plaintiff later filed a motion to set aside the dismissal, alleging that he was duped into dismissing his action against defendants. The trial court denied this motion, finding that “a trial court may not order a complaint reinstated after it has been voluntarily dismissed.” On May 7, 1992, plaintiff filed a direct appeal from this order in Case No. A92A2017. On August 19, 1992, he filed an application for discretionary appeal in Case No. A92D0291 from the same order. We now consider Case Nos. A92A2016 and A92A2017. Held:

1. Plaintiff has filed a motion to recuse the panel of judges assigned to consider the cases sub judice and he requests that these appeals be transferred to the panel of judges that considered his appeal in Collier v. Evans, 199 Ga. App. 763, supra. Plaintiff argues that the panel of judges assigned to consider the cases sub judice “has shown total prejudice against [him] in previous appeal case [number] A92A0614 on June 25, 1992, pending before court on motion for reconsideration. . . .”

“[W]hen a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge’s duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse. [It is also a] well-settled rule that it is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious; nor does the simple filing of an affidavit automatically disqualify a judge. United States v. Bray, 546 F2d 851, 857 (10th Cir. 1976) and cits.” State v. Fleming, 245 Ga. 700, 701 (1), 702 (267 SE2d 207).

In the case sub judice, plaintiff has not filed an affidavit in support of the motion to recuse. However, he alleges in the motion to recuse that 'the panel selected to consider the cases sub judice “has shown total prejudice against [him] in previous appeal case [number] A92A0614. . . .” This unspecified allegation of prejudice is insufficient, as a matter of law, to support a motion to recuse. Savage v. Savage, 234 Ga. 853, 855-856 (218 SE2d 568). See Nix v. State, 236 Ga. 110, 111 (1) (223 SE2d 81). Further, the fact that any judge of the panel selected to consider the cases sub judice may have considered another case in which plaintiff was a party is legally insufficient to disqualify any judge assigned to hear the cases sub judice. See Woolfolk v. State, 85 Ga. 69, 74 (1) (11 SE 814); Penney v. State, 157 Ga. App. 737 (1) (278 SE2d 460). Consequently, plaintiff’s motion to recuse and request to transfer are hereby denied.

Case No. Á92A2016

2. Defendants have filed a motion to dismiss Case No. A92A2016, arguing that this appeal is from an order denying a motion to set aside a judgment and that OCGA § 5-6-35 (a) (8) requires appeals from such orders to be made via the discretionary appeal procedure of OCGA § 5-6-35 (b) et seq. This argument is without merit.

Case No. A92A2016 is from an order denying plaintiff’s motion in opposition to defendants’ demand for speedy trial. It is not from an order denying a motion to set aside a judgment under OCGA § 9-11-60 (d) which requires compliance with the discretionary appeal procedure of OCGA § 5-6-35 (b) et seq. Nonetheless, this direct appeal must be dismissed as it is from an interlocutory order which requires compliance with the interlocutory appeal procedure of OCGA § 5-6-34 (b). Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587 (1), 588 (408 SE2d 103).

Case No. A92A2017

3. Defendants have filed a motion to dismiss Case No. A92A2017, arguing that this appeal is from an order denying a motion to set aside a judgment and that OCGA § 5-6-35 (a) (8) requires appeals from such orders to be made via the discretionary appeal procedure of OCGA § 5-6-35 (b) et seq. This argument is without merit.

Case No. A92A2017 is from an order denying a motion to set aside a voluntary dismissal. It is not from an order denying a motion to set aside a judgment under OCGA § 9-11-60 (d) which requires compliance with the discretionary appeal procedure of OCGA § 5-6-35 (b) et seq. In fact, the record reveals no judgment upon which to base a motion to set aside under OCGA § 9-11-60 (d). There is only the document entitled, “DISMISSAL,” reciting that plaintiff is dismissing his action “with prejudice based upon the settlement agreement of the parties.” This document neither constitutes a judgment nor an adjudication upon the merits of plaintiff’s case as the dismissal was not approved and entered by the trial court. Williams v. Atwood, 52 Ga. 585 (2) (1874). See Kapiloff v. Askin Stores, 202 Ga. 292 (42 SE2d 724); Skinner v. Smith, 120 Ga. App. 35, 36 (169 SE2d 365), and Davis & Shulman’s Ga. Practice & Procedure (6th ed.), § 23-2, p. 599. Consequently, the denial of plaintiff’s motion to set aside the dismissal does not require compliance with the discretionary appeal procedure of OCGA § 5-6-35 (b) et seq.

4. Plaintiff contends the trial court erred in denying his motion to set aside the dismissal, arguing that he was fraudulently induced into entering a settlement agreement. This contention is without merit.

Decided October 8, 1992.

Jerry L. Collier, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellees.

“A voluntary dismissal under [OCGA § 9-11-41 (a)] is a matter of right and terminates the action.” Page v. Holiday Inns, 245 Ga. 12, 13 (262 SE2d 783). Further, Georgia’s Civil Practice Act “ ‘apparently makes no provision for the “reinstatement” of an action after dismissal as distinguished from a recommencement.’ Davis & Shulman’s Ga. Practice & Procedure, § 13-4 (4th Ed. 1975).” Matthews v. Riviera Equip., 152 Ga. App. 870 (1) (264 SE2d 318). Nor does the Civil Practice Act provide authority for setting aside a dismissal based on fraud in the inducement of the dismissal. Compare OCGA § 9-11-60 (d) (2). (Any such claim must be pled in a separate action.) Consequently, the trial court did not err in denying plaintiff’s motion to set aside and holding that “a trial court may not order a complaint reinstated after it has been voluntarily dismissed.” See Corrosion Control v. William Armstrong Smith Co., 157 Ga. App. 291, 292 (277 SE2d 287); Matthews v. Riviera Equip., 152 Ga. App. 870 (1), supra.

Motion to recuse and transfer denied. Case No. A92A2016 dis-

missed. Judgment affirmed in Case No. A92A2017.

Sognier, C. J., and Cooper, J., concur.

       Rule 41 (a) (1) of the Federal Rules of Civil Procedure provides for voluntary dismissals with prejudice upon agreement of the parties. However, Rule 41 (a) of the Georgia Civil Practice Act does not provide that the parties may agree to dismiss an action “with prejudice.” OCGA § 9-1Í-41 (a) provides that a plaintiff may voluntarily dismiss an action “without prejudice, except that the filing of a third notice of dismissal operates as an adjudication upon the merits.”


text:
    A92A0798.
    McLAIN BUILDING MATERIALS, INC. v. HICKS et al.
    (423 SE2d 681)
   Cooper, Judge.

Appellant appeals from the trial court’s grant of appellees’ motion to dismiss pursuant to OCGA § 9-2-5 (a) based on the existence of a prior pending action.

Appellees Mary Ann and Earnest Hicks, a married couple, were building a home in Rockdale County. The real estate was in the name of Mrs. Hicks alone. Some of the building materials for the home were ordered from appellant. A disagreement arose between appellant and appellees concerning charges for certain custom-made materials which appellees contend they never ordered. As a result, appellant placed two liens on the Rockdale County home. Mrs. Hicks then instituted a multiple-count suit in the Superior Court of Rockdale County, seeking to quiet title to the Rockdale County property as well as alleging breach of contract, fraud and extortion. After being served in the Rockdale action but before answering, appellant filed the instant action against both Mr. and Mrs. Hicks for breach of contract, seeking recovery of monies owed for the disputed custom-ordered materials ($19,858.60) in the State Court of Fulton County, the county in which appellees resided at the time. Appellant then answered in the Rockdale action and asserted its claim for $19,858.60 again, this time as a counterclaim against Mrs. Hicks only. Appellees filed a motion to dismiss the Fulton action based on the pendency of the earlier-filed Rockdale action. After a hearing, the Fulton trial court dismissed the Fulton action with respect to both Mr. and Mrs. Hicks, without distinguishing between the two. In its six enumerations of error, appellant contends the trial court erred in dismissing its Fulton County complaint.

1. Appellant first argues that dismissal was erroneous under OCGA § 9-2-5 (a) because the parties to the two actions are not identical. “No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party . . . If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter.” OCGA § 9-2-5 (a). “[T]he statute requires an identity of parties before the defense of prior pending action is viable. . . .” P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328, 330 (3) (329 SE2d 545) (1985). Mr. Hicks, a party in the Fulton action, is not a party in the Rockdale action. Accordingly, OCGA § 9-2-5 (a) does not support dismissal of the Fulton action against him. Appellees suggest dismissal with respect to Mr. Hicks nonetheless should be affirmed because appellant could and should have made Mr. Hicks a party to the Rockdale action by joining him as a defendant in its counterclaim. They contend the Rockdale court could acquire jurisdiction over Mr. Hicks because he now lives in Rockdale County, even though he did not when the Rockdale action was filed; or, in the alternative, because Mr. and Mrs. Hicks are joint obligors, citing Ga. Const. 1983, Art. VI, Sec. II, Par. IV. This contention is without merit. “[F]or purposes of venue and other jurisdictional questions, a person’s residence at the time of filing of suit is the determining factor.” Franek v. Ray, 239 Ga. 282, 285 (236 SE2d 629) (1977); see also Edwards v. Edmondson, 173 Ga. App. 353, 354 (326 SE2d 550) (1985). In addition, Ga. Const. 1983, Art. VI, Sec. II, Par. IV provides: “Suits against joint obligors . . . residing in different counties may be tried in either county.” Because neither Mr. nor Mrs. Hicks resided in Rockdale County at the time the Rockdale action was filed, appellant could not have brought Mr. Hicks into the Rockdale action as a counterclaim defendant.

With respect to Mrs. Hicks, who is a party to both suits, dismissal was not erroneous simply because all other parties to the two suits are not identical. Appellant additionally contends, however, that OCGA § 9-2-5 (a) does not support dismissal of the Fulton action against Mrs. Hicks because appellant is defendant in the Rockdale action but plaintiff in the Fulton action, citing Tinsley v. Beeler, 134 Ga. App. 514, 516 (1) (215 SE2d 280) (1975) for the proposition that the parties’ status in the two suits must also be identical. The parties’ status must be viewed in relation to the duplicative cause of action, however, and appellant is plaintiff with respect to its counterclaim in the Rockdale action as well as its claim in the Fulton action. Thus, the required identity of status is present.

2. Appellant further argues that, because it actually filed its complaint in the Fulton action before it filed its answer and counterclaim in the Rockdale action, the counterclaim in the Rockdale action cannot constitute a prior pending action requiring dismissal of the Fulton action under OCGA § 9-2-5 (a). Appellant’s claim arose out of the same dispute underlying Mrs. Hicks’ claims in the Rockdale action, however, and does not require for its adjudication the presence of third parties over whom the Rockdale court cannot acquire adjudication. Appellant’s claim was thus a compulsory counterclaim in the Rockdale action pursuant to OCGA § 9-11-13 (a), and appellant could not avoid OCGA § 9-2-5 (a)’s prohibition of duplicative suits by filing its claim as a separate action in its preferred forum after service but before filing its answer and counterclaim. For purposes of OCGA § 9-2-5 (a), we treat the compulsory counterclaim as if it were filed at the time the action was filed. This is a logical corollary to the portion of the compulsory counterclaim rule providing that a claim that would otherwise be a compulsory counterclaim in a particular action need not be pled and litigated in that action if the claim was the subject of another action pending at the time that action was commenced. See OCGA § 9-11-13 (a). Accordingly, the counterclaim in the Rockdale suit was a prior pending action under OCGA § 9-2-5 (a) and dismissal as to Mrs. Hicks was properly granted.

Decided September 15, 1992

Reconsideration denied October 9, 1992.

Gurley & Associates, James B. Gurley, for appellant.

Hardwick & Associates, Clifford H. Hardwick, for appellees.

Judgment affirmed in part and reversed in part.

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

       Mr. Hicks, a third party over whom the Rockdale court cannot acquire jurisdiction as discussed in Division 1, is not required for adjudication of appellant’s claim because Mr. and Mrs. Hicks are allegedly “jointly and severally” liable, and thus can be sued either individually or as a unit. See Floyd Davis Sales, Inc. v. Central Mtg. Corp., 197 Ga. App. 532 (398 SE2d 820) (1990) (joint obligors are not indispensable parties without whom adjudication cannot proceed if they are jointly and severally liable).


author: Birdsong, Presiding Judge.

text:
    A92A0918.
    BREWSTER v. THE STATE.
    (424 SE2d 8)
   Birdsong, Presiding Judge.

Alberto Brewster appeals his conviction for possession of cocaine with intent to distribute.

Macon police officer Robert Spires was patrolling Cochran Avenue about 9:30 p.m. on February 18, 1991. Cochran Avenue was “a well known high drug area.” He saw several men “hanging out,” which raised his suspicions of drug activity. He and Officer Reggie McMillan met in a parking lot one street over from Cochran, parked their cars and walked through the woods toward the area where Spires had seen the group of men. The officers spied on the men, who were well-illuminated by streetlights. The officers saw a car pull up. A man got out and approached appellant, who wore a blue jump suit; they walked to an area between two buildings. Spires could see “an exchange” but could not see what was exchanged. The other man left in his car and appellant came back to the street. A station wagon stopped; appellant took out a yellow packet, poured the contents into his hand and picked through them; he approached the car, stuck his head in the window and handed something to the driver. A third car stopped; a man wearing an army jacket went to the car and asked, “What do you need?” That man then went back to appellant, who again poured the contents of his yellow packet into his hand and picked among them. The apparent customer handed money to the man in the army jacket and all three walked to the front of the car; the man in the army jacket took something from the driver. A pickup truck stopped; again, the man in the army jacket approached the driver and said something to the effect of what do you need; appellant walked to the truck, dumping the contents of the yellow packet into his hand and picking through. As appellant and the man with the army jacket stood at the truck, the officers moved in. Appellant dropped his yellow packet on the ground and Spires stopped him. The yellow packet, found partially balled-up under the car, was an M & M’s candy wrapper. Inside was a piece of crack cocaine; two more pieces lay on the road about an inch and a half from the opening of the packet. The man in the army jacket escaped into the woods.

Appellant testified he went to Cochran Avenue to help a friend, Larry White, move Larry’s girl friend from one apartment to another nearby. At about 6:00 p.m., appellant went out to the street and stood around to watch what was going on. He was there until about midnight. He did not know any of the other people standing on the street and did not notice the man in the army jacket approaching cars. When the police officers emerged from the woods, appellant had in his hand a napkin and a $20 bill, and he was eating M & M’s. Held:

1. The evidence, construed in favor of the jury’s verdict, is sufficient to enable a reasonable trier of fact to find appellant guilty of possession of cocaine with intent to distribute beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Appellant contends the officers found no cocaine directly within his possession, but this is a misconstruction of the evidence. A piece of cocaine was found in the yellow packet immediately after appellant dropped the packet, after appellant was seen to handle the contents of that same yellow packet by dumping them in his hand while participating in two apparent exchanges from that same packet. No one else was seen to handle the yellow packet. This evidence is at least circumstantial evidence of possession of the cocaine found in the balled-up candy wrapper, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. As to whether a hypothesis is reasonable, that is a jury question. Harris v. State, 236 Ga. 242, 244 (223 SE2d 643).

2. Appellant contends his constitutional rights and his rights under OCGA § 24-9-20 (a) were violated by the trial court’s allowing the prosecutor, over objection, to question him as to why he failed to subpoena his two friends.

Following cross-examination of appellant as to his helping his friends move, the prosecutor asked: “Q: These people . . . that you were going to move . . . where are they today? A: I don’t know where they are. [Objection.] A: I couldn’t answer that no way ... I don’t know where they’re at. I’ve been in jail . . . THE COURT: Well, you can ask him where they are. Of course, he doesn’t have to produce witnesses or testify or produce evidence or anything. He doesn’t have to do anything. But you can ask him where a person is if you want to.” All this was said in the presence of the jury.

As to the rationale and constitutional implications of the rule that the State may argue the inferences to be drawn from a defendant’s failure to produce witnesses but the defendant may not comment on the State’s failure to produce certain witnesses, see Wilson v. Zant, 249 Ga. 373, 384-385 (4) (290 SE2d 442); Shirley v. State, 245 Ga. 616, 617 (1) (266 SE2d 218); Contreras v. State, 242 Ga. 369, 372 (3) (249 SE2d 56). It is unreasonable to infer that witnesses not called by the State would exonerate the defendant, but, when the defendant alludes to the existence of persons who would corroborate his defense, yet he did not call them, it is reasonable to infer that there exists no such favorable evidence. Wilson v. Zant, supra.

Decided September 9, 1992

Reconsideration denied October 9, 1992.

Sell & Melton, Jeffrey B. Hanson, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Dealuah E. Hill, Thomas J. Matthews, Assistant District Attorneys, for appellee.

Moreover, the issue arises in this case not in the context of commentary to the jury, but in the context of cross-examining appellant. Earlier appellant on direct examination was asked by his own counsel: “Q: Have you heard from or seen any of these people that were on the streets since that occasion? A: No. Q: Before or since? A: No.” “These people” were those with whom appellant stood on the street from 6:00 until 12:00, and who would presumably have direct knowledge of the activities on the street. Having himself, on direct examination, raised as a defense the unavailability of witnesses who could corroborate his defense, he could not then object when, on cross-examination, the State asked the same question as to people who he concedes could not exonerate him.

Moreover, the prosecutor did not ask appellant why he did not subpoena these witnesses. Even assuming, contrary to the reasoning in Wilson v. Zant, supra, Shirley v. State, supra, and Contreras v. State, supra, that the questioning was improper, and even assuming that the questioning implied there was some burden on appellant to produce these witnesses, still the jury could not reasonably have made any inference detrimental to appellant. His friends’ testimony, as appellant concedes, could not exonerate him. They were not witnesses to the crime and they could testify only as to why he originally came into the neighborhood. Appellant has proved no error; but assuming error, he has shown no harm. See Butts v. State, 198 Ga. App. 368, 370 (401 SE2d 763).

3. Appellant is therefore not entitled to a new trial.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Sognier, Chief Judge.

text:
    A92A1194.
    BARNES v. SABATINO et al.
    (423 SE2d 686)
   Sognier, Chief Judge.

Larry Barnes filed a medical malpractice action against Bruce Sabatino, M.D., Wayne Memorial Hospital, and Spectrum Emergency Care, Inc., on August 16, 1991. In his complaint he alleged that an act of malpractice was committed upon him on October 25, 1988; that he was born on August 19, 1971 and thus was a minor at the time of the alleged malpractice; and that he reached his majority on August 19, 1989. The trial court granted the defendants’ motion for summary judgment on the basis of the running of the statute of limitation, and Barnes appeals.

1. Appellant contends the trial court erred by failing to rule upon his challenge to the constitutionality of OCGA §§ 9-3-71 (a) and 9-3-73 (b). We note that the jurisdiction of the Supreme Court is not drawn into question here because “no constitutional question was raised in the trial court in the pleadings or any other portion of the record. From what appears [in the record below,] the contentions [regarding the constitutionality of only OCGA § 9-3-73 (b)] were asserted only in a brief submitted to the trial judge before final judgment, and hence are not a part of the record. The rule is well established that ‘[the Supreme Court does not] pass upon the constitutionality of an Act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge.’ [Cits.]” Walker v. Hall, 226 Ga. 68-69 (172 SE2d 411) (1970). Because no constitutional issue was properly raised as to either OCGA § 9-3-71 (a) or OCGA § 9-3-73 (b), this court has jurisdiction over the appeal. Id.

Appellant in his brief argues only that the statutes violated his equal protection rights (but see Mansfield v. Pannell, 261 Ga. 243 (404 SE2d 104) (1991)), and due process rights, and failed to present either argument or citation of authority addressing the specific enumeration raised in this court, i.e., the trial court’s alleged error in failing to rule upon his constitutional challenge to the statutes. We accordingly deem the enumerated error to be abandoned. Court of Appeals Rule 15 (c) (2); Brown v. Diaz, 184 Ga. App. 409 (1) (361 SE2d 490) (1987).

2. Appellant contends the trial court erred by granting summary judgment to appellees because it improperly applied OCGA § 9-3-73 (b) to this action. Specifically, appellant argues that OCGA § 9-3-90 (a) tolled the running of the two year statute of limitation set forth in OCGA § 9-3-71 (a). We do not agree.

The record establishes that appellant’s cause of action arose on October 25, 1988, after the effective date of OCGA § 9-3-73 (b). Ga. L. 1987, p. 887, § 2. Appellant was 17 years old at the time his cause of action arose. Although appellant correctly notes that the general language in OCGA § 9-3-90 (a) tolls the statute of limitation for minors, OCGA § 9-3-73 (b) expressly states that “[notwithstanding Article 5 of this chapter, [in which OCGA § 9-3-90 appears], ... all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article.” (Emphasis supplied.) Nothing in OCGA § 9-3-73 (b) supports appellant’s argument that its provisions apply only to suits brought on behalf of a minor rather than suits brought personally by the injured minor upon reaching majority. Accordingly, because appellant failed to file his malpractice action within the two-year period after October 25, 1988, the date on which the injury occurred, his action was barred. OCGA §§ 9-3-71 (a); 9-3-73 (b). The trial court did not err by granting summary judgment in favor of appellees.

Decided September 25, 1992

Reconsideration denied October 9, 1992

Burge & Wettermark, Michael J. Warshauer, for appellant.

Tinkler & Groff, William P. Tinkler, Jr., Julianna B. Belcher, Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Paul R. Vancil, for appellees.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A1365.
    EDMONDS v. CARVER STATE BANK.
    (423 SE2d 685)
   Carley, Presiding Judge.

Appellant-defendant is the assignee of a first deed to secure debt. Appellee-plaintiff is the grantee of a second deed to secure debt. The issue presented for resolution in the instant case is the extent to which appellant’s first security deed secures debts owed by the borrower. Appellant urged that her first security deed secures not only the debt owed by the borrower to the original grantee, but also such pre-assignment debts as were owed by the borrower to her. Appellee urged that appellant’s first security deed secures only the debt owed by the borrower to the original grantee and such post-assignment debts as may be owed by the borrower to appellant. The trial court granted summary judgment in favor of appellee, holding that appellant’s first security deed did not secure debts owed to appellant by the borrower and incurred prior to the assignment. Appellant appeals from that order.

1. “A transferee of a security deed steps into the shoes of the grantee, and is entitled to the same rights, privileges and rank held by the [assignor] as to the amount of the indebtedness owing to the grantee and secured by the deed at the time of the transfer.” (Emphasis supplied.) Bowen v. Kicklighter, 124 Ga. App. 82 (2a) (183 SE2d 10) (1971). Accordingly, assignment of the first security deed to appellant did not elevate her status from unsecured to secured creditor as to pre-assignment debts owed by the borrower to her. It follows that the trial court correctly granted summary judgment in favor of appellee.

Decided September 24, 1992

Reconsideration denied October 9, 1992

Floyd, Jones & Ware, Charles R. Floyd, Jr., Gia A. Brown, for appellant.

Oliver, Maner & Gray, Patrick T. O’Connor, for appellee.

2. Remaining enumerations of error have been considered and are either moot or without merit.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1474.
    PAINTER et al. v. SORROW et al.
    (423 SE2d 684)
   Carley, Presiding Judge.

Seeking to recover for injuries sustained in a vehicular collision, appellee-plaintiffs brought suit against appellant-defendant employees of the Department of Transportation. In relevant part, appellees’ complaint alleged that appellants had “negligently designed the bridge located [adjacent to the intersection where the collision occurred], so as to obscure the vision of traffic. ...” After extensive discovery, appellants moved for summary judgment. The trial court denied appellants’ motions, but certified its order for immediate review. Appellants appeal pursuant to this court’s grant of their application for an interlocutory appeal.

Appellees’ specific contention is that the bridge has a configuration such that the sight distance of motorists approaching the intersection is limited. By means of their depositions, appellants have shown that any such defect in configuration is related to the design of the roadway, i.e., the surface upon which vehicles travel, and not the bridge, i.e., the underlying structural support system, and that neither appellants nor the Office of Bridge Design, for which they worked, had any responsibility for the design of the roadway. Appellees did not rebut this evidence. If the alleged defect is in the roadway, and not the bridge, and appellants were responsible for the design of the bridge, and not the roadway, it follows that appellants would not be liable to appellees. Ethridge v. Price, 194 Ga. App. 82, 84 (3) (389 SE2d 784) (1989).

Decided September 24, 1992

Reconsideration denied October 9, 1992

Arrington & Hollowell, W. Ray Persons, Gary W. Diamond, for appellants.

Moffett & Henderson, John W. Henderson, Jr., D. Kevin Wheeler, Henry B. Sams, for appellees.

Appellees urge, however, that appellants are nevertheless liable because they had actual or constructive notice of the alleged defect in the roadway. There is evidence that appellants had notice that the configuration of the roadway was such that the sight distance did not meet “minimum requirements” and could present severe problems for the intersection in question. However, there is no evidence that this failure to meet “minimum requirements” for sight distance would give rise to a duty on the part of appellants as to the redesign of the bridge. To the contrary, the evidence shows that it was recognized that the restricted sight distance would “necessitate additional traffic controls such as reduced speed limit, street lighting, and signing.” If appellants had notice of the alleged defect in the roadway, but the duty to ameliorate the effects of that defect was imposed on others, it follows that appellants would not be liable to appellees. “In the absence of a breach of a legal duty, there can be no actionable negligence. [Cit.] . . . [Appellants] had no role whatsoever in the [design of the roadway]. Indeed, it was only after [completion of the roadway design] that appellants] [were] informed [of a deficiency in the roadway design]. Despite these facts, appellees contend that appellants] [were] nonetheless legally obligated to [alter the bridge design or inform the engineers responsible for the roadway design that it must be altered]. ... To impose such a duty on employees in the position of appellants] would, in our view, extend the duty of reasonable care beyond reasonable limits.” Minter v. Powell, 152 Ga. App. 449, 451-452 (2) (263 SE2d 235) (1979).

“[W]e can conceive of no legal theory upon which [appellants] could be held liable for the injur [ies]. ... We consequently hold that the trial court [erred] in [denying appellants’ motions] for summary judgment.” Shannon v. Combustion Engineering, 188 Ga. App. 239, 240 (2) (372 SE2d 818) (1988).

Judgment reversed.

Pope and Johnson, JJ., concur.


author: Pope, Judge.

text:
    A92A1085.
    MATTINGLY v. THE STATE.
    (423 SE2d 709)
   Pope, Judge.

Defendant James Mattingly appeals his conviction for possession of marijuana with intent to distribute and conspiracy to commit the same crime.

1. Defendant first argues the trial court erred in denying his motion to suppress evidence seized during the search of his residence. We reject defendant’s argument that the surveillance of his house by an officer stationed on his property in woods behind the house constituted an illegal intrusion into the curtilage of his dwelling. The evidence showed the officer observed the activities conducted in defendant’s driveway by standing in the woods at the rear of defendant’s property beyond the portion of defendant’s land which was maintained and cultivated. Defendant testified and estimated the spot where the officer testified he was standing during his surveillance of the house was over 200 yards from the dwelling. Consequently, the facts established the officer’s surveillance of the house fell within the open fields exception to the Fourth Amendment protection afforded the curtilage of a dwelling house. In discussing this exception, the United States Supreme Court in Oliver v. United States, 466 U. S. 170 (104 SC 1735, 80 LE2d 214) (1984), noted “the term ‘open fields’ may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech. For example ... a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.” Id. at 180, n. 11.

Although defendant argued during his motion to suppress hearing the evidence seized during the search of his home was inadmissible because the search was illegal, he did not offer that objection at trial. When each item of evidence seized during the search was offered for admission at trial, defendant affirmatively stated he had no objection, except in regard to three of the containers of contraband. In regard to those exhibits he affirmatively stated his only objection was to the chain of custody of the evidence. Thus, defendant affirmatively waived and failed to preserve his right to contest the admission of the evidence on appeal on the grounds raised in the motion to suppress. See Bowe v. State, 201 Ga. App. 127 (1) (410 SE2d 765) (1991); Abrams v. State, 144 Ga. App. 874 (1) (242 SE2d 756) (1978). Moreover, we have examined the record and conclude the trial court did not err in denying defendant’s motion to suppress.

2. Challenging the chain of custody, defendant argues the trial court erred in admitting into evidence the marijuana found in the automobile parked outside defendant’s house. The officer who submitted the evidence to the State crime lab testified he saw the other officers open the trunk of the car as he drove up waving in his hand the search warrant he had obtained. He then observed the marijuana in the trunk of the car. He testified the marijuana was not taken out of the car and turned over to him until after the house was searched so he would not have to carry it around with him as the house was searched. We reject defendant’s argument that the chain of custody of the marijuana was thus insufficient. “The circumstances relied upon by [defendant] in support of this enumeration relate only to the mere possibility of a break in the chain of custody. There being, at most, bare speculation of tampering, substitution, or misidentification of the drugs as those which came from [the car parked at defendant’s house], the trial court correctly admitted the [contraband] into evidence.” (Citation and punctuation omitted.) Lewis v. State, 198 Ga. App. 808 (403 SE2d 233) (1991).

3. Defendant argues it was reversible error for the case to be tried by a judge other than the judge who heard the pre-trial motions. Defendant raised no objection to the trial judge trying the case and, in fact, defendant’s attorney stated prior to the presentation of evidence in the case that he had “no problems” with his trying the case. Defendant may not raise for the first time on appeal an issue which was not preserved at trial. See Jacobson v. State, 201 Ga. App. 749 (2b) (412 SE2d 859) (1991).

4. We reject defendant’s argument that the trial court erred in denying his motion for new trial on the ground of juror misconduct. The juror in question testified at the motion hearing that she had a telephone conversation with an attorney unrelated to the case but who was in the courtroom during the proceedings. She asked him the identity of a certain woman she described to the attorney, and he responded that the woman was the wife of the defendant. The juror testified that she had no further discussion with the attorney about the case. The trial court received affidavits from ten of the other eleven jurors attesting that during the process of the jury’s deliberations no discussions were had on any matter not derived from the evidence presented at the trial. Thus, defendant showed no ground for granting a new trial, and the trial court did not err in denying defendant’s motion.

Judgment affirmed.

Johnson, J., concurs. Carley, P. J., concurs in Divisions 1, 2, 3 and in judgment.

Decided October 9, 1992.

James Mattingly, pro se.

Billy L. Spruell, for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

       He was sentenced only on his conviction for possession with intent to distribute. (The appeal of one of defendant’s co-defendants is reported in Roddy v. State, 205 Ga. App. 407 (422 SE2d 271) (1992).)


text:
    A92A1650.
    WILKERSON v. CHARLES W. BELL & ASSOCIATES, P.C.
    (423 SE2d 711)
   Carley, Presiding Judge.

As she began to descend the three steps leading from the porch of appellee-defendant’s place of business, appellant fell. In her complaint seeking to recover for injuries sustained in the fall, she alleged “that as her right foot c[a]me in contact with the board on the edge of the porch, . . . the board tipped or dropped suddenly downward a fraction of an inch tending to throw her off balance . . . and she was thrown or tossed violently down the steps. . . .” Appellee answered and, after discovery, moved for summary judgment based upon its lack of superior knowledge of the loose board. The trial court granted appellee’s motion, and appellant appeals.

Appellee’s evidence shows that, prior to appellant’s fall, none of its officers, employees or clients had notice or knowledge of any defective condition on the porch or, specifically, notice or knowledge that the porch contained a loose board. Moreover, appellee’s evidence also showed that when certain boards had been replaced and the porch repainted a few weeks prior to appellant’s fall, no defective or dangerous conditions and no loose boards at the edge of the porch near the stairs had been found. In her deposition, appellant testified that she had always stepped in the same place when descending the steps on previous visits to appellee’s office, that she had stepped on the same board before and it had never moved, and that, when she stepped on the board just before falling, it “went down a little bit.”

“The acts of negligence here complained of were of maintenance, and the case should not be confused with cases where the negligence complained of was improper construction which makes the person charged with liability liable whether he knew of the defects in original construction or not. [Cits.] When the defective condition is one of such character that reasonable and prudent men may reasonably differ as to whether an accident could or should have been reasonably anticipated from its existence or not, then the case is generally one for the jury; but when, as in this case, the defect, if any, was so slight that no careful or prudent man would reasonably anticipate any danger from its existence, but still an accident happened which could have been guarded against by the exercise of extraordinary care and foresight, the question of the defendant’s responsibility is one of law. [Cits.] . . . [I]n the absence of actual knowledge of the condition of the [board], ... it would seem that to require [appellee] in inspecting the steps to ‘[determine whether any board on the porch could move a “little bit,” or a “fraction of an inch”],’ in order to ascertain if, contrary to appearances, the steps were in fact in a dangerous and unsafe condition, would be to demand the exercise of a most extraordinary degree of diligence.” (Emphasis supplied.) McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 337, 340 (15 SE2d 797) (1941). “If [the edge of the porch] appeared safe to [appellant] under these circumstances, it must have appeared safe to [appellee], despite the conclusion of [appellant] that the existence of a defect could have been ascertained by [appellee] by an inspection.” McCarthy v. Hiers, 81 Ga. App. 365, 367 (59 SE2d 22) (1950). “Ordinary diligence, under such circumstances and the facts of this case, did not require an inspection where [appellee] had no reason to think an inspection was necessary. [Cits.]” Roberts v. Wicker, 213 Ga. 352, 356 (99 SE2d 84) (1957). See also Cuthbert v. Schofield, 35 Ga. App. 443 (1) (133 SE 303) (1926); Williamson v. Kidd, 65 Ga. App. 285 (15 SE2d 801) (1941).

Decided October 9, 1992.

David H. Fritts, for appellant.

“The fact of the additional allegation that there was no guardrail or banisters on the outdoor step[s] did not change the situation so as to create a dangerous situation and reasonable care did not require [appellee] to prevent or remedy the condition.” Butler v. Jones, 85 Ga. App. 158, 163 (2) (68 SE2d 173) (1951). Moreover, “[a]ppellant knew as she ascended and descended the steps that there was no handrail. . . .” Motes v. 6 ‘S’ Co., 186 Ga. App. 67 (366 SE2d 358) (1988). Although appellant alleged that the sidewalk was uneven, any unevenness in the sidewalk did not cause appellant’s fall. See generally Boyd v. Garden Center, 197 Ga. App. 198, 200 (3) (397 SE2d 626) (1990). Moreover, appellant had equal knowledge of the sidewalk’s condition. Compare Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139, 140 (351 SE2d 477) (1986).

“Each potential theory of recovery having been nullified by appellant’s [complaint and] deposition and the affidavits submitted, it was not error to grant summary judgment to [appellee].” Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga. App. 891, 893 (318 SE2d 514) (1984).

Judgment affirmed.

Pope and Johnson, JJ., concur.

Brannen, Searcy & Smith, Joseph J. Berrigan, for appellee.


text:
    A92A2115.
    DYE v. THE STATE.
    (423 SE2d 713)
   McMurray, Presiding Judge.

Defendant Dye appeals his conviction of the offenses of statutory rape and aggravated child molestation. Held:

1. Defendant Dye’s first two enumerations of error contend the trial court erred in denying his motion to dismiss that count of the indictment charging statutory rape on the grounds that OCGA § 16-6-3 defining this offense is unconstitutional. This raises the issue of our jurisdiction to consider this appeal and whether this appeal must be transferred to the Supreme Court since sole jurisdiction to consider a challenge to the constitutionality of a statute rests in the Supreme Court. See the Constitution of the State of Georgia, Art. VI, Sec. VI, Par. II (1). However, in this instance a constitutional issue is not raised because there is no suggestion on the record sent up from the trial court that the trial court ever ruled on defendant’s motion to dismiss. Nor does the record show that defendant sought to elicit any ruling on his motion to dismiss. Since the constitutionality of no statute was ruled upon by the trial court, and since we may not address questions on appeal which were not passed on by the trial court, no question as to the constitutionality of OCGA § 16-6-3 is preserved for appellate review and this court has jurisdiction of the appeal. Liles v. Still, 176 Ga. App. 65 (1) (335 SE2d 168); Security Mgmt. Co. v. King, 132 Ga. App. 618 (1) (208 SE2d 576). See also Wilson v. State, 212 Ga. 157, 158 (1a) (91 SE2d 16).

2. Defendant’s remaining enumeration of error raises an issue as to the sufficiency of the evidence to authorize his conviction of statutory rape only. The defendant acknowledges that an incident occurred during which he attempted to have sexual intercourse with the underaged victim, but he testified that he did not believe that there was any penetration of the victim’s vagina, and now argues that there is no corroboration of the victim’s testimony that he did actually penetrate her vagina with his penis.

OCGA § 16-6-3 (a) provides that no conviction shall be had for statutory rape “on the unsupported testimony of the female.” However, “it is well settled that it is not necessary that the child be corroborated as to every essential element of the crime, or that it establish the defendant’s guilt, but only that the corroborating evidence tend to establish his guilt and be of ‘ “such a character and quality as tends to prove the guilt of the accused by connecting him with the crime.” ’ Chambers v. State, 141 Ga. App. 438, 439 (233 SE2d 818), rev’d on other grounds, 240 Ga. 76 (239 SE2d 324). Moreover, the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, ‘ “but only that amount of independent evidence which tends to prove that the incident occurred as alleged. . . . Slight circumstances may be sufficient corroboration and ultimately the question of corroboration is one for the jury.” (Cit.)’ Hill v. State, 159 Ga. App. 489, 490 (283 SE2d 703).” Timmons v. State, 182 Ga. App. 556, 557 (356 SE2d 523). The child’s testimony that sexual conduct was committed is corroborated by the defendant’s own testimony. A reasonable trier of fact could rationally find from all the evidence proof beyond a reasonable doubt of defendant’s guilt of statutory rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Timmons v. State, 182 Ga. App. 556, 558, supra.

Decided October 9, 1992.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, Keith Higgins, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A2199.
    COLSTON v. THE STATE.
    (423 SE2d 714)
   McMurray, Presiding Judge.

Defendant Colston appeals his conviction of the offense of armed robbery. Held:

1. Defendant enumerates as error the admission into evidence of out-of-court and in-court identification of defendant as the perpetrator of the armed robbery. There were two witnesses who gave the identification evidence at issue.

Witness Davis worked the graveyard shift, from 10:00 p.m. to 6:00 a.m., as cashier at the Pumpkinvine Country Store. At approximately 11:00 p.m. on January 4, 1990, Davis was working alone, cleaning out the donut case, when the perpetrator entered the store pulling down a stocking over his face as he entered. The perpetrator pulled a gun, put it to Davis’ head, and ordered Davis to give him all of the money. Davis was forced over to the cash register which he opened. The perpetrator proceeded to take the money from the cash register. While the perpetrator was taking the cash Davis realized that the gun was not real, so he reached his arms around the perpetrator and tried to stop him. The perpetrator escaped Davis’ grasp and again threatened him with the gun, but Davis told him he had better leave because he was calling the police. Davis walked to the telephone and called the police and the perpetrator went out the door and ran into the woods.

Witness Lawrence was outside of the Pumpkinvine Country Store waiting to use the telephone when she noticed an individual leaning against a tree across the parking lot. Lawrence observed this individual walk back and forth outside the store for more than five minutes before he entered the store. The parking lot outside the store was well lighted and Lawrence looked directly at the individual’s face shortly before he entered the store. Shortly thereafter, Lawrence heard a noise and the individual came running out of the store.

Three weeks following the robbery both witnesses identified defendant as the perpetrator from a photographic line-up. Lawrence also identified defendant at trial. Defendant suggests that the photographic array was impermissibly suggestive because of the different backgrounds of the pictures, different sizes of the photographs and the fact that defendant’s photograph was the second largest. However, as acknowledged by defendant, this contention has been rejected in Cheeves v. State, 157 Ga. App. 566 (1) (278 SE2d 148). See also Graham v. State, 171 Ga. App. 242, 253 (11) (319 SE2d 484).

The trial court correctly determined that the pretrial identification was in no way tainted because the procedure was not suggestive. Only if the identification procedure was suggestive need the trial court address the second prong of the test set out in Neil v. Biggers, 409 U. S. 188, 196, 201 (93 SC 375, 34 LE2d 401), that is, whether there was a substantial likelihood of irreparable misidentification. In the case sub judice, the trial court having properly determined that the identification procedure was not suggestive did not err in concluding that it need not address the second prong of the test. Killens v. State, 184 Ga. App. 717, 720 (3) (362 SE2d 425). It follows that defendant’s arguments predicated on the factors to be considered under the second prong of the test are not germane to the issues involved in this case. This enumeration of error is without merit.

2. Defendant’s remaining enumeration of error contends that the evidence is not sufficient to authorize his conviction. “On appeal the evidence must be viewed in the light most favorable to the verdict, and [the] appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cits.]” Ross v. State, 195 Ga. App. 624 (1) (394 SE2d 418). Viewed in this light, the record reveals sufficient evidence from which a rational trier of fact could have found defendant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S 307 (99 SC 2781, 61 LE2d 560); Hall v. State, 204 Ga. App. 469, 473 (5) (419 SE2d 503).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.

Decided October 9, 1992.

David L. Cannon, for appellant.

Garry T. Moss, District Attorney, Cecelia V. Moutoux, Assistant District Attorney, for appellee.