author: Pope, Chief Judge. Blackburn, Judge,

text:
    A93A0987.
    COLE v. THE STATE.
    (438 SE2d 694)
   Pope, Chief Judge.

The defendant, David Cole, was convicted of rape, aggravated assault, and false imprisonment. His sole contention on appeal is that the trial court erred in admitting evidence of a similar transaction.

Cole and the victim were married in February 1987, separated in September 1990, and divorced in May 1991. The victim testified that on January 16, 1991, after taking one of their children to a doctor, Cole confronted her outside the doctor’s office and forced her into his car, wielding a .44 Magnum pistol. Cole also had a shotgun on the floorboard of his car. He then drove to a fast food restaurant, bought some food, and took the victim and their child to his mother’s residence.

The victim further testified that Cole demanded that his mother take the child somewhere else, and then forced the victim into the back bedroom, where he removed her clothing at gunpoint. Cole instructed the victim to kill herself by taking an overdose of pills, or else he would shoot her, but she refused. Cole then forced the victim to have sexual intercourse with him, while he held the gun in his hand. Afterwards, he instructed her to take a shower in an attempt to remove any evidence of the sexual attack.

The victim eventually persuaded Cole that a reconciliation was possible, and when his mother returned with the child, Cole drove the victim and their child back to her car in the doctor’s parking lot. The victim subsequently reported the incident to the Lee County Sheriff’s Department.

Cole testified to a different version of events at trial. According to Cole he met his estranged wife in the parking lot of the doctor’s office, and requested her to have lunch and talk with him. After picking up some food, he drove his wife and child to his mother’s residence, where they ate and talked. When his mother eventually arrived, Cole requested that she take the child somewhere else so that he and his wife could converse privately. Cole and his wife then continued to discuss matters, and subsequently retreated to the bedroom where they engaged in consensual sexual intercourse. Afterwards, his wife took a shower and redressed. When his mother returned with the child, Cole drove them back to the parking lot at the doctor’s office.

After a hearing to determine its admissibility, the State also presented evidence of a prior similar offense. According to the testimony presented at trial, in 1986 or 1987 Cole forced his girl friend, with whom he was then living, into the bedroom of their residence and then forced her to have sex with him against her will. The witness testified she never reported the matter, and explained that she did not go to the police because she did not think she would be believed because Cole was also a police officer. She also acknowledged that she continued to live with Cole for approximately one-and-one-half months after the incident.

In his brief to this court Cole argues that the trial court erred in admitting evidence of a prior similar offense because the witness’ testimony concerning the incident was so incredible and unbelievable that the State failed to prove that a prior crime in fact occurred and because the State failed to show the offenses were sufficiently similar. As to Cole’s first contention, as the trial court noted, the credibility of the witnesses is for the jury to determine and the record reveals that the trial court instructed the jury accordingly. We also find no merit to Cole’s contention concerning the dissimilarity of the offenses. "'“The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” (Cit.)’ Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292) (1991). We agree with the trial court that a sufficient similarity [and/or logical connection] existed between the crime charged and the other rape[ ], such that proof of the latter tended to prove [ ] the former. Thus, the trial court did not err in allowing the similar transaction evidence.” McCann v. State, 203 Ga. App. 880, 883 (3) (418 SE2d 144) (1992). See also Wells v. State, 208 Ga. App. 298 (2) (b) (430 SE2d 611) (1993).

The dissent, however, would reverse the conviction in this case because of the failure of the State and the trial court to comply, during the hearing on the admissibility of similar transaction evidence, with the procedure set out in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), noting particularly the failure of the State to show the purpose for which it sought to introduce the evidence. However, a review of defendant’s brief on appeal shows that defendant has not made this argument to this court. Indeed defendant makes no reference in his brief on appeal to the Williams case, nor does defendant refer to any of the many appellate court cases which discuss and apply the holding enunciated in Williams. “As [defendant] has not cited Williams, supra, or its progeny, and has not advanced any argument in its appellate brief that the new affirmative findings requirements of Williams, supra, were not adequately complied with, any determination of the Williams requirements is not appropriate on appeal.” Wells, 208 Ga. App. at 300 (2) (a). See also Moore v. State, 207 Ga. App. 897, 898-899 (1) (429 SE2d 340) (1993) and Hansen v. State, 205 Ga. App. 604, 607 (1) (423 SE2d 273) (1992). As an intermediate appellate court, we are a court for the correction of errors which are properly preserved below and which are properly raised in this court. It is not the function of this court to raise and decide issues not complained of by the parties. See, e.g., Patterson v. State, 192 Ga. App. 449, 451 (2) (385 SE2d 311) (1989). It follows that our review of this case is limited to those issues properly raised by defendant on appeal to this court. Id.

Moreover, we are also precluded from reaching the issue discussed by the dissent because defendant did not object at trial on this basis. “[T]he failure of a defendant to object to the introduction of similar transaction evidence on the basis that the State has not made a sufficient showing and/or the trial court has not made the requisite findings as required by Uniform Superior Court Rule 31.3 (B) and our Supreme Court’s decision in Williams precludes appellate consideration of those issues. See, e.g., Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991) (holding ‘nothing in . . . Williams suggests that the Supreme Court has determined to dispense with the longstanding rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. . . .’).” Riddle v. State, 208 Ga. App. 8, 10 (1) (b) (430 SE2d 153) (1993).

Although the dissent also asserts that defendant preserved his right to raise on appeal the alleged non-compliance with Williams because, apparently, defendant brought this issue to the attention of the trial court on his motion for new trial, this is not the type of alleged error which can be properly raised for the first time in a motion for new trial. “ ‘ “Where appellant asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal.” (Cit.) Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. (Cit.) Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review. (Cit.)’ [Cits.]” Holland v. State, 197 Ga. App. 496, 497 (1) (398 SE2d 810) (1990). Moreover, although it is true, as the dissent notes, that Williams had not been decided at the time of trial and thus defendant could not have been expected to have invoked that decision by name, the rules governing when similar transaction evidence is properly admissible at trial were extant long before the procedure outlined in Williams was established. If the defendant believed the other crimes evidence in this case was inadmissible not only because it was not sufficiently similar but also because it was not offered for a proper purpose or that the relevancy did not outweigh its prejudicial value, he should have so stated during the hearing. Furthermore, even if we assume that the issue addressed by the dissent was preserved for appellate review because the trial court ruled on it in the order denying the motion for new trial, such does not change the fact that defendant has not raised this issue on appeal. While it is true that error must be preserved below to be raised before this court, it is likewise true that we do not address all issues to which proper objection was taken below. It is the duty of the parties, not this court, to delineate the errors for consideration on appeal.

In sum, “any procedural defects in proof or presentation of the other-crimes evidence have been waived not only by defendant’s failure to object at trial . . . but by his failure to raise any such issue on appeal.” Hansen v. State, 205 Ga. App. at 607. As the trial court’s findings on those issues which were properly raised below and which are properly before this court for consideration were not clearly erroneous, see Stephens v. State, 261 Ga. 467, 469, n. 2 (405 SE2d 483) (1991), the judgment must be affirmed.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. Beasley, P. J., concurs in judgment only. Cooper and Blackburn, JJ., dissent.

Blackburn, Judge,

dissenting.

I disagree with the majority opinion’s conclusion that the defendant in this case waived any objection to the admission of the similar transaction evidence, other than on the singular issue of similarity. Further, I believe that the similar transaction evidence was improperly admitted. For those reasons, I respectfully dissent.

1. With regard to the majority’s finding that the defendant failed to raise a comprehensive objection to the similar transaction evidence, it should be noted that during the brief hearing on the matter, the trial court truncated defense counsel’s examination of the “similar transaction” witness, as well as any argument on the issue. It seems fundamentally unfair for this court to find that the defendant waived his objections when the trial court thus deprived him of the opportunity to object.

Further, it appears from the record that the defendant did, in fact, object on the various grounds eventually formalized in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). At the time of the pretrial hearing on the admissibility of the similar transaction evidence, Williams v. State, supra, had not yet been decided, and the defendant’s objections before the trial court at that point in time naturally would have no reference to that case. However, in its order denying the defendant’s motion for new trial, the trial court specifically noted the defendant’s assertion that the transactions were not sufficiently similar and that the trial court failed to make the proper findings under Williams v. State, supra.

In Hunter v. State, 202 Ga. App. 195 (413 SE2d 526) (1991), where the defendant objected to the admission of a prior conviction only on the grounds that it was too remote in time to be relevant, this court held that he had waived any other objection regarding the admission of the similar transaction evidence. In the instant case, the majority extends Hunter to preclude review of any Williams issue not specifically raised before the trial court.

However, as pointed out by a dissent in Hunter, in Williams the Supreme Court “focused not on whether the appellant’s objection had been precisely framed and preserved at trial, but whether the State had met its obligations so as to justify making an exception to the general rule that such evidence is not admissible.” Hunter, supra at 199. Such a focus is particularly required in cases such as the instant one, where Williams was not yet decided and known to the bench and bar at the time of the trial.

In large part, this court has continued to avoid the application of Williams and Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991) by finding waiver of any objections by the defendant before the trial court or on appeal, for the failure to object to the State’s failure to meet its burden. See, e.g., Moore v. State, 207 Ga. App. 897 (429 SE2d 340) (1993); Jackson v. State, 205 Ga. App. 513 (422 SE2d 673) (1992). We do not apply the same waiver standard against the State in criminal cases, where the State fails to preserve error and such failure is ignored by this court in affirming convictions. See, e.g., Parker v. State, 211 Ga. App. 187 (438 SE2d 664) (1993). However, in Riddle v. State, 208 Ga. App. 8, 11 (430 SE2d 153) (1993), despite the waiver rule expounded in Hunter and its progeny, this court held that because the procedural requirement of holding a hearing on the admissibility of similar transaction evidence “is placed squarely with the State and the trial court,” the defendant’s failure to object to the omission of such a hearing did not constitute a waiver of that procedure.

To ensure that a hearing on the admissibility of similar transaction evidence accomplishes its purpose, the Supreme Court in Williams designed the procedural requirements discussed above, and the burden of complying with those procedures likewise is placed on the State and the trial court. If the failure to object to a trial court’s failure to hold a Uniform Superior Court Rule 31.3 (B) hearing does not result in a waiver, neither should the failure to object to the trial court’s failure to follow the procedural requirements delineated in Williams, that were designed to make such a hearing meaningful, constitute a waiver.

2. “ ‘It is universally recognized . . . that “(t)he general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.” (Cits.)’ ” Stephens v. State, 261 Ga. at 469. Where a defendant has not placed his character in issue, proof of prior offenses is not admissible unless offered for some proper purpose, and not to show that the defendant is a person of bad character. Jones v. State, 257 Ga. 753, 757 (363 SE2d 529) (1988).

Such evidence may be admitted for the limited purposes of showing bent of mind, identity, intent, motive, scheme, or course of conduct, if the defendant is identified as the perpetrator of the independent offenses and there is sufficient similarity between the independent offenses and the crime charged so that proof of the former tends to prove the latter. Williams v. State, supra. However, “[i]t should also be emphasized that before such evidence is admissible, it must be shown that the evidence’s relevancy to the issues at trial outweighs the inherent prejudice it creates. [Cit.]” Randall v. State, 207 Ga. App. 637, 638 (428 SE2d 616) (1993). See also Adams v. State, 208 Ga. App. 29 (430 SE2d 35) (1993).

Uniform Superior Court Rule 31.3 (B) provides that “[t]he burden of proving that the evidence of similar transactions or occurrences should be admitted shall be upon the prosecution.” In Stephens v. State, supra, and Williams v. State, supra, the Supreme Court formalized the procedures and evidentiary standards which must be followed by the State and the trial court in order to admit evidence of similar transactions.

Specifically, the Supreme Court emphasized that “before any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility.

“The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.] After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” (Footnote omitted; emphasis supplied.) Williams v. State, supra at 642. Unfortunately, in the instant case, those requirements were not met.

The trial court conducted a brief hearing on the admissibility of the similar transaction evidence proffered by the State. However, neither the State nor the trial court observed the structured procedures prescribed in Williams v. State, supra. At one point during the hearing, the State argued the similarity of the alleged independent offense and the conduct for which Cole was being prosecuted, but it “did not inform the trial court of the purpose for which the evidence was being offered and, therefore, it was impossible for the trial court to make the essential preliminary determination as to whether the state was introducing the evidence for an appropriate purpose.” Williams v. State, supra at 643.

Further, after the presentation of the testimony during the hearing, when it was incumbent upon the trial court to make specific determinations as to whether the State had satisfactorily made the requisite affirmative showings, the trial court simply stated that “Fve already made my decision. I’m going to let it go in.” Despite acknowledging that the similar transaction testimony was weak, the trial court thus admitted that evidence without making any determinations regarding the State’s required showings, and without any evaluation of whether the evidence’s relevance to the issues at trial outweighed the prejudice it surely created.

It must be emphasized that the procedures laid down in Williams v. State, supra, are requirements, and not mere recommendations, and should not be carried out in a perfunctory fashion. In Jones v. State, supra, the Supreme Court demonstrated some concern over how easily in recent years a criminal defendant’s character had been injected into evidence. Consistent with that concern, the procedures prescribed in Uniform Superior Court Rule 31.3 (B) and Williams v. State, supra, were designed to protect against the improper admission of character evidence. Neither the State, nor the trial court, nor this court has any authority to ignore, or incompletely or selectively apply, that mandate of the Supreme Court.

The record suggests no great need of the State for the testimony regarding the alleged prior offense, an incident for which Cole was never accused. In addition to the graphic testimony of the victim in the State’s case-in-chief, there was evidence of Cole’s harassment of the victim prior to the incident in question. Various police officers testified regarding Cole’s violation of a restraining order served upon him in October 1990, and how it was necessary to patrol the victim’s neighborhood because of a threatening telephone call Cole made to the victim in November 1990, a telephone call which was actually overheard by the chief of police. This admissible evidence alone was sufficient for a rational trier of fact to find Cole guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided December 3, 1993.

Richard L. Hodge, Mark G. Pitts, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

However, inasmuch as the State and the trial court failed to comply with the requirements designed to protect against the improper admission of character evidence, particularly the undetermined issue of the legal relevance of the alleged similar transaction, I would find the admission of the evidence erroneous. Further, notwithstanding the presentation of other, admissible evidence that was sufficient to support Cole’s convictions, it does not appear that the erroneous admission of the evidence of a prior act of non-consensual sexual intercourse was harmless. Accordingly, Cole’s convictions should be reversed. Stephens v. State, supra; Williams v. State, supra.

I am authorized to state that Judge Cooper joins in this dissent.

       Although defendant cites the case of Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991), he does not raise the issue of whether the procedure outlined in that case as to what the State must show at trial concerning the similar transaction evidence was followed.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A93A0996.
    GROSSMAN et al. v. SMITH, BARNEY REAL ESTATE FUND et al.
    (438 SE2d 700)
   Cooper, Judge.

Appellants appeal from the trial court’s order granting appellees’ joint motion to enforce an oral settlement agreement.

Appellants owned a shopping center development and leased a parcel located on the corner of the shopping center to USA Petroleum for use as a service station. Appellants had granted USA Petroleum an ingress/egress easement across two driveway openings and two access lanes of the shopping center for pedestrian and vehicular traffic excluding gasoline delivery vehicles. Appellants sold the shopping center to appellee Smith, Barney Real Estate Fund, but retained ownership of the corner lot. Appellants and Smith, Barney executed an agreement giving Smith, Barney an option to purchase the corner parcel. The agreement provided that Smith, Barney would grant appellants an easement across the shopping center for vehicular and pedestrian traffic, excluding trucks, and use of 40 parking spaces if it either did not exercise the option or after exercise defaulted on its obligation to purchase the parcel. Smith, Barney exercised its option, but the closing date for the sale was postponed several times. Appellants and Smith, Barney eventually executed a second agreement providing that if Smith, Barney’s election to close was not given before October 1, 1984, it would be deemed to have elected not to close and the parties would have no further rights under the agreement. Smith, Barney sold the property to appellee First Capital Income Properties, Ltd. on September 25, and neither Smith, Barney nor First Capital gave notice of their election to purchase the corner parcel by October 1, the result of which was that the easement across the shopping center was never granted to appellants.

Appellants filed the underlying action alleging there was no consideration for the second agreement and they were entitled to equitable relief. All three parties filed motions for summary judgment. Appellee Smith, Barney also filed a motion to enforce an oral settlement the parties had purportedly reached in June 1989 pursuant to which appellees would pay appellants $37,500 and appellee First Capital would grant appellants the easement they would have received under the option agreement. First Capital adopted Smith, Barney’s motion to enforce.

Counsel for both appellees testified by affidavit that the parties had reached a settlement agreement in June 1989 which included the granting of an ingress/egress easement to appellants. However, counsel for Smith, Barney testified that the easement to be granted was that which appellants would have received under the option agreement while counsel for First Capital testified that after appellants attempted to enlarge the easement the parties had agreed on to include trucks, he sent a letter to appellants’ counsel on January 3, 1990, stating that First Capital would grant appellants the same easement appellants had previously granted to USA Petroleum, which excluded gasoline delivery vehicles. In contrast, appellants’ counsel testified by affidavit that the terms of the easement rights were never agreed upon. He testified that after the parties exchanged several proposed drafts of the easement, they abandoned efforts to agree on the easement.

Both sides submitted documentary evidence consisting of proposed drafts of the settlement agreement and the easement and letters between counsel for the parties concerning negotiations over the proposed easement. After a hearing, the trial court denied the parties’ motions for summary judgment but granted appellees’ joint motion to enforce settlement, finding documents exchanged between counsel established that the parties had agreed to an easement equal to that which appellants had previously granted to USA Petroleum which specifically excluded gasoline delivery vehicles.

Appellants contend the trial court erred in granting the motion to enforce the oral settlement agreement because the terms of the easement to be granted under the settlement were never agreed upon. Appellants bear the burden of showing that the trial court’s findings of fact were clearly erroneous. Cross v. Cook, 147 Ga. App. 695 (2) (250 SE2d 28) (1978). “[A]n oral settlement agreement must be definite, certain and unambiguous. For such an agreement to be binding on the parties it should be clear that it is full and complete, covers all issues, and is understood by all litigants concerned. . . . The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.” (Citations, punctuation and emphasis omitted.) Poulos v. Home Fed. Savings &c. Assn., 192 Ga. App. 501, 502 (2) (385 SE2d 135) (1989).

“Oral settlement agreements are enforceable if their existence is established without dispute, but where the very existence of the agreement is disputed, it may only be established by a writing.” (Citations and punctuation omitted.) Reichard v. Reichard, 262 Ga. 561, 564 (2) (423 SE2d 241) (1992). “This requirement of a writing goes to the certainty that an agreement exists and to the certainty of the terms of the agreement. . . . The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (2) (308 SE2d 544) (1983).

While there is evidence the parties had orally agreed to settle the case in exchange for the payment of $37,500 and the granting of an ingress/egress easement by appellee First Capital to appellants, appellants disputed that any agreement had ever been reached as to the terms of that easement. As such, appellees were required to produce a writing which memorialized the terms of the agreement. See Brumbelow, supra at 676. However, contrary to the trial court’s finding, it cannot be said that correspondence between counsel negotiating the terms of the proposed easement provides sufficient evidence that the parties had agreed to an easement only equal to that which appellants had previously given to USA Petroleum.

On August 8, 1989, counsel for appellants wrote Smith, Barney’s counsel requesting a copy of the proposed settlement agreement and stating that he was awaiting a copy of the proposed easement from First Capital’s counsel. On August 24, counsel for Smith, Barney sent a letter to both counsel for appellants and counsel for First Capital forwarding a proposed draft of the release and settlement agreement. The release referred to an “Easement and Restriction Agreement attached hereto”; however, no such easement is attached to the proposed settlement release contained in the record. Although the trial court’s order found that the easement agreement was not attached because counsel for First Capital and counsel for appellants had not yet finalized the language of the easement, the record reflects no evidence of this. The next correspondence reflected in the record is a November 10 letter from appellants’ counsel to First Capital’s counsel forwarding a proposed draft of the easement which included gasoline delivery vehicles. On January 3, 1990, First Capital’s counsel responded by stating “First Capital will not accept the terms of the draft which you last forwarded to me.” The January 3 letter further indicated, however, that First Capital would give appellants an easement equal to that which appellants had previously given USA Petroleum, which excluded only gasoline delivery vehicles as opposed to excluding trucks entirely. On January 18, appellants’ counsel wrote counsel for First Capital advising that the manager of the service station had said the gasoline delivery trucks needed to use the curb cuts and access lanes permitted under the easement since there was a concern the trucks might turn over if they used the other curb cuts benefitting the corner parcel. The January 18 letter also noted that appellants were concerned that the local authorities might eliminate one or more of the existing curb cuts to the corner lot. On February 5, counsel for First Capital sent a letter to appellants’ counsel stating that his clients’ position remained the same and that his clients were “willing to give [appellants] as much as [appellants] gave USA Petroleum.” On February 9, appellants’ counsel wrote back: “[appellants] gave USA Petroleum the curb cuts and access lanes (cross-hatched) shown on the site plan. Those are the very areas which [appellants] now [want] preserved in our proposed easement. I, therefore, do not feel that our position is inconsistent with your position. Am I missing something? Please give [me] a call to further discuss this matter.” On March 19, appellants’ counsel wrote counsel for First Capital offering to compromise by limiting gasoline trucks to only one of the two access lanes and on March 23 counsel for First Capital responded by rejecting this proposal and inquiring whether the parties would be able to settle the case. The above correspondence does not establish that the parties had reached an agreement regarding the easement to be granted under the settlement agreement.

Because there is no evidence that there was ever a meeting of the minds as to the essential terms of the easement to be granted under the settlement, we find there was no agreement to be enforced. See Poulos, supra at 503; Moore v. Farmers Bank of Union Point, 184 Ga. App. 86 (360 SE2d 640) (1987); Bridges v. Bridges, 256 Ga. 348 (349 SE2d 172) (1986). We reject appellees’ contention that appellants had agreed to an ingress/egress easement which excluded delivery trucks but later sought to include delivery trucks in the easement, as appellants’ counsel disputes the existence of any such agreement and there is no writing before the court sufficiently memorializing the terms of the proposed easement. See Brumbelow, supra. Accordingly, we reverse the trial court’s order granting appellees’ motion to enforce the settlement agreement.

Decided December 3, 1993.

Hull, Towill, Norman & Barrett, Patrick J. Rice, for appellants.

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, Nations, Yates & Freeman, J. Comer Yates, Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, for appellees.

Judgment reversed.

Smith, J., concurs. Beasley, P. J., concurs in judgment only.

       Smith, Barney Real Estate Fund was subsequently named Security Capital Real Estate Fund and is now named Sentinel Real Estate Fund. Security Capital Real Estate Corporation is now named Sentinel Real Estate Corporation. All are appellees in this case; however, for purposes of convenience, Smith, Barney and its successors are collectively referred to as Smith, Barney.


author: Smith, Judge.

text:
    A93A1062.
    LLOYD et al. v. PRUDENTIAL SECURITIES, INC. et al.
    (438 SE2d 703)
   Smith, Judge.

The appellants are investors in the “Daniel Vinings Landing Limited Partnership” (“partnership”). The appellees have played various roles in the formation, marketing, and operation of the partnership. It is beyond dispute that the partnership was an unprofitable venture for appellants. Seven years after making their initial investments, appellants brought suit alleging fraud, breach of fiduciary duty, and negligent misrepresentation, praying for rescission, the return of their investments, and other relief. They argue that the appellees fraudulently enticed them to invest in the partnership and misrepresented its potential and actual performance for a period of over five years and that they did so with superior knowledge. The court granted the appellees’ consolidated motions to dismiss on several grounds, and this appeal followed.

1. A copy of the partnership agreement has not been made a part of the record of this case. However, appellants concede in their brief on appeal that the agreement includes language providing that it “shall be construed and enforced in accordance with the laws of the [Commonwealth of Virginia].” Among its stated reasons for dismissing the complaint, the court concluded that since the parties included a choice-of-law provision in the agreement stipulating that the law of Virginia should govern the contract, Virginia’s generally shorter statutes of limitation should also apply, effectively barring appellants’ complaint in this state. See Va. Code Ann. §§ 8.01-230; 8.01-243 (A); 8.01-249. We disagree.

“The traditional method of resolving choice-of-law issues is through a tripartite set of rules, which are lex loci contractus, lex loci delicti, and lex fori. Under the rule of lex loci contractus, the validity, nature, construction, and interpretation of a contract are governed by the substantive law of the state where the contract was made, except that where the contract is made in one state and is to be performed in another state, the substantive law of the state where the contract is performed will apply. [Cit.] Under the rule of lex loci delicti, tort cases are governed by the substantive law of the state where the tort was committed. [Cit.] Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought. [Cit.]” Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765 (417 SE2d 671) (1992).

Statutes of limitation “[limit] the time in which a party may bring an action for a right which has already accrued.” Hill v. Fordham, 186 Ga. App. 354, 357 (2) (367 SE2d 128) (1988). Such statutes “look only to the remedy and so are procedural. [Cits.]” Hunter v. Johnson, 259 Ga. 21, 22 (1) (376 SE2d 371) (1989). Appellees cite no case from any jurisdiction, and we are aware of no precedent in this state, standing for the proposition that a choice-of-law provision, if otherwise valid, controls the remedy and procedure to be applied in the forum state as well as the substantive law of the case. In essence, appellees seem to suggest that the choice-of-law provision in the agreement was intended by the parties to make Virginia’s law of remedy “ ‘a substantive part of the [partnership agreement] as opposed to a procedural issue.’ ” Manderson & Assoc. v. Gore, 193 Ga. App. 723, 730 (5) (389 SE2d 251) (1989). We find no such intent based solely upon the agreement’s choice-of-law provision or the record before us. Moreover, we note that, unlike Virginia, our General Assembly has not enacted a so-called “borrowing” statute that would authorize the courts of this state to apply the statutory bar of the foreign state whose laws are found to govern the contract. While we acknowledge appellees’ suggestion that appellants have engaged in forum shopping to maintain an otherwise stale claim, we are nevertheless constrained to conclude that the trial court erred in applying Virginia’s statutes of limitation.

2. We therefore address appellees’ limitations defense under Georgia law. OCGA § 9-3-31, applicable to fraud claims, provides that “[a]ctions for injuries to personalty shall be brought within four years after the right of action accrues.” See Hahne v. Wylly, 199 Ga. App. 811, 812 (1) (406 SE2d 94) (1991). Moreover, OCGA § 9-3-96 provides that “[i]f the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” The question therefore becomes whether the appellants should have discovered the alleged fraud more than four years prior to the time this lawsuit commenced.

Appellants filed their complaint in December 1991. They alleged that they could not reasonably have discovered the fraud until approximately September 1989, effectively placing the filing of the lawsuit well within the applicable limitation period. OCGA §§ 9-3-31; 9-3-96, supra. “Ordinarily, whether or not a cause of action is barred by the statute of limitations is a mixed question of law and fact and may be either, according to the manner in which it is presented. Where the facts are in doubt or dispute, this question is one of fact to be determined by the trier of fact, but where the facts are not disputed, the question of whether the case is within the bar of the statute is one of law for the court. [Cits.]” Curlee v. Mock Enterprises, 173 Ga. App. 594, 596 (2) (327 SE2d 736) (1985). We cannot unequivocally state, based on the record currently before us, that any fraud alleged should have been discovered more than four years prior to the commencement of this suit. We find that a determination whether this complaint is within the applicable statutes of limitation as a matter of law is, at the very least, premature.

3. The trial court concluded that the allegations as pled failed to state a claim, because the representations complained of consisted of nothing more than mere “opinions” and “sales puffing.” However, “a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Cochran v. McCollum, 233 Ga. 104, 105 (210 SE2d 13) (1974). We are not prepared to say, based on the framework established in appellants’ complaint, that no misrepresentations by appellees in connection with the appellants’ participation in the Partnership could possibly be pleaded or proven that may be described as more than mere “opinion” and “sales puffing.” Moreover, we note that “[t]he proper remedy for seeking more particularity is by motion for a more definite statement [(OCGA § 9-11-12 (e))] at the pleading stage or by the rules of discovery thereafter.” Id. Since no such motion has yet been made, the separate and distinct question of whether the complaint is presented with sufficient particularity under OCGA § 9-11-9 (b) is not presented for review. See, e.g., Skelton v. Skelton, 251 Ga. 631, 632 (1) (308 SE2d 838) (1983). Hartley v. Gago, 202 Ga. App. 770 (415

Decided December 3, 1993.

Page & Bacek, Edward J. Dovin, for appellants.

Parker, Hudson, Rainer & Dobbs, David G. Russell, William J. Holley II, Jamie Brownlee-Jordan, Alan M. Wolper, for appellees.

SE2d 510) (1992), relied upon by appellees, is distinguishable in that it dealt with undisputed facts before the court on a motion for directed verdict and j.n.o.v. We merely hold that the trial court erred in dismissing appellants’ complaint for failure to state a claim for the reason given based on the standard enunciated in Cochran, supra.

4. Because this case must be reversed for the reasons set forth in Divisions 2 and 3, we need not reach the other enumerations of error.

Judgment reversed.

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

       Va. Code Ann. § 8.01-247 provides that “[n]o action shall be maintained on any contract which is governed by the law of another state or country if the right of action thereon is barred either by the laws of such state or country or of this Commonwealth.”


text:
    A93A1109.
    TIBBS v. THE STATE.
    (438 SE2d 706)
   Smith, Judge.

David Eugene Tibbs was convicted of violation of the Georgia Controlled Substances Act, OCGA §§ 16-13-30 and 16-13-33, and obstruction of an officer, OCGA § 16-10-24 (a). He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. Tibbs enumerates as error the failure of the trial court to direct a verdict of acquittal on Count 1 of the indictment. He bases this contention on the variance between the offense charged in the indictment and that actually proved at trial. The indictment alleged obtaining or attempting to obtain dangerous drugs by fraud, forgery, or concealment of material fact under OCGA § 16-13-78, a misdemeanor. “Dangerous drugs” are defined in OCGA § 16-13-71, and controlled substances are specifically excluded. See OCGA § 16-13-71 (a). However, the two drugs described in the indictment as “dangerous drugs” were “Halcion” and “Lortab,” which a pharmacist testified were triazolam and hydrocodone, both controlled substances under Schedule IV and Schedule III, respectively. See OCGA §§ 16-13-28 (a) (32); 16-13-27 (4) (C), (D). The drugs in question were not “dangerous drugs” as described in the body of thé indictment but rather “controlled substances,” the purchase or attempted purchase of which are felony offenses under statutes other than that stated in the indictment. OCGA §§ 16-13-30; 16-13-33.

During the charge conference, the trial court pointed out that the evidence had established the drugs in question as controlled substances rather than dangerous drugs. Tibbs moved for a directed verdict of acquittal, which the court denied on the basis that the term “dangerous drugs” in the indictment was mere surplusage. The trial court determined that it would not instruct the jury on the misdemeanor offense of OCGA § 16-13-78 but on “the Controlled Substance Act, because it’s clearly not a dangerous drug.” The jury was charged on Count 1 of the indictment that “it is unlawful for any person to acquire possession of a controlled substance by deception.” The trial court further instructed the jury that hydrocodone and triazolam are controlled substances. The jury returned a verdict of “guilty as charged on both counts of indictment,” the judgment on the verdict was altered to indicate a conviction on a felony charge, and Tibbs was sentenced as for a felony.

The indictment as alleged fails to state any crime and is therefore subject to demurrer. See State v. Shepherd Constr. Co., 248 Ga. 1, 3 (I) (b) (281 SE2d 151) (1981). However, an exception going to the form of the indictment must be made before trial, OCGA § 17-7-113, and Tibbs failed to do so. “A motion for a directed verdict of acquittal is not the proper way to contest the sufficiency of an indictment. A motion for a directed verdict of acquittal under [OCGA § 17-9-1] addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment. [Cit.]” Williams v. State, 162 Ga. App. 350, 351 (291 SE2d 425) (1982).

However, the evidence at trial nevertheless must be sufficient to allow a rational factfinder to conclude that the defendant is guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We find this standard was not satisfied with respect to Count 1 of the indictment.

In Smith v. State, 202 Ga. App. 664, 666 (415 SE2d 481) (1992), the appellant was indicted for conspiracy to sell and distribute cocaine in violation of OCGA § 16-13-30. The evidence showed that the appellant in fact sold a witness lidocaine, a dangerous drug under OCGA § 16-13-70. The trial court charged the jury on OCGA § 16-13-30 but additionally charged on the unlawful sale or distribution of a non-controlled substance represented to be a controlled substance, OCGA § 16-13-30.1. The jury returned a verdict of “guilty of conspiracy to unlawfully sell a non-controlled substance.” This court reversed, holding that the appellant was convicted of a crime materially different from that charged in the indictment. 202 Ga. App. at 666. “[W]hile it is not necessary to prove allegations in an indictment that are immaterial or surplusage, the state must prove all material allegations in an indictment which describes the offense or the particular manner in which the offense was committed.” Id.

From the evidence presented at trial, a rational factfinder could not conclude that Tibbs was guilty beyond a reasonable doubt of the offense charged in the indictment, because he was convicted of a different offense which was not charged. The trial court therefore erred in failing to direct a verdict of acquittal as to Count 1 of the indictment. OCGA § 17-9-1.

Decided December 3, 1993.

Michael J. Davis, Jr., for appellant.

Garry T. Moss, District Attorney, Alice R. Teal, Assistant District Attorney, for appellee.

2. We need not address Tibbs’s remaining enumerations of error with regard to Count 1 of the indictment.

3. Tibbs also enumerates as error the trial court’s failure to properly charge the jury with regard to Count 2, but we likewise do not reach this issue. The trial court inquired if Tibbs had any exceptions to the charge as given, and Tibbs’s counsel responded, “No, sir.” This enumeration of error therefore was explicitly waived. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980). Accordingly, the verdict of guilty on Count 2 of the indictment must stand.

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1477.
    INGRAM v. THE STATE.
    (438 SE2d 708)
   Smith, Judge.

Tommy H. Ingram was charged with incest, aggravated sodomy, and sodomy as a lesser included offense. OCGA §§ 16-6-22 (a) (1); 16-6-2 (a). The victim in all three counts was his natural daughter, who was over the age of 14 during the time period referenced in the indictment. Ingram was convicted of incest and aggravated sodomy after a jury trial. He appeals following the denial of his motion for new trial.

1. Ingram argues that the court wrongly amended the indictment against him. The indictment as returned by the grand jury, filed March 27, 1992, charged Ingram with committing each of the offenses alleged “between January 1st, 1986 and January 30th, 1989.” This presented no issue as to the aggravated sodomy count, since the statute of limitation for aggravated sodomy is seven years. OCGA §§ 17-3-1 (b); 16-6-2 (b). However, the statute of limitation for the sodomy and incest counts against Ingram was four years prior to the return of the indictment. Id.; OCGA § 16-6-22 (b).

The record, which Ingram fails to reference in arguing this enumeration, reflects that no change was made in the indictment at any time. Rather than enumerating the failure to dismiss the indictment, Ingram instead asserts that the trial court erroneously amended it on the day of trial. “It is well established in this and other jurisdictions that an indictment can not be materially amended by striking from or adding to its allegations, except by the grand jury, and only before it is returned into court. It is bad practice for the court to do either; and if such additions or subtractions materially affect the indictment, it becomes void and can not be the basis of a conviction. [Cits.]” Gentry v. State, 63 Ga. App. 275, 276 (11 SE2d 39) (1940). “The sustaining of a special demurrer, the result of which is either to strike from or add to the material allegations of an indictment, is equivalent to sustaining a general demurrer and quashing the indictment.” Id.

Instead of dismissing the indictment, the court granted Ingram’s subsequent motion in limine to restrict the evidence presented to acts alleged to have occurred within the four-year limitation period. Because of this, Ingram argues, the court in effect materially changed the indictment. Ingram concludes that since the alteration “materially affect[ed]” the indictment, it was tantamount to dismissing it in its entirety. Gentry, supra.

Even if we accept Ingram’s strained premise, we disagree with his conclusion. Assuming that the dates appearing in each count of the indictment were effectively changed to reflect the time period that the jury could lawfully consider as to each count, such a change would do no more than remove from the indictment any suggestion that an act of. incest or sodomy (other than aggravated sodomy) occurred outside the relevant limitation periods. “ ‘One ,or more [acts of sodomy or incest] being proven to the jury beyond a reasonable doubt satisfies the state’s burden[,]’ ” and “additional acts [suggested] in the indictment could be considered mere surplusage.” Young v. State, 205 Ga. App. 357, 363 (5) (422 SE2d 244) (1992). It would not have been error to remove from the indictment any suggestion of acts of simple sodomy or incest occurring more than four years prior to the date of indictment. Gentry, supra. Moreover, Ingram’s mere conclusion in his brief that the court “should have dismissed the indictment” presents nothing for review. This enumeration is without merit.

2. Ingram argues that the evidence was insufficient to convict him of aggravated sodomy because the State failed to satisfy the element of force. “A person commits the offense of aggravated sodomy when he commits sodomy with force and against the will of the other person.” OCGA § 16-6-2 (a). “ ‘Lack of resistance, induced by fear, is not legally cognizable consent but is force. (Cit.)’ [Cit.]” Parker v. State, 162 Ga. App. 271 (1) (290 SE2d 518) (1982). “[A] victim’s lack of resistance induced by fear authorizes a finding of force. [Cit.]” Callahan v. State, 203 Ga. App. 898, 899 (3) (418 SE2d 157) (1992).

According to his daughter’s testimony, Ingram came into her bedroom, closed the door, and locked it. He told her he wanted a “five minute favor,” and pulled her nightgown over her head and eyes. Her underwear was pulled down, and although she could not see him, she felt his tongue touch her vagina before he proceeded to have intercourse with her. She further testified that he did not ask for her consent and that she consented “because I was afraid of what he would do to me if I didn’t. I guess I thought I was supposed to [because], well, he was my father . . . and you’re supposed to respect your father, and he always told me as long as I lived under his house [sic] I would do what he said, and I know he had a bad temper.” The evidence is sufficient to authorize a rational trier of fact to conclude that Ingram’s daughter did not resist his act of sodomy upon her due to a reasonable fear based on past experience and the intimidating nature of the sequence of events described. Hines v. State, 173 Ga. App. 657, 658-659 (2) (327 SE2d 786) (1985), relied upon by Ingram, is not a binding precedent on this court, and is otherwise distinguishable on its facts. See Daniel v. State, 194 Ga. App. 495, 498 (391 SE2d 128) (1990).

3. Ingram, who has since retained new counsel, contends that he received ineffective assistance of counsel at trial. Ingram’s trial counsel testified at the hearing on Ingram’s amended motion for new trial and was cross-examined by Ingram’s current counsel. The court took into account the parties’ written briefs and oral argument, as well as its own observation of Ingram’s counsel at trial, and found that Ingram failed to show ineffectiveness based upon the standard enunciated in Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). We find the evidence sufficient to support that conclusion. See Scott v. State, 263 Ga. 300 (432 SE2d 107) (1993).

4. Ingram asserts that during breaks in the trial, some members of the jury went outside the courthouse to smoke and that during those breaks, jurors met, spoke to, and otherwise communicated with the State’s witnesses. After hearing testimony in support of this contention from Ingram’s brother, his brother’s girl friend, and his former brother-in-law, the court concluded that even assuming the alleged misconduct took place, Ingram had notice of it. The court reasoned that Ingram heard the instructions given to jurors that he now alleges were violated and that his failure to bring the allegations to the court’s immediate attention constituted waiver. The court’s assertion that Ingram himself had notice of the alleged misconduct during the trial went undisputed and remains so on appeal. “A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” Joyner v. State, 208 Ga. 435, 438 (2) (67 SE2d 221) (1951). This enumeration presents nothing for review.

5. Ingram claims error in the refusal to admit evidence of a prior false accusation of rape by his daughter against an uncle by marriage. “[BJefore such evidence can be admitted, the trial court must make a ‘threshold determination (outside the presence of the jury) that a reasonable probability of falsity exists. . . .’ [Cit.]” Smith v. State, 259 Ga. 135, 137-138 (1) (377 SE2d 158) (1989). The court heard uncontroverted evidence to the effect that at around the time of the alleged incident, the uncle had been drinking, that he has a “very low tolerance for alcohol,” and that as a result, he got “snuckered.” The uncle’s wife, the victim’s aunt, conceded that at one point on the occasion in question, he was stumbling around the house and did not recognize her, although she also testified that she was in the home that evening as well and was apart from her husband no more than five minutes. The trial court concluded that because of the uncle’s confused state of drunkenness on the occasion in question, and his lack of awareness of what was going on, no reasonable probability of falsity existed under the test outlined in Smith, supra. This conclusion was supported by the evidence, and therefore the ruling was not an abuse of discretion.

6. In his final enumeration, Ingram asserts that error was committed when certain sexually oriented literature and objects were introduced into evidence over his objection.

Ingram’s daughter testified that after Ingram and her stepmother had separated in contemplation of divorce, she was helping her stepmother pack up his possessions from the bedroom he and her stepmother once shared when she found a gray plastic bag. The bedroom had two closets, one used by Ingram, and the other by his former wife. The daughter testified that she found the bag in the closet used by Ingram; that she peeked inside the bag and then called “Elizabeth,” her former stepmother; and that in the bag they found a dildo and “erection lotion.” Ingram’s former wife related the same story, and also testified regarding certain sexually oriented items found in a magazine rack in a bathroom primarily used by Ingram. Ingram objected to admission based on relevancy, chain of custody, materiality, and failure to place the items within the knowledge of the defendant.

“ ‘When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them. (Cits.) . . . Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue on the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. (Cit.)’ [Cit.]” Rivais v. State, 192 Ga. App. 226, 227 (2) (384 SE2d 200) (1989). Where a defendant charged with sex crimes seeks to exclude from evidence material offered for its sexually explicit nature, the question “is whether the evidence sought to be excluded by the defendant is admissible to show defendant’s bent of mind toward the sexual activity with which he was charged or defendant’s lustful disposition. [Cits.]” (Emphasis omitted.) Helton v. State, 206 Ga. App. 215, 216-217 (424 SE2d 806) (1992). “However, as to items of evidence which are distinct and recognizable physical objects, such that they can be identified by the sense of observation, the rule is that such items are admissible in evidence without the necessity for showing a chain of custody. [Cits.]” Harper v. State, 251 Ga. 183, 185 (1) (304 SE2d 693) (1983).

Decided December 3, 1993

George Thomas, for appellant.

T. Joseph Campbell, District Attorney, D. Scott Smith, Brett W. Ladd, Assistant District Attorneys, for appellee.

The exhibits in question, given their variety and sheer quantity, were relevant to show Ingram’s lustful disposition, a material issue in this case. The jury could reasonably conclude, based on the testimony of his daughter and former wife, that the items alleged to have been found in his bedroom closet and magazine rack in fact belonged to Ingram. We find no error.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

       Ingram has not enumerated, and we therefore do not address, the denial of his motion to dismiss the indictment. In the interest of clarity, however, we note that Ingram expressly waived formal arraignment and pleaded not guilty weeks before his motion to dismiss was filed — a fact brought to the attention of this court solely by the record itself. In this regard, see, e.g., McArthur v. State, 169 Ga. App. 263 (1) (312 SE2d 358) (1983).


text:
    A93A1580.
    RODRIGUEZ v. THE STATE.
    (439 SE2d 510)
   Cooper, Judge.

Rene Rodriguez was tried before a jury and found guilty of robbery by sudden snatching and felony obstruction of a police officer. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The indictment alleged felony obstruction of a police officer pursuant to OCGA § 16-10-24 (b), in that Rodriguez resisted arrest and offered to do violence by brandishing a knife at the officer. As a lesser included offense, the trial court charged the jury on misdemeanor obstruction pursuant to OCGA § 16-10-24 (a). In this regard, the trial court charged the jury that “Flight or attempted flight, after a command to halt, may constitute the offense of obstruction of an officer.” Appellant enumerates this jury instruction as error, contending that such a charge on flight is prohibited under the binding authority of Renner v. State, 260 Ga. 515, 517 (3b) (397 SE2d 683) (1990).

The charge was an accurate statement of the law regarding misdemeanor obstruction of an officer, under present OCGA § 16-10-24 (a). Tankersley v. State, 155 Ga. App. 917, 919-920 (4A) (273 SE2d 862) (1980). Compare Duke v. State, 205 Ga. App. 689 (423 SE2d 427) (1992). There is a very clear distinction between flight as circumstantial evidence of guilty knowledge generally and flight as an act constituting the hinderance element of misdemeanor obstruction of an officer. Appellant’s reliance upon Renner v. State, supra, is entirely misplaced. Moreover, appellant was convicted of the greater offense of felony obstruction. Conviction of the greater offense renders harmless any error, although we find none, in the charge as given for the lesser included offense of misdemeanor obstruction of an officer. “In this case no injury resulted, because the jury found the accused guilty of [felony-grade obstruction of an officer and that verdict is supported by sufficient competent evidence]. If the jury had found the accused guilty of [misdemeanor obstruction], there would be room for complaint of the [allegedly] inappropriate instructions.” Smith v. State, 8 Ga. App. 680, 682 (2) (70 SE 42) (1911).

2. “The trial judge . . . may, of [its] own volition and in [its] discretion, charge on a lesser crime of that included in the indictment or accusation.” State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976). Misdemeanor obstruction of an officer is a lesser included offense of the indicted offense of felony obstruction. OCGA § 16-1-6. The trial court did not err in this instance by charging the jury as to a possible verdict of misdemeanor obstruction as a lesser included offense.

3. In a portion of a recharge to the jury, explaining the possible forms of the verdict, the trial court stated: “If you do not believe he is guilty of count number II of the greater offense and you further do not believe that he is guilty of count number II of the lesser offense, then the form of your verdict would be, you will have to believe that beyond a reasonable doubt, of course, and if that be your verdict, the form of your verdict would be ‘we the jury, find the defendant not guilty of count number II.’ ” Error is assigned to the italicized portion of this excerpt from the charge. However, we have reviewed the charge in its totality, including repeated accurate statements of the State’s unalterable obligation to prove each and every element of the crimes beyond a reasonable doubt, and the presumption of innocence. The isolated statement now objected to is a palpable slip of the tongue. “Standing alone, we think that the excerpt complained of does appear to be not only erroneous, but harmful; but after carefully looking at the [entire] charge as we have, and considering the part complained of in conjunction with the whole charge, we can not agree that the accused was injured by it. . . .We can not bring ourselves to believe that the jury in this case, composed as it was of upright and intelligent [citizens], did not fully understand from the entire charge that it was their duty to acquit the [appellant] if all of the facts and circumstances of the case . . . were not sufficient to satisfy their minds of his guilt. . . beyond a reasonable doubt. . . . [A] mere verbal inaccuracy in a charge, resulting from a palpable ‘slip of the tongue,’ which clearly did not mislead or confuse the jury is not cause for a new trial. [Cits.]” Siegel v. State, 206 Ga. 252, 253-254 (2) (56 SE2d 512) (1949). See also Gober v. State, 247 Ga. 652, 655 (3) (278 SE2d 386) (1981); Martin v. State, 185 Ga. App. 145, 149 (4b) (363 SE2d 765) (1987); Gossett v. State, 142 Ga. App. 815 (2) (237 SE2d 220) (1977). This enumeration is without merit.

4. Six months prior to the events for which appellant was on trial, he had entered a guilty plea to felony-grade obstruction of an officer, in that he resisted arrest by wrestling the officer to the ground. The admission of this prior offense into evidence as a similar transaction is enumerated as error, on the sole ground that it is not sufficiently similar to demonstrate a logical connection to a disputed issue in the instant prosecution.

(a) The State gave timely written notice of its intent to introduce evidence of appellant’s guilty plea to felony-grade obstruction. After the hearing mandated by Uniform Superior Court Rule 31.1 (B), the trial court made the following determination on the record: “[T]he court has to make findings; number one, a similar transaction is being introduced for the proper, specific purpose, which the court so finds; that the defendant on trial was the person who committed the similar transaction and that there is sufficient connection or similarity between the similar transactions and the offense charged so that proof of the similar event tends to prove the latter, and the court makes a finding on each of those.” Although no enumeration of error is predicated upon any alleged procedural deficiency or irregularity, we note for the benefit of the bench and bar that the notice of intent to introduce evidence of similar crimes should clearly specify the proper purpose for which introduction of such evidence is sought, “as an exception to the general rule of inadmissibility. [Cit.]” Hightower v. State, 210 Ga. App. 386, 388 (3) (436 SE2d 28) (1993). The purpose of timely advance notice is to allow the defendant to investigate the validity, relevancy, and other aspects of admissibility of the prior offenses. Thompson v. State, 186 Ga. App. 421, 422-423 (2) (367 SE2d 586) (1988). A rote recitation of any and all permissible purposes will not suffice. Moreover, where the State does “not inform the trial court of the purpose for which the evidence [is] being offered[,] ... it [is] impossible for the trial court to make the essential preliminary determination as to whether the [S]tate [is seeking to introduce] the evidence for an appropriate purpose.” Williams v. State, 261 Ga. 640, 643 (2d) (409 SE2d 649) (1991). Likewise, the trial court should specify on the record which proper purpose or purposes permit introduction of the proffered similar transaction. Williams v. State, supra at 642 (2b), fn. 3 and accompanying text. A vague “finding” of an unspecified “proper, specific purpose” is wholly inadequate to apprise the defendant of the limited grounds upon which such evidence is admissible.

Decided December 3, 1993.

Angela B. Clarke, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Leonora Grant, Assistant District Attorneys, for appellee.

(b) It is, however, clear from the trial court’s three limiting instructions that appellant’s guilty plea for obstructing an officer was admitted for the limited purposes of showing course of conduct and intent. Appellant correctly notes that any geographic similarity between the two offenses is a mere superficial circumstance which fails to shed light on appellant’s course of conduct or intent in this case. Smith v. State, 237 Ga. 412 (1) (228 SE2d 811) (1976). However, the evidence also showed that appellant had recently tackled an officer who had stopped appellant for speeding. Appellant had grappled for the officer’s gun while exclaiming “You’ll have to kill me or I will kill you.” This recent willingness to resist arrest with violence bore a sufficient logical connection to appellant’s intent at the time of the instant arrest, where he drew a knife on the officer after fleeing from the command to halt, so that proof of the former tended to establish the latter. See Williams v. State, supra at 642 (2b). “The true test of admissibility is not the number of similarities between the prior act and the act for which the accused is on trial, but whether the evidence of prior incidents is substantially relevant for some purpose other than to show that the accused was likely to commit the crime because he is a person of bad character. [Cit.] . . . Testimony by an eyewitness of [appellant’s] previous [assault on] a uniformed officer, was substantially relevant to establish his [criminal intent]. The determination that such evidence is more probative than prejudicial is implicit in the trial court’s determination that the similar transactions are substantially relevant for [a specific] appropriate purpose.” Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148) (1993). The trial court did not abuse its discretion in determining that the prior guilty plea was substantially relevant for the appropriate limited purpose of shedding light on the criminal intent of the accused.

Judgments affirmed.

Beasley, P. J., and Smith, J., concur.


author: Smith, Judge. Blackburn, Judge, Beasley, Presiding Judge,

text:
    A93A1585.
    SCARBER v. THE STATE.
    (439 SE2d 83)
   Smith, Judge.

Scott Scarber was indicted for felony theft by conversion and convicted of misdemeanor theft by conversion. OCGA §§ 16-8-4; 16-8-12. His motion for new trial was denied, and he appeals, contending in his sole enumeration of error that the evidence was insufficient to support the conviction. We agree and reverse.

Thomas, the State’s only witness at trial, testified that she knew Scarber, who is in the furniture refinishing business. He had done work for her and her former husband, but she also had a personal relationship with him. Scarber agreed to sell several pieces of antique furniture for Thomas, and she testified that she was to receive $500 from the sale of the furniture. After Scarber, with her assistance, took the furniture to his shop, Thomas did not hear from him for some unspecified time. According to Thomas, Scarber assured her that he would pay her the money, but when she visited his shop “he would never be there.” Thomas testified that she spoke with Scarber’s employees, but a hearsay objection as to what they told her was sustained. After speaking to the employees and a furniture dealer on U. S. Highway 41, she swore out a warrant against Scarber. Neither Scarber’s employees nor the furniture dealer testified, and Thomas did not testify to the content of those conversations.

OCGA § 16-8-4 is intended to punish fraudulent conversion, not breach of contract, and in order to avoid the constitutional prohibition against imprisonment for debt, the State must prove fraudulent intent. Smith v. State, 229 Ga. 727 (194 SE2d 82) (1972). The statute cannot properly be employed in the enforcement of civil contract rights. Baker v. State, 135 Ga. App. 500, 501 (218 SE2d 171) (1975).

In the recent decision of Barrett v. State, 207 Ga. App. 370 (427 SE2d 845) (1993), this court reversed a conviction for theft by conversion under very similar circumstances. In Barrett, the defendant rented equipment from a store and failed to return it. The store was unable to contact him, even after he was served with a criminal warrant. We held that this evidence was insufficient, because “[the State] presented no evidence regarding what happened to the equipment and failed to show that appellant knowingly and with fraudulent intent appropriated it for his own use.” Id.

Here, as in Barrett, there was no evidence of what happened to Thomas’s furniture or her money, or why; nor was there evidence of Scarber’s involvement in their ultimate disposition. The jury cannot properly infer fraudulent intent from the mere fact that Thomas had conversations with persons who did not testify, conversations as to which nothing is known beyond Thomas’s testimony that they affected her decision to swear out a warrant. Nor can the jury infer fraudulent intent from the witness’s belief that Scarber was “putting [her] off.” Tchorz v. State, 197 Ga. App. 185, 186 (397 SE2d 619) (1990).

In the absence of competent admissible evidence beyond the fact of a breach of contract, showing conversion of the property to Scarber’s own use, the State failed to prove an essential element of the offense charged, and Scarber’s conviction must be reversed.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper and Johnson, JJ., concur. Blackburn, J., concurs specially. Beasley, P. J., and Andrews, J., dissent.

Blackburn, Judge,

concurring specially.

I concur fully with the majority opinion. I am compelled to address the dissent’s discussion regarding shifting of the burden of proof.

It is important to note that Scarber obtained Thomas’s furniture for sale on consignment, i.e., once the furniture was sold, Thomas was to receive $500 from the proceeds. Further, no evidence was presented by the State that the furniture was, in fact, sold or disposed of in any unlawful manner. The dissent quotes Baker v. State, 143 Ga. App. 302, 304 (2) (238 SE2d 241) (1977), for the rule that the burden of proof shifts to the defendant to “ ‘create a reasonable doubt as to his lack of intent,’ ” after the State has made out a prima facie case of conversion. However, in order to make out a prima facie case of conversion the State must prove that the defendant knowingly converted the property to his own use. OCGA § 16-8-4 (a). Further, “[i]t is the presence of a fraudulent intent [that] distinguishes theft by conversion from a simple breach of contract.” (Citation and punctuation omitted.) Baker v. State, 143 Ga. App. 302, 303 (2) (238 SE2d 241) (1977). In the present case, the State failed to present any evidence that the property was converted to the defendant’s use, much less that it was converted with fraudulent intent. Therefore, having failed to present a prima facie case, the burden never shifted to Scarber.

Additionally, while the dissent purports to recognize Scarber’s constitutional right not to testify, it imposes upon him the duty to explain the whereabouts of the property against him which imposition unconstitutionally shifts the burden of proof to the defendant. The dissent points out that in Barrett v. State, 207 Ga. App. 370 (427 SE2d 845) (1993), relied upon by the majority, the defendant testified and accounted for his failure to return the property. First, as shown by our disposition of Barrett, the defendant’s explanation is irrelevant when the State has failed to prove a prima facie case of conversion. Second, such an explanation is completely unnecessary in the present case where the State failed to make a prima facie case of conversion of the subject property against Scarber.

Beasley, Presiding Judge,

dissenting.

Reviewing the evidence in the light most favorable to the jury’s verdict, a rational trier of fact could have found Scarber guilty of the misdemeanor theft by conversion beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“A person commits the offense of theft by conversion when, having lawfully obtained . . . property of another . . . under an agreement ... to make ... a specified disposition of such property, he knowingly converts the . . . property to his own use in violation of the agreement. . . .” OCGA § 16-8-4 (a).

The evidence was undisputed that defendant took the victim’s furniture, which she and her husband had bought about two years previously for about $1,500, and was to give her $500 of the proceeds of the sale of it within two or three weeks. She needed the money for rent and a car payment.

She started checking up on it after defendant stopped coming to her home, as had been his custom. The money was not forthcoming as agreed, even though defendant kept promising it to the victim. Whenever she would go to his furniture refinishing shop to get it, he would not be there; only his employees would be present. She did not see her furniture in his shop and talked to his employees about it. That prompted her to go to a certain antique dealer, and based on what she learned there, she swore out a warrant on August 25, 1991. The case was tried a year-and-a-half later, on February 16, 1993.

Defendant never offered an explanation to the victim of what he had done with her furniture or, if he sold it, with the promised proceeds. Despite his repeated promises to pay her the amount of the proceeds for its sale which he had agreed upon, and her frustrated efforts to collect, she was met only with silence.

This, along with the reasonable inferences which could be drawn, is sufficient to find knowing conversion. Were it a simple matter of breach of contract, which according to Smith v. State, 229 Ga. 727 (194 SE2d 82) (1972), is to be distinguished, it would be reasonable to expect an explanation to the owner of the furniture. Total failure to communicate in these circumstances or to respond to the victim’s efforts to contact him, in the absence of any reason not to, evinces a criminal intent. Baker v. State, 143 Ga. App. 302, 304 (2) (238 SE2d 241) (1977). See also Lingold v. State, 162 Ga. App. 486, 487 (1) (292 SE2d 193) (1982).

Baker is cited in Barrett v. State, 207 Ga. App. 370 (427 SE2d 845) (1993), the recent decision compared by the majority with this case. In Barrett, defendant accounted for the victim’s property and his failure to return it, albeit not until he testified at trial. He also explained why he had not accounted for it earlier. Scarber was not required to testify, of course, because he had a constitutional right not to do so and the jury could not infer anything from it, as the court properly charged. But here there is evidence that defendant had never accounted to the victim for her property or the proceeds from its sale, if there was such.

Decided December 3, 1993.

T. Neal Brunt, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

The court charged the jury on the elements of the crime, the necessity for a finding of criminal intent, and the distinction between fraudulent conversion and breach of contract. As pointed out in Baker, supra, “The presence of criminal intent is a factual issue for the jury’s resolution,” citing what is now OCGA § 16-2-6. The statute provides that the factfinder “may find [criminal] intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”

The jury could find that there was more than a mere breach of contract. The trial court, as the “thirteenth juror,” Exley v. State, 180 Ga. App. 821, 822 (1) (350 SE2d 829) (1986), denied the motion for new trial, one of the grounds for which was that the evidence was insufficient. He did not find it so and neither do I.

I am authorized to state that Judge Andrews joins in this dissent.


author: Birdsong, Presiding Judge.

text:
    A93A1752.
    POPE et al. v. WORKMAN et al.
    (439 SE2d 86)
   Birdsong, Presiding Judge.

Richard Lee and Lori Lynn Pope appeal the grant of summary judgment to Richard and Mary Workman on the Popes’ claims arising from injuries suffered by Richard Pope in the Workmans’ swimming pool while he was a social guest. Richard Pope is paralyzed from the chest down. The Popes contend the Workmans negligently caused Richard Pope’s injuries because the swimming pool was not marked with depth markings, there were no warning signs of any kind, the Workmans served alcoholic beverages, and the pool was not constructed properly.

Decided December 3, 1993.

Paul S. Weiner, for appellants.

The evidence shows that Pope was a friend of the Workmans’ son, was a somewhat frequent visitor to the Workmans’ home, and had been in this pool on other occasions. According to the Popes, the usual practice was for them to “lay out” around the pool, and although not really swimming, they would get in and out of the pool to cool off. Indeed, Richard Pope was in the pool earlier on the day he sustained his injury.

Because Pope has no recollection of the incident and no one who may have witnessed the event related what they observed, there is no competent evidence of how he was injured. There is evidence, however, that Richard Pope was observed in the pool in distress and after he was rescued, he had a bruise on the middle of his forehead. Neither Richard nor Lori Pope contends that Richard was intoxicated at the time of his injury. Held:

Mere ownership of the swimming pool does not make the Work-mans liable for Richard Pope’s injuries; an owner is not an insurer of social guests, and the Workmans are not presumed negligent merely because Richard Pope sustained his injury while rightfully on their premises. Speaks v. Rouse Co. of Ga., 172 Ga. App. 9, 11 (321 SE2d 774). Further, as a social guest, Pope’s legal status was as a licensee. Sims v. Willoughby, 179 Ga. App. 2, 3 (345 SE2d 626); Barry v. Cantrell, 150 Ga. App. 439, 440 (258 SE2d 61). Thus, under Georgia law the Workmans owed Pope the duty not to wilfully and wantonly injure him (Sims v. Willoughby, supra; Ramsey v. Mercer, 142 Ga. App. 827, 830 (237 SE2d 450)), and they could not knowingly let Pope run upon a hidden peril on their premises or wilfully cause him harm. Patterson v. Thomas, 118 Ga. App. 326, 327 (163 SE2d 331).

In this instance, Richard Pope was familiar with this swimming pool; he knew its depth and where the deep and shallow ends were located. Here, Pope went into this situation with his eyes wide open and he had the opportunity to measure the risks, if any. Murphy v. D’Youville Condo. Assn., 175 Ga. App. 156, 157 (333 SE2d 1). Accordingly, the lack of warning signs and markings around the pool were not factors. Further, the Popes have identified no defect in the pool’s construction that was related to Pope’s injury. Therefore, as there is no evidence the Workmans violated any duty they owed Pope, the trial court did not err by granting summary judgment. Sims v. Willoughby, supra.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Beck, Owen & Murray, Samuel A. Murray, for appellees.


author: Blackburn, Judge.

text:
    A93A2357.
    JOHNSON et al. v. LOGGINS et al.
    (438 SE2d 711)
   Blackburn, Judge.

Appellants brought the underlying action for personal injuries and loss of consortium arising from an automobile collision in which their automobile was rear-ended by appellee’s vehicle. The jury returned a verdict awarding appellant Sybil Johnson medical expenses of $5,047, lost wages of $7,453, and damages for pain and suffering of $1,000. No award for damages on Boyce Johnson’s claim for loss of consortium was rendered by the jury. Appellants appeal the trial court’s denial of their motion for new trial asserting several enumerations of error.

1. In their first enumeration of error, appellants contend that the trial court erred in reducing the verdict by the amount of no-fault insurance benefits they received. This issue was decided adversely to appellants in Walker v. Willis, 210 Ga. App. 139, 140 (435 SE2d 621) (1993), wherein we held that the repeal of the No-Fault Act did not affect the defendant’s right to reduce the plaintiff’s verdict by the amount of the basic no-fault benefits received by the plaintiff.

2. Appellants assert that the trial court erred in denying their motion for directed verdict. Appellants argue that despite the jury’s verdict in their favor, the denial of their motion for directed verdict was not rendered harmless, considering the trial court’s charge on comparative negligence. Davis v. Pachuilo, 169 Ga. App. 677 (314 SE2d 692) (1984). In Davis, we held that, in a case where a directed verdict was demanded, the trial court’s “charges on comparative negligence, avoidance, and contributory negligence may have confused the jury and contributed to its decision to award the plaintiff less than his actual medical expenses and lost wages.” Id. at 677-678.

In the present case a directed verdict on liability was not demanded by the evidence. The appellee testified that Johnson’s vehicle began to move forward through the intersection and that as he proceeded forward behind it, Johnson’s vehicle came to an abrupt stop. Additionally, there was ample evidence that Sybil Johnson suffered from pre-existing injuries. Therefore, the evidence presented a conflict as to any negligence on Sybil Johnson’s part, as well as a conflict as to whether the appellee’s negligence was the sole cause of all of appellants’ damages. Houston v. Hughes, 172 Ga. App. 638, 639 (324 SE2d 206) (1984).

3. In their third enumeration of error, appellants contend that the trial court erred by instructing the jury on comparative negligence. The appellee presented testimony that Sybil Johnson admitted that she had thought she could pull out through the intersection; however, she changed her mind and stopped her vehicle. “When there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue. [Cit.]” (Punctuation omitted.) Hicks v. Doe, 206 Ga. App. 596, 598 (426 SE2d 174) (1992). The trial court’s charge was authorized by the evidence.

Decided December 3, 1993.

A. Larry King, for appellants.

Dennis, Corry, Porter & Gray, William E. Gray II, Stephanie F. Goff, Linda M. Fitzgerald, for appellees.

4. In their fourth enumeration of error, appellants contend that the trial court erred in entering the judgment awarding no loss of consortium damages despite the jury’s award of personal injury damages. Appellants argue that the jury’s verdict was inconsistent in its award of damages and that, therefore, a new trial is demanded. Nelson & Budd, Inc. v. Brunson, 173 Ga. App. 856 (6) (328 SE2d 746) (1985).

“This court does recognize the rule that a consortium action is derivative and when it is tried along with the primary action, a jury cannot render inconsistent verdicts. [Id.] However, in view of the evidence produced at trial, we find that the verdicts rendered are not inconsistent.” Gurly v. Hinson, 194 Ga. App. 673, 675 (391 SE2d 483) (1990). Evidence was presented that Sybil Johnson’s pre-existing injuries were more likely the cause of recurring symptoms than any injuries received in the present case. Therefore, the jury could have determined that the injuries contributing to the loss of consortium claim were not caused by this accident. Furthermore, the evidence on the loss of consortium was disputed. The “jurors were free to evaluate the witnesses, the testimony and the evidence produced to determine if the appellant husband was damaged due to loss of consortium.” Gurly, supra at 675. The jury awarded Sybil Johnson substantially less than the amount of her special damages. “Damages for loss of consortium are not capable of exact pecuniary measure and must be left to the enlightened conscience of impartial jurors taking into consideration the nature of the services, society, companionship and all the circumstances of the case.” (Citations and punctuation omitted.) Id. In the present case, the evidence supported the verdict. Compare Grogan v. Bennett, 208 Ga. App. 102 (430 SE2d 94) (1993).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A2479.
    BROWN v. THE STATE.
    (438 SE2d 713)
   Birdsong, Presiding Judge.

Jimmy Brown was convicted of the offense of aggravated assault (OCGA § 16-5-21) in that he did “unlawfully make an assault upon the person of Keith Crites, with a deadly weapon, to wit: shotgun.” Appellant Brown appeals his conviction of this offense and the sentence.

Appellant fired a loaded shotgun into the rear of a passing tractor-trailer carrying kaolin ore. The truck driver testified that he observed appellant pointing the shotgun straight at him and his truck about ten to fifteen feet from the truck window; he leaned over in his seat and accelerated the vehicle; the shotgun was fired twice and pellets hit the rear left side of the trailer; the driver was “afraid of being shot.” Appellant’s sole enumeration is a charging error.

Appellant contends the trial court erred by charging the jury, as follows: “I charge you that the deadliness of a weapon is to be determined from the victim’s viewpoint, that is, that a shotgun is a deadly weapon if the victim perceived it as a normally functioning weapon whether it could or could not be fired.” Held:

In Clark v. State, 191 Ga. App. 386, 387 (3) (381 SE2d 763), this court held that “if the weapon reasonably appeared to the victim to be deadly, then appellant should be held to the consequences of using a deadly weapon.” (Emphasis supplied; citation and punctuation omitted.) Compare Watts v. State, 142 Ga. App. 857, 858 (4) (237 SE2d 231). Appellant contends that by leaving the word “reasonably” out of the charge, the jury was led to believe that all that mattered in making this determination was the victim’s belief, whether reasonable. Appellant, however, acknowledges that “admittedly, if the erroneous charge had been omitted, the remainder of the charge would have been correct and the jury would have been adequately charged on the offense of aggravated assault.”

We find that error occurred by the giving of the contested charge. However, appellant has failed to show by the record that he has been subjected to harm necessitating case reversal. “A shotgun used in the manner established by the evidence in [this case] is a ‘deadly weapon’ as a matter of law within the meaning of our aggravated assault statute. [OCGA § 16-5-21.]” Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305); Watts v. State, supra; see Clark v. State, supra. A jury issue was not, in fact, presented whether the shotgun used in the averred aggravated assault was a “deadly weapon.” See Adsitt, supra; see also Moody v. State, 258 Ga. 818, 820 (1) (375 SE2d 30). “Under such circumstances the charge was surplusage and even if erroneous, am erroneous charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal.” Davis v. State, 167 Ga. App. 701, 702 (1) (307 SE2d 272); accord Moore v. State, 191 Ga. App. 911, 912 (2) (383 SE2d 355). Examining the charges in totality, we do not find the contested charge prejudicial or harmful under the evidence presented. Additionally, the evidence presented at appellant’s trial was legally sufficient to convict him beyond a reasonable doubt of aggravated assault, as. averred. However, the charge went only to the issue of whether the weapon was a deadly weapon; it was a deadly weapon as a matter of law. “We are persuaded that the jury instruction [appellant] complains of did not affect the verdict. Instead, it was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705).” Gavin v. Vasquez, 261 Ga. 568, 570 (407 SE2d 756).

Decided December 3, 1993.

Reginald L. Bellury, for appellant.

Joseph H. Briley, District Attorney, Wilson B. Mitcham, Jr., James L. Cline, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A2503.
    JOHNSON v. HAMILTON.
    (438 SE2d 715)
   Birdsong, Presiding Judge.

Dolly Bell Johnson, as administratrix of the estate of Everett J. Smith, appeals the order of the superior court granting appellee Annie L. Hamilton’s motion to dismiss.

Johnson, as administratrix, filed an application in the Probate Court of Bartow County to sell personal property of the estate. See generally OCGA § 53-8-72. Appellee/claimant Hamilton, pursuant to OCGA § 53-8-70, filed an affidavit asserting a claim to certain of that property. Johnson filed a response to Hamilton’s claims, ágreeing with some of them, denying others, and averring therein a counterclaim against Hamilton. By way of this counterclaim, Johnson sought the return of certain property and money, which she averred was “impressed with a resulting trust for the heirs of [deceased] at his death,” and which allegedly was wrongfully obtained from a safe deposit box and wrongfully converted. Thereafter on March 19, 1993, Hamilton, who having received in the interim certain of the claimed property, filed a motion to dismiss the balance of her claim for the remaining personalty. On April 2, 1993, pursuant to OCGA § 53-8-72, the Probate Court of Bartow County transferred the claim, affidavit, and counterclaim to the Superior Court of Gordon County. Gordon County is the administratrix’ residence and Cobb County is the residence of appellee Hamilton.

On April 21, 1993, claimant Hamilton filed a motion to dismiss the action in superior court contending that there is no claim pending for certification to said court and nothing validly certified, and that the superior court lacks jurisdiction and venue, including subject matter jurisdiction. In effect, appellee contended that the counterclaim had been improperly transmitted due to its lack of viability. The superior court granted the motion to dismiss noting that when the claim was dismissed without objection (an issue contested by appellant), the counterclaim did not have proper venue in Gordon County to support it. Appellant’s sole enumeration is that the trial court erred by granting appellee’s motion to dismiss in its entirety where appellant properly had pleaded a counterclaim prior to the service of appellee’s motion to dismiss. Held:

1. Appellee asserted before the superior court that OCGA §§ 53-8-70 and 53-8-72 do not contemplate or authorize the filing of a counterclaim in the probate court, which affirmatively seeks recovery of property and monies. The CPA applies to all courts of record in this state, including probate courts, with certain statutory exceptions (OCGA § 9-11-81) not here applicable. OCGA §§ 9-11-1; 15-9-122; Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13); Greene v. Woodard, 198 Ga. App. 427 (401 SE2d 617). A pleading stating a counterclaim is permissible in probate court (OCGA §§ 9-11-1; 15-9-122) as the principal provisions of OCGA § 9-11-13 are not subject to any recognized exception under OCGA § 9-11-81. Cf. Bryan v. Granade, 180 Ga. App. 296, 297 (1) (348 SE2d 885) (probate court had jurisdiction to hear issues raised in counterclaim before superior court). Accordingly, we must reject appellee’s contentions that a counterclaim could not be filed before the probate court. Suffice it to say that if such procedure had not been envisioned by the legislature, it would have been both reasonable and relatively simple for them to provide such an express exception either in OCGA § 9-11-81 or elsewhere.

Likewise lacking in persuasion is appellee’s argument before the superior court that the counterclaim was void merely because the probate court had no jurisdiction to resolve it. If the probate court lacks jurisdiction over a claim or counterclaim, the proper procedure is not to dismiss the case but timely to “transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.” Ga. Const. 1983, Art. VI, Sec. I, Par. VIII. The venue and procedural transmittal requirements of OCGA § 53-8-72 are entirely compatible with this constitutional provision. The filing of a counterclaim in probate court, which lies beyond the jurisdiction of said court, is not a void counterclaim as contended by appellee; rather it is viable and subject to the above transfer provision, unless subject to dismissal on other grounds.

2. Appellee’s notice of dismissal purported to effect a voluntary dismissal within the meaning of OCGA § 9-11-41 (a).

OCGA § 9-11-41 (a) pertinently provides: “If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.” See generally Ga. Prac. & Proc. (6th ed.), § 11-2. The trial court recognized the potential applicability of this Code section but concluded that because appellant had failed to object to the dismissal of the main claim it was automatically dismissed, and therefore the counterclaim did not have proper venue in Gordon County to support it. Accordingly, the trial court granted the motion to dismiss the action pending in the superior court.

(a) Examining the position letter filed before the probate court and administratrix’ brief in opposition to motion to dismiss filed in superior court in their totality, and construing such documents so as to achieve a just determination of the issue before us (OCGA § 9-11-1; see Mote v. Helmly, 169 Ga. App. 475, 476 (1) (313 SE2d 493)), we conclude appellant did in effect pose an objection to the dismissal of the claim based on the existence of her viable counterclaim. In the position letter appellant made clear her position that, although appellee “has every right to terminate her claim against the . . . estate, her actions in no way affect the . . . counterclaim filed in response to the claim. . . . Once a person initiates a court proceeding seeking some legal recovery and a counterclaim is interposed, that original claimant . . . cannot ignore the consequences of the counterclaim.” (Emphasis supplied.) The letter also acknowledged that the applicable transfer statute requires this “matter be transferred” to the Gordon County Superior Court. Additionally, in her opposition brief before the superior court, appellant expressly stated: “Defendant Dolly Johnson objects to dismissing this matter.” To hold that appellant was not posing an objection to a dismissal which would affect the continued viability of her counterclaim would be placing form over substance.

However, prudence may dictate that in futuro a counterclaiming party should timely file a motion to strike the plaintiff’s voluntary dismissal, and obtain a court ruling on the motion to strike. Ga. Prac. & Proc., supra.

(b) Additionally, the record reveals that the probate court did not enter any order authorizing the dismissal of appellee’s claim, but rather transferred the entire matter to the superior court pursuant to OCGA § 53-8-72. As a general rule, “[a] plaintiff may dismiss his complaint without leave or order of the court.” Smith v. Memorial Med. Center, 208 Ga. App. 26, 29 (1) (430 SE2d 57); OCGA § 9-11-41 (a). However, in Mote v. Helmly, supra at 476, this court construed OCGA § 9-11-41 (a) “as requiring that a dismissal have court approval before it can be effectuated if there is a counterclaim and the counterclaimant objects.” Compare Fender v. Hendley, 196 Ga. 512 (26 SE2d 887) (predating CPA). Nor will we allow a circumvention of Mote by allowing a party to withdraw its claim affidavit without the court’s approval of the dismissal of the claim. As the probate court did not expressly approve the dismissal of appellee’s claim and in legal effect transferred the matter in its entirety to the superior court, contrary to the parties’ assumption, the claim was not in fact dismissed and remained pending before the superior court at the time of its ruling on appellee’s subsequent motion to dismiss.

Decided December 3, 1993.

Jones & Ledbetter, Howard W. Jones, Joseph D. Little, for appellant.

Charles A. Evans, for appellee.

(c) Although we do not take issue with the basic principle of law expressed in Newsom v. Newsom, 257 Ga. 238, 239 (356 SE2d 883), citing Moore v. McNair, 145 Ga. App. 888 (245 SE2d 25) and Hardwick-Morrison Co. v. Mayland, 206 Ga. App. 426 (425 SE2d 416), we find those cases distinguishable as, in this case, a timely objection was posed to the voluntary dismissal of the counterclaim; additionally, neither Newsom, Hardwick, nor Moore, expressly addresses the failure of the probate court to approve a purported voluntary dismissal notwithstanding the pendency of a counterclaim, as required by Mote, supra.

In view of the above holdings, we need not determine whether the nature of the counterclaim was such that it could remain pending for independent adjudication before the court within the meaning of OCGA § 9-11-41 (a); neither need we determine whether, pursuant to the above-cited constitutional provision, the superior court should transfer rather than dismiss a counterclaim which it merely finds not to be supported by proper venue.

The order of the trial court granting appellee’s motion to dismiss is reversed and this case remanded to the superior court for further adjudication consistent with this opinion.

Judgment reversed and remanded.

Pope, C. J., and Andrews, J., concur.