author: Blackburn, Judge.

text:
    A94A0319.
    SCOTT v. THE STATE.
    (444 SE2d 96)
   Blackburn, Judge.

Following a trial by jury, the appellant, Carolyn Scott, was found guilty of possession of cocaine and sentenced to three years in prison. This appeal followed.

1. Initially, Scott asserts that the trial court erred in denying her motion to suppress. Specifically, she maintains that the search warrant was defective because the affidavit did not state sufficient facts to show that criminal activity occurred at the residence and the warrant failed to describe the persons and place to be searched with reasonable particularity. She further contends that the search exceeded any search of her person authorized under OCGA § 17-5-28, was intrusive, and was conducted by male officers in violation of official police policy.

At the motion to suppress hearing, Officer Sean Thacker with the Garden City Police Department testified that he applied for the search warrant on Scott’s home on the evening of July 31, 1992, based primarily upon information provided by a confidential informant. The officer met with the informant within the preceding 72-hour period, at which time the informant reported that he had observed several known drug users enter Scott’s residence and purchase cocaine. The informant also indicated that cocaine was being prepared at the residence. The informant had previously furnished information to an officer assisting in the investigation, and the information had proven to be reliable. An inquiry made by the officer to a utilities company confirmed that service at the residence was listed in Scott’s name. A municipal court judge signed the warrant at 11:46 p.m., and the warrant was served on Scott at the residence within 30 minutes.

The search of Scott’s home did not reveal any contraband, and Scott denied having any drugs on her person. Scott and other female occupants were subsequently asked to open their shirts in a bedroom. When Scott opened her shirt, the officer saw a plastic bag containing cocaine residue in the front of her bra. The officer also looked in the top of Scott’s pants in search of contraband, but did not find any. Pat-down searches were conducted on the male occupants of the house.

Based upon the evidence produced at the motion to suppress hearing, we find that the affidavit sufficiently stated that criminal activity was occurring at the residence. Not only did the affiant state therein that cocaine was being sold at the residence, he further averred that cocaine was being prepared at the residence, indicating an ongoing criminal enterprise. While the affidavit does not indicate when the observations were made by the confidential informant, and time is an element of the concept of probable cause, the absence of the precise time of the occurrences is not dispositive of the issue. State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984). “Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.] When the affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case with a single, isolated transaction. [Cit.]” Id. See also Sims v. State, 207 Ga. App. 353, 354 (427 SE2d 842) (1993); Betha v. State, 192 Ga. App. 789, 790 (386 SE2d 515) (1989).

We reject Scott’s challenge to the reliability of the informant. The affidavit specifically stated that the informant had supplied reliable information in the past to an officer with the Westside Task Force who assisted Thacker in the present investigation. Bryan v. State, 137 Ga. App. 169 (223 SE2d 219) (1976). Moreover, the information supplied by the informant was corroborated in part by the officer’s independent investigation which revealed that Scott resided at the residence. Munson v. State, 211 Ga. App. 80 (438 SE2d 123) (1993).

Next, Scott maintains that the search of Scott’s person exceeded the scope of any lawful search under OCGA § 17-5-28. This section provides in pertinent part that “[i]n the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time ... (2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.” The search warrant at issue authorized the search for “Controlled Substances, (COCAINE) and items commonly used in the manufacturing, delivery, or sales of Controlled Substances,” and of “all persons present at the time of Warrant execution, who may reasonably be involved in the crime of possession of illegal drugs or narcotics.” The search of Scott’s person was conducted to prevent concealment of contraband sought pursuant to the search warrant, and hence, was lawful.

Although Scott additionally asserts that the warrant was defective because it did not describe with particularity the persons to be searched and did not specifically name her as a person to be searched, “[t]he failure to name a person in the search warrant is not fatal. ‘Search warrants are not directed at persons; they authorize the search of “places” and the seizure of “things,” and as a constitutional matter they need not even name the person from whom the things will be seized. (Cit.)’ [Cit.]” Bing v. State, 178 Ga. App. 288, 289 (342 SE2d 762) (1986).

Scott further contends that her search was unlawful because it was conducted by a male officer, contrary to the policy of the police department. However, she did not raise this issue for consideration in her motion to suppress or at the hearing on the motion. “Enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citations and punctuation omitted.) Williams v. State, 208 Ga. App. 716, 717 (3) (431 SE2d 469) (1993). Scott additionally argues that the warrant was defective because of a typographical error in the affidavit concerning the name of the street of the residence, although both the affidavit and the warrant stated the correct address and the warrant was authorized for and served on the correct address. See Bing, supra at 289. Again, Scott did not raise this issue below, and accordingly, it is not appropriate for appellate review. Williams, supra. In any event, the scrivener’s error was not so material as to destroy the integrity of the affidavit or validity of the warrant. Kelly v. State, 184 Ga. App. 337 (361 SE2d 659) (1987).

2. Scott also asserts that the trial court erred in admitting her 1990 guilty plea to possession of cocaine as a similar transaction to show bent of mind. Specifically, she asserts that the transactions were not substantially similar and the testimony offered by the officer in support of the admission of the prior occurrence was inadmissible hearsay.

“Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. Before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. There is no requirement that the ‘other transaction’ must be identical in every aspect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Citations and punctuation omitted.) Everhart v. State, 209 Ga. App. 82, 83 (432 SE2d 670) (1993). See also Summerour v. State, 211 Ga. App. 65, 67 (3) (438 SE2d 176) (1993).

At the hearing to determine the admissibility of Scott’s prior conviction for possession of cocaine and at trial, Detective Anthony Atkins of the Chatham County Metro Drug Squad testified that on January 6, 1990, at approximately 8:00 p.m., he executed a search warrant on a home located within a five-mile radius of Scott’s present address. Scott and five men were at the home and a plastic bag of cocaine residue was found on Scott in a pocket of her pants. The officer identified Scott in court as the perpetrator. “This proof evinced a sufficient similarity between the prior similar act and the crime charged so as to have warranted admission of evidence concerning the former act at defendant’s trial for committing the latter.” (Citation and punctuation omitted.) Morales v. State, 210 Ga. App. 414, 417 (436 SE2d 528) (1993). In both occurrences, a plastic bag of cocaine residue was found on Scott’s person following a search incident to a search warrant.

While Scott maintains that the testimony of this officer was hearsay because he was not present in the room when she was searched, this officer executed the search warrant of the home and participated in the investigation of the criminal activity at the residence. Although he did not see the search, he saw the small plastic bag that was removed from Scott’s pocket and was able to identify Scott at trial based upon his personal knowledge of the incident and prior observation of Scott at the scene. Cf. Bowdry v. State, 211 Ga. App. 626 (440 SE2d 59) (1994).

3. Next, Scott maintains that the trial court erred in allowing the crime lab technician to testify that the amount of contraband seized from Scott was not an uncommon amount submitted to the lab and that he had been certified as an expert several times in other cases, on the ground that such evidence was irrelevant. However, even assuming arguendo that the evidence was irrelevant, Scott has not shown that she has been harmed by its admission. “The admission of irrelevant evidence is not a ground for reversal unless it can be shown the evidence was prejudicial.” (Citations and punctuation omitted.) Rindone v. State, 210 Ga. App. 639, 640-641 (2) (437 SE2d 338) (1993).

Decided April 12, 1994

Reconsideration denied May 2, 1994

Mark B. Beberman, for appellant.

Spencer Lawton, Jr., District Attorney, Kimberly D. Rowden, Assistant District Attorney, for appellee.

4. We further reject Scott’s argument that the trial judge erred in denying her motion for a mistrial based upon the prosecution’s attempt to solicit information regarding the contents of a certified copy of her prior conviction prior to the admission of the document in evidence. “[A] trial judge in passing upon a motion for mistrial on account of alleged improper [questioning] is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.” (Citations and punctuation omitted.) Dix v. State, 206 Ga. App. 429, 430 (1) (425 SE2d 419) (1992). Considering the totality of the circumstances including the fact that the trial court properly determined prior to trial that this prior conviction was admissible as proof of a similar occurrence, “ ‘we are satisfied that the trial judge did not abuse his discretion in denying appellant’s (motion) for mistrial. (Cit.)’ [Cit.]” Id. at 430-431.

5. Lastly, Scott asserts that the trial court erred in failing to reschedule her pre-sentence hearing to allow her an opportunity to possibly present witnesses to testify in mitigation of her punishment. Scott did not voice an objection to the trial court’s failure to grant the motion for continuance below, and has not cited any authority requiring a trial judge to reschedule a pre-sentence hearing because a defendant may call mitigation witnesses.

OCGA § 17-10-2 provides that a trial judge must conduct a presentence hearing to determine punishment, and the record shows that such a hearing was held. Consequently, this enumeration is without merit. Cf. Jefferson v. State, 205 Ga. App. 687 (2) (423 SE2d 425) (1992).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A0361.
    WOITYRA v. THE STATE.
    (443 SE2d 867)
   Birdsong, Presiding Judge.

Scott A. Woityra appeals his convictions of homicide by vehicle and possession of cocaine. He contends the trial court erred by refusing to give a requested charge on admissions, by reconsidering the grant of a motion in limine and permitting the State to introduce evidence of cocaine in his urine, by denying his motion to sever the possession of cocaine charge from the vehicular homicide charge, by refusing to merge the possession of cocaine charge with the vehicular homicide charge, and by refusing to allow a witness to be impeached with a written report. Woityra also asserts the general grounds.

The record shows that on the stormy, rainy night of July 4, 1991, Scott Woityra and his wife Kathy left the home of some friends where he admittedly consumed several alcoholic drinks, and proceeded to pick up their child. On the way Woityra lost control of the car and it left the road, spun around, and struck a utility pole. Kathy Woityra died as a result of injuries sustained when the car hit the pole. After the incident, Woityra stated he was going between 67 and 68 mph and he had been drinking. A blood test showed Woityra had a .10 blood-alcohol level and a test of his urine was positive for cocaine.

After a jury returned guilty verdicts on charges of vehicular homicide in the first degree and possession of cocaine, Woityra was sentenced to ten years confinement with two years to serve and eight years on probation. Held:

1. Woityra first contends the trial court erred by refusing to give the charge he requested on the law relating to admissions. The charge appears to be an incomplete combination of several different charges on this issue, and when asked for the authority for giving the charge, appellant could provide none. Given the nature of the charge requested, the trial court did not err in denying the request. “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Punctuation omitted.) Mattox v. MARTA, 200 Ga. App. 697, 699 (409 SE2d 267). Further, a trial court does not err by refusing to give a requested charge which, as crafted, creates a fair risk of confusing or misleading the jury when examined in light of the other charges given. See Jones v. State, 200 Ga. App. 519, 521 (408 SE2d 823). Moreover, we note that when the trial court provided appellant the opportunity to present authority supporting the requested charge or another charge, he failed to do so.

In any event, as appellant did not testify so as to contest making the statement attributed to him, no charge was required. Jackson v. State, 239 Ga. 449, 450 (238 SE2d 31); Serrano v. State, 146 Ga. App. 781, 783 (247 SE2d 593).

Decided April 15, 1994

Reconsideration denied May 2, 1994

Roland R. Castellanos, for appellant.

Thomas J. Charron, District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. Contrary to appellant’s assertion, we find the evidence presented showing the results of appellant’s blood and urine tests, his physical condition and appearance, and the manner in which he drove the vehicle sufficient to support his convictions. “Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980).” Witherspoon v. State, 262 Ga. 2 (412 SE2d 829).

3. We find no error in the trial court’s reconsideration of its earlier ruling on appellant’s motion in limine. A trial court can modify a ruling on a motion in limine at trial. Agnor’s Georgia Evidence (2d ed.), Motion in Limine, § 8-1.1, citing Frink v. State, 177 Ga. App. 604 (340 SE2d 631). Further, reconsideration was appropriate in this case because the trial court’s earlier ruling on the motion was incorrect. Therefore, the trial court did not err by allowing evidence of the results of appellant’s urine test even though the laboratory report did not quantify the cocaine detected in appellant’s urine. OCGA § 40-6-391 (a) (5); Kerr v. State, 205 Ga. App. 624, 626-627 (423 SE2d 276).

4. Although appellant alleges that the trial court erred by denying his motion to sever the possession of cocaine count from the count of vehicular homicide, examination of appellant’s motion shows that appellant did not move to sever the possession of cocaine count. Under these circumstances, there was no error.

5. Finally, appellant asserts the trial court erred by refusing to admit a draft accident report that appellant used in his impeachment of the police officer who investigated the accident. As the officer admitted making the prior inconsistent statement, it was not error to exclude the draft report. Daniels v. State, 203 Ga. App. 873, 874 (418 SE2d 137).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0401, A94A0402.
    BUSCHEL et al. v. KYSOR/WARREN et al.; and vice versa.
    (444 SE2d 105)
   Birdsong, Presiding Judge.

Pursuant to the grant of a discretionary appeal under OCGA § 5-6-35 (a) (1), Brandon and Brandi Bartrug, the minor children of deceased employee Sara C. Buschel, by their next friend Lori Foster (collectively “Buschel”), appeal the judgment of the superior court reversing the award of the State Board of Workers’ Compensation. They contend the superior court’s judgment is a nullity because the award of the full board was affirmed by operation of law when the judgment was not entered within 20 days of the hearing as required by OCGA § 34-9-105 (b). They also contend the superior court erred by reversing the award as it should have been affirmed under the any evidence rule. The employer, Kysor/Warren and its insurance carrier, Wausau Insurance Company, have filed a cross-appeal contending the board’s award was erroneous because it was based upon inconsistent theories of recovery and the findings were not supported by the evidence.

While an employee of Kysor/Warren, Sara Buschel cleaned insides of refrigeration cases with toluene, a toxic chemical closely monitored by the Occupational Safety & Health Administration. According to evidence presented, excessive inhalation of toluene vapors can cause nasal and respiratory irritation, central nervous system effects, including dizziness, weakness, fatigue, nausea, headache, possible unconsciousness, and death. Because the employer did not measure the amount of toluene in the refrigeration cases, the amount of toluene Buschel inhaled or her exposure on a daily basis is not known. Lethal levels of toluene, however, were not found in her body after her death.

Although a pre-employment physical found her in good health, after beginning work with Kysor/Warren, Buschel started experiencing headaches and severe nosebleeds. She frequently took headache medications on and off the job and requested and received from her employer a face mask to wear at work, and she told others that the chemicals at work made her “high,” burned her nose, and made her head pound. Buschel submitted claims reporting these symptoms to her employer on three occasions, and these experiences were confirmed by other employees. Further, one week before her death, she complained of loss of bowel control.

On November 10, 1990, Buschel and a co-worker worked on refrigeration cases very near the company’s break room. Although it does not appear that she worked with toluene, shortly before the 9:00 a.m. regularly scheduled break, she complained of headaches and took headache medicine. At 9:00 a.m. she walked to the break room and bought a soft drink, but even before she could sit down, she collapsed, gasping for air. Although an ambulance responded and Buschel was given CPR, she was pronounced dead in the emergency room after she was rushed to a local hospital.

When the employer contested a claim for workers’ compensation death benefits, the claim was referred to an administrative law judge. Thereafter, a hearing was held.

Although four different pathologists gave opinions on the cause of Buschel’s death, they could not agree on its cause. One pathologist, retained by the employer, stated that in his opinion the death resulted from viral myocarditis. This pathologist, however, acknowledged that people do not usually die from myocarditis, and he also testified that toluene can kill. Two of the pathologists, one who conducted the autopsy and who is the deputy medical examiner for Fulton county and under contract with the Georgia Bureau of Investigation and the other retained by Buschel, rejected myocarditis as the cause of death, but they could not state a definite cause of death. The fourth pathologist, also retained by the employer, also stated that perhaps another kind of myocarditis was the cause of death, but deemed more information necessary before a definite conclusion could be reached. This pathologist also acknowledged that it was unusual for death to result from myocarditis. From the pathologists’ testimony it was apparent that the symptoms Buschel exhibited differed from the symptoms displayed by people suffering from myocarditis, and she did not display classic symptoms of myocarditis. Further, the autopsy showed that her heart was not consistent with that of one who died from myocarditis.

Based on this evidence, the ALJ found that Buschel’s death was unexplained and applied the presumption that arises from an unexplained death so that Buschel’s death was presumed to have arisen out of and in the course of her employment. Thus, given the uncertainty on the cause of Buschel’s death and the employer’s inability to rebut the presumption, the ALJ found that Buschel’s death arose out of her employment.

The ALJ rejected the employer’s “on break” defense because Buschel collapsed immediately upon entering the break room and Buschel did not suffer any injury or accident while on break. Instead, the ALJ concluded that Buschel’s death resulted from long-term exposure from toluene in her work place, and that the injury occurred in the work place and not in the break room. The ALJ found that Buschel’s death arose out of and in the course of her employment and as a direct result of her performance of the job duties with the employer. Consequently, the ALJ awarded funeral expenses and payment of weekly death benefits to Buschel’s two minor children.

After the employer’s appeal to the full board was unsuccessful, the employer next appealed to the superior court. The record shows the appeal was heard by the superior court on July 16, 1993, and the court signed the order reversing the award on August 5, 1993, but the order was not entered until August 6, 1993, 21 days after the hearing.

Appellants were granted authority to file this appeal. The employer filed a timely cross-appeal. Held:

Case No. A94A0401

1. Under OCGA § 34-9-105 (b) the order disposing of a workers’ compensation appeal must be “entered” within 20 days of the hearing on the appeal or the award of the board will be affirmed by operation of law. Although this court in Travelers Ins. Co. v. McNabb, 201 Ga. App. 297, 298-299 (410 SE2d 788) and our Supreme Court in Felton Pearson Co. v. Nelson, 260 Ga. 513, 515 (397 SE2d 431) did not require exact compliance with other time limits set forth in OCGA § 34-9-105 (b), the Felton Pearson decision is premised in part upon the 20-day time limit in the Code section to assure speedy resolution of appeals. Here, as the superior court did not satisfy that ultimate time limit, the State board’s award was affirmed by operation of law when the order was not entered as required by OCGA § 34-9-105 (b), and the judgment of the superior court is a nullity. Miller v. Merck & Co., 199 Ga. App. 722, 723 (405 SE2d 761); Coronet Carpets v. Reynolds, 199 Ga. App. 383 (405 SE2d 103); Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518).

2. In view of our disposition in Division 1, Buschel’s other enumeration of error is moot. Appellants’ contentions regarding the sufficiency of the evidence to support the State board’s award will be considered in connection with the cross-appeal.

Case No. A94A0402

3. Buschel has moved to dismiss the cross-appeal because Kysor/ Warren filed a cross-appeal under OCGA § 5-6-38 (a) and did not use the discretionary appeal procedures in OCGA § 5-6-35. “[U]nder the Appellate Practice Act, an appeal which, standing alone, would be subject to discretionary appeal procedures, is appealable as a matter of right if it is classifiable as a cross-appeal to an appealable order.” McClure v. Gower, 259 Ga. 678, 680 (385 SE2d 271). Accordingly, the motion to dismiss the cross-appeal is denied.

4. Kysor/Warren contends the State board erred by adopting the ALJ’s award because it was based on inconsistent theories of recovery, i.e., the decedent died of unexplained causes thus invoking the presumption that her death arose out of and in the course of her employment, and yet the ALJ also found that the death resulted from long-term exposure to toluene. Even though there is an apparent conflict between these two theories, we find no legal significance in the conflict because the regularly scheduled break defense was not established sufficiently to rebut the unexplained death presumption.

This presumption arises when the employee’s death is “unexplained.” Odom v. Transamerica Ins. Group, 148 Ga. App. 156, 157 (251 SE2d 48); Hartford Accident &c. Co. v. Trigg, 144 Ga. App. 74, 76 (240 SE2d 725). This does not mean, however, that the immediate cause of death must be unexplained; it means that the precipitating cause, rather than the immediate cause, of death must be unexplained. Zamora v. Coffee Gen. Hosp., 162 Ga. App. 82, 84-86 (290 SE2d 192).

As the unexplained death presumption has been expanded to include cases in which the employee becomes ill at her place of employment and dies from such illness at the hospital (Southwire Co. v. Cato, 250 Ga. 895, 897, n. 2 (302 SE2d 91); Gen. Accident Fire &c. Ins. Co. v. Sturgis, 136 Ga. App. 260 (221 SE2d 51)), the location on the employer’s premises where the employee becomes ill or collapses during working hours is not a significant factor in determining whether the presumption arises, so long as the employee’s death is unexplained within the meaning of Zamora and the location is not where the employee was unauthorized. Although the presumption might arise under slightly different circumstances than those in which an employee is found dead, this is not significant as there should be witnesses available who could establish the circumstances of the precipitating cause of the injury and someone other than the deceased employee determined where she was to be taken after she was found collapsed and dying.

Of course, the presumption may be overcome by the employer introducing evidence showing that the death did not arise from and out of the decedent’s employment (Zamora, supra at 87; Hartford Accident &c. Co. v. Cox, 101 Ga. App. 789, 794 (115 SE2d 452)), and in this instance Buschel’s employer attempted to do so through the “scheduled break” defense. See Wilkie v. Travelers Ins. Co., 124 Ga. App. 714 (185 SE2d 783). Although Kysor/Warren established that Buschel collapsed in the break room after a regularly scheduled break commenced, the employer failed to present evidence showing that whatever injury produced her death occurred in the few moments after the break started. Therefore, the employer did not establish an essential element of the break defense: that the injury occurred during the scheduled break (Miles v. Brown Transport Corp., 163 Ga. App. 563, 564 (294 SE2d 734)), and therefore, failed to rebut the unexplained death presumption since its proof did not affirmatively establish a noncompensable explanation for Buschel’s injury. See Intl. Paper Co. v. Gilbourn, 144 Ga. App. 175, 177 (240 SE2d 722).

In any event, whether the general presumption was rebutted is a question of fact, and the evidence presented does not demand a finding that the presumption was overcome. Thus, regardless of the erroneous conclusion about toluene poisoning, the award of the board was authorized by the evidence. Maryland Cas. Co. v. Lewis, 145 Ga. App. 468 (243 SE2d 679).

Decided April 15, 1994

Reconsideration denied May 2, 1994

Douglas L. Breault, for appellants.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Carol E. DeLoach, for appellees.

Therefore, the unexplained death or dying presumption standing alone is sufficient to support the award of the State board. Moreover, whether injury arose out of and in the course of employment are questions of fact which we must affirm if there is any evidence to support the board’s findings. Chattooga County v. Bruce, 163 Ga. App. 478, 479 (294 SE2d 712); Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410 (224 SE2d 65). In this appeal, the evidence supporting the full board’s reliance on the presumption that Buschel’s death arose in the course of her employment necessarily eliminates the applicability of the regularly scheduled official break defense. Therefore, the superior court erred by not affirming the award under the any evidence rule. Howard Sheppard, Inc. v. McGowan, supra.

5. Accordingly, Kysor/Warren’s contentions that there was no evidence to support the finding that Buschel’s death was due to exposure of toluene fumes at work and that the board erred by adopting the ALJ’s finding that Buschel’s death gave rise to the presumption that her death arose out of and in the course of her employment because she was engaged in a regularly scheduled work break at the time of her death, are without merit for the reasons discussed in Division 4.

The judgment of the superior court is vacated, the case is remanded, and the superior court is directed to issue an order stating the decision of the full board was affirmed by operation of law.

Judgments vacated and remanded with direction.

Cooper and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A94A0489.
    STANLEY v. THE STATE.
    (443 SE2d 633)
   Andrews, Judge.

Wilbur Stanley was convicted of trafficking in cocaine, violation of the Georgia Controlled Substances Act, and giving a false name to a law enforcement officer. In Stanley v. State, 206 Ga. App. 125 (424 SE2d 90) (1992), he appealed claiming the trial court erroneously dismissed his motion to suppress without a hearing. We remanded the case to the trial court for a hearing on the merits of the motion. Id. Stanley appeals from the trial court’s subsequent denial of his motion to suppress.

Stanley moved to suppress evidence of contraband used to support his conviction which was found during a warrantless search of his baggage conducted incident to his arrest shortly after arriving at Hartsfield International Airport in Atlanta. Based on information police obtained from a confidential informant, Stanley was stopped and questioned at the airport by police officers on the suspicion that he was in possession of cocaine and marijuana. He was arrested by the officers for giving them a false name during the questioning. The search at issue was conducted incident to the arrest.

Stanley contends in his motion that the officers had no reasonable basis to stop and question him and that the arrest for giving a false name was pretextual and without probable cause.

Evidence was produced at the hearing on the motion to suppress showing that, based on the information supplied by the confidential informant, the officers had reasonable suspicion that Stanley was engaged in criminal activity sufficient to stop and question him. See Alabama v. White, 496 U. S. 325, 326-327 (110 SC 2412, 110 LE2d 301) (1990); Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The informant had not previously provided information to the police. Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity (see State v. Jarrells, 207 Ga. App. 192 (427 SE2d 568) (1993)), if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police. The informant in this case provided enough detailed information about the defendant which was subsequently verified by the police. She told police the defendant would be transporting the drugs from Miami to Atlanta; provided the airline and flight on which he would arrive from Miami; gave a physical description of Stanley, the clothes he would be wearing, and the bag he would be carrying; and told police his name was Wilbur Stanley who resided at a Cawthorne Street address in Atlanta. Police confirmed Stanley’s Cawthorne Street address and observed an individual arrive on the described flight who matched the physical description given, was dressed as described, and was carrying a bag of the type described by the informant. This was sufficient verification of the information provided by the informant to raise an articulable suspicion for an investigatory stop. Alabama v. White, supra, 496 U. S. at 330-332; State v. Holton, 205 Ga. App. 434, 436-437 (422 SE2d 295) (1992). The trial court correctly concluded that the initial stop and questioning was lawful.

Decided March 29, 1994

Reconsideration dismissed May 2, 1994.

Ed L. Adams, for appellant.

Wilbur Stanley, pro se.

Robert E. Keller, District Attorney, for appellee.

Other evidence at the suppression hearing showed that three police officers (one uniformed and two plainclothes) identified themselves, stopped the defendant, told him they had information he was carrying drugs, and asked him his name. He told the officers his name was Steven Stanley. The officers then asked him for identification and he gave the officers his airline boarding pass showing the name of Gene Hudson. When the officers asked him for further proof of his identity, the defendant said he had identification in the bag he was carrying. At the officers’ suggestion that they move to a more private area off the busy airport concourse, the defendant voluntarily accompanied them to a nearby police office located in the airport. At the office, the police asked for consent to search the defendant’s person and the bag. After the defendant refused to give consent, he was arrested on the charge of giving a false name to the officers during the earlier questioning. During a search of the bag incident to the arrest, police found cocaine and marijuana along with identification showing that the defendant’s name was Wilbur Stanley.

There was evidence that prior to his arrest, the defendant provided the police officers with two different names in response to their requests that he identify himself. The evidence was sufficient to support the trial court’s conclusion that the police had probable cause to arrest the defendant for the offense of giving a false name with the intent of misleading the officers as to his identity in violation of OCGA § 16-10-25 and that there was a lawful search of the defendant’s bag incident to the arrest. Laws v. State, 180 Ga. App. 528, 529 (349 SE2d 478) (1986); Taylor v. State, 181 Ga. App. 703, 704 (353 SE2d 619) (1987); Hunter v. State, 190 Ga. App. 24, 25 (378 SE2d 352) (1989); Fajardo v. State, 191 Ga. App. 295, 296-297 (381 SE2d 560) (1989); Exposito v. State, 191 Ga. App. 761, 762-763 (382 SE2d 412) (1989).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.


text:
    A94A0496.
    SIMMONS v. DEPARTMENT OF HUMAN RESOURCES et al.
    (443 SE2d 654)
   Birdsong, Presiding Judge.

David Edward Simmons, Sr., individually and b/n/f of Theresa Marie Simmons, a deceased minor, appeals from the grant of summary judgment to the Georgia Department of Human Resources (“DHR”), DHR Commissioner James G. Ledbetter, Douglas G. Greenwell, Margaret Ward,.Jim Newton, Kay Anderson, Jane Sales, Jennie Williams, John Does, and Mary Does. Simmons filed a wrongful death action against appellees based on the murder of his teenage daughter, Theresa Marie Simmons, after she ran away from a group home in which she was placed by the Department of Family & Children Services (“DFCS”) in Cobb County.

The record shows Theresa was placed in DFCS custody because of allegations of physical abuse. After several months Theresa and another teenage girl ran away from the home, and a short time later, the girls met and went away with two teenage boys who had no connection with the group home. The girls and the boys stayed for a while at the home of one of the boy’s grandparents until the other girl and the two boys murdered Theresa. Subsequently, all three were convicted of Theresa’s murder and sentenced to life in prison.

After appellant filed this action, appellees moved for summary judgment contending they were not liable because no act or omission attributable to them caused Theresa’s death and her death was the result of an unforeseeable intervening criminal act. Subsequently, the trial court granted summary judgment because, as a matter of law, there was no foreseeability and no causation. Appellant contends the lower court improperly granted summary judgment because genuine issues of material fact exist which should be submitted to a jury. Held:

1. Pretermitting whether Theresa was negligently placed in the group home and whether she was negligently supervised while at the home, neither Theresa’s placement nor the supervision at the home caused her death. Instead, the record shows that Theresa’s death, six days after she voluntarily ran away from the group home, was caused by the criminal acts of three people with whom she voluntarily elected to associate and who later murdered her. Accordingly, the record shows no causal connection between any alleged negligence of the appellees and Theresa’s death. Western Stone &c. Corp. v. Jones, 180 Ga. App. 79, 80-81 (348 SE2d 478).

Moreover, under the law of this state an unforeseeable independent, intervening criminal act of a third person which produced the injury complained of, and without which act the injury would not have occurred, is treated as the proximate cause of the injury, and the independent, intervening criminal act of the third person shall insulate and exclude any negligence on the part of the defendant. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67 (397 SE2d 576); Warner v. Arnold, 133 Ga. App. 174, 176 (210 SE2d 350). In this appeal Simmons has identified no evidence to suggest that Theresa’s murder should have been foreseeable. Further, given the differences between Theresa and the victim in Wallace v. Boys Club of Albany, 211 Ga. App. 534 (439 SE2d 746), cert. granted, and the degree of care involved, we find Wallace distinguishable on the issue of foreseeability.

Decided April 13, 1994

Reconsideration denied May 2, 1994

Carr & Kessler, James C. Carr, Jr., Nicholas E. Bakatsas, for appellant.

Michael J. Bowers, Attorney General, Mary F. Russell, William C. Joy, Senior Assistant Attorneys General, for appellees.

2. Accordingly, we find that the appellees met their burdens under OCGA § 9-11-56 (c) by establishing that there was no evidence to create jury issues on these essential elements of Simmons’ case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Further, while causation and foreseeability are generally issues for the jury, in cases such as this one, summary judgment is appropriate. Id. at 493; Strickland v. DeKalb Hosp. Auth., supra at 68. Accordingly, the trial court did not err by granting summary judgment to appellees.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0499.
    THE STATE v. LEVINER.
    (443 SE2d 688)
   Birdsong, Presiding Judge.

The State appeals from the order of the trial court sustaining appellee/defendant Michael R. Leviner’s motion in limine and motion to exclude in this DUI case. Held:

1. A motion in limine is closely related to a motion to suppress. Ga. Crim. Trial Prac. (1993 ed.), § 14-52. The same appellate rules as to factfinding and witness credibility determination apply in both types of hearings. “ ‘ “ ‘Factual and credibility determinations made by a trial judge after a suppression hearing [or a motion in limine hearing to exclude evidence] are accepted by appellate courts unless clearly erroneous.’ ” ’ ” Baldwin v. State, 263 Ga. 524, 525 (1) (435 SE2d 926).

2. Appellee refused to submit to a urine test. The State contends the trial court erred in holding that a motorist has a right to refuse to submit to the State-administered chemical tests under the implied consent law.

“[T]he use of a substance naturally excreted by the human body does not violate a defendant’s right against self-incrimination under the Georgia Constitution [Ga. Const, of 1983, Art. I, Sec. I, Par. XVI].” Green v. State, 260 Ga. 625, 627 (2) (398 SE2d 360), citing and adopting with modification, Robinson v. State, 180 Ga. App. 43 (3) (348 SE2d 662). Thus, although the Georgia Constitution provides more protection for its citizens against self-incrimination than does the United States Constitution, appellee would have neither a claim of constitutional right nor a claim of privilege against self-incrimination from the evidentiary use of his urine (at least, when such sample is obtained by the State in a manner not constitutionally shocking to the conscience). See Robinson. Any “right of refusal” appellee could claim therefore would have to be grounded upon statute or case law. Examining OCGA §§ 40-5-55; 40-5-67.1 and 40-6-392 in pari materia and so as to give proper effect to their purpose (Ga. Marble Co. v. Whitlock, 260 Ga. 350, 354 (1) (d) (392 SE2d 881)), we find that “Georgia law requires the person to submit to a test to determine if the person is under the influence of alcohol or other drugs.” (Emphasis supplied.) OCGA § 40-5-67.1 (b) (1). Nevertheless, the legislature “has granted a driver the right to refuse to take a State-administered test,” Keenan v. State, 263 Ga. 569, 571 (436 SE2d 475), subject to a legislative mandate “that evidence of the exercise of that right shall be admissible in the driver’s criminal trial. OCGA § 40-6-392 (d).” Id.

The trial court did not err in concluding appellee had a “right of refusal.”

3. Appellant asserts the trial court erred in granting appellee’s motion in limine as to evidence of his refusal to submit to the chemical test which the State requested he take. The trial court found as fact (and there exists evidence of record to support these findings) that: appellee was read the implied consent warning from a card provided by the Georgia Department of Public Safety; appellee indicated to the officer he did not understand what the officer had read to him; the officer’s only subsequent explanation was that appellee could lose his driver’s license if he did not submit to the test; appellee was transported to the local county jail where he refused to take a urine test as requested by the officer pursuant to the implied consent law. The trial court found, inter alia, “as a matter of law and fact” that appellee’s refusal to submit to the requested urine test was not a knowing, wilful, and voluntary refusal because appellee “was not properly advised of the implied consent law.” The trial court also found that “the motorist . . . has a right to refuse to submit to the State-administered test,” and in effect concluded that the version of the implied consent law read to the defendant was misleading to the point of inadequately complying with the existing implied consent law. The court granted appellee’s motion in limine, precluding the admission of evidence that implied consent warnings had been read to appellee and that appellee refused to submit to the requested urine test. In its appeal, “the State does not contest that the warnings read to the appellee contained inapplicable and irrelevant information. Instead, the State contends that the arresting officer is under no duty to give any implied consent warnings, and, even if such a duty existed, there is no requirement that the warnings be comprehensible.”

(a) We reject the State’s argument that we should “ignore the additional protections provided by OCGA § 40-5-67.1 and continue to apply only the earlier implied consent law found in OCGA § 40-6-392.” Contrary to the State’s contention, “in constructing the statute so as to give effect to the legislative intent a mere segment of the statute should not be lifted out of context and construed without consideration of all the other parts of the statute.” City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81). This statute, when examined in context and in its totality (Bibb County v. Hancock, 211 Ga. 429, 440 (2) (86 SE2d 511)) together with OCGA §§ 40-5-55 and 40-6-392 expressly referenced therein (see Ga. Marble Co., supra), reveals that OCGA § 40-5-67.1 (b) was intended by the legislature to require, as of January 1, 1993, additional implied consent notice requirements at the time the law enforcement officer requested the person to submit to a chemical test or tests as required by OCGA § 40-5-55. While this Code section states that a failure to provide effective notice shall not invalidate an administrative driver’s license suspension, the legislature has left it for the courts to adjudicate the legal effect of notice failure in a criminal case. Keenan, supra, did not address this issue and is distinguishable. To construe OCGA § 40-5-67.1 according to the State’s contentions would render a significant portion thereof ineffective.

(b) The State’s reliance on Whittington v. State, 184 Ga. App. 282 (361 SE2d 211), as precedent that a person’s implied consent rights are limited merely to being informed that he or she has a right to an independent test, is misplaced; Whittington, supra, and other cases also occurring before OCGA § 40-5-67.1 would take effect, are not dispositive in this case.

(c) We need not resolve any perceived conflict in the cases of this court, under the implied consent laws as currently promulgated, dealing with a failure to advise a nonresident accurately as to the legal effect of his refusal to take a chemical test as to the suspension or revocation of a nonresident driver’s license; the trial court did not base its ruling solely on such a failure. Compare Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) with State v. Reich, 210 Ga. App. 407 (436 SE2d 703). Rather, the trial court concluded: The implied consent card from which appellee was advised of the implied consent law “clearly establishes the fact that what was read to the defendant contained misleading, inaccurate and extraneous information. The officer’s own testimony revealed the defendant’s confusion over what the officer had just read to him. . . . The majority of the text read by the officer was immaterial insofar as this defendant was concerned. . . . The obfuscatory version of the implied consent law read to the defendant rendered meaningless the intent and spirit of the implied consent law.” (Emphasis supplied.) Inherent in this ruling is the finding of fact that the implied consent notice given to the appellee in its totality contained substantial misleading, inaccurate, and extraneous information which was immaterial to appellee’s situation, and appellee was confused thereby as to his existing implied consent statutory privileges. These findings are supported by some evidence of record and are not clearly erroneous. (The implied consent card, Exh. C-l, has approximately 34 lines of text — not counting the asterisk sentence which was applicable but not read to appellee — and the second sentence thereof contains approximately 253 words and 18 punctuation marks. Apparently, this card has been revised since the date of this incident.) Also distinguishable is Sorrow v. State, 178 Ga. App. 83, 84 (342 SE2d 20), where the error committed “had nothing to do with the defendant’s options under the [then existing] Implied Consent Statute.”

(d) The State argues, however, that because a person must be informed of his implied consent rights, it “does not necessarily require the State prove he understood his rights.” Mitchell v. State, 174 Ga. App. 594 (330 SE2d 798) is distinguishable factually from this case; moreover, the court observed: “It is true that to be informed it is necessary that the driver understand the import and meaning of the police officer’s instructions to him.” (Punctuation omitted.) Id. at 596. In State v. Tosar, 180 Ga. App. 885 (350 SE2d 811), the officer properly advised the motorist of his implied consent rights, but the motorist could not speak English; the case at bar is distinguishable as the officer did not adequately advise appellee of his rights and appellee could speak English and did not fall within that limited category of people deemed, as a matter of law, not to have revoked their implied consent because of “a condition rendering [such person] incapable of refusal.” OCGA § 40-5-55 (b). In Hunter v. State, 191 Ga. App. 769 (382 SE2d 679) the primary issue was whether the motorist had refused to take the statutory chemical test after repeatedly being read and allowed to read an apparently adequate advice card; it is not here controlling. In Longino v. Cofer, 148 Ga. App. 341 (251 SE2d 113), the primary issue was whether the motorist had refused to take the test, and not the legal effect of an inadequate implied consent advice; this case is not controlling. Incidentally, in Longino, we held: “The hearing officer’s factual determination, being supported by any evidence, may not be disturbed on appeal absent some error of law.” Id. at 343. Statutory construction must square with common sense and reasoning. Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367). To interpret the implied consent statutes as authorizing an implied consent advice so defective, when tested using an objective standard, as to deprive the motorist of any opportunity to make an informed choice under the implied consent statute, would violate this and other equally sound principles of statutory construction.

Decided April 19, 1994

Reconsideration denied May 2, 1994

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Gary S. Vey, Assistant Solicitors, for appellant.

(e) Applying an objective standard, we conclude that, in view of the state of the evidence and the findings of fact by the trial court supported thereby, appellee was deprived by the totality of the inaccurate, misleading, and/or inapplicable information given to him by the arresting officer of making an informed choice under the implied consent statute, and accordingly, the trial court did not err in concluding that appellee’s refusal to consent to the urine test was rendered inadmissible. See Deckard, supra at 423.

4. The trial court granted appellee’s motion to exclude the field sobriety tests holding that his rights under Ga. Const. 1983, Art. I, Sec. I, Par. XVI were violated when he was compelled to give self-incriminating testimony when directed to perform certain field sobriety tests without being informed that the taking of such tests was voluntary. This state constitutional right is embodied in OCGA § 24-9-20. Harris v. State, 237 Ga. 718, 728 (7) (230 SE2d 1). The factual determination that appellant was directed to perform these tests is supported by evidence. However, we further find that appellee was not in custody at the time he was required to take the field sobriety tests. “[T]here was no violation of [appellee’s] right not to incriminate himself under the fifth amendment, the Georgia Constitution [Art. I, Sec. I, Par. XVI, Ga. Const, of 1983], or OCGA § 24-9-20, because he was not in custody at the time the field sobriety test was administered.” Lankford v. State, 204 Ga. App. 405, 406 (2) (419 SE2d 498), cert. denied_U. S__(113 SC 972, 122 LE2d 127); compare Keenan, supra at 571 (2). Thus, the trial court erred in granting the motion to exclude field sobriety test evidence.

Judgment affirmed in part and reversed in part.

Cooper and Blackburn, JJ., concur.

William C. Head, for appellee.


text:
    A94A0535.
    R. J. TAYLOR MEMORIAL HOSPITAL, INC. v. GILBERT.
    (443 SE2d 656)
   Andrews, Judge.

Sharon Gilbert’s surgeon performed a biopsy on her left breast at R. J. Taylor Regional Hospital in which the surgeon excised a small nodule to have it microscopically examined by a pathologist for possible breast cancer. After the nodule was excised and given to hospital employees to transport to the pathologist, it was lost at the hospital. Gilbert sued the hospital for damages allegedly resulting from the negligent loss of the tissue sample from her breast. We granted the hospital’s application for an interlocutory appeal from the trial court’s denial of its motion for summary judgment.

After the tissue sample was lost, Gilbert’s surgeon referred her to an oncologist to make further recommendations on how to proceed in the absence of a pathologist’s report on the nodule. Both physicians recognized that, without a microscopic examination of the tissue sample by a pathologist to determine whether or not it was cancerous, a diagnosis of Gilbert’s condition would be difficult. Nevertheless, both physicians noted that the appearance of the nodule when it was removed was strongly suggestive of cancer; that mammogram findings were also suggestive of cancer; and that Gilbert had a family history of breast cancer which substantially raised her risk of having breast cancer. Based on these findings, both physicians stated that, although they could not say with complete certainty, they could say with a reasonable degree of medical certainty that Gilbert had cancer of the left breast and needed additional treatment. On the recommendations of her physicians, Gilbert subsequently underwent a lumpectomy to remove additional tissue around the site of the biopsy, an axillary lymph node dissection to determine if the lymph node showed evidence of any spread of cancer, and follow-up radiation therapy to the affected area. None of the additional treatment revealed further evidence of cancer. The medical evidence showed that, if a pathologist’s examination of the original tissue sample had been done and was negative for cancer, none of the additional treatment would have been recommended.

Gilbert’s theory of recovery against the hospital proceeds as follows: (1) because the hospital negligently lost her tissue sample, no determination could be made by the pathologist as to whether or not the nodule was cancerous; (2) that without the pathologist’s determination, her physicians were unable to diagnose with a reasonable degree of medical certainty whether or not she had breast cancer; (3) therefore, she was forced to base her decision to undergo additional treatment on an indefinite diagnosis and has been forced to live with continuing uncertainty as to whether or not she has breast cancer; (4) that as; a result of the uncertainty created by the loss of the tissue sample, the hospital is liable to her for: (a) the physical scarring and injuries she sustained as a result of the additional treatment; (b) the mental and physical pain and suffering she endured as a consequence of the additional treatment; and (c) the emotional anxiety and distress resulting from the uncertainty over whether or not she has cancer.

The hospital admitted it negligently lost the tissue sample and moved for summary judgment on the basis that its negligence was not the proximate cause of the damages claimed by Gilbert. Although the negligence of hospital employees in losing the tissue sample was not an issue involving expert medical testimony in this case, whether the hospital’s negligence was the proximate cause of the damages sought by Gilbert does present a medical question controlled by expert medical testimony. See Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (345 SE2d 904) (1986) (medical questions are those concerning specialized expert knowledge beyond the ken of a layman; therefore the court and jury must rely on expert medical testimony to resolve them).

In order to recover for the physical injury and pain and suffering resulting from the additional treatment for cancer she underwent after the tissue sample was lost, Gilbert would be required to show that the hospital’s negligence caused her to undergo additional treatment which was unnecessary. Accordingly, her claim against the hospital for losing the tissue sample is premised on the assumption that she did not have breast cancer and, had the tissue sample not been lost, the pathologist’s examination of the tissue would have confirmed she did not have breast cancer and needed no additional treatment. If Gilbert did have breast cancer, the medical evidence shows the additional treatment was necessary and she would have no claim that the hospital’s negligence caused her to incur these damages. Thus, her claim must ultimately be based on expert medical testimony that she did not suffer from breast cancer. See Eberhart v. Morris Brown College, 181 Ga. App. 516, 518 (352 SE2d 832) (1987) (diagnosis of a disease is a medical question established by physicians as expert witnesses).

The hospital relied on the testimony of the two physicians who treated Gilbert and who both stated they could say with a reasonable degree of medical certainty that Gilbert had cancer of the left breast and needed the additional treatment. In opposition to summary judgment, Gilbert produced the affidavit of a physician who examined the medical records and stated it was his opinion that, without a microscopic examination of the lost tissue sample, it was not possible, based on the available information, to say with a reasonable degree of medical certainty that Gilbert had cancer of the left breast.

Decided April 13, 1994

Reconsideration denied May 2, 1994

Jones, Cork & Miller, C. Ashley Royal, W. Kerry Howell, for appellant.

Construing the expert medical testimony in favor of Gilbert as respondent to summary judgment, it shows that the hospital’s negligence rendered it impossible for a physician to diagnose with a reasonable degree of certainty whether or not Gilbert had breast cancer. “In cases that involve issues of causation which, by the nature of the situation, can be resolved solely by expert medical evidence standing alone, the evidence must naturally be based at least on reasonable probability. It appears to be well settled that medical testimony as to the possibility of a causal relation between a given [negligent act] and the subsequent [injuries alleged to have been caused by the negligence] is not sufficient, standing alone, to establish such relation.” (Citations and punctuation omitted.) Maurer v. Chyatte, 173 Ga. App. 343, 344-345 (326 SE2d 543) (1985). Since the expert medical testimony established only the possibility that Gilbert did not suffer from breast cancer, there was an absence of evidence in the record establishing that the hospital’s negligence was the proximate cause of Gilbert’s physical injuries and pain and suffering resulting from her additional treatment for cancer. The absence of proximate cause, an essential element of Gilbert’s negligence claim against the hospital, entitled the hospital to summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491, 492, 495 (405 SE2d 474) (1991).

The same result must follow for Gilbert’s claim that, because the hospital lost the tissue sample, she suffers from emotional anxiety and distress caused by the uncertainty over whether or not she has cancer. In order to prevail on her negligence claim for damages for emotional distress, Gilbert must show that she suffered a physical injury as a result of the negligence of the hospital. OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 665-668 (386 SE2d 146) (1989). Since we determined, as a matter of law, that there was an absence of evidence showing that Gilbert’s injuries were the proximate result of the hospital’s negligence, the hospital was also entitled to summary judgment on the claim for emotional distress.

The trial court erred in failing to grant the hospital’s motion for summary judgment.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.

Westmoreland, Patterson & Moseley, Thomas H. Hinson II, Bradley G. Pyles, for appellee.


text:
    A94A0637.
    TNS MILLS v. RUSSELL.
    (443 SE2d 658)
   Andrews, Judge.

After Russell was discharged from her employment at TNS Mills for striking another employee at the work place, she was denied unemployment benefits by the Georgia Department of Labor (the department). Russell appealed the department’s determination pursuant to OCGA § 34-8-220. On appeal, an administrative hearing officer of the department determined that, because Russell was discharged for striking her fellow employee, she was disqualified from benefits under OCGA § 34-8-194 (2) (A) (i) (I) and the department’s board of review subsequently adopted and affirmed the decision of the hearing officer. On judicial review of the department’s final decision pursuant to OCGA § 34-8-223, the superior court reversed the decision of the board and determined that Russell was entitled to receive unemployment benefits. We granted the application of TNS Mills for a discretionary appeal from the order of the superior court.

Under OCGA § 34-8-223 (b), in any judicial review of the board by the superior court “the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” The factual determinations of the board must be affirmed if there is “any evidence” to support them. Holstein v. North Chemical Co., 194 Ga. App. 546, 547 (390 SE2d 910) (1990). In this case, the superior court did not reverse the board on a factual determination. Rather, the superior court determined the board failed to make a critical factual determination it was required to make by departmental rules.

The commissioner of the department, acting through the administrative hearing officer and the board of review, is required pursuant to OCGA § 34-8-222 to conduct hearings and appeals in accordance with the prescribed department rules and regulations. The rules and regulations of the department provide that “[i]n determining whether an individual should be disqualified for benefits under OCGA § 34-8-194 (2) the Commissioner shall consider the factors as set out in (a) through (f) below. . . . [T]he Commissioner shall not be limited to a consideration of the factors enumerated herein but may consider such other factors as the totality of the circumstances dictates. Once an employer has met its burden of proof with respect to a failure of a claimant to obey rules, orders or instructions or to perform the duties for which he was employed, the Commissioner shall consider any of these factors in mitigation of the offense, action or inaction of the employee. ...(e) Where the employee was discharged for engaging in a physical fight or threatening behavior on the employer’s premises or while on the job under the provisions of OCGA § 34-8-194 (2) (A) (i) (I), the Commissioner shall consider . . . [t]he extent of any provocation to or threat to the discharged employee.” (Emphasis supplied.) Rules of the Georgia Department of Labor, Chapter 300-2-9, Rule 300-2-9-.01.

The record shows it was the policy of TNS Mills to discharge any employee who struck another employee at work regardless of threat or provocation. The transcribed record of testimony before the hearing officer contains evidence that Russell slapped her fellow employee only after being severely provoked. TNS Mills conceded that it also discharged the other employee slapped by Russell because that employee instigated the incident.

In considering the claim under OCGA § 34-8-194 (2) (A) (i) (I), the hearing officer and the board concluded that Russell was disqualified from benefits because she intentionally violated her employer’s rule against striking another employee. The board made a factual determination that Russell did not act in self-defense. This was arguably a factual determination, supported by evidence in the record, that Russell was not threatened. However, there is no indication in the record that any consideration was given to the extent to which Russell’s action was provoked by her fellow employee, whether or not she was threatened.

Contrary to TNS Mills’ contention, the superior court correctly determined as a matter of law that the board failed to properly consider the circumstances of provocation in determining whether Russell was disqualified from benefits. However, we agree with the contention of TNS Mills that the superior court erroneously made new factual determinations to support its order granting benefits to Russell. The superior court erred by making a factual determination, on an issue not considered by the board, that Russell was sufficiently provoked and, therefore, not disqualified from benefits. Whether Russell was sufficiently provoked so that she was entitled to benefits (despite her employer’s policy of discharging any employee for striking a fellow employee regardless of provocation) is a factual issue for consideration by the department.

Decided April 13, 1994

Reconsideration denied May 2, 1994.

Michael J. Bowers, Attorney General, Valencia C. Porter, Assistant Attorney General, McClure, Ramsay & Dickerson, John A. Dickerson, Elizabeth F. Moore, for appellant.

Nadine D. Bailey, Mary I. Dickerson, Phyllis J. Holmen, Lisa J. Krisher, for appellee.

Accordingly, this case is remanded to the superior court with direction that the case be remanded to the department for the purpose of considering and making a factual determination on the issue of provocation. See Millen v. Caldwell, 253 Ga. 112, 116 (317 SE2d 818) (1984).

Judgment reversed and case remanded with directions.

Beasley, P. J., and Johnson, J., concur.

       The superior court also reversed the determination of the board on the basis that it erroneously considered certain hearsay evidence admitted at the hearing in violation of the department rule requiring that “[n]o testimony shall be taken that does not permit the parties of interest an opportunity for cross-examination.” Rules of the Georgia Department of Labor, Chapter 300-2-5, Rule 300-2-5-.02 (3) (a). Even if the evidence complained of was erroneously admitted, it was cumulative of other properly admitted testimony and provided no basis for reversal.


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    A94A0776.
    COLLINS v. C. W. MATTHEWS CONTRACTING COMPANY, INC.
    (444 SE2d 100)
   Andrews, Judge.

In his capacity as Commissioner of the State Department of Revenue, Collins issued an assessment of local use taxes against C. W. Matthews Contracting Company, Inc. (Matthews), which appealed the assessment to the Cobb County Superior Court pursuant to OCGA § 48-2-59. Both Matthews and the Commissioner moved for summary judgment. The superior court granted summary judgment in favor of Matthews, denied the Commissioner’s motion for summary judgment, and ordered that the tax assessment be cancelled and set aside. We granted the Commissioner’s application for a discretionary appeal from the decision of the superior court reviewing the revenue department tax assessment. OCGA § 5-6-35 (a) (1); Miles v. Collins, 259 Ga. 536 (384 SE2d 630) (1989).

Matthews is a paving and construction company headquartered in Cobb County, which owns and operates construction equipment used in construction projects in various Georgia counties. The Commissioner conducted a tax audit of Matthews for tax years 1985 through 1987 and made an assessment of local use taxes (including delinquent penalties and interest) in the sum of $57,172.33, claimed due on 75 items of construction equipment owned and used by Matthews. The Commissioner asserts that the equipment was subject to three types of local use taxes imposed by counties, other than the county where the item of equipment was purchased, for the first use of the equipment by Matthews in those counties. The three types of local use taxes at issue are: (1) joint county and municipal sales and use tax (OCGA §§ 48-8-80 — 48-8-95); (2) special county one percent sales and use tax (OCGA §§ 48-8-110 — 48-8-122), and (3) Metropolitan Atlanta Rapid Transit Authority (MARTA) Act of 1965 sales and use tax (Ga. L. 1971, pp. 2082-2083, as amended).

1. The Commissioner claims the trial court erroneously granted summary judgment in favor of Matthews. In granting summary judgment in favor of Matthews, and deciding that none of the assessed local use taxes were due, the superior court correctly noted that Matthews had paid the applicable state sales tax when the equipment at issue was purchased in-state and that no duplicate payment of state use tax was due on the equipment. See OCGA §§ 48-8-1 — 48-8-66 (state sales and use tax); Law Lincoln Mercury v. Strickland, 246 Ga. 237, 239-240 (271 SE2d 152) (1980). The superior court then concluded that, since no state use tax was due on the equipment, no local use tax could be imposed. In reaching this conclusion, the court focused on language contained in OCGA § 48-8-82 (and nearly identical language in OCGA § 48-8-110) providing that: “No item or transaction which is not subject to taxation [under the state sales and use tax] shall be subject to the tax levied pursuant to [the local use tax provisions].” The superior court reasoned that because no state use tax was due, and no such state sales or use tax was incurred by movement of equipment from the county where it was purchased to the other counties imposing local use taxes, then no local use tax could be imposed.

The logic of this interpretation stems from a narrow focus on the literal reading given by the superior court to selected portions of the local sales and use tax statutes. A broader view of the relationship between the state and local sales and use tax statutes clearly demonstrates that the legislature did not intend the result reached by the superior court. “ ‘General terms and expressions ... in the statute providing for the collection of taxes, are never allowed their full literal import if the effect of such construction is to require that to be done which the law does not authorize. . . .’ Penick v. Foster, 129 Ga. 217 (6) (58 SE 773, . . .). ‘It is a familiar rule of construction, where a statute is susceptible of two interpretations, that it should be construed in harmony with the general policy of the law, rather than against it.’ Singleton v. Close, 130 Ga. 716, 720 (61 SE 722). In all interpretations, the courts must look diligently for the intention of the legislature. [OCGA § 1-3-1 (a).] ‘While . . . statutes in pari materia may not be resorted to where the language of the statute under consideration is clear, it is equally as well settled that, where the terms of the statute to be construed are ambiguous or its significance is of a doubtful character, it becomes necessary to give proper consideration to other related statutes in order to ascertain the legislative intent in reference to the whole system of laws of which the doubtful statute is a part.’ Ryan v. Commissioners of Chatham County, 203 Ga. 730, 732 (48 SE2d 86).” Undercofler v. V. F. W. Post 4625, 110 Ga. App. 711, 719-720 (139 SE2d 776) (1964) (Felton, C. J., concurring specially in construction of the sales and use tax act).

Under OCGA §§ 48-8-82 and 48-8-110, the local sales and use taxes imposed by those Code sections must “correspond [except as to rate] to the tax imposed by [the state sales and use tax]. . . .” The local MARTA sales and use tax contains a similar provision requiring that it correspond, except as to rate, to the state tax. Ga. L. 1980, pp. 3831, 3834-3835. By requiring that the local sales and use tax laws correspond, except as to rate, with the state sales and use tax enactments, the legislature incorporated by reference the general state taxing scheme into the local taxing provisions.

For example, under OCGA § 48-8-30 (c), the state sales and use tax imposes a state use tax “[u]pon the first instance of use . . . within this state of tangible personal property purchased at retail outside [the] state. . . .” Accordingly, a corresponding local use tax may be imposed under the applicable local taxing provisions for the first instance of use within the local taxing jurisdiction of tangible personal property purchased at retail outside the local taxing jurisdiction.

Similarly, when the legislature provided in OCGA §§ 48-8-82 and 48-8-110 that “[n]o item or transaction which is not subject to taxation by [the state sales and use tax] shall be subject to the tax levied pursuant to [the local sales and use tax provisions],” the clear legislative intent was to restrict taxation under the local sales and use tax statutes to the same types of “item[s] and transaction [s]” defined as subject to taxation by the state sales and use tax provisions. Since the items of construction equipment at issue are a type of tangible personal property, the use of which may be subject to state use tax, they are items, which upon a corresponding local use, are subject to local use taxes.

Decided April 13, 1994

Reconsideration denied May 2, 1994

Michael J. Bowers, Attorney General, Daniel M. Formby, David A. Runnion, Senior Assistant Attorneys General, for appellant.

When the state and local sales and use tax laws are viewed in relation to one another, it is clear that the legislature intended to create local taxes generally corresponding in substance to the state taxes, but independently imposed, apart from imposition of the state taxes, by the local taxing jurisdictions. Accordingly, the superior court erred by granting summary judgment to Matthews on the basis that, because no state use tax was due on the construction equipment at issue, no local use tax could be imposed.

2. Even though a local use tax could be imposed, Matthews raised other grounds in support of its motion for summary judgment including claims that the assessed tax was fully set-off by a credit due for payment previously made on other local sales and use taxes and that the amount due was improperly calculated and based on faulty assumptions as to the use and value of the equipment at issue. The Commissioner also contends he was entitled to summary judgment on these issues. Although the superior court did not address these additional issues in its summary judgment order, we will consider whether the trial court’s determination was correct, although for the wrong reason. Miller Grading Contractors v. Ga. Fed. &c. Assn., 247 Ga. 730, 734 (279 SE2d 442) (1981). We conclude that genuine issues of fact remain as to issues not addressed by the trial court which would preclude the grant of summary judgment to Matthews or the Commissioner. Accordingly, the trial court’s order cancelling and setting aside the tax assessment is reversed; the grant of summary judgment in favor of Matthews is reversed; the denial of summary judgment to the Commissioner is affirmed, and the case is remanded to the trial court for further consideration.

Judgment affirmed in part; reversed in part, and remanded.

Beasley, P. J., and Johnson, J., concur.

Kilpatrick & Cody, G. William Austin III, Rebekah G. Strickland, for appellee.

Bruce L. Bromberg, Walter E. Sumner, Susan M. Pruett, amici curiae.

       Given the numerous local jurisdictions which could impose this tax on the same item of property for the first use of such property in the local jurisdictions, the legislature placed a two percent ceiling on the imposition of local sales and use taxes. OCGA § 48-8-6 (b).

       The restriction is subject to the exception that, as further provided in OCGA §§ 48-8-82 and 48-8-110 (and the applicable MARTA sales and use tax provisions (Ga. L. 1980, pp. 3831, 3834-3835)), the local sales and use taxes “shall [be applied] to sales of motor fuels as that term is defined by Code Section 48-9-2.”

       We find no merit in Matthews’ argument that imposition of the local use taxes at issue is barred by OCGA § 48-8-93. That Code section deals with local sales taxes, not local use taxes. It limits imposition of the local sales tax authorized under OCGA § 48-8-82 to the local taxing jurisdiction where the property sold was ordered by and delivered to the purchaser, regardless of the fact that, because of some other aspect of the sale, title to the property passed at another place. Even if the bulk of the equipment was purchased by Matthews in Cobb County, which did not impose a local sales and use tax under OCGA § 48-8-82, such equipment would still be subject to local use taxes imposed by other counties for the first use of the equipment in those counties.


text:
    A94A0895.
    DAVIS v. THE STATE.
    (443 SE2d 638)
   Blackburn, Judge.

Billy Davis was convicted by a jury of armed robbery and burglary. Davis appeals his convictions on several grounds.

1. In his first and second enumerations of error, Davis contends that the trial court erred in its charge on reasonable doubt. Specifically, Davis argues that the trial court’s instruction that moral and reasonable certainty was all that could be expected in a legal investigation, coupled with the trial court’s charge on reasonable doubt, effectively reduced the State’s burden of proof and denied his due process rights.

The trial court charged the jury on reasonable doubt as follows: “No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt and to a moral and reasonable certainty. Burden of proof rests upon the state to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. There is no burden of proof upon the defendant whatsoever, and the burden never shifts to the defendant to prove his innocence. However, the state is not required to prove the guilt of the defendant beyond all doubt or to a mathematical certainty. Moral and reasonable certainty is all that could be expected in a legal investigation. A reasonable doubt means just what it says. It is a doubt of a fair-minded, impartial juror honestly seeking the truth. It is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but it is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of evidence, a conflict in the evidence or any combination of these. If, after giving consideration to all of the facts and circumstances of this case, your minds are wavering, unsettled or unsatisfied, then that is a doubt of the law and you should acquit the defendant. But if that doubt does not exist in your minds as to the guilt of the defendant, then you would be authorized to convict him. If the state fails to prove the defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit the defendant.”

Davis argues that the Georgia Supreme Court in Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992), found error in a charge which included the phrase “moral and reasonable certainty” in the explanation of reasonable doubt. Although the Court criticized the language used, the Court actually held that “the use of the words ‘moral and reasonable certainty’ created no reversible error when ‘considered in the context of the charge as a whole.’ [Cit.]” (Footnote omitted.) Id. at 238. No Georgia court has determined that the charge given herein is constitutionally deficient so as to warrant reversal. See id.; Hicks v. State, 262 Ga. 756 (3) (425 SE2d 877) (1993); Hilliard v. State, 211 Ga. App. 842 (440 SE2d 729) (1994); Dominick v. State, 209 Ga. App. 319 (2) (433 SE2d 405) (1993); Oliver v. State, 207 Ga. App. 681 (2) (428 SE2d 681) (1993).

Davis next argues that the combined impact of the United States Supreme Court’s decisions in Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1990) and Sullivan v. Louisiana,_U. S._ (113 SC 2078, 124 LE2d 182) (1993) require that we find the trial court’s charge constituted reversible error. In Cage, supra, the Supreme Court determined that a charge instructing that guilt must be found beyond a reasonable doubt, but equating a reasonable doubt to a “grave uncertainty,” an “actual substantial doubt,” and requiring a “moral certainty” that the defendant was guilty “suggested] a higher degree of doubt than is required for acquittal under the reasonable doubt standard.” Id. at 41. However, in Dominick, supra, we distinguished the charge given in Cage, supra, from the one given in the present case. Therefore, the holding in Sullivan, supra, that the Cage charge cannot be harmless error is inapplicable to the present case.

2. Davis asserts that the trial court committed reversible error when, during voir dire, it told a prospective juror that the issue in the case was “whether the defendant did it.” The record includes a transcript of the voir dire in which a prospective juror questioned her ability to be fair and impartial as the victim was an elderly person. The court, the prosecutor, and Davis’ counsel questioned the prospective juror regarding her bias. The trial court stated: “The issue in this case is not whether the elderly woman was attacked or hurt. It’s whether the defendant here did it. If you understand. No one was saying she wasn’t hurt. So could you in this case listen to the facts as you would hear them from the witnesses and then listen to the law that was given to you and set aside your feelings and render a fair and impartial verdict on the question?” The prosecutor asked: “And now, if the state proved that he did it, would you be able to convict him?” and “And if we were for some reason unable to prove that he didn’t do it in meeting our burden of proof, would you be able to find him not guilty?” Although the venire panel might find these statements confusing, it did not rise to the level of harmful error. Furthermore, Davis’ counsel failed to object, thereby waiving any error. Turner v. State, 208 Ga. App. 728, 729 (431 SE2d 727) (1993).

Decided April 7, 1994

Reconsideration denied May 2, 1994

Megan C. De Vorsey, for appellant.

Lewis R. Slaton, District Attorney, Suzanne Wynn, Assistant District Attorney, Frances E. Cullen, for appellee.

3. Davis next complains that the trial court “allowed the State to speak for the court” during the State’s closing argument when the State incorrectly stated the reasonable doubt jury instruction. This argument is without merit. “[Cjounsel have every right to refer to applicable law during closing argument (i.e., law that the court is going to give in charge).” (Citation and punctuation omitted.) Freels v. State, 195 Ga. App. 609, 611 (394 SE2d 405) (1990). In Division 1 we determined that the court’s charge on reasonable doubt was not incorrect and therefore, the State’s discussion of it was not incorrect.

4. In Davis’ last enumeration of error, he asserts that the trial court erred by allowing the State to attempt to place his character in issue. By his own enumeration Davis admits that the State did not place his character in issue. No harm being shown, this enumeration is without merit. Goodwin v. State, 208 Ga. App. 707, 709 (431 SE2d 473) (1993).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A94A0130.
    AMSTELL, INC. v. BUNGE CORPORATION.
    (443 SE2d 706)
   Johnson, Judge.

Amstell, Inc., developed a fiber base concentrate to be used in the production of fiber-fortified milk. Amstell contracted to have the concentrate manufactured and distributed by Carlin Foods Corporation. Carlin also executed an agreement not to disclose certain confidential information it obtained from Amstell. Bunge Corporation became a party to the manufacturing and nondisclosure contracts after acquiring Carlin. Both contracts contain covenants not to compete. The manufacturing contract provides, “During the term of this Agreement, or for a period of 3 years thereafter, [Bunge] will not produce (or in any way assist or consult in the production of) for its own account or for others, any concentrates or finished products which are fiber-fortified milk concentrates.” The nondisclosure agreement states, “[Bunge] agrees and covenants that during the period [Bunge] is supplying and producing fortified beverage products for Amstell and for a period of three years after termination thereof for any reason whatsoever, [Bunge] will not, directly or indirectly . . . anywhere engage in any enterprise which develops, produces, licenses or markets fiber-based concentrates for the production of fiber-containing milks or dairy base concentrates for the production of fiber-containing shakes and ice cream.” Amstell sued Bunge, claiming it had breached, inter alia, the covenants not to compete. The trial court granted Bunge’s motion for partial summary judgment, holding that the covenants not to compete are invalid. Amstell appeals.

1. Amstell claims that Georgia law is inapplicable to the contracts in this case because they were executed in another state. Even if the contracts were executed elsewhere, they are governed by Georgia law because they are to be performed by Bunge, which is located in this state. “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.]” Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765 (417 SE2d 671) (1992).

2. Amstell argues that the court erred in granting partial summary judgment to Bunge because the manufacturing and nondisclosure contracts are analogous to a contract for the sale of a business and therefore, if their covenants not to compete are overly broad, the court should have simply modified or “blue-penciled” them. See Redmond v. Royal Ford, 244 Ga. 711 (261 SE2d 585) (1979); Reed v. Eastern Elec. &c. Co., 194 Ga. App. 650 (391 SE2d 472) (1990). This argument is without merit because the contracts at issue are not in the nature of a contract for the sale of a business. Amstell did not sell any business assets, stock or goodwill to Bunge. The contracts grant no exclusive rights to Bunge; Amstell retained the right to sell the product to third parties. Moreover, the nondisclosure agreement and Amstell’s complaint designate Carlin, Bunge’s predecessor, as an independent contractor. The terms of the arrangement plainly make the covenants not to compete ancillary to an independent contractor manufacturing and distributorship agreement, which is treated as an employment rather than a sales contract. See Jenkins v. Jenkins Irrigation, 244 Ga. 95, 97-98 (2) (259 SE2d 47) (1979). The court may not “blue-pencil” a covenant not to compete ancillary to an employment contract. Redmond v. Royal Ford, supra at 713; Arnall Ins. Agency v. Arnall, 196 Ga. App. 414, 416 (1) (396 SE2d 257) (1990).

“Such a covenant is enforceable only where it is strictly limited in time and territorial effect and is otherwise reasonable considering the business interest of the employer sought to be protected and the effect on the employee.” (Citation and punctuation omitted.) Owens v. RMA Sales, 183 Ga. App. 340, 341 (1) (358 SE2d 897) (1987). Here, the covenants not to compete contain absolutely no territorial limits. In fact, the covenant contained in the nondisclosure agreement restricts Bunge from “anywhere” competing with Amstell. “A territorial limitation is necessary to give the employee notice of what constitutes a violation of the restrictive covenant and must specify with particularity the territory in which the employee is restricted.” (Citations omitted.) W. R. Grace &c. v. Mouyal, 262 Ga. 464, 465 (2) (422 SE2d 529) (1992). Because the noncompetition covenants in the instant case contain absolutely no territorial limitations, they are invalid. See generally Osta v. Moran, 208 Ga. App. 544, 546-547 (2) (430 SE2d 837) (1993). The trial court did not err in granting partial summary judgment to Bunge.

Decided May 2, 1994.

Glass, McCullough, Sherrill & Harrold, R. Philip Shinall III, Geoffrey H. Cederholm III, for appellant.

Kilpatrick & Cody, Thomas C. Harney, James F. Bogan III, for appellee.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: Beasley, Presiding Judge.

text:
    A94A0396.
    GIBBS v. THE STATE.
    (443 SE2d 708)
   Beasley, Presiding Judge.

In 1978 Gibbs was convicted of one count of rape, OCGA § 16-6-1, and two counts of armed robbery, OCGA § 16-8-41. He was sentenced to life imprisonment and two twenty-year terms to be served consecutively. Almost five months after judgment, he filed a pro se motion for out-of-time appeal, which the court treated as an application for habeas corpus relief and denied. Application for habeas relief was made in 1990, but the court found that all claims either were or could have been raised in what it regarded as the prior habeas application and denied relief. The next year Gibbs filed a pro se application for a writ of habeas corpus in federal court. On September 15, 1992, that court ordered that a writ would issue “unless the State within 120 days appoints counsel for Applicant and grants him leave to file an out-of-time appeal.”

Leave was granted, as was leave to file a motion for new trial based upon a claim of ineffectiveness of counsel. Due to its timing, it constituted an extraordinary motion, as permitted by OCGA § 5-5-41. See King v. State, 208 Ga. App. 77, 81-83 (430 SE2d 640) (1993) (Beasley, P. J., concurring specially). It could not have been an “out-of-time” motion as such because the law prohibits extensions of time for motions for new trial. OCGA § 5-6-39 (b).

After an evidentiary hearing on the motion, it was denied. A notice of appeal from this denial alone finally brings the case to this court. The notice of appeal specifically states it is from the order denying the motion and makes no reference to the judgment of conviction. OCGA § 5-6-35 (a) (7) requires such an independent appeal to proceed by application. Since a direct appeal was permitted but not properly taken, the appeal must be dismissed. Hooks v. State, 210 Ga. App. 171 (435 SE2d 617) (1993). In the interest of finality and to avert a claim of ineffective appellate counsel, we will consider the enumerations as though they were properly before the court.

1. Gibbs asserts that his trial counsel was ineffective. “ ‘[Defendants seeking to show that their counsel was ineffective must show: 1) their counsel’s performance was deficient and 2) ... the deficient performance prejudiced the defense. (Id.) at 687.’ [Cits.] The failure to establish either element of the test will result in the denial of defendant’s claim of ineffective counsel. [Cit.] ‘A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [Cit.]’ [Cit.]” Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992). “There is a strong presumption that trial counsel’s performance ‘falls within the wide range of reasonable professional assistance,’ and that any challenged action by trial counsel ‘ “might be considered sound trial strategy.” ’ [Cit.]” Ferrell v. State, 261 Ga. 115, 119 (401 SE2d 741) (1991).

Gibbs contends trial counsel was ineffective because of a variety of omissions. The trial court’s order denying the motion to suppress, based upon the evidence presented at the hearing on the motion, is well reasoned, thorough, and complete. We expressly adopt its conclusions as our own. Its finding was not clearly erroneous, so the denial of Gibbs’ motion for a new trial was justified.

2. Gibbs enumerates as error the general grounds. This issue was not raised in his motion for new trial, the trial court’s order contains a footnote specifically stating that the order addresses only issues raised in the motion, and, as noted previously, Gibbs referred to only this order in his notice of appeal.

Nevertheless, even if the appeal had been taken from the judgment of conviction as well, we find that at trial Gibbs was identified by both victims as the perpetrator of the crime. He was also connected to the scene by clothing found in his apartment, a pillow case taken from the scene, and blood of his rare type found at the scene. Viewing all the evidence in a light most favorable to the verdict, rational jurors could have found appellant guilty of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Gibbs also enumerates as error the trial court’s denial of a continuance when, immediately before trial, he twice told the trial court that he was dissatisfied with the preparation of his attorney and wished to hire another. This issue was tangentially raised in his motion for new trial. If the appeal had been properly brought, either directly or from the denial of the motion, we would have taken the course adopted in Wells v. State, 210 Ga. App. 165, 167 (435 SE2d 523) (1993): “The state does not argue that appellant’s enumeration, was not preserved for appellate review but rather addresses the merits. The issue is marginally raised sufficiently to warrant our consideration. OCGA § 5-6-30.”

Decided May 2, 1994.

Tony L. Axam, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, R. Andrew Weathers, Assistant District Attorneys, for appellee.

Gibbs had previously informed the court that he was indigent and could not afford to hire an attorney. The requests for continuance were made by Gibbs himself; not by his attorney. In fact, the attorney had already declared that the defense was ready for trial and stated to the court that he had made attempts to locate witnesses for Gibbs’ defense. See Jordan v. State, 206 Ga. App. 173, 174-175 (424 SE2d 852) (1992).

Basically, Gibbs’ claim on this point translates into a repetition that trial counsel was ineffective, specifically due to lack of preparation, and that the trial court should have allowed a continuation to correct the ineffectiveness. However, as we have stated, there was no ineffectiveness of counsel. Moreover, “[a] motion for continuance predicated upon a claim of insufficient time to prepare for trial is addressed to the sound discretion of the trial court, and will not be interfered with unless it is clearly shown that the court abused its discretion. [Cits.]” Payne v. State, 207 Ga. App. 312, 314 (428 SE2d 103) (1993). As counsel had declared the defense ready for trial, and there is no showing that counsel’s assistance was ineffective, it was not an abuse of discretion to deny a continuance.

Appeal dismissed.

Andrews and Johnson, JJ., concur.