text:
    75832.
    SMITH v. THE STATE.
    (370 SE2d 185)
   Sognier, Judge.

Appellant was convicted of driving with a suspended license and he appeals.

1. Appellant alleges error by admitting into evidence State Exhibits 1 and 2, over objection, because the exhibits were not certified or authenticated. Both exhibits were notices of suspension issued by the Department of Public Safety, and were certified by J. Howell, who had been designated by the commissioner as an official custodian of safety records for the Department of Public Safety. Appellant acknowledged that he received and signed for the notices, but argues the documents were inadmissible because the custodian of records was not present to testify that the exhibits were authentic. This enumeration of error is without merit.

OCGA § 40-5-2 (e) provides: “The commissioner shall designate members of the department to be the official custodians of the records of the department. The custodians may certify copies or compilations, including extracts thereof, of the records of the department. When so certified, such records shall be admissible as evidence in any civil or criminal proceeding as proof of the contents thereof.” The exhibits in this case were certified by a member of the department designated as the official custodian by the commissioner. This clearly complies with OCGA § 40-5-2 (e) as to admissibility. Cook v. State, 180 Ga. App. 877, 879 (3) (350 SE2d 847) (1986).

2. Appellant contends the trial court erred by denying his motion for mistrial after appellant’s character had been improperly placed into evidence by Officer Harold Manning, a State witness. Manning was asked on direct examination how he knew the status of appellant’s driver’s license on May 30, 1984, the date of the offense. He replied that he had stopped and cited appellant many times. Appellant’s motion for mistrial on the ground that the answer improperly placed his character in issue was denied, and the court instructed the jury to disregard Manning’s answer. Appellant did not object to the curative instruction or renew his motion for mistrial. When a motion for mistrial is not renewed after curative instructions by the court, the issue is not preserved for appeal. Curtis v. State, 182 Ga. App. 899, 901 (3) (357 SE2d 602) (1987).

3. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal. He argues again that State Exhibits 1 and 2 were not admissible, and thus, there was no proof of suspension. We have answered this argument adversely to appellant in Division 1. Appellant also argues that the testimony of the former Solicitor of the State Court of Coffee County established that his license was suspended erroneously, and thus, the suspension of his license was void.

The State presented evidence that appellant’s driver’s license was suspended by the Department of Public Safety for appellant’s failure to appear in court in response to citations for traffic violations other than a parking violation. The State also established that appellant received two notices of suspension, acknowledged by his signature on the return receipts for certified mail. Appellant was observed driving his truck on May 30, 1984, by Officer Manning, while appellant’s license was still suspended. Thus, the State established a prima facie case as to the offense charged.

T. V. Williams, a defense witness, testified that he was Solicitor of the State Court of Coffee County at the time appellant received two citations for speeding, and that appellant’s counsel had entered a plea of not guilty on appellant’s behalf in response to those citations. Williams also testified that this procedure was common practice in the State Court, and for some unknown reason, the citations, marked “FAILURE TO RESPOND TO CITATION, APPEAR IN COURT, OR PAY FINE,” were forwarded to the Department of Public Safety erroneously. Appellant argues that this testimony established that the suspension of his license was void, and he could not be convicted of driving with a suspended license. This argument is not well taken.

We note initially that the weight of the evidence and credibility of witnesses are questions for the jury. Williams v. State, 184 Ga. App. 68 (1) (360 SE2d 634) (1987). Further, the testimony of Williams was a collateral attack on the reasons underlying the suspension, which we do not find permissible for reasons stated hereafter. OCGA § 40-5-56 (a) requires the Department of Public Safety to suspend the driver’s license of any person who has failed to respond to a citation to appear before a court of competent jurisdiction for a traffic violation other than a parking violation. The department is also required to notify such person that his license is to be suspended, subject to review. Subsection (b) of the same statute provides that a person so notified may request a hearing within ten days of receipt of notice sent by certified mail. If no hearing is requested within the ten days specified, the right to a hearing has been waived and the license of the driver shall be suspended. Finally, subsection (c) of the statute provides that the suspension shall be for an indefinite period, until such person shall respond and pay any fines or penalties imposed. Such person’s license shall be reinstated upon proof of payment of the fine from the court of jurisdiction, and payment of a restoration fee of $25.

There is no evidence that appellant requested a hearing on suspension of his license after receipt of the notices of proposed suspension. Thus, he waived his right to a hearing to contest the suspension, and the reasons for the suspension set forth on State Exhibits 1 and 2 make the suspension valid on its face.

Although we have found no cases dealing with collateral attacks on violations underlying suspension of one’s driver’s license, this court has held in a habitual violator case that an attack on the validity of the underlying conviction is collateral, and is not permissible when the underlying conviction is not void on its face. Love v. Hardison, 166 Ga. App. 677 (1) (305 SE2d 420) (1983). We see no reason why the same rule should not apply to the facts of the instant case, particularly where an administrative procedure is provided for whereby a person may challenge the proposed suspension of his license. See generally Smith v. State, 248 Ga. 828, 831 (3) (286 SE2d 709) (1982), also a habitual violator case. On the date appellant was observed driving his license was, in fact, suspended, and this is the crucial date, not the date on which the status is challenged at trial. If the person is driving despite notification that his license has been suspended, he is flaunting the law even if the reasons underlying his suspension were erroneously forwarded to the Department of Public Safety. Cf. State v. Tart, 183 Ga. App. 737, 738 (359 SE2d 722) (1987). Hence, it was not error to deny appellant’s motion for a directed verdict of acquittal.

4. Appellant alleges error in the trial court’s failure to reprimand the prosecuting attorney after his statement in closing argument that appellant’s license was suspended for (speeding) violations, when in fact it was suspended for failure to appear in court. Appellant’s objection to this statement was on the ground that it was outside the evidence, i.e., not based on evidence before the court. Appellant made no request that the trial court reprimand the prosecuting attorney for his remarks, and made no objection at trial to the fact that the court did not reprimand him. It is well settled that this court will not consider questions raised for the first time on review. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

5. Appellant contends the trial court erred by failing to instruct the jury on how licenses are suspended. He argues that his sole defense in this case was that the suspension was invalid, and the court’s failure to charge on a substantial issue was error.

The administrative procedure followed by the Department of Public Safety in suspending appellant’s driver’s license had no bearing whatsoever on whether or not appellant was driving with a suspended license on May 30, 1984. Further, appellant made no request to charge on the procedure for suspending one’s driver’s license, and a trial court is not required to charge without written request as to any collateral matters. Burger v. State, 245 Ga. 458, 459 (1) (265 SE2d 796) (1980). Hence, there was no error.

6. Appellant contends the trial court’s Allen charge (Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528)), was erroneous because it did not inform the jurors that they should not surrender their honest opinion, as requested by appellant.

Decided May 16, 1988

Rehearing denied June 1, 1988

Douglas W. Mitchell III, for appellant.

Harry D. Dixon, Jr., District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

We note initially that appellant did not request such a charge; rather, he excepted to the court’s failure to include such a statement, after the charge had been given and the jury had retired for further deliberations. The charge given by the court was taken almost verbatim from Suggested Pattern Jury Instructions, Volume 2, Criminal Cases, pages 198-199. Further, a charge in almost identical language has been approved by our Supreme Court. Ponder v. State, 229 Ga. 720-721 (2) (194 SE2d 78) (1972); Spaulding v. State, 232 Ga. 411, 413-414 (4) (207 SE2d 43) (1974). In Knight v. State, 243 Ga. 770, 775 (4) (257 SE2d 182) (1979), the court stated that “the precise charge given has been approved by this court and is not error.” Accordingly, appellant’s enumeration is without merit.

7. Appellant has presented no argument or citation of authority in connection with his enumeration of error relating to denial of his motion for a new trial. Hence, it is deemed abandoned pursuant to this Court’s Rule 15 (c) (2).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    75852.
    PARTRIDGE v. THE STATE.
    (370 SE2d 173)
   Beasley, Judge.

Defendant appeals his convictions for trafficking in cocaine, OCGA § 16-13-31 (a) (1), and possession of marijuana, OCGA § 16-13-30. His enumerations of error are that the court erred: 1) in denying his motion to suppress evidence; 2) in denying his motion to strike a juror for cause; 3) in denying his motion for directed verdict of acquittal because the State failed to prove that he possessed more than 400 grams of cocaine; 4) in refusing to charge the jury regarding possession of cocaine, a lesser included offense of trafficking; 5) in instructing the jury on constructive possession when the indictment alleged “actual possession.” We consider these assignments of error seriatim.

1. In view of the testimony that defendant was driving in excess of the speed limit, the stop of his vehicle was justified and the contention that it was pretextual fails. Coop v. State, 186 Ga. App. 578 (367 SE2d 836) (1988); Eisenberger v. State, 177 Ga. App. 673, 674 (2) (340 SE2d 232) (1986).

The search of the car defendant was driving was accomplished after a lawful stop for a traffic violation and pursuant to defendant’s written consent. Whether the consent was freely and voluntarily given, and not the result of coercion, duress or deceit, depends on the totality of the circumstances. Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1973); State v. Rezvani, 181 Ga. App. 328, 329 (352 SE2d 197) (1986). The evidence showed that after defendant was stopped and found to be without a driver’s license, he followed the trooper to the sheriff’s office in order to post a cash bond. While that process was taking place, the trooper, whose suspicions were aroused, requested information from the El Paso Intelligence Center via the GBI. He also decided to seek the defendant’s consent to search and when defendant was about to leave after posting bond, the trooper asked him for permission and to sign a written permission. Defendant complied.

Under these circumstances, defendant failed to show the consent was illegally obtained. Noland v. State, 178 Ga. App. 486, 488 (2) (343 SE2d 763) (1986); Smith v. State, 165 Ga. App. 333, 334 (2) (299 SE2d 891) (1983).

2. During the voir dire when questioned about prejudice or bias either for or against defendant, one prospective juror indicated that she “definitely had an opinion” about people who do drugs. When questioned further about whether she could give defendant a fair trial, she answered: “I don’t know.” According to the transcript, the prospective juror responded “I guess” when asked if she would base her verdict on the evidence and the charge of the court. Defendant urges that this was insufficient to permit her to qualify as a juror over his objection. However, defense counsel, when arguing before the trial court, admitted that when the court asked for clarification of her response to the question if she would base her verdict on the evidence and the charge of court, the juror said “yes” and “shook her head ‘yes.’ ” No reversible error was shown. Roberts v. State, 252 Ga. 227, 237 (10) (h) (314 SE2d 83) (1984); Westbrook v. State, 242 Ga. 151, 154 (3) (249 SE2d 524) (1978).

3. Defendant was indicted for being “knowingly in actual possession of mor [sic] than 400 grams of cocaine, a schedule two controlled substance, and a mixture with a purity of mor [sic] than 10 percent of cocaine.” The evidence showed the total mass of the substance to be 450 grams, of which 71 percent or 319 grams was pure cocaine.

Defendant urges there was a fatal variance between the allegata and the probata because the indictment alleged more than 400 grams of cocaine and evidence showed only 319 grams of pure cocaine. He supports the argument with the principle that “when an element descriptive of the offense is alleged with greater particularity than is required, this element must be proved as alleged. [Cit.]” Ewing v. State, 169 Ga. App. 680, 681 (314 SE2d 695) (1984).

We do not agree that the evidence did not sustain an essential allegation of the indictment. Based on DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969), our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. “ ‘The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to “affect the substantial rights” of the accused.’ ” Shackelford v. State, 179 Ga. App. 595, 596 (347 SE2d 346) (1986), quoting from Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314) (1935). That decision emphasized that it is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. DePalma adopted the holding in the Berger case.

The code section requires possession of only “28 grams or more of cocaine or of any mixture with a purity of ten percent or more of cocaine” to be guilty of trafficking. OCGA § 16-13-31 (a) (1). Larger amounts by specified increment affect only the punishment. This is similar to theft, where punishment is controlled by the value of goods stolen. Mack v. Ricketts, 236 Ga. 86, 87 (222 SE2d 337) (1976). Value is thus not an element of the crime of theft but relates to sentencing. Stancell v. State, 146 Ga. App. 773 (2) (247 SE2d 587) (1978). Similarly, trafficking in cocaine requires only that the threshold amount be shown, after which the quantity possessed bears only on punishment.

The indictment, in effect, charged defendant with violating the code section by way of possession as the key element, in the statutory language. The evidence showed a mixture of more than 400 grams with a purity of more than ten percent cocaine. This not only meets the standards for a finding of trafficking as described in OCGA § 16-13-31 (a) (1) but falls within the punishment provisions of OCGA § 16-13-31 (a) (1) (C).

Since the amount shown would still show a violation of law, even if it did not meet the increment charged there would not be a material variance under the Berger-DePalma rule and their progeny. See Dobbs v. State, 235 Ga. 800, 802 (3) (221 SE2d 576) (1976). For cases prior to DePalma when normally stricter standards were enforced regarding fatal variance, see Renfroe v. State, 54 Ga. App. 215 (1) (187 SE 623) (1936) [variation between allegation and proof as to quantity of illegal drugs sold was immaterial and did not render verdict contrary to law], and Warren v. State, 12 Ga. App. 695 (3) (78 SE 202) (1913) [variation in indictment and subsequent proof as to value of goods stolen immaterial].

4. At the close of the charge defense counsel objected to the form of the jury verdict for not including a possible finding that defendant could be guilty of possession of cocaine. On the day of the trial, defendant filed a request that the “jury be charged with the substance of OCGA § 16-13-30 and § 16-13-31.” However, the record is not clear that this particular request was submitted to the trial judge prior to the close of the evidence as required by OCGA § 5-5-24 (b). In the absence of a timely, written request the failure to charge on a lesser included offense is not error. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976).

Even if the request were considered timely, by seeking an instruction on two entire code sections it necessarily included much matter not adjusted to the issues of the case. For this reason also it was not error to fail to give such instructions. Kessel v. State, 236 Ga. 373, 374 (2) (223 SE2d 811) (1976).

5. The defendant objected to the court’s instructing the jury “that the law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person, who though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, is then in constructive possession of it.” Defendant contends that, because the indictment charged that he was “knowingly in actual possession” of cocaine, which is an element of the charged portion of OCGA § 16-13-31 (a) (1), the jury would not be authorized to convict of trafficking upon a finding of only constructive possession. Therefore, he argues that proof of constructive possession as defined by Anderson v. State, 166 Ga. App. 459, 460 (3) (304 SE2d 550) (1983), would not be sufficient and it was error to so charge.

The court charged, immediately after instructing the jury as quoted above, that the statute specified actual possession as to the cocaine count and another statute specified possession or control as to the marijuana count. Since the two counts properly charged different types of possession as to each crime, and since there is a legal as opposed to an ordinary usage meaning for the term “actual possession,” the court did not err in defining the terms and describing the distinction. Dalton v. State, 249 Ga. 720, 721 (2) (292 SE2d 834) (1982), recognized that the difference between actual and constructive possession “ ‘ “is most assuredly one of degree” and the terms “often so shade into one another that it is difficult to say where one ends and the other begins.” ’ ”

The court’s care in assuring that the jury understood what was meant by “actual possession” as it related to the cocaine count, by stating the difference between it and the broader bounds of constructive possession, protected defendant from an erroneous interpretation of the legal term “actual possession.” The court did not misstate the law, as the Supreme Court held the trial court did in Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988). The only drug offense Lockwood was charged with was trafficking in cocaine, and the trial court instructed the jury in almost identical language to that quoted above but also contained the additional admonition that “[y]ou would be authorized to convict if you should find beyond a reasonable doubt that the defendant had actual or constructive possession either alone or jointly with others.” In the instant case the court’s instructions, taken together and in light of the multiple counts, did not permit the jury to convict defendant of trafficking in cocaine upon a finding of merely constructive possession.

Decided May 12, 1988

Rehearing denied June 1, 1988

J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


text:
    76019.
    O’BRIEN et al. v. AMERICAN-AMICABLE LIFE INSURANCE COMPANY.
    (370 SE2d 177)
   Beasley, Judge.

Appeal is from the grant of summary judgment to the insurance company in the O’Briens’ suit to recover under a life insurance policy.

In September 1983, Mrs. O’Brien applied for whole-life insurance through the insurer’s authorized local representative and agent, which policy was issued on December 1. At the time application was made, Mr. and Mrs. O’Brien discussed with the agent the purchase of a rider to provide life insurance coverage for their expected child. The agent told them to inform her when it was born, because no such application could be made until 15 days after birth. On December 18, the agent was advised of the birth of the O’Briens’ infant son and met with them to fill out an application for a rider to Mrs. O’Brien’s policy so as to cover the life of the child. The application was postdated to December 19 to allow the fifteen days from the child’s birth, as required by the insurance company.

Mr. O’Brien contended that he offered to pay the extra monthly premium amount at that time, but the agent refused to take it, telling him to fill out the necessary forms to have an allotment designated from his military paycheck as was done on the policies for himself and his wife. The O’Briens also contended that she told them not to worry about paying the premium because the child was covered at that time. The agent denied making such a waiver of the premium payment, or that Mr. O’Brien offered to pay her on December 18. In any event, Mr. O’Brien did not submit the necessary forms to activate the allotment payments before the infant suddenly and unexpectedly died.

The application for the child’s coverage, which was read by the O’Briens and signed by Mrs. O’Brien, contained two separate provisions reciting that the applicant agreed “that this application and declaration of insurability shall not be binding upon the [insurer] until accepted at the Home Office . . and “that the change requested shall not be effective until it has been approved at the Home Office and any required premium has been paid.” The premium allotment verification form also expressly provided in a prominent clause: “No insurance shall take effect unless the [insurer] approves this application and the first full premium is paid, either in cash or by completion of the appropriate allotment authorization, all during the lifetime of each person proposed for insurance . . . .”

When the O’Briens’ demand for coverage under the rider was denied on the basis of non-payment of the premium, this action was brought. The insurer had stated in responding negatively to the demand: “Had the allotment increase been turned in to your Finance Center, prior to the death of your son, our response would have been different.” Upon review of the record, including a proposed pretrial order containing stipulated facts, the trial court granted summary judgment to the defendant insurance company.

The sole issue, as expressed by appellants, is whether a premium payment for a rider to an already existing life insurance policy may be waived by the insurer’s authorized agent. If so, the grant of summary judgment to the appellee was improper because a material question of fact exists as to whether such a waiver was made.

“An application for insurance is a mere offer, and the company is free to accept or reject it. Unless the offer is accepted by the company no contract ever comes into existence and no liability can arise . . . So long as the application is not acted upon by the company, no contract of insurance is consummated, and where the applicant dies before the acceptance of his application, the company has incurred no liability. Even with the [waiver of payment] of premiums as alleged by appellants], no binding contract of life insurance is created until the insurer manifests its acceptance. Further, any assurances by the soliciting agent as to the insurability of appellant’s son are of no legal effect in this case. No verbal assurance of the agent to the applicant or to the proposed beneficiary that the applicant was insured from the date of the application could bind the company or constitute a contract of insurance. The application itself provided that [the application would not be binding until accepted by the Home Office and payment of the first full premium.] This was a valid and binding provision.” (Citations, indention and punctuation omitted.) Whitmire v. Colonial Life &c. Ins. Co., 172 Ga. App. 651 (323 SE2d 843) (1984). Accord Karp v. Western Life Ins. Co., 182 Ga. App. 693 (356 SE2d 893) (1987); All American Assur. Co. v. Brown, 177 Ga. App. 402 (339 SE2d 611) (1985). Thus, under Georgia law an application for life insurance, or for such coverage under a dependent child rider, does not bind an insurance company in the absence of the insurer’s acceptance of such application. The acceptance of the application here hinged on the applicants’ initiating the payment of premiums through allotment, which was not accomplished before the child’s death.

Decided May 12, 1988

Rehearing denied June 1, 1988

Joseph B. Bergen, Frederick S. Bergen, for appellants.

Michael K. Jablonski, Richard G. Farnsworth, for appellee.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


author: Birdsong, Chief Judge.

text:
    76125.
    WOOTEN v. G.M.H. AUTO SALES, INC. et al.
    (370 SE2d 165)
   Birdsong, Chief Judge.

This is an appeal by Lola Wooten, individually and as sole heir of her deceased husband, from the order of the Superior Court of DeKalb County granting in part and denying in part appellee’s motion for judgment n.o.v. and, alternatively, for a new trial. In its order of September 22, 1987, the superior court granted appellee surety’s motion for judgment non obstante veredicto, and it is this portion of the order that appellant contests.

Robert M. Garmon, President of appellee G.M.H. Auto Sales, Inc. executed a promissory note in the amount of $10,000 to the appellant and her deceased husband in consideration of their loaning $10,000 to Garmon to be used in operation of G.M.H. The $10,000 was not repaid pursuant to the terms of the promissory note, and the appellant/Wootens made a demand for payment.

In response to the payment demand, Garmon as President of G.M.H. “sold, transferred and assigned” to appellant certain retail installment contracts and security agreements covering the sale of 25 motor vehicles, which had been sold to various buyers by G.M.H. In addition to conveying the installment contracts and security agreements, Garmon also transferred certificates of title for 12 of the 25 vehicles to the appellant and her husband, but apparently never transferred possession of the remaining 13 certificates of title. Subsequently, but before appellant/Wootens registered the 12 motor vehicle titles in their possession, G.M.H. obtained replacement certificates of title for 12 motor vehicles, continued to collect payments under the installment contracts in question, and apparently refused to remit any monies therefrom to the appellant/Wootens.

This action was tried before a jury, which returned a verdict in favor of the appellant/Wootens against both G.M.H. and its surety National Security Fire & Casualty Company in the amount of $27,000. Appellee’s motion for directed verdict was denied; however, the trial court subsequently granted appellee’s motion for judgment n.o.v. on grounds essentially that the appellant/Wootens were not within the class protected by G.M.H.’s bond. Held:

1. Appellant’s first enumerated error is that the trial court erred in ruling that, as a matter of law, the bond requirement of OCGA § 43-47-1 et seq. was not intended to require a bond to provide for the benefit of, nor to make monies available to, a holder of security interests in motor vehicles, having possession of certificates of title for those vehicles, who purchased such security interests, and obtained such certificates of title from a used car dealer, for damages sustained by the security interest holder as a result of fraudulent acts by the used car dealer. Specifically, it is asserted that appellant is within the class of persons who are protected by the bonding requirements of OCGA § 43-47-8 (h).

The issue presented is one of first impression for our courts. OCGA § 43-47-8 (h) pertinently provides that: “Each application for a license shall show that the prospective licensee has or has made provision for a bond. The required bond . . . shall be payable ... for the use and benefit of any purchaser and vendees or successors in title of any used motor vehicle and shall be conditioned to pay all loss, damages, and expenses that may be sustained by such purchaser, his vendees, or successors in title that may be occasioned by reason of any fraudulent misrepresentation or by reason of any breach of warranty as to such used vehicle.”

The trial court, citing OCGA § 11-9-105 (1) (b) held that where both the title certificate and the installment sales contract to an individual car were actually delivered to the appellant/Wootens, a “possessory security interest in chattel paper” to secure G.M.H.’s performance on the note was created; that as between the parties the appellant/Wootens also had an interest in the proceeds of the chattel paper; that the Wootens’ interest “is not sufficient” to transfer “actual title in these cars” to them; that the appellant/Wootens “simply had physical possession of the title certificates to cars purchased by consumers from G.M.H.”; that as a matter of law the appellant/ Wootens “were not consumer purchasers, nor vendees or successors in title from such . . . within the meaning of OCGA § 43-47-8 (h)”; and that accordingly, the appellant/Wootens “are not within that class legislatively intended to be protected by this bond.”

Appellant/Wootens at best are “security interest holders” as to certain motor vehicles sold by G.M.H. A “security interest holder” in a motor vehicle is a “holder of an interest in a vehicle reserved or created by agreement and which secures payment or performance of an obligation.” (Emphasis supplied.) See, e.g., OCGA § 40-3-2 (15). Such a “security interest holder” is not a purchaser or vendee of, or a successor in title to, the motor vehicle in question; rather, even though in physical possession of the vehicle’s certificate of title, he is only the holder of a legally recognized interest therein. Accordingly, although the Wootens were in physical possession of certain certificates of title to motor vehicles, under the attendant facts they were not the legal owners of those vehicles. The Wootens, therefore, were not purchasers, vendees or successors in title, within the meaning of OCGA § 43-47-8 (h), to any of the used motor vehicles in question.

We are satisfied that the bond requirements of OCGA § 43-47-8 (h) do not on the face of the statute protect security interest holders such as the Wootens. Moreover, it may be concluded that the legislative history of the bond protection provisions of this statute confirms that it was not the legislature’s intent to provide such extended bonding protection. First, it would have been an easy legislative task to include expressly “security interest holders” within the class of people listed in the statute. Secondly, the bond is so limited in amount that it is quite unlikely that the legislature intended for it to protect these types of security interests. Thirdly, we note that the protection provisions of the Used Car Dealers’ Registration Act have been subject to frequent legislative modification, and that the legislature therefore had ample opportunity to protect security interest holders therein had they desired to do so. See generally Ga. L. 1958, p. 59; Ga. L. 1960, p. 980; Ga. L. 1968, p. 27; Ga. L. 1974, p. 1240; Ga. L. 1983, p. 553; Ga. L. 1985, pp. 976-977. Further, the legislative history reflects that under the Act, protection was first provided for the general public against injuries caused by the negligence of the applicant or dealer (Ga. L. 1960, supra), later a bond was required to protect against “any fraudulent misrepresentation or by reason of any breach of warranty as to such used vehicle” (Ga. L. 1974, supra). The legislative history of those modifications, however, does not reflect that the protection provided by OCGA § 43-47-8 (h) was to be extended to cover “security interest holders.” Of course, a security interest holder, like any other person, can file a regulatory complaint, with the State Board of Registration of Used Car Dealers, against a used car dealer. This board is empowered to take certain adverse administrative action, including license suspension or revocation, against a used car dealer found to have engaged in dishonest dealing or other expressly prohibited misconduct. See generally OCGA § 43-47-10.

We find therefore appellant’s first enumerated error is without merit.

2. Appellant’s second enumerated error is that the trial court erred in ruling that, as a matter of law, the bond issued to G.M.H. by appellee National Security Fire & Casualty did not provide protection to appellant, as a holder of security interests in motor vehicles, having possession of title for those vehicles, who purchased such security interests and obtained the certificates of title from G.M.H. against fraudulent acts committed by appellee G.M.H. Specifically, it is argued that appellant is included within the list of beneficiaries of the bond issued by appellee National and is, therefore, entitled to compensation from such bond.

The bond in question was provided by appellee National for appellee G.M.H. Auto Sales and was intended to provide protection for “the general public that purchases cars from the dealer”: This instrument provides a $100,000 bond “for the use and benefit of any purchasers of any used motor vehicle and their vendees or successors in title. . . .” It further provides that “the conditions of this obligation are such that if [G.M.H.] shall comply with the conditions of any written contract or written warranty by such dealer or his agent, made in connection with the sale or exchange of any motor vehicle and shall pay all loss, damages and expenses that may be sustained by his vendees or successors in title by reason of any fraudulent misrepresentation as to liens against or titles to any used motor vehicle then the bond is to be void; otherwise it is to remain of full force and effect.” Finally, it is provided that “this Bond is executed pursuant to and in accordance with the provisions of Ga. L. 1958, p. 55 et seq., governing the registration of used car dealers in Georgia, and is intended to be and shall be construed to be a Bond in compliance with the requirements thereof.” (Emphasis supplied.)

The instrument on its face and the uncontested evidence of record establishes that the bond in question is a statutory bond executed “pursuant to and in accordance with” the laws of this state. This court has held that as a general rule “ ‘where a bond is executed under the authority of a public statute then in force, it will be presumed that the intention of the parties was to execute such bond as the law requires, in the absence of anything appearing to show a different purpose and intent; that such statute constitutes a part of the bond as if incorporated in it; and that, in construing the bond in connection with the statute, whatever is included in the bond which is not thereby required must be read out, and whatever is not expressed and ought to have been incorporated must be read in, so as to conform to the requirements of the law.’ ” Home Indem. Co. v. Battey Machinery Co., 109 Ga. App. 322, 326-327 (136 SE2d 193), and cases cited therein. Applying this principle and examining the bond on its four corners, we find that it is not ambiguous as to those classes of persons given protection thereby, and that the appellant/Wootens are not among those classes of persons protected and entitled to be indemnified thereby.

Decided May 5, 1988

Rehearing denied June 1, 1988.

John F. Daugherty, Donald J. Sharp, for appellant.

C. Lawrence Jewett, Jr., for appellees.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76242.
    HOUSTON v. THE STATE.
    (370 SE2d 178)
   Birdsong, Chief Judge.

Anthony Houston brings this appeal from his conviction of burglary, armed robbery, and two counts of rape. Houston was jointly indicted with Oliver Twist Surry for these offenses. Surry entered pleas of guilty and testified as a witness for the State. From the evidence admitted, the jury was authorized to find that Houston and Surry entered the home of L.F. and his family through a rear window. The defendant attacked Mr. F. with a gun and placed him on the floor, face down, and tied his hands. Mrs. F. had her hands and feet tied to the four bedposts and a pillow placed over her face. Their daughter was brought into the room and placed on the floor by her father. Then the father was taken to the hallway and tied to a washing machine and beaten about the head. The defendant asked him for “reefer” and “cocaine,” but the father told him he did not have any. Houston and Surry spent approximately three hours in the house that evening. The mother was raped five times and the daughter was raped three times. The house was ransacked and various personalty taken, television sets, watches, jewelry, a typewriter and a pistol.

A palm print was taken from the washing machine and compared with the prints of Anthony Houston. The police expert was of the opinion that the palm print taken from the washing machine was that of the defendant. The family was asked to view a photographic lineup and the father and daughter identified Houston’s photograph as one of the men who had burglarized their home and raped the mother and daughter. Mrs. F. was unable to visually identify anyone as a pillow had been placed over her head.

An arrest warrant was issued for Houston and a search of the apartment where he was living revealed much of the property taken from the burglarized home. Houston was found hiding underneath a large pile of clothing in a closet. A physical lineup was held at the police station and the father and daughter identified Houston as one of the individuals who had beaten the father and raped the mother and daughter. Mrs. F. was unable to visually identify Houston at the physical lineup, but after having the participants in the lineup speak words said to her during the time she was being raped, Mrs. F. identified Houston as her attacker. Surry testified for the State and identified Houston as his accomplice that evening. The jury returned a verdict of guilty and Houston brings this appeal. Held:

1. The State offered evidence of what it claimed to be two prior similar offenses. Appellant’s objection was overruled. On appeal, appellant argues “there was very little proof of identity of Appellant as the perpetrator . . . [and] [t]here was no physical proof that Appellant committed the crimes alleged,” and such evidence did not show “intent or state of mind . . . motive” and “there was virtually no similarities and a large number of dissimilarities.”

“ ‘(B)efore 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.’ ” State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321). Hence, the only separate crimes which are admissible are those that either are similar, or logically connected to the offense with which charged in the case at bar. No claim is made to a logical connection between the prior offenses, but they were admitted on the bases of similarity. If such offenses are similar, they are admissible to show identity, motive, plan, scheme, bent of mind, or course of conduct. Id.

Ms. A.R. testified she was living with her cousin on June 12, 1986, when she was awakened by intruders who entered her bedroom through the window at 5:00 a.m. They tied her hands and feet, covered her head, and kept saying “not to make any noise, not to scream or else we’ll kill you.” She was raped three times by one man and one time by a second man. The men asked for money and “where is the cocaine, and where is the reefer and they kept saying we’re the klan and you all stay out of Stone Mountain. . . .” She identified the defendant as one of her rapists. In the incident charged in the instant case, Mr. F. had testified that they had asked him for “reefer” and “cocaine” and the daughter and wife heard the rapists ask for money and cocaine. Mr. F. said that defendant told him: “. . . I own Stone Mountain, stay out of Stone Mountain. ...” Both the mother and daughter were told repeatedly throughout the episode to keep quite or they would be killed. When the burglars departed Ms. A.R.’s house, they took her television set, wrist watch, clock radio and car keys.

Ms. S.S. testified that on June 18, 1986, she was at her boyfriend’s house and three men with guns entered the house. She was tied up, blindfolded and gagged. She was raped repeatedly by each of the three men. They told her to keep her eyes closed and if she looked at them they “would blow [her] brains out.” She identified the appellant as one of her rapists. Her boyfriend was tied up and heard the men ask for “cocaine, cocaine, cocaine.” He also identified appellant as a participant. When the men left, they took a wide variety of personal items, including the boyfriend’s truck. A friend who was present at that time saw the three men enter the yard, with guns, and he attempted to run but was told: “move and you’re dead, honky.” He was blindfolded and gagged. His hands were tied behind him and he was struck many times on the head.

The admissibility of “other offense” evidence is a matter which lies within the sound discretion of the trial judge. Harris v. State, 255 Ga. 500, 502 (340 SE2d 4). The prerequisite foundation of identity of the appellant as the perpetrator of the independent offenses was met by the evidence. Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515); Sablon v. State, 182 Ga. App. 128, 130 (355 SE2d 88); Milner v. State, 180 Ga. App. 97, 100 (348 SE2d 509). The evidence pertinent to a determination of similarity and relevance was shown by that cited above. Felker v. State, 252 Ga. 351 (1) (314 SE2d 621); Kilgore v. State, 251 Ga. 291, 297 (305 SE2d 82); Harper v. State, 180 Ga. App. 20 (1) (348 SE2d 318). We find no error in the admission of this evidence.

2. It is enumerated as error that the district attorney misled the court in his recital of “facts” of alleged similar transactions, thereby gaining admission of other offenses which placed the appellant’s character in evidence. The district attorney had filed notice of intent of the State to introduce evidence of prior similar transactions required by the Uniform Superior Court Rules. A hearing was held just prior to trial and the district attorney stated in his place what he expected the evidence to show happened in the instant case, and what he expected the evidence would show in the two prior incidents. This court, in Hall v. State, 181 Ga. App. 92 (351 SE2d 236), approved such a procedure as satisfactory compliance with the Rules. Appellant has pointed out some minor inconsistencies between the district attorney’s summary of expected testimony and that which was finally introduced. We have carefully examined the pretrial summary and the evidence admitted, and find no substantial difference of any material fact. This court has adopted as its primary consideration, whether defendant was deprived of any substantial rights in the State’s execution of the intent of the Rule. Devane v. State, 183 Ga. App. 60, 62 (357 SE2d 819). “The burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse.” Stewart v. State, 180 Ga. App. 266, 267 (349 SE2d 18). We find substantial compliance with the Rule (Sweatman v. State, 181 Ga. App. 474 (1) (352 SE2d 796)), and no reversible error.

3. A Brady motion was filed by appellant for all “exculpatory, impeaching and mitigating” information in the District Attorney’s file. Appellant’s attorney states he was not permitted to examine the district attorney’s file nor was an in camera inspection made by the trial court. He contends that “[d]uring the trial of the case, it was revealed that [Mrs. F.] was unable to identify Appellant by his appearance in a physical lineup ... or from a photographic display shown her only two days after the incident.”

Black defines “exculpatory” as “clearing or tending to clear from alleged fault or guilt; excusing.” Black’s Law Dictionary (4th ed.) The fact that Mrs. F. was unable to visually identify the appellant in a photo or physical lineup, before identifying him in the physical lineup by his voice, is not “clearing or tending to clear from alleged fault or guilt; [or] excusing.” In other words, the mere failure of a rape victim to identify the actor does not clear that party from guilt particularly when she identifies the actor by another feature. This is true in this instance when the man is identified by another rape victim who was present during the rape of her mother, and the father who identified the appellant, and the accused’s participant who identified appellant as the guilty party. Neither can this information be “impeaching” or “mitigating” under the facts of this case. Further, there is no evidence the State made any effort to intentionally suppress the evidence. To the contrary, in the opening statement it was shown that Mrs. F. could not identify anyone in either the photographic lineup or the physical lineup. No objection was made at that time nor was any objection made during the testimony of Mrs. F. when she stated exactly what the district attorney had said she would state. Following her daughter’s testimony and excusal from the stand, counsel then objected to the earlier testimony of Mrs. F. on the basis that it was “Brady material” which he had never been provided in response to his motion.

“There is no general constitutional right to discovery in a criminal case, and Brady[ v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)] did not create one. . . .” Weatherford v. Bursey, 429 U. S. 545, 559 (97 SC 837, 51 LE2d 30). Neither is Brady violated when Brady material is made available to the defendant during the trial. Castell v. State, 250 Ga. 776, 781 (301 SE2d 234). Nor is there any Georgia statute or rule of practice which requires the State to open its files to a defendant’s attorney, Stanley v. State, 153 Ga. App. 42 (2) (264 SE2d 533). Neither is an accused entitled to receive copies of police reports or investigative reports made in the course of preparation of the case against the defendant. Stevens v. State, 242 Ga. 34, 37 (247 SE2d 838). It is only when the “ ‘ “omitted evidence creates a reasonable doubt that did not otherwise exist, [that] constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.” ’ ” Harper v. State, 249 Ga. 519, 528 (292 SE2d 389); accord United States v. Agurs, 427 U. S. 97, 104 (96 SC 2392, 49 LE2d 342). There can be no reasonable doubt as to the guilt of the appellant for the offenses for which he was found guilty and we find no error.

4. A palm print was lifted from the washing machine in the burglarized home and was compared to appellant’s fingerprint card on file with the police. Because of the match of the palm print with appellant’s prints, a photographic lineup was prepared for the victims. Mr. F. and his daughter selected appellant’s photograph as one of the parties who had burglarized their home and raped the mother and daughter. An arrest warrant was issued for appellant and after his apprehension he was placed in a physical lineup where he was identified by Mr. F. and his daughter, and after speaking words uttered during the commission of these offenses, Mrs. F. identified appellant as her rapist. Appellant enumerates as error the failure of the State to provide him with counsel at his physical lineup.

The United States Supreme Court has held clearly “that the right to counsel . . . attaches only to corporeal identifications conducted ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ 406 U. S. at 689. This is so because the initiation of such proceedings ‘mark the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.’ ” Moore v. Illinois, 434 U. S. 220, 226-227 (98 SC 458, 54 LE2d 424). Georgia follows this same procedure. Young v. State, 243 Ga. 546, 547 (255 SE2d 20); Disby v. State, 238 Ga. 178, 179 (231 SE2d 763); Painter v. State, 237 Ga. 30, 31 (226 SE2d 578). There were no inherently or unnecessarily suggestive procedures employed at the lineup, nor do we find any possibility of irreparable misidentification because appellant’s accomplice positively identified him as the person with whom he acted in committing these offenses. See Wiley v. State, 250 Ga. 343, 348-349 (296 SE2d 714). These enumerations are without merit.

Decided May 12, 1988

Rehearing denied June 1, 1988

Rise H. Weathersby, Chandelle Turner, for appellant.

Lewis R. Slaton, District Attorney, R. Andrew Weathers, Benjamin H. Oehlert III, Joseph J. Drolet, Henry M. Newkirk, Assistant District Attorneys, for appellee.

5. Appellant enumerates as error the trial court’s denial of his motion for mistrial for argument made during an opening statement to the jury that he expected the evidence to show “defendant was asking for cocaine, said, where is the cocaine. . . .” Counsel objected and moved for a mistrial on the basis that he “has not been charged with any offense involving drugs” in this case. The trial court ruled that the State “has a right to show what happened on that occurrence . . . and if he mentioned cocaine, then [the State] has a right to refer to it also.”

The court clearly invoked the res gestae rule (OCGA § 24-3-3) that “[t]he state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence as part of the res gestae even though it may have incidentally placed the defendant’s character in evidence.” Chambers v. State, 250 Ga. 856 (2) (302 SE2d 86); accord Wolke v. State, 181 Ga. App. 635 (2) (353 SE2d 827); Cowart v. State, 179 Ga. App. 108, 109 (345 SE2d 655).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    75783.
    ADAMS v. THE STATE.
    (370 SE2d 197)
   Birdsong, Chief Judge.

Victor Howard Adams was tried and convicted of aggravated assault with intent to rob, in the attempted robbery of a liquor store. On appeal he contends the evidence was insufficient to convict him as a matter of law, as in Moore v. State, 255 Ga. 519 (340 SE2d 888); Brown v. State, 250 Ga. 862 (302 SE2d 347), there being no evidence that he participated in the robbery or even knew of it. He contends the only evidence of guilt is circumstantial, in that after the robber, Stroupe, who had been shot, stumbled back to Stroupe’s (stolen) car 200 yards away, the appellant who was in the car got Stroupe out of the ditch where he had fallen, put him in the car, and drove the car away, i.e. (according to the prosecution’s view), fled. Held:

1. The appellant in effect contends the evidence does not exclude his own reasonable hypothesis, which is that he was not fleeing but was attempting to get help for his companion Stroupe, who appellant did not know had attempted armed robbery.

Viewing the evidence in favor of the verdict, as we are required to do on appeal (see Johnson v. State, 231 Ga. 138 (1) (200 SE2d 734); Fulford v. State, 144 Ga. App. 546 (1) (241 SE2d 646)), we find the evidence authorized the following findings: Appellant Victor Adams lived at Tybee Island beach with his girl friend and his 17-year-old nephew. Appellant was to start temporary work in a few days as a shrimper. On June 2, 1986, at about 4:00 a.m., appellant’s friend Herbert Stroupe showed up at appellant’s house on the beach, having driven there with two companions accompanying him in another car. The black Camaro Stroupe arrived in was stolen, but appellant testified he did not know it and there is no evidence that he did. Stroupe’s two companions went to sleep in the house. Appellant walked his girl friend to her job; then appellant, his nephew and Stroupe went out to the beach. They began drinking at 7:00 a.m. or 9:00 a.m., on the beach. Throughout the day appellant and friends drank beer, toured the beach, bought more beer, drank that, and bought some more. This revelry went on for hours while appellant, trying to impress his friend Stroupe, showed him all around the beach, drinking beer all the while. Appellant had been bragging about River Street in Savannah, and Stroupe wanted to go there; about 5:00 p.m. appellant and his nephew and Stroupe rode to Savannah.

After further heavy drinking, Stroupe saw a package store, Dot’s Liquorama, and announced that he wanted to stop and buy cold beer, inasmuch as the beer they had left in the car had gotten warm while they were at River Street. According to Stroupe, traffic prevented him from pulling into the liquor store’s parking lot (the State suggested there was no such traffic problem). Stroupe then drove the car over to a ditch (canal), and both he and appellant got out of the car and went to the ditch to relieve themselves. Appellant felt queasy, evidently from so much drink, and he began to vomit. At this point, Stroupe announced, “I’ll walk over here to the package store. Maybe I can get across the street by walking”; appellant said “Okay, I’ll wait here,” and Stroupe disappeared. Appellant testified he then went back to the car, to find that his nephew had flipped the passenger seat back. Evidently the nephew was still dozing and passed out, so instead of waking him up to get in the passenger seat, appellant opened the driver’s door, flipped the bucket seat up and sat in the back seat next to his nephew, and waited for Stroupe to return.

Appellant was still drunk, queasy, about half sick. He does not know how much time elapsed before he heard “the most commotion!,] like moaning.” He raised up out of the back seat and looked over the passenger door down into the ditch, and saw Stroupe down in the ditch with blood all over him. According to appellant, he thought that Stroupe had been run over by a car. Appellant got out of the car on the driver’s side, and picked Stroupe up out of the ditch and placed him in the passenger seat. One of Stroupe’s fingers was gone and blood was squirting out of it. Appellant jumped in the driver’s seat, started the car and drove off at a high rate of speed, spinning sideways out of the ditch. His only thought was to get to where people were and get help. He found traffic was backed up on President Street, and, spying a building that looked like it had fuel tanks and pumps around it where there might be a telephone, he turned off President Street, drove to the building and parked in the parking lot. There were two buildings; one was an open bay-door warehouse near the river.

Appellant testified he got out of the car and ran to the passenger side to see how badly Stroupe was hurt, but appellant could not see because there was too much blood. He testified he took a shirt from the car and ran down to the river, wet the shirt and went back to the car and wrapped the shirt around Stroupe’s hand where the blood was squirting out. Then appellant ran to the little building to look for a phone or someone who worked there; he found no one. He did not know Stroupe had gotten out of the car. He was arrested, and saw Stroupe about 20 yards away lying on the ground, in custody.

Appellant testified unequivocally that he never saw a gun, had no idea Stroupe intended to rob the liquor store, and did not know Stroupe had been shot but thought he had been run over. Appellant testified also that he did not know Stroupe had run out of money; one of the State’s photo exhibits shows bloody paper money in the Camaro seat although it was clear Stroupe had managed to get neither beer nor money before being shot by the storekeeper. Appellant testified further that he never knew anything about an armed robbery until the police arrested him at the warehouse, for “[t]o my understanding, [Stroupe] was going to walk over there and get a six-pack to go.”

A motorist witness who saw Stroupe, bloody, stumbling across the street from the Liquorama, followed him to the Camaro at the ditch (canal). He first testified that from his own car 75 yards behind the Camaro, he saw appellant sitting in the driver’s seat and then getting out quickly to help Stroupe into the car; but on cross-examination, he conceded he could not be sure whether appellant had been seated in the driver’s seat or behind the driver’s seat.

The storekeeper was the only person in the liquor store when Stroupe entered it. He testified that at about 5:55 p.m., a white male came in the store and when he reached the corner display case, a large caliber gun fell out of the man’s pants (gym shorts). The man “rather nonchalantly reached down” and picked it up, and said, “I just carry this.” He then came around to the other end of the counter where the storekeeper was, and “at the time ... he came to be in front of [the storekeeper], he was trying to put the gun back in his pants. . . . [T]hen he just turned around like as if he was leaving by the same route that he had entered, and when he got to the end of the counter, instead of turning to exit the store, he turned and came behind the counter . . . [and said], ‘Why don’t you go ahead and get your hands up?’ and at the same time, he drew down on me.” The storekeeper grabbed his own gun and shot Stroupe. The storekeeper thinks Stroupe fired a shot but could not be certain. Stroupe stumbled out the door and across the street and managed to get back to the Camaro at the ditch (canal).

The police arrived at Dot’s Liquorama within a minute of the storekeeper’s 911 call. One officer, on his way on President Street, passed a black Camaro, in which the driver, whom he identified at trial as the appellant, appeared to be trying to keep the car on the road while also looking at something in the front seat. This officer, Bashlor, went on to Dot’s Liquorama, was directed out to the ditch (canal), and two persons there pointed west, indicating where the Camaro had gone. Another officer, Ennis, drove up at that moment and Bashlor pointed him to the west. After getting a more detailed description from the witnesses, Bashlor drove off and followed the other police cars to the Sayler Marine Warehouse where appellant had parked. This officer testified that the Camaro had stopped before the police had come upon it.

Corporal Ennis testified that when he arrived at the ditch (canal) where the Camaro had first been parked, he was pointed west by Officer Bashlor. Proceeding west on President Street, he determined (apparently by radio) that the suspect car “did not come up the hill”; evidently deducing the car had turned off, Ennis turned off onto Macintosh Street. He testified, “By that time, Officer Sharpley said he had a white male running down by the river,” which he knew was just north of Sayler Marine Warehouse. Ennis drove to the warehouse; when he arrived, Officer Sharpley “was running two white males into the building.” Ennis went around the other side of the warehouse and caught the two men coming out.

Officer Sharpley, who was the first officer to arrive at the warehouse, testified that when he first drove up to the warehouse, he saw the appellant running “through the warehouse,” but then when he drove around the warehouse, he saw the Camaro parked with appellant back in the Camaro, with two other suspects. Appellant and Stroupe then got out of the car and ran through the warehouse, and were captured coming out.

The appellant contends the evidence is abundant from which to reasonably conclude that after entertaining Stroupe all day, appellant might reasonably have been so drunk by 5:00 p.m., was queasy and in between dozing and passing out, such as to have noticed little and known even less of what Stroupe intended.

Notwithstanding any ruling upon the particular facts of any other case, it is well settled that in an entirely circumstantial case, the question whether there is a reasonable hypothesis favorable to the accused is the jury’s province. Questions as to reasonableness are generally to be decided by the jury which heard the evidence, and finds beyond a reasonable doubt that there is no reasonable hypothesis other than guilt. The appellate court will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law. Harris v. State, 236 Ga. 242, 244-245 (223 SE2d 643); Lewis v. State, 149 Ga. App. 181, 182 (254 SE2d 142). The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind. Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474). Moreover, in every case the jury is the arbiter of credibility including as to the defendant’s explanation, and the jury is the body which resolves conflicting evidence, and where the jury has done so, the appellate court cannot merely substitute its judgment for that of the jury. See Glover v. State, 237 Ga. 859, 860 (230 SE2d 293).

The jury in this case decided that appellant’s explanation as to his involvement and participation in the events surrounding Stroupe’s attempted robbery, produced no reasonable hypothesis other than guilt. This finding was made in the entirety of the circumstances, including the credibility of the defendant, which the jury was in the position to judge. Townsend, supra. The finding is not insupportable as a matter of law, nor is it outside the proven facts. We conclude the verdict meets the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), being such that a reasonable trier of fact could rationally find proof of guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis.

2. Appellant contends the trial court erred in refusing, despite request, to give a “two theories” charge, i.e., where the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence. See Barnett v. State, 153 Ga. App. 430 (265 SE2d 348).

This jury, however, was charged correctly as to the requirement in a circumstantial case that guilt be found not only beyond a reasonable doubt, but also to the exclusion of every other reasonable hypothesis. The jury was also charged as to “parties to a crime” and the finding of criminal intent. Having been so instructed, the jury returned a verdict of guilty. It follows that the jury, clearly finding in the evidence no reasonable hypothesis other than guilt, could not and did not find a theory consistent with innocence. While the charge was authorized, we are compelled by reason to find the failure to give it, if error, was harmless beyond a reasonable doubt, as it is highly probable the failure to give it did not affect the verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Decided June 1, 1988.

Michael K. Gardner, for appellant.

Spencer Lawton, Jr., District Attorney, Suzanne P. Craig, Assistant District Attorney, for appellee.

3. Appellant has abandoned his third enumeration of error by failing to present it by argument or citation of authority in his original brief. Court of Appeals Rule 15 (c) (2); Quick v. State, 166 Ga. App. 492 (304 SE2d 916).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    75889.
    HINKLEY v. BUILDING MATERIAL MERCHANTS ASSOCIATION OF GEORGIA, INC.
    (370 SE2d 201)
   Beasley, Judge.

Hinkley was injured while working on a truss rolling machine as an employee of Stringer Lumber Company. The machine, equipped with a safety device which had been disabled, caught Hinkley and his arm rolled through it. Workers’ compensation benefits were awarded.

Hinkley then sued Building Material Merchants Association of Georgia, Inc. (BMMA), claiming that it insured Stringer and had undertaken to inspect the premises but had negligently failed to inspect and remedy the lack of a safety device on the machine. Summary judgment was granted to BMMA, on the ground that BMMA was entitled to the statutory employer’s immunity under OCGA § 34-9-11. Upon appeal, we affirm.

BMMA, a trade association, contracted with Building Material Merchants Association Self Insurers Fund, Inc., (BMMASIF), not a party to this suit, for BMMA to provide certain services in connection with its members’ self-insurance fund. These included soliciting the BMMA members for insurance membership in BMMASIF and “implement [ing] a loss control program . . . .” and “providing] physical inspections to members of BMMASIF on the basis of need and/or as directed by the Board of Trustees.” BMMA solicited an application for BMMASIF insurance from Stringer, and it was forwarded to the Insurance Commissioner.

OCGA § 34-9-11 provides that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law or otherwise,. . .; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than . . . any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, . . .” See also the statutory definition of “employer,” which includes verbatim the “any person” description as well as the separate inclusion of insurers. OCGA § 34-9-1 (3).

The issue is whether BMMA, which provided services to BMMASIF and its member employers solely with regard to workers’ compensation insurance, is also protected by the immunity. It was not factually disputed that BMMA was the “service agency” for the employer in administering the self-insured employer’s workers’ compensation program of BMMASIF. On this premise, the trial court felt bound to hold that this case is controlled by Fred S. James & Co. v. King, 160 Ga. App. 697 (288 SE2d 52) (1981). We are not persuaded to overrule it; rather, we agree that its reasoning is sound and applies here: “We see no logical reason why a service agency which is responsible for the administration of a self-insured employer’s workers’ compensation program should not be included under the umbrella of immunity provided by the Act. By contract the service agency administers and facilitates the payment of benefits by the self-insurer, and anyone who ‘undertakes to perform or assist in the performance’ of an employer’s statutory duties under the Workers’ Compensation Act should be immune from suit as a third party tortfeasor.” James, supra at 700.

Hinkley urges that we should allow recovery from a workers’ compensation carrier (he does not distinguish the service agency) which has negligently inspected the employer’s premises in connection with the workers’ compensation coverage, although he recognizes that our law presently does not allow for such recovery. Argonaut Ins. Co. v. Clark, 154 Ga. App. 183, 184 (1) (267 SE2d 797) (1980); Newton v. Liberty Mut. Ins. Co., 148 Ga. App. 694 (1) (252 SE2d 199) (1979); United States Fire Ins. Co. v. Day, 136 Ga. App. 359, 360 (221 SE2d 467) (1975). This argument was not presented to the trial court and thus we do not address it. A ground urged for the first time on appeal will not be considered. Hill v. State, 183 Ga. App. 654, 657 (4) (360 SE2d 4) (1987). The complaint, which alleged that BMMA was the “insurer” of Stringer, apparently meant that it provided other insurance in addition to workers’ compensation insurance, which would be the only way to have a cause of action for negligent inspection under the above cited cases. However, in support of its motion for summary judgment, BMMA submitted an affidavit unequivocally stating that no general liability or other insurance was supplied, only workers’ compensation. Although Hinkley’s statement of disputed material facts included the issue of other types of insurance, no evidence contrary to BMMA’s was presented.

Decided June 1, 1988.

M. Van Stephens II, for appellant.

Larry S. McReynolds, J. Michael Welch, for appellee.

“Once the moving party for summary judgment has carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. Meade v. Heimanson, 239 Ga. 177, 180 (236 SE2d 357) (1977); [Cit.]” Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159) (1987). Hinkley did not provide a factual basis for defeating the motion under present Georgia law.

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.


author: McMurray, Presiding Judge.

text:
    75891.
    BROWN v. THE STATE.
    (370 SE2d 203)
   McMurray, Presiding Judge.

Defendant Brown appeals his convictions for the offenses of burglary, driving while license suspended, reckless driving, leaving the scene of an accident, and theft by taking (motor vehicle). Held:

1. Defendant enumerates as error the trial court’s failure to declare a mistrial after the State had elicited testimony which put the defendant’s character into evidence. After hearing defendant’s motion for mistrial, the trial court overruled defendant’s motion and instructed the jury to “totally disregard” the question and answer which had prompted defendant’s motion for mistrial. No further ruling was invoked by defendant. “[T]he failure to renew the motion for mistrial after the curative instructions waives the denial of the motion as an error on appeal.” McLendon v. State, 181 Ga. App. 851, 852 (354 SE2d 193).

2. Defendant also enumerates as error the trial court’s holding that a valid marriage did not exist between defendant and Marilyn Dempsey, a State’s witness. Prior to trial a hearing was held to determine whether a marriage existed and thus whether the spousal privilege of OCGA § 24-9-23 was applicable in the case sub judice.

There was conflicting evidence presented as to the existence of a common law marriage. Witness Dempsey testified as to defendant living with her from November 20, 1986, until the time of his arrest, that on December 19, 1986, with their children present she and defendant had “pledged to live our life together as husband and wife,” and that she had felt she was the defendant’s wife since December 1986. The witness testified that she considered her name to be “Marilyn Brown.” However, there was also evidence that subsequent to the December pledge witness Dempsey had applied for a driver’s license and a social security card using the surname “Dempsey” rather than defendant’s surname of “Brown,” that on the application for the social security card she indicated she was single, that she continued to use the surname of “Dempsey” at her place of employment, that she had not told the officers investigating the charges against defendant that she was married and had given her name to them as “Marilyn Dempsey.” Witness Dempsey also testified as to plans for a ceremonial marriage in March of 1987, but never attempted to acquire a marriage license or take a blood test. Another witness at the hearing was a daughter of witness Dempsey, who, according to witness Dempsey’s testimony, had been present at the December pledge. The daughter testified as to a conversation at that time contemplating a marriage at a future date and that they did not get married on that date.

Decided June 1, 1988.

Roland L. Enloe, Jr., for appellant.

David L. Lomenick, Jr., District Attorney, David J. Dunn, Jr., Assistant District Attorney, for appellee.

In view of the conflicting evidence as to the existence of a common law marriage, the trial court was authorized to find that no common law marriage exists. Overcash v. State, 239 Ga. 499, 500 (3) (238 SE2d 50). This enumeration of error is without merit.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76090.
    WEBB v. THE STATE.
    (370 SE2d 204)
   McMurray, Presiding Judge.

Defendant’s first trial for the offense of armed robbery ended in a mistrial. Upon retrial approximately three weeks later, defendant was convicted of armed robbery and now appeals. Held:

1. In view of the victim’s identification testimony, the evidence was sufficient to authorize any rational trier of fact to find defendant guilty of armed robbery beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The weight and credibility to be afforded the victim’s testimony was a matter for the jury to resolve. Harris v. State, 155 Ga. App. 530 (271 SE2d 668). This court cannot review the “quality” of evidence; it can only review the sufficiency of evidence. Thomas v. State, 175 Ga. App. 873 (1) (334 SE2d 903).

2. On February 19, 1987, prior to the first trial, defendant made a “motion to exclude the testimony of the victim on grounds of incompetency . . . pursuant to O.C.G.A. 24-9-5 & 7.” In this regard, defendant moved “the Court to hold a pre-trial hearing into the competency of the victim ... to determine if he has sufficient capacity to be a witness in this case, it being defendant’s contention that the said [victim] is not competent to be a witness in this case.”

During the course of the first trial on March 17,1987, the following transpired: “[Defense Counsel]: Your honor, before [the victim] takes the stand I have another motion I like [sic] to make which I previously filed in this case. I like [sic] to take that up outside the presence of the jury. THE COURT: Let me see this motion. This is [the victim] here? [Assistant District Attorney]: Yes, sir. THE COURT: I overrule your motion. [Defense Counsel]: Your honor, I think I’m entitled to — THE COURT: I read it. [Defense Counsel]: — make an inquiry on this. THE COURT: I read it. That’s the court’s responsibility to do that. [Defense Counsel]: I know. I’m asking you to do that outside the presence of the jury before he testifies. THE COURT: I ruled, counsel. (Whereupon, [the victim] testified). [Defense Counsel]: Your honor, I like [sic] to make a motion outside the presence of the jury. THE COURT: Let the jury go out for one moment, please. (Whereupon the jury retired to the jury room.) . . . [Defense Counsel]: Just want to make clear for the record before [the victim] took the stand I made a motion outside the presence of the jury that I previously filed, and you asked to see that, which was the motion entitled motion to exclude the testimony of the victim on grounds of incompetency. That was filed in this office on February 19 of 1987. That was a motion that I presented for you to review along with my letter of March 6 of 1987 with a copy to [the Assistant District Attorney] requesting a hearing on that prior to trial. I just wanted to make sure that was part of the record as to what you reviewed prior to [the victim] — THE COURT: I said I’ll look at it. I looked at [the victim] sitting over there, and I overruled your motion. He’s not incompetent to me. He’s a young man. I heard him testify. He seems to be extremely competent to me. He has some speech impediment: other than that, I don’t see anything wrong with him.”

On April 8, 1987, during the course of the second trial and prior to the victim taking the stand, the following transpired: “[Defense Counsel]: Other thing, your honor, is I would like to renew my motion to exclude the testimony of [the victim] on the grounds of incompetency under grounds twenty-four, nine, and seven [OCGA § 24-9-7] that I previously filed in this case. I raised that at the last trial of this matter and I raise it again. THE COURT: Well, I don’t know why we’re going through it again, but, as before, you stated no grounds. [Defense Counsel]: Well, I’m stating that the ground is that this man is not competent to testify and there’s — does not have sufficient capacity to understand the nature of an oath and to give truthful testimony and under twenty-four, nine, five and seven [apparently OCGA §§ 24-9-5; 24-9-7] I so moved back on February 19th, and I renew that motion before he takes the stand. THE COURT: Well, the record ought to show that I have heard him testify, I have seen him, heard him testify in a prior trial, and he is very competent to testify. I overrule the motion.”

OCGA § 24-9-5 provides that “[p]ersons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.” OCGA § 24-9-7 provides in pertinent part that “[t]he competency of a witness shall be decided by the court. The court shall by examination decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness or infancy.”

In his second enumeration of error, defendant contends the trial court erred in overruling his request for a hearing with regard to the competency of the victim. We disagree. Defendant made his “motion to exclude the testimony of the victim on grounds of incompetency . . . pursuant to O.C.G.A. 24-9-5 & 7” in the broadest of terms without distinctly alleging what category of “[p]ersons who do not have the use of reason” the victim fit into. Could the victim be alleged and shown to be an idiot, or a lunatic during lunacy, or a child who does not understand the nature of an oath, or all three categories? The record and transcript do not establish an affirmative answer to this question. At the second trial the trial court stated to defense counsel: “Well, I don’t know why we’re going through it again, but as before, you stated no grounds.” Defense counsel responded: “Well, I’m stating that the ground is that this man is not competent to testify and there’s — does not have sufficient capacity to understand the nature of an oath and to give truthful testimony and under twenty-four, nine, five and seven [apparently OCGA §§ 24-9-5; 24-9-7].” At no point did defendant raise a distinct objection to the competency of the witness. See Dowdy v. Watson & Lewis, 115 Ga. 42 (41 SE 266). He simply requested a hearing without specifying any valid ground of incompetency as applies to the facts and circumstances of the case sub judice. Compare Gilstrap v. State, 90 Ga. App. 12, 14 (2) (81 SE2d 872), in which the witness was alleged to have been insane. In the case sub judice, when pressed by the trial court for grounds, defense counsel responded “this man is not competent to testify and there’s — does not have sufficient capacity to understand the nature of an oath and to give truthful testimony and under twenty-four, nine, five and seven [apparently OCGA §§ 24-9-5; 24-9-7].”

Decided June 1, 1988.

John A. Pickens, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Harvey W. Moskowitz, Richard E. Hicks, Assistant District Attorneys, for appellee.

Everyone is presumed competent to testify. Redfield v. State, 240 Ga. 460, 461 (3) (241 SE2d 217). Under the particular facts and circumstances of the case sub judice in the absence of a specific allegation of the category of incompetency, we see no need for the trial court to conduct an examination to decide the capacity of a witness. See Dowdy v. Watson & Lewis, supra; OCGA § 24-9-7. The trial court did not err in refusing to conduct an examination, in addition to the trial court’s observation of the victim and his testimony during the course of the first trial, with regard to the victim’s competency, no applicable specific ground of incompetency having been alleged.

3. The trial court concluded its charge on parties to a crime by stating: “If you find the evidence supports that [defendant] participated in that robbery in any way then he could be convicted of the offense of armed robbery. That is, even though he didn’t do everything that was done. If he participated. Participation just doesn’t mean just being there or happen to be standing by or anything like that. You must actively participate in it. And as I charged you earlier, a crime involving the act and intention. So you can’t just be a bystander.”

Defendant contends the trial court erred in using the words “in any way” in its charge. In view of the trial court’s full charge concerning participation in a crime (and its previous discussion illuminating the ways in which a person may be a party to a crime) we find no error. The words “in any way” were qualified by the charge as a whole.

The victim testified that defendant was one of three assailants who robbed him. Accordingly, the trial court did not err in charging on parties to a crime. Battle v. State, 231 Ga. 501 (202 SE2d 449).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76197.
    CAMPBELL et al. v. FORSYTH.
    (370 SE2d 207)
   Birdsong, Chief Judge.

Plaintiffs, Joyce and Randy Campbell, appeal from a jury verdict in favor of defendant Debbie Forsyth, and judgment entered upon the verdict. Joyce Campbell was a passenger in an automobile driven by Janet Presley. Campbell and Presley were employees of the Carters-ville Spinning Company and worked the 8:00 p.m. to 8:00 a.m. shift, and were going home at approximately 8:30 a.m. on April 17, 1986, after completing their shift. Presley was driving northward on Georgia Highway 113 and approached an intersection with County Road 37. Forsyth was proceeding westward on County Road 37 and stopped at the stop sign where it intersected with Highway 113. Forsyth said she thought the way was clear and pulled into the intersection, intending to turn south. Presley testified that she saw Forsyth’s car stop, but when she got closer she saw that the front end of the car was in the right-hand lane of the road. She tried to go around Forsyth’s car, but they collided. There was only a minor impact, according to Officer Edward Brock who investigated the collision. Presley said she was driving at approximately 45 miles per hour. The speed limit at that point was 55 mph. Officer Brock found no indication that either vehicle “tried to brake at all.” The officer found there were no injuries to any of the individuals in the two cars. The right front quarter panel of Presley’s vehicle was “marked up, indented.” The right front bumper of Forsyth’s vehicle was damaged. The damage to Presley’s vehicle in which Campbell was riding, was characterized as “slight.” Both cars were driven away from the scene of the collision.

Campbell said she was riding in the back seat of Presley’s vehicle on the passenger side. She saw Mrs. Forsyth’s car stop and then enter the highway. She said she told Presley to slow down and Presley’s car “swerved over into the left lane. . . .” When Presley put on her brakes, Campbell said she hit her head on the top of the car and went into the front seat. She was not wearing her seatbelt. When questioned by the officer at the scene, she told him she was not injured. She also told the paramedics in the ambulance that she was not injured. “About two hours after [she] got home . . . [she] started having pains in [her] neck and pains between [her] shoulder blades.” Her husband took her to the “emergency room” at the Rockmart Aragon Hospital. After being treated in the emergency room, she went to see Dr. John Atha. Dr. Atha put her in a neck brace and gave her some muscle relaxants and told her to go to bed. At a later date she saw Dr. Martensen about her “nerves” and was placed in the hospital. She testified that she returned to the Rockmart Aragon Hospital emergency room nine times for her nerves. She was referred to Dr. Mark Murphy, a neurosurgeon, for her nerves. She says she continues to experience bad health problems to the present date and seeks damages for medical expenses, pain and suffering, and lost wages. The jury found for the defendant and plaintiffs bring this appeal. Held:

1. Appellant contends the trial court erred in denying her motion for directed verdict on the issue of Forsyth’s liability. We do not agree. The trial court submitted all issues to the jury on the contentions of the parties. The jury was charged that plaintiff alleged injuries sustained by Campbell were caused by the negligence of Forsyth in failing to maintain a proper lookout for oncoming vehicles before entering Georgia Highway 113, that she failed to yield the right-of-way to Presley and attempted to drive across Highway 113 when such crossing could not be made with reasonable safety, and that because of these acts of negligence Campbell was injured, suffered great pain and discomfort and her ability to work and enjoy life has been “permanently diminished.” The husband asked for damages for loss of consortium.

The jury was charged that the defendant contended the collision was an accident and that Campbell was not permanently disabled, but suffered only an acute soft tissue injury from which she will recover and should have fully recovered prior to this time. The court also charged that Campbell had recovered $5,000 no-fault insurance benefits and any verdict should be decreased by this amount.

Accordingly, the jury was presented with the issues of Campbell’s allegation of negligence on the part of Forsyth, and Forsyth’s allegation that if Campbell was injured it was minor, not permanent, and should have fully resolved itself prior to trial, which was on September 16, 1987, and the collision was April 17, 1986.

“ ‘On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict. [Cits.]’ Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 254 (342 SE2d 694).” Knight v. Gonzalez, 181 Ga. App. 468, 469 (352 SE2d 646).

Dr. Mark Murphy, a neurosurgeon who treated Campbell after her injury, testified in person and by deposition. He first saw Campbell on May 13, 1986, reviewed her X-rays, which were normal and conducted a neurological examination and found no evidence of any broken bones, slippage of bones, and no abnormal alignment of any bones. She complained of pain in the neck and shoulders and he checked the cranial nerves, head and neck, and all parts of the “musculoskeletal” system. He found “a little bit of tenderness if you pushed over the neck . . . just mild tenderness.” Her reflexes and strength were normal. He found no neurologic damage, there was no asymmetry between her reflexes on either side and no signs of spinal cord damage. He discharged her from his care on June 25, 1986.

Dr. Murphy again saw Campbell on May 4, 1987. She had developed “some new characteristics. . . . One was that her back — that her neck and shoulder pain had resolved. . . . But that she had started having some central low back pain around October, sometime in 1986.” He found no signs of any nerve root irritation in her back. Her neurological examination was “basically normal.”

Dr. Murphy again saw Campbell on July 2, 1986. On this latter occasion she told him the back pain “had come on in March of 1987,” but on May 4 she had told him it developed in October 1986. Dr. Murphy diagnosed Campbell’s original complaint as a “cervical flex-ion extension injury” you usually find in car wrecks. This is a “soft tissue” injury and “usually resolves in a month or two.” It was almost one year later that Campbell first complained of back pain. When this type injury does not improve after a couple of visits, he asks the patient if she is involved in litigation and Campbell informed him she was. The doctor explained that “you can fake pain . . . but you can’t fake spasm in your back, you can’t fake reflexes,” and he did not see any “true responses” which would indicate an active spasm in her back or that she had a ruptured disc. Dr. Murphy was of the opinion that as to Campbell’s problems “probably it was not related to her automobile accident. . . . Whether or not her automobile accident did cause her to have an initial neck and shoulder strain and that her underlying personality was such that she became anxious and depressed and this later led to back pain, that may well be the scenario.” His assessment: “I suspect that once litigation is settled she will markedly improve.”

Appellee also contends that Campbell was thoroughly impeached. Throughout this trial, conflicting testimony was given by the appellant.

The jury was aware that Campbell had collected $5,000 from insurance coverage for her injuries, and that she originally told people at the site of the collision that she was not injured, and that she had misstated some of the facts surrounding the collision, and had not worn her seatbelt to avoid injury in a collision which was described by the investigating officer as causing “slight” damage to the vehicle in which she was riding. Further, that such injuries as she incurred had been resolved and she had been discharged by her doctor, but that either four months, or nine months later she developed lower back pain, for which a neurologist could find no neurological basis.

As stated earlier, on appeal this court is required to construe the evidence to uphold the jury verdict, and if there is “any evidence” to authorize the verdict, we should affirm. Knight, supra at 469. This “any evidence” standard also applies to appellate review of the trial court’s denial of appellant’s motion for a directed verdict. Associated Software Consultants v. Wysocki, 177 Ga. App. 135 (1) (338 SE2d 679). Under our code, a directed verdict can be granted only “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .” OCGA § 9-11-50 (a). In the instant case, appellant’s action was bottomed on negligence of the appellee. And, it is elementary that before any negligence can be actionable it must be proven to be the proximate cause of the injuries of the complainant. Rhodes v. Levitz Furn., 136 Ga. App. 514, 516 (221 SE2d 687). It is the general law of this state that questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly issues for jury resolution, and a court should not remove the issue from the jury except in plain and indisputable cases. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25). On the evidence of record, reasonable men could have differed on whether the negligence of the appellee was the proximate cause of appellant’s claimed permanent injuries. The evidence was neither plain nor palpable, nor was a verdict for appellant demanded. Humble Oil &c. Co. v. Mitchell, 230 Ga. 323, 326 (197 SE2d 126). It was not error for the trial court to refuse to direct a verdict for the appellant.

Decided June 1, 1988.

Joseph N. Anderson, Sara Nell Langland, for appellants.

Jack G. Slover, Jr., William D. Strickland, Steven P. Gilliam, Donald T. Hunt, for appellee.

2. We find appellant’s allegation that the judgment, based upon the jury’s verdict, “is contrary to the evidence and the principles of justice and equity” to be without merit.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76222.
    WILLIAMS v. THE STATE.
    (370 SE2d 210)
   Beasley, Judge.

Defendant appeals his conviction of aggravated battery, OCGA § 16-5-24, enumerating the denial of his motion for new trial on the general grounds and the court’s failure to charge good character as a defense.

We note at the outset that this case, involving an incident in February 1981, has been inordinately slow in reaching this court for review. The trial, which is transcribed on 221 pages, took place in February 1982, and was followed by a motion for new trial filed a few weeks later. About the same time, defendant was released on bond. Continuances for the trial transcript culminated in its filing in November 1982, after which counsel for defendant withdrew in Decernber 1984 due to conflict in interest. The state moved in May 1987 for dismissal of the new trial motion for failure of defendant to pursue it, prompting the setting of the five-year-old motion for hearing. It was denied in November 1987. Whether or not defendant was returned to custody does not appear. In any event, over seven years have elapsed, rendering the punishment remote. Speedy resolution is a constitutional requirement, Ga. Const. 1983, Art. VI, Sec. IX, Par. I, just as speedy trial is a defendant’s right, Ga. Const. 1983, Art. I, Sec. I, Par. XI. See also OCGA § 15-6-21, regarding motions.

1. As to the general grounds, Stinson v. State, 185 Ga. App. 543, 544 (364 SE2d 910) (1988) and Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988), we have examined the evidence and find it sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The court’s denial of the motion for new trial was not error.

2. Defendant did request a charge on “the following defenses . . . good character . . . ,” which the court refused to give for lack of evidence raising the issue. Defendant, who shot a young man in the face with a shotgun, was asked on redirect examination: “Walter, have you ever shot anybody before?” to which he responded “No, sir.” Defendant relies solely on this redirect exchange as proof of good character, although on direct examination he was asked: “Did you intend to shoot him with [the shotgun]?” and he answered: “No, sir. I didn’t intend to shoot nobody. I couldn’t shoot nobody. I never shot nobody.”

Defendant’s three-word request was not a complete and consequently not an accurate statement of the law concerning “good character.” OCGA § 5-5-24 (b). For one thing, “while evidence of good character is a substantive fact, which should be considered by the jury along with other facts tending to bear on the question of guilt or innocence, evidence of good character is not a substantive defense. [Cits.]” Edwards v. State, 255 Ga. 149, 150 (335 SE2d 869) (1985). Thus the court was not bound to honor the request. Only exceptional cases require the charge without a request on good character, but there must be evidence to support it. Spear v. State, 230 Ga. 74, 76 (1) (195 SE2d 397) (1973).

Even if it had been a proper request, or the case was exceptional, it is only when a defendant has “put his character in issue” as that term is defined in the context of OCGA §§ 24-9-20 (b) and 24-2-2 that the court is required to give a charge on good character. Spear, supra. A defendant may, by his own testimony of good acts, provide admissible evidence of his character. State v. Braddy, 254 Ga. 366, 367 (330 SE2d 338) (1985). This, however, may not be sufficient to raise the issue. Braddy, supra; cf. Rice v. State, 178 Ga. App. 748, 749 (2) (344 SE2d 720) (1986). “[A] defendant does not put his ‘character in issue’ within the meaning of OCGA § 24-9-20 (b) by inadvertent statements regarding his own good conduct.” Jones v. State, 257 Ga. 753, 758 (1) (363 SE2d 529) (1988), overruling Phillips v. State, 254 Ga. 370 (329 SE2d 475) (1985).

Decided June 1, 1988.

Johnny B. Mostiler, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Ann Cobb, Assistant District Attorney, for appellee.

Here, defendant’s statement that he never shot anybody was not responsive to the direct question relating to his defenses of accident and self-defense, which the court did fully charge. The volunteered additional statement, merely repeated on redirect, was not legally sufficient to “put his character in issue.” Jones, supra; Spear, supra; Rucker v. State, 177 Ga. App. 779, 782 (5) (341 SE2d 228) (1986).

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.