text:
    A89A0296.
    REDDING v. THE STATE.
    (384 SE2d 910)
   Carley, Chief Judge.

Appellant was indicted for theft by receiving, in that he “did retain stolen property, to-wit: One (1) 1978 Chevrolet Nova . . . which he knew and should have known was stolen; said property not having been retained with intent to restore it to the owner. . . .” Having been tried before a jury and found guilty, he appeals from the judgment of conviction and sentence that were entered by the trial court on the jury’s guilty verdict.

1. Appellant enumerates only the general grounds. His sole contention is that there was insufficient evidence to authorize a finding that he possessed the automobile with the requisite guilty knowledge that it was stolen. We find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof beyond a reasonable doubt that appellant had the requisite guilty knowledge and that he was, therefore, guilty beyond a reasonable doubt of theft by receiving stolen property. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In support of his enumeration of the general grounds, appellant neither cites Dyer v. State, 150 Ga. App. 760 (258 SE2d 620) (1979) nor otherwise urges that a fatal variance exists because the State’s evidence showed his commission of theft by taking rather than theft by receiving. Nevertheless, we are compelled to address this issue because the dissent has chosen to raise it.

In the instant case, appellant brought out on the cross-examination of the victim’s girl friend that she did not see anyone take the car keys. On redirect, the State then elicited her testimony that she had, however, seen appellant leave the victim’s bedroom and then get into the victim’s car. Until two days before trial, she told no one, not even the victim or the police, what she had seen. Moreover, she never actually saw appellant drive away. Accordingly, there was no uncontra-dicted evidence which demanded a finding that appellant was the thief. “The facts in the instant case are[, therefore,] distinguishable from those in Dyer v. State, . . . , supra, as the [S]tate did not produce conclusive evidence, as in Dyer, that [appellant] committed theft by taking . . . [G]uilt of either theft by taking or receiving could be inferred. ‘ “In a theft by receiving stolen property case, where the principal thief is unknown, there is no burden on the [S]tate of proving that such thief was not the defendant.” [Cit.]’ [Cit.]” Duke v. State, 153 Ga. App. 204, 205 (264 SE2d 721) (1980). See also Poole v. State, 144 Ga. App. 228, 229 (1) (240 SE2d 775) (1977) (eyewitness testimony that defendant was the thief). “[T]he jury would have been authorized to find the existence of each fact necessary to sustain a conviction of [theft by receiving]. . . . [Any] contention that there was a variance between the [SJtate’s allegations and proof . . . misses the point that the fatal variance doctrine merely is concerned with proof introduced in support of allegations and is not concerned with the findings the jury may make after having heard the evidence. [Cit.]” Oglesby v. State, 243 Ga. 690, 692 (3) (256 SE2d 371) (1979).

Moreover, even if there were a variance, it would not be so material as to be fatal. The crimes of theft by taking and theft by receiving are mutually exclusive. Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980). “On convicting [appellant] of the charge that he knowingly received the stolen [automobile], the [jury] necessarily determined that the [taking] had been committed by someone other than [appellant]. The [S]tate [would be] collaterally estopped from prosecuting [appellant] for [theft by taking] and attempting to reliti-gate and disprove that determined fact.” (Emphasis in original.) Clark v. State, 144 Ga. App. 69, 70 (240 SE2d 270) (1977). Accordingly, in holding that a conviction of theft by receiving would not bar a subsequent prosecution for theft by taking, Dyer v. State, supra at 162, is incorrect and it is hereby overruled.

Judgment affirmed.

Banke, P. J., Birdsong, Pope and Benham, JJ., concur. Deen, P. J., McMurray, P. J., Sognier, and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

The evidence showed that victim Davis lived in an Atlanta rooming house with his girl friend. On August 8 there was a barbecue at the house, with all residents and others invited. Davis attended and then went into his room and fell asleep, leaving his car keys on the television. When he awoke the next morning the keys and car were missing, and he reported it.

On August 21 an officer patrolling in Decatur about midnight saw a car parked in an access road behind some apartments. He ran the tag and discovered it was Davis’ car. He hid and watched the car for about three hours when a man came and moved the car to a parking place. The officer approached and found the defendant lying down in the seat of the car. He found the keys on the right front floorboard.

The victim’s girl friend also testified. She knew defendant and saw him at the barbecue. She preceded Davis to bed. When she awakened during the night she saw defendant leaving the room she shared with Davis. She followed and watched defendant leave through a rear window and get into Davis’ car. She returned to bed without telling her boyfriend of the incident and was not surprised when he told her the following morning the car was gone. Three days later, she overheard defendant talking to someone at the rooming house and bragging about having Davis’ car. She did not tell Davis this right away and did not report to the police about her seeing defendant or about his bragging. She told the district attorney shortly before trial. The evidence regarding her seeing defendant leave the night of the theft was introduced only in rebuttal after the witness’ negative reply to the question on cross-examination: “Did you actually see anybody take any keys?”

Defendant filed a motion for new trial raising the general grounds. Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988); Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988). He complains of its denial, contending that the evidence was legally insufficient in that there was no proof that his possession was with the requisite knowledge. Although there was ample proof of guilty knowledge, the evidence was nevertheless “insufficient” in another respect.

OCGA § 16-8-7 states that a “person commits the offense of theft by receiving stolen property when he . . . retains stolen property which he knows or should know was stolen . . . unless the property is . . . retained with intent to restore it to the owner.”

“The essence of the crime of receiving stolen property is that the defendant, with knowledge of the facts and without intent to return it to the owner, [retained] . . . property which had been stolen by some person other than the defendant. Austin v. State, 89 Ga. App. 866 (81 SE2d 508); Wells v. State, 127 Ga. App. 109 (192 SE2d 567).” Clark v. State, 144 Ga. App. 69, 70 (240 SE2d 270) (1977); Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980).

Theft by receiving and theft by taking are two separate crimes. Adams v. State, 164 Ga. App. 295 (297 SE2d 77) (1982). Theft by receiving is not a lesser included offense of theft by taking. Adams, supra; Sosbee, supra; Wells, supra; Plummer v. State, 126 Ga. App. 482 (191 SE2d 333) (1972).

I am guided by the principles applied in Dyer v. State, 150 Ga. App. 760 (258 SE2d 620) (1979): “A review of the record shows that at the trial the state proceeded to establish the elements of the crime of theft by taking as defined in [OCGA § 16-8-2] rather than theft by receiving stolen property as defined in [OCGA § 16-8-7]. We find this to be a fatal variance between the allegata and probata and must reverse and remand for action consistent with this opinion.” See also Sosbee, supra; Clark, supra; Wells, supra.

Here the State’s evidence affirmatively proved that defendant took the car without permission. This differs from the situation in which the State is unable to prove who stole the property or that, beyond a reasonable doubt, defendant stole it. Although the State proved that defendant retained the car knowing it was stolen, there was also uncontradicted evidence that defendant stole it. The jury could not have determined that the taking had been committed by someone other than Redding.

Decided July 14, 1989.

James Archie, for appellant.

Robert E. Wilson, District Attorney, Patricia G. Higginbotham, Robert M. Coker, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Originally, Code Ann. § 26-2620 (Cobb) read “If any person shall buy or receive any goods . . . that shall have been stolen or feloni-ously taken from another, knowing the same to be stolen or feloni-ously taken, such person shall be an accessory after the fact, and shall receive the same punishment . . .’’as the thief. The 1969 Criminal Code repealed this and enacted the present language, “receives, disposes of or retains.” Ga. Laws 1968, p. 1249.

Suggs v. State, 59 Ga. App. 394 (1 SE2d 39) (1939) and Minor v. State, 58 Ga. 551 (1877) discuss the common law version of OCGA § 16-8-7 as covering a type of “accessory after the fact.” Theft was then a felony, accessory after the fact a misdemeanor. Compare OCGA § 16-8-12.

Affirmatively showing that defendant was a principal thief negates the essential element that “some person other than defendant” stole the property. See Suggs, supra. Although the operative action verb “retains” was not in the code until 1969 and thus did not figure in Suggs and other cases on theft-by-receiving, the heart of the crime is guilty possession by someone who is not the thief. The thief would be guilty of theft by taking, OCGA § 16-8-2, not the secondary activity, even though he thereafter disposed of or retained the property. In every case, as a matter of fact, if he stole the property, he would also necessarily “retain” it, even if only for a short while.

The addition of “retain” to the “receiving” statute thus obviously was not intended by the legislature to embrace the principal thief, who was already fully covered by the common law-based theft by taking statute. It follows that the pre-existing element of “some other person” was not dropped as regards “retaining” when “retaining” was added as another type of criminal activity prohibited by the statute aimed at the secondary party.

I am authorized to state that Presiding Judge McMurray and Judge Sognier join in this dissent.


source: Caselaw Access Project

author: Carley, Chief Judge. Benham, Judge, Beasley, Judge,

license: Public Domain

text:
    A89A0527, A89A0528.
    RING et al. v. WILLIAMS et al. (two cases).
    (384 SE2d 914)
   Carley, Chief Judge.

Appellant-defendant F. Lee Ring is the sole shareholder and president of appellant-defendant F. Lee Ring Real Estate, Inc. (Ring, Inc.). Appellee-plaintiffs Don Williams and Daniel Murray are the sole shareholders of Corporate Aircraft Leasing, Inc. (CAL). The facts, insofar as they are relevant to this appeal, are as follows: Appellant Ring negotiated the purchase of an airplane from CAL. In connection with this transaction, appellant Ring, in his capacity as president of appellant Ring, Inc., executed a promissory note in favor of CAL. The parties also entered into a separate business agreement whereby appellees, in consideration of free flying time and a percentage of profits, agreed that they would locate potential lessees of the plane and would assume responsibility for its maintenance, servicing and repair. Subsequently, the note went into default and appellees also failed to receive the consideration to which they were entitled under the ancillary business agreement regarding the leasing of the plane. Appellees then filed an action to establish and foreclose a mechanic’s lien as against the plane and, in addition, a multi-count civil action as against appellants. Both actions were filed by appellees in their individual capacities, CAL having previously been dissolved as a corporate entity.

In the lien action, the trial court entered judgment in favor of appellees and in Case No. A89A0527 appellants appeal from that judgment. The civil action was tried before a jury and a $45,755.48 verdict was returned in favor of appellees. The verdict was comprised of the following elements: $8,008.08 in attorney’s fees; $3,174.08 in tort damages for fraud; $9,572.90 for breach of contract; and, $25,000 in punitive damages. The trial court entered judgment on this verdict and appellants filed a motion for new trial or, in the alternative, for judgment n.o.v. In Case No. A89A0528, appellants appeal from the denial of their alternative post-judgment motion.

Case No. A89A0527

1. Urging mootness, appellees have moved to dismiss appellants’ appeal from the judgment in the mechanic’s lien foreclosure action. Contrary to the dissent, appellants properly supported their motion by submitting evidence directly to this court rather than to the trial court. See generally City of Lilburn v. C & E Bldrs., 231 Ga. 189, 190 (200 SE2d 764) (1973), wherein the Supreme Court relied upon “an affidavit attached to the appellees’ motion to dismiss. . . .”; Posner Labs. v. C & S Nat. Bank, 231 Ga. 536, 537 (202 SE2d 439) (1973), wherein the Supreme Court relied upon an “affidavit of counsel and an exhibit attached to the motion to dismiss. . . Branch v. Housing Auth. of Atlanta, 134 Ga. App. 906, 907 (1) (216 SE2d 633) (1975), wherein this court relied upon “[t]he motions [to dismiss] and attached affidavits. . . .” According to appellees’ motion to dismiss, they are only the junior lienholders and the plane has been repossessed and sold in satisfaction of the unpaid balance due on a note payable to the senior lienholder. Appellants do not contest the truthfulness of this assertion. To the contrary, appellants have specifically acknowledged in their supplemental brief that “the Court may accept as a fact that the senior lienholder did in fact foreclose upon the subject property (the airplane).” “Statements of fact in a motion to dismiss a case as moot, which are not directly denied by the opposite party, will be taken as true in passing on the motion. [Cits.]” Major v. City of Atlanta, 198 Ga. 303 (2) (31 SE2d 727) (1944). See also Montgomery v. McCormick, 150 Ga. App. 554 (258 SE2d 264) (1979). Accordingly, for purposes of the motion to dismiss, we will accept as an undisputed fact that appellees are only the junior lienholders and that the plane has been repossessed and sold in satisfaction of the unpaid balance due on a note payable to the senior lienholder.

It follows from this undisputed fact that the property against which appellees’ mechanic’s lien would otherwise attach is neither reachable by them nor is it returnable to appellants. Thus, reversal of the judgment would be of no benefit to appellants and an affirmance of the judgment would be of no benefit to appellees. Therefore, this appeal must be dismissed as moot. See generally Allen v. Smith, 223 Ga. 265 (1) (154 SE2d 605) (1967).

Case No. A89A0528

2. Because the note was payable to CAL, appellants urge that the judgment in favor of appellees in their individual capacities must be reversed. See generally S.D.H. Co. v. Stewart, 135 Ga. App. 505, 508 (2) (218 SE2d 268) (1975).

Former OCGA § 14-2-293 provided, in relevant part, that the dissolution of a corporation, such as CAL, “shall not take away or impair any remedy available to .. . shareholders, for any right or claim existing . . . prior to such dissolution, if action or other proceeding thereon ... is commenced within two years after the date of such dissolution. Any such action or proceeding by . . . the corporation may be prosecuted ... by the corporation in its corporate name.” (Emphasis supplied.) “Shall” ordinarily denotes command and not permission, whereas “may” ordinarily denotes permission and not command. See OCGA § 1-3-3 (10); Spivey v. Mayson, 124 Ga. App. 775, 777 (186 SE2d 154) (1971). Thus, it was not mandatory that ap-pellees file the complaint in the name of CAL and, as the sole shareholders of the dissolved corporation, they were permitted to pursue their available remedy of filing the action in their own names. “ ‘They succeed[ed] to the legal title [to claims belonging to CAL], and an action by [both] of them upon choses in action which belonged to the corporation at the time of its dissolution is maintainable at law in their own names.’ [Cit.]” Byers v. Black Motor Co., 65 Ga. App. 773, 778 (16 SE2d 478) (1941). Accordingly, this enumeration of error is without merit.

3. In their complaint, appellees sought attorney’s fees pursuant to OCGA § 13-6-11 and, at trial, they offered evidence both as to the recoverability and the amount of such attorney’s fees. The trial court, however, made the procedural determination that it would not charge the jury on the issue of attorney’s fees unless and until a verdict for compensatory damages in favor of appellees was first returned. Accordingly, when it gave its general charge to the jury on liability and damages, the trial court gave no instructions regarding the recover-ability of attorney’s fees pursuant to OCGA § 13-6-11. Despite this absence of specific instructions, however, the jury nevertheless included in its verdict an award to appellees of attorney’s fees. At the time that this verdict was returned, appellants did not object to its inclusion of an award of attorney’s fees and the jury was dispersed. It was only in their post-judgment motion that appellants first urged that the award of attorney’s fees was erroneous and should be stricken from the judgment. On appeal, appellants enumerate as error the trial court’s failure to sustain this ground of their post-judgment motion.

Appellants make no assertion on appeal that the evidence that was submitted by appellees would not support the jury’s return of a verdict for $8,008.08 in attorney’s fees pursuant to OCGA § 13-6-11. Their sole contention is that, in the absence of specific instructions by the trial court, the jury was not authorized to consider that element of damages. The recoverability of damages is, however, dependent upon the applicable law and evidence, not upon the instructions of the trial court. Since appellants do not contest the sufficiency of the evidence to authorize the $8,008.08 verdict in attorney’s fees pursuant to OCGA § 13-6-11, ‘“[t]he verdict . . . did not . . . include in its original form any element of recovery unwarranted by the evidence.’ [Cit.] It was therefore not illegal as such. Furthermore, if the form of the verdict was improper, it was incumbent upon [appellants] to make [their] objections as to irregularity of form at the time of its rendition or otherwise such technicality is waived. [Cit.] This is so because a verdict may be reformed or remodeled in the presence of the jury before they have retired from the box. [Cits.]” West Ga. Pulpwood &c. Co. v. Stephens, 128 Ga. App. 864, 870 (3) (198 SE2d 420) (1973). Had appellants objected to the verdict at the time that it was returned, the jury could then have been specifically instructed as to the issue of attorney’s fees and it could have conducted redelibera-tions as to that issue. By failing to do so, appellants waived their right to object and this enumeration is without merit.

4. Appellant Ring enumerates as error the general grounds, urging that there was insufficient evidence to authorize a finding that he was personally liable for any corporate obligation of appellee Ring, Inc. Although the evidence which would authorize a piercing of appellant Ring, Inc.’s corporate veil was not strong, it was sufficient to authorize the submission of that issue to the jury. See generally Saxon v. Luke, 164 Ga. App. 170 (296 SE2d 751) (1982).

5. Appellants enumerate the general grounds as to the issue .of their contractual liability.

The promissory note contained the following provision: “This note shall have as sole security the [airplane].” Contrary to appellants’ contentions, this provision concerns only the agreed-upon security for the repayment of the note. It does not purport to establish foreclosure against the plane as appellees’ only legal remedy for default or to exculpate appellants from personal liability for the repayment of the note. The evidence authorized a finding that the note was not repaid according to its terms and that appellants were contractually liable for its repayment.

6. Appellants further enumerate the general grounds as to the issue of their tort liability.

“ ‘[I]f one promises to pay another a given sum of money by a named day, the contract creates a duty to pay; but a breach of that duty is not a tort.’ [Cits.]” Long v. Jim Letts Oldsmobile, 135 Ga. App. 293, 294 (2) (217 SE2d 602) (1975). The evidence, when construed most favorably for appellees, shows only that they were not paid as promised. The fact that appellees were under the “impression” that appellant Ring “was a fairly substantial businessman” is utterly irrelevant unless appellant Ring himself fraudulently induced that impression. There is no evidence that he did so. Apparently, appellant Ring’s only representation to appellees was that he needed to purchase a plane because he had “land deals” in the Bahamas and Florida and “would make a lot of money.” However, this representation was not shown to be fraudulent simply because, at the time that it was made, appellants did not actually own the property and did not have significant assets. The representation attributed to appellant-Ring is neither the equivalent of a claim of current ownership of any property, nor does it constitute a statement as to the current net worth of himself or his corporation. If appellees formed an erroneous subjective impression of appellants’ current financial condition based upon appellant Ring’s puffery concerning his “land deals” and his future income, they did so at their own risk. See generally Wilkinson v. Walker, 143 Ga. App. 838 (1) (240 SE2d 210) (1977). Likewise, any purported assurances by appellant Ring to appellees that he would personally repay the corporate note is irrelevant. An agreement to answer for the debt of another must be in writing to be enforceable and, if appellees chose to accept a corporate note and to rely upon appellant Ring’s oral guaranty, they did so at their own risk. “Although fraud can be predicated on a misrepresentation as to a future event where the defendant knows that the future event will not take place [(cits.)], fraud cannot be predicated on a promise which is unenforceable at the time it is made. [Cits.]” Beasley v. Ponder, 143 Ga. App. 810 (240 SE2d 111) (1977). Moreover, the mere fact that appellees were not appellants’ only unpaid creditors is also irrelevant. A mere failure to pay is not actionable in tort and, consequently, evidence that appellants had breached their contracts to pay other creditors is not evidence that appellants’ failure to pay appellees was tortious. See generally Long v. Jim Letts Oldsmobile, supra.

The evidence authorized a finding of appellants’ contractual liability for failure to pay the note and for breach of the ancillary business agreement regarding the leasing of the plane. The evidence did not, however, authorize a finding of appellants’ liability in tort. Accordingly, the trial court erred in entering judgment on the verdict for $3,174.08 in compensatory tort damages and for $25,000 in punitive damages.

7. Remaining enumerations of error not otherwise addressed have been considered and are either moot or have no merit.

8. The judgment is affirmed with direction that the $3,174.08 in compensatory tort damages and the $25,000 in punitive damages be written off.

Appeal in Case No. A89A0527 dismissed. Judgment in Case No. A89A0528 affirmed with direction.

McMurray, P. J., Birdsong, Sognier and Pope, JJ., concur. Deen, P. J., and Benham, J., concur specially. Banke, P. J., concurs in judgment only. Beasley, J., concurs in part and dissents in part.

Benham, Judge,

concurring specially.

I concur fully with the majority opinion except as to Division 3. As to that division, I concur in the ruling of the majority solely on the basis of appellants’ waiver of the issue.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.

Beasley, Judge,

concurring in part and dissenting in part.

1. We dismiss Case No. A89A0527 for mootness. Our conclusion that the legal issues are moot is based on facts regarding certain court proceedings. An order was entered by this Court on April 28 ordering the parties to submit evidence that a senior lienholder had foreclosed on the plane. As illustrated by some of the cases cited, evidence has been taken directly by the appellate court.

The Appellate Practice Act, in OCGA § 5-6-48 (b) (3) provides for dismissal where the questions have become moot but does not state how or where mootness is to be evidenced. However, it provides a procedure in subsection (d), which would allow the parties to submit the evidence to the trial court and be transmitted to this Court as part of the record by way of supplement. Any factual dispute would be resolvable in a hearing there.

Appellees have submitted uncertified copies of court documents. I recognize that some of the evidence appellees submitted is in the record we already had, having found it despite noncompliance with Rule 15 (c) (3) (ii), but I do not find Exhibits E through H.

Appellants do not provide any exhibits but do describe in their supplemental brief what happened post-trial. I assume that none of this is in the record because it is not referenced as required by the rule.

In three of the cases cited in the majority opinion there were un-controverted affidavits regarding mootness. In another there was a warranty deed attached to the motion. Major v. City of Atlanta, 198 Ga. 303 (31 SE2d 727) (1944), predated the Appellate Practice Act.

I recognize that Rule 15 (b) (1) says that appellee shall be held to have consented to a decision of the case on the statement of facts made by appellant if appellee does not show otherwise, and that “[e]xcept as controverted, the statement of facts by the appellant may be accepted by this Court as being prima facie true.” However, that does not mean that the statement of facts need not be supported by the record; rather, that this Court does not have to independently verify from the record everything appellant says is in it.

Appellants themselves question our ability to rule on mootness when certain relevant facts are not in the record: “While there have been indications from the appellees that the appellees do not consider themselves as having an in personam judgment against the appellants pursuant to the Special Judgment, there is no order so reflecting.”

Appellants challenge a conclusion of mootness for two reasons. While neither one of them may be valid, how can this Court reach a conclusion of mootness without a proper record? Allen v. Smith, 223 Ga. 265 (1) (154 SE2d 605) (1967), states that an appeal will be dismissed “where it appears” that the case has become moot. It must be properly and conclusively shown. Otherwise we must avoid dismissal. OCGA § 5-6-30.

2. I concur in the ruling in Division 3 solely for the reason that appellants waived the issue. I concur in Divisions 2, 4 and 5.

3. Contrary to the holding in Division 6, the verdict of the jury regarding fraud should be upheld. There was some evidence that when appellees entered into the contracts in the first place, Ring had no intention of paying anything for the airplane or the leaseback arrangement. The jury could also find that he never did pay anything, he induced appellees to work on it and spend money on it, he treated others the same way, he took the cavalier attitude “so sue me,” he thought he was protected by his superficial corporate setup, and he took the same name as the appellees’ corporation when it dissolved.

Decided July 14, 1989.

Lamberth, Bonapel, Cifelli & Wilson, J. Michael Lamberth, Therese G. Franzen, for appellants.

Robert F. Woodland, Jr., for appellees.

Sellers alleged fraud ab initio regarding Ring’s intent in entering into the contracts, and there is evidence by his clever actions after-wards that he did not contract in good faith. The jury is the best judge of that in this case. The law recognizes that fraud is subtle and that slight circumstances are enough to prove its existence. OCGA § 23-2-57. There is sufficient evidence of the elements of fraud, as listed in City Dodge v. Gardner, 232 Ga. 766, 769, fn. 1 (208 SE2d 794) (1974).

Contrary to appellants’ position, sellers could sue and recover for fraud as well as for breach of contract. Rainwater Constr. Co. v. O’Connor, 129 Ga. App. 334, 336 (2) (199 SE2d 605) (1973).


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A0598, A89A0599.
    A89A0600.
    OWENS v. THE STATE (two cases). TARD v. THE STATE.
    (384 SE2d 920)
   McMurray, Presiding Judge.

Defendants Joe Owens, Jr., Willie June Owens and Garland Tard were indicted for trafficking in cocaine (Count 1) and theft by receiving stolen property (Count 3). Count 2 involved another defendant wbo is not one of the appellants in the cases sub judice. The State presented the following evidence at a jury trial:

Defendant Garland Tard and defendant Joe Owens, Jr., leased a two-bedroom “duplex” apartment at 2422 Goodwin Drive in Macon, Georgia. Investigator Russell Nelson, “with the Macon/Bibb County Drug and Vice Unit,” obtained information from a “confidential source” which led him to suspect that cocaine was being distributed from defendant Joe Owens, Jr.’s and defendant Garland Tard’s apartment. Acting on this tip, Investigator Nelson “searched [his confidential] source ... to insure he had no drugs on his person and provided [the confidential] source . . . with a body monitor and United States currency. [Investigator Nelson] rode with [the confidential] source . . . to [defendant Joe Owens, Jr.’s and defendant Garland Tard’s apartment] and watched [the] source enter the premises. . . . After . . . approximately two minutest, the confidential source] returned directly to [Investigator Nelson] and turned [what appeared to be] cocaine over to [the investigator].”

At about 8:45 p.m. on March 10, 1988, after obtaining a search warrant, Investigator Nelson and five other law enforcement officers went to the apartment in plain clothing to execute the warrant. Investigator Nelson took three officers and covered the front door. Two other officers covered the back door.

As Investigator Nelson’s men approached, they observed two men exiting the apartment. These men were directed back into the apartment and, after the officers entered, they discovered nine other people in the apartment, including the defendants. Defendant Joe Owens, Jr., was in the living room, talking on the telephone and sitting on the living room sofa. Defendant Garland Tard was standing in the living room and defendant Willie June Owens was alone in the kitchen, holding a grocery sack.

Investigator Nelson immediately informed defendant Joe Owens, Jr., that he and his men were law enforcement officers and that they were there to conduct a warranted search of the apartment. The search began and several articles of contraband were found in the apartment. As packets and bottles of cocaine were discovered and displayed by the searching law enforcement officers, defendant Joe Owens, Jr., “looked up . . . and . . . said, all those drugs are not mine [and later asked,] are you going to charge me with all of that.” Defendant Joe Owens, Jr., also “asked several times during the course of an hour or so [whether Investigator Nelson and his men] were . . . police officers. [In response, Investigator Nelson] showed [his] badge [and] the search warrant. [Defendant Joe Owens, Jr.] looked at the search warrant, . . . looked at the search warrant and . . . said, well, there’s no seal on this search warrant, how do I know y’all are just not ripping me off . . . .” Investigator Nelson and another officer displayed their identification and the search continued.

On the floor, behind the sofa where defendant Joe Owens, Jr., was sitting, a bottle was discovered which contained 23 pieces of “rock” or “crack” cocaine; a plastic bag containing 14.2 grams of 99 percent pure cocaine in “rock” or “crack” form; a plastic bag containing 14.5 grams of powdered compound, which was 97 percent pure cocaine; and, a plastic bag containing 10 smaller plastic bags of cocaine compound, comprising 13.1 grams of powder. $423 in cash was found in defendant Joe Owens, Jr.’s pocket and a set of keys belonging to defendant Joe Owens, Jr., was found under the sofa with the stash of cocaine.

Defendant Garland Tard’s white jacket was found on the sofa in the living room. Inside the “breast pocket” of the jacket, there was discovered a matchbox containing 12 pieces of “rock” or “crack” cocaine. Next to the jacket, there was found a “Black .38 Derringer” (pistol) and a plastic bag, containing 43 pieces of “crack” or “rock” cocaine.

A grocery sack containing $5,264 in cash was found in the kitchen, near where defendant Willie June Owens was first observed standing. A bottle containing four large pieces of “rock” or “crack” cocaine was found in the kitchen garbage basket. This cocaine was valued at $100 per “rock.”

Six pieces of “rock” or “crack” cocaine were found in a bottle in an “ashtray on the living room table.” Eighteen pieces of “rock” or “crack” cocaine were found in a bottle that was hidden in the bathroom “up under the [cloth] cover” of the “toilet bowl tank.” A small bag of cocaine was found in the living room “on the floor up under the corner of the love seat.” Fifteen pieces of “crack” or “rock” cocaine were found in a matchbox, hidden on a closet shelf in defendant Joe Owens, Jr.’s bedroom. Also found in defendant Joe Owens, Jr.’s bedroom closet were four sports coats and a suit that had been recently stolen from a local department store. Finally, a “small bag of crack” cocaine was found on the counter of a bar that separated the living room from the kitchen.

After the State rested, defendant Garland Tard testified that he and defendant Joe Owens, Jr., leased the “duplex” apartment for use as a fundraising center for defendant Joe Owens, Jr.’s and defendant Willie June Owens’ nine-year-old niece, who was then in need of “a bone marrow transplant.” Defendant Garland Tard further explained that “different entertainment” was conducted at the apartment and that “fish, chicken, pork chops, hot dogs[,] hamburgers [and] soft drinks” were sold during the “entertainment” to raise money.

Defendant Willie June Owens testified that his “older brother,” defendant Joe Owens, Jr., “coordinated” the fundraising effort for his niece; that he often assisted in conducting “entertainment” for the charity; that the “entertainment” would “be going on all day” and into the “night”; and that “whoever be [sic] there at [the] time” would be responsible for maintaining the funds raised for the charity. Defendant Willie June Owens also testified that, on the night the police searched the apartment, he was there to help sell “sandwiches and stuff” and to “[collect] money” for the charity. He further explained that the police found no “entertainment” food in the apartment at the time of the raid because “[t]he girl that was going to cook had not gotten there yet.”

After considering the evidence presented at trial, the jury found defendants Joe Owens, Jr., and Garland Tard guilty of trafficking in cocaine and theft by receiving stolen property. The jury found defendant Willie June Owens guilty of the lesser included offense of possession of cocaine with intent to distribute and not guilty of theft by receiving stolen property. Defendant Joe Owens, Jr., appeals in Court of Appeals Case No. A89A0598; defendant Willie June Owens appeals in Court of Appeals Case No. A89A0599; and defendant Garland Tard appeals in Court of Appeals Case No. A89A0600. Held:

1. Defendants Joe Owens, Jr., and Willie June Owens have filed identical enumerations of error and briefs. In their first enumeration of error, they contend “the verdict of the jury is against the weight of the evidence and unwarranted under the law and evidence as to all three counts of the indictment.” In their third enumeration of error, they contend “the verdict is against the law as it relates to actual possession of cocaine.” Defendant Garland Tard contends in his second enumeration of error that the court erred in denying his motion for directed verdict of acquittal.

(a) Trafficking in Cocaine. (Count 1 of the indictment)

“Any person who knowingly sells ... or who is knowingly in actual possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, . . . commits the felony offense of trafficking in cocaine . . . .” OCGA § 16-13-31 (a) (l).

More than 28 grams of pure cocaine was found in defendant Joe Owens, Jr.’s and defendant Garland Tard’s apartment. Some of the cocaine was found in plain view; some of the illegal drug was found hastily stashed in and under household furnishings and some of the cocaine was found carefully hidden in various spots throughout the apartment. This evidence is sufficient to support a finding that someone was involved in trafficking in cocaine. Nonetheless, defendants argue that there was no evidence to link them to “actual possession” of the cocaine, which is required to support defendants Joe Owens, Jr.’s and Garland Tard’s convictions for trafficking in cocaine. See Lockwood v. State, 257 Ga. 796 (364 SE2d 574).

“As repeated in Lockwood [v. State, supra], actual possession . . . ‘ “[is when a] person . . . knowingly has direct physical control over a thing at a given time . . . (Cits.)’ The difference between actual and constructive possession ‘is most assuredly one of degree.’ Dalton v. State, 249 Ga. 720, 721 (2) (292 SE2d 834) (1982). In [Dalton], the Supreme Court adopted this court’s statement from CJS that the words actual and constructive possession ‘ “often so shade into one another that it is difficult to say where one ends and the other begins.” ’ Neal v. State, 130 Ga. App. 708, 711 (2) (204 SE2d 451) (1974). [Thus, there] is no requirement that the proof of actual possession be by direct and not circumstantial evidence. [Further, to be convicted, none of the defendants] had to ‘directly commit the crime.’ OCGA § 16-2-20 (b) (1). Each is a party to the crime not only if he directly commits it but also if he ‘(3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.’ See Raines v. State, 186 Ga. App. 239 (366 SE2d 841) (1988).” Heath v. State, 186 Ga. App. 655 (1), 656, 657 (368 SE2d 346).

From this perspective, we observe that defendant Willie June Owens was seen by law enforcement officers holding a grocery sack, which was later found to contain over $5,000 in cash; that cocaine with a street value of over $400 was found in the kitchen garbage basket; and that defendant Willie June Owens was the only person in the kitchen at the time the police entered the apartment. We also observe that defendant Joe Owens, Jr., was seen sitting on the living room sofa, under which were found his keys and a large stash of cocaine; that $423 in cash was found in defendant Joe Owens, Jr.’s front pocket; that cocaine was found hidden in defendant Joe Owens, Jr.’s bedroom closet; and that cocaine was found carefully hidden in defendant Joe Owens, Jr.’s and defendant Garland Tard’s bathroom. Thirdly, a matchbox containing 12 pieces of “crack” or “rock” cocaine was found in the “breast pocket” of defendant Garland Tard’s jacket and that a plastic bag containing 43 pieces of “rock” or “crack” cocaine was found on the living room sofa, next to defendant Garland Tard’s jacket. This evidence, evidence showing that defendants were in charge of the “entertainment” that was being conducted at the apartment and other circumstances surrounding the police raid was sufficient to enable a rational trier of fact to reasonably find, beyond a reasonable doubt, that defendants Joe Owens, Jr., and Garland Tard were in “actual possession” of the more than 28 grams of pure cocaine; that defendant Willie June Owens was in “possession” of cocaine and that defendants were involved in a joint enterprise on the night of the police raid which included the distribution of cocaine for money. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Consequently, the trial court did not err in denying defendant Garland Tard’s motion for directed verdict of acquittal with regard to his conviction for trafficking in cocaine. Defendant Joe Owens, Jr.’s first and third enumerations of error present no grounds for overturning his conviction for trafficking in cocaine. See Heath v. State, 186 Ga. App. 655 (1), supra; and Williams v. State, 188 Ga. App. 334, 335 (2) (373 SE2d 42). It also follows that defendant Willie June Owens’ first and third enumerations of error are without merit with regard to his conviction for the lesser included offense of possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). See Houston v. State, 180 Ga. App. 267, 269 (4) (349 SE2d 228).

(b) Theft by Receiving Stolen Property. (Count 3 of the indictment)

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.” OCGA § 16-8-7 (a).

Four sport coats and a suit that were recently stolen from a local department store were found in defendant Joe Owens, Jr.’s bedroom closet. This evidence, along with evidence showing that stolen merchandise is often traded for illegal drugs and evidence that defendant Joe Owens, Jr. was guilty of trafficking in cocaine, was sufficient to authorize the jury’s finding, under the standard of proof required in Jackson v. Virginia, 443 U. S. 307, supra, that defendant Joe Owens, Jr., was guilty of theft by receiving stolen property beyond a reasonable doubt. See Pruiett v. State, 159 Ga. App. 396 (1) (283 SE2d 625). However, there was insufficient evidence to show that defendant Garland Tard was guilty of theft by receiving stolen property. The stolen property was found in defendant Joe Owens, Jr.’s bedroom closet, it was not found in any portion of the apartment in which defendant Tard had control or possession. The fact that stolen property is often traded for drugs and that defendant Tard was guilty of trafficking in cocaine is simply insufficient evidence to authorize a finding, beyond a reasonable doubt, that defendant Tard was in possession or control of the stolen property. See Jackson v. Virginia, 443 U. S. 307, supra. Consequently, defendant Garland Tard’s conviction for theft by receiving stolen property must be reversed for lack of evidence to sustain his conviction. Compare Parrott v. State, 188 Ga. App. 564 (373 SE2d 828).

2. In his first enumeration of error, defendant Garland Tard contends the trial court erred in denying his motion to sever, arguing that his case “was prejudiced by what was introduced as to the other two defendants.”

The following factors have been deemed relevant in “considering motions to sever: 1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other’s rights? See People v. Maestas, 517 P2d 461 (Colo. 1973).” Cain v. State, 235 Ga. App. 128, 129 (218 SE2d 856). “In making his motion for severance, [defendant Garland Tard] had the burden to make a clear showing of prejudice and consequent denial of due process. See Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975).” Allen v. State, 255 Ga. 513 (1), 516 (340 SE2d 187).

In the cases sub judice, defendant Garland Tard has failed to show that his joint trial was confusing or misleading with regard to the law or the evidence. Further, we find no evidence admissible against one defendant that was not admissible against all of the defendants. Thirdly, there was nothing antagonistic in the defendants’ defenses; all defendants denied the charges relating to trafficking in cocaine and none of the defendants pointed to the other as having knowledge of the cocaine or of the large sum of money that was found at the apartment. On the contrary, defendant Garland Tard’s testimony and defendant Willie June Owens’ testimony was corroborating as to the reason the three defendants were congregated in the apartment on the night of the police raid, i.e., they were raising money for defendant Joe Owens, Jr.’s and defendant Willie June Owens’ sick niece. However, assuming the contrary, “[e]ven if the defenses were considered antagonistic in some minor detail, the mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. [Cain v. State, 235 Ga. 128, 129, supra]; Owens v. State, 251 Ga. 313, 321 (8) (305 SE2d 102) (1983). The decision as to whether the defendants may be tried jointly for a felony less than capital is within the discretion of the judge, OCGA § 17-8-4, and the denial of a motion to sever is not cause for reversal absent an abuse of discretion. Owens, supra at 320 (8).” Spivey v. State, 186 Ga. App. 236 (3), 237 (366 SE2d 838). See Baker v. State, 238 Ga. 389, 391 (2) (233 SE2d 347). In the cases sub judice, we find no abuse of discretion in denying defendant Garland Tard’s motion to sever the parties. This enumeration of error is without merit. See William W. Daniel, Ga. Criminal Trial Practice (1986 ed.) § 14-43, 393-397.

3. Defendant Joe Owens, Jr.’s and defendant Willie June Owens’ second enumerations of error are identical. They contend “[t]he trial court erred in its charge to the jury on the elements of trafficking in cocaine.” However, neither defendant Joe Owens, Jr.’s nor defendant Willie June Owens’ briefs present argument or citation of authority in support of this contention. Instead, they argue that “the trial court err[ed] in expressing an opinion by questioning [defendant] Willie June Owens.” Neither defendant Joe Owens, Jr., nor defendant Willie June Owens cite this court to the place in the trial transcript where this alleged error occurred.

Since these enumerations of error are not supported in the briefs by citation of authority or argument, they are deemed abandoned. See Rule 15 (c) (2) of Rules of the Court of Appeals of the State of Georgia; and Boyce v. State, 184 Ga. App. 578, 580 (8) (362 SE2d 229). Further, even assuming that the argument asserted in defendants’ briefs was properly before this court, they are deemed waived since defendants failed to identify the specific portion of the trial transcript in which the alleged error occurred. See Rule 15 (c) (3) of Rules of the Court of Appeals of the State of Georgia; and Palmer v. State, 186 Ga. App. 892, 894 (2), 895 (369 SE2d 38).

Judgments affirmed in Case Nos. A89A0598 and A89A0599.

Car-ley, C. J., Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur. Judgment affirmed in part and reversed in part in Case No. A89A0600. Carley, C. J., Birdsong, Sognier and Benham, JJ., concur. Deen, P. J., Banke, P. J., Pope and Beasley, JJ., concur in part and dissent in part.

Beasley, Judge,

dissenting.

I respectfully dissent with respect to Division 1 (b), which reverses the conviction of Garland Tard for the crime of theft by receiving stolen property.

As the majority acknowledges, there was evidence that defendants were involved in a joint enterprise for the distribution of cocaine and that stolen merchandise is often traded for illegal drugs. There was no doubt that the still-tagged new clothing, four various-sized sport jackets and a suit of yet another size hanging in the closet, was stolen merchandise. Tard had rented the residence about nine months earlier and had, at least at the beginning, lived there with Joe Owens and paid the rent. Because of Tard’s financial condition, the landlord required Owens to co-sign the lease.

When the residence was raided, Tard, Owens, and a number of others were present and the officers found crack cocaine all over, as described by the majority opinion. Tard had a dozen pieces of crack in a match box in the pocket of his jacket which, since he was not wearing it at the time, he denied owning. He exhibited ownership as well as guilty knowledge of the presence of the crack in it by pushing the head of the woman who identified the jacket as his “to get her not to say anything else,” in the words of the officer.

A large amount of money, over $5,200 in large denominations, was being handled in Tard’s presence when the raid commenced. It could be inferred that the money was proceeds of drug sales. Likewise, it could reasonably be inferred the stolen clothing was also proceeds of drug trafficking, that is to say, a fruit of the criminal enterprise so that he shared in its receipt, disposition, or retention. OCGA § 16-8-7 (a). The clothing bore the same nexus to the crime as did the cash. Tard was no more relieved of guilty connection with the stolen clothing hanging in the closet of the bedroom apparently occupied by Joe Owens than he was relieved of guilty connection with the cash being held in a paper bag by Willie Owens when the officers entered the residence. Both were part of the operation of the crack house in which he was engaged.

Decided July 14, 1989.

Althea L. Buafo, for appellant (case no A89A0600).

Alvin C. McDougald, for appellants (case nos. A89A0599, A89A0598).

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Assistant District Attorney, for appellee.

In connection with the count of theft by receiving stolen property, the court charged on aiding and abetting and participating in that criminal endeavor. Considering the entire body of evidence and the illegal business Tard was properly convicted of being a party to, the jury was authorized to find him guilty beyond a reasonable doubt of being “concerned in the commission of” that crime as well, as governed by OCGA § 16-2-20.

I am authorized to state that Presiding Judge Deen, Presiding Judge Banke, and Judge Pope join in this dissent.

       One of the men, who was observed exiting the apartment before the search was conducted, had concealed in his wallet a marijuana “cigarette butt.” This man was also found carrying a “[sjilver . . . Derringer” (pistol) that “was loaded with one .45 long Colt silver-tip [bullet] and one .410 shotgun slug.” One of the other occupants of the apartment was observed attempting to conceal a bottle that contained 17 pieces of “rock” or “crack” cocaine. This cocaine weighed 3.59 grams and had a street value of between $20 and $40 per “rock.”

       Defendants were indicted under the provisions of OCGA § 16-13-31 (a) (1), in effect on March 10, 1988, and quoted in pertinent part in Division 1 of our opinion. This Code section was amended, effective March 28, 1988, deleting the word “actual” which preceded the word “possession” in subsections (1) and (2) of OCGA § 16-13-31 (a).


author: Beasley, Judge.

text:
    A89A1053.
    JONES et al. v. PERKINS.
    (384 SE2d 927)
   Beasley, Judge.

Pro se appellants seek to bring their case to this court by a notice of appeal filed on January 20, 1989, from a judgment entered on December 20, 1988. This was one day late because OCGA § 5-6-38 requires the filing to be within 30 days after entry of the appealable decision or judgment complained of. No request for an extension of time was obtained, as could have been done in the trial court. OCGA § 5-6-39. In these circumstances, the requirements of the code section are jurisdictional and failure to comply with them mandates a dismissal of the appeal. In re Doe, 188 Ga. App. 255 (372 SE2d 822) (1988); Hull v. Campbell, 130 Ga. App. 637 (204 SE2d 312) (1974); Associated Bldrs. Supply v. Ga.-Pacific Corp., 123 Ga. App. 222 (180 SE2d 273) (1971). Compare Cambron v. Canal Ins. Co., 246 Ga. 147 (1) (269 SE2d 426) (1980); Willis v. State, 186 Ga. App. 197 (366 SE2d 778) (1988), s.c. 189 Ga. App. 404 (377 SE2d 552) (1988).

Decided July 14, 1989

Charles Jones, pro se.

Dorothy Jones, pro se.

John E. Pirkle, for appellee.

Appeal dismissed.

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


author: Sognier, Judge.

text:
    A89A1095.
    DAVIS v. THE STATE.
    (385 SE2d 17)
   Sognier, Judge.

Leon Davis was convicted of selling cocaine to an undercover GBI agent, and he filed this appeal.

Appellant enumerates the general grounds. The record reveals that at approximately 4:42 p.m. on August 23, 1987, GBI agents Mechel Washington and Kim Brown were accompanied to a mobile home in Wrightsville by a confidential informant, who summoned from the home a man both agents identified as appellant. The agents testified that appellant told them he had nothing at his home, but would meet them at a downtown car wash in ten minutes. When they arrived at the designated location, appellant decided it was too crowded, so the agents and the informer followed appellant to a vacant building, whereupon the informer alighted from the car, and appellant entered the front seat and sold Washington a foil package containing what later proved to be cocaine while Brown watched from the backseat. Washington stated that appellant was driving a white Malibu, and also recalled that he had a silver cap on one of his front teeth.

Appellant testified that on the day in question he left the home of his former wife, Brenda Wright, around 10:00 that morning, picked up Doris Murray, another former wife, and accompanied her, his sister, and his sister’s children to a mall in Dublin. He testified further that after returning to Wrightsville and visiting with his mother, he went back to Wright’s home around 6:00 p.m. Brenda Wright testified that appellant left her house around 8:30 a.m. on August 23rd and returned at 7:00 p.m. Doris Murray testified that she went to the Dublin mall with appellant on that day, and then returned with him to Wrightsville around 6:00 p.m. after visiting with his mother and sister. Other evidence established that appellant did drive a white Malibu, that he had a silver capped tooth, and that he lived in a mobile home during August 1987. Further evidence showed that the tag number of the Malibu, as recorded by the agents, matched the number of a tag issued to “Leon Davis” at an address where appellant had briefly resided.

Decided July 14, 1989.

Harrison, Hicks & Hicks, William E. Hicks, for appellant.

Ralph M. Walke, District Attorney, Tyson Blue, Assistant District Attorney, for appellee.

Appellant contends that because of his alibi testimony, which was corroborated by two other witnesses, a rational trier of fact could not have found him guilty beyond a reasonable doubt. However, “[t]he credibility of witnesses and the weight to be accorded their testimony is the sole province of the jury. [Cit.]” Herndon v. State, 187 Ga. App. 77, 78 (4) (369 SE2d 264) (1988). The testimony of the State’s witnesses, viewed in the light most favorable to the jury verdict, was sufficient to support appellant’s conviction, see id., and accordingly we find the conviction satisfies the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1116.
    FUTCH v. THE STATE.
    (385 SE2d 18)
   Sognier, Judge.

Eugene Futch was convicted of burglary and he appeals.

Appellant’s sole enumeration contends error in the admission of witness Marilyn Clements’ in-court identification of appellant, which appellant asserts should have been excluded because it was tainted by a suggestive pre-trial photo spread. The record of the hearing on appellant’s motion to suppress Clements’ identification of appellant reveals that Clements was shown a six photo lineup consisting of middle-aged white males, all balding and all with glasses. Two of the photos depicted men (appellant in photo no. 5 and another in photo no. 2) with mustaches. Clements stated she had had difficulty choosing between these two photos and had tended toward photo no. 2 because the man therein was the slenderer of the two, consistent with the description she gave the police shortly after the incident. Clements testified, however, that her identification of appellant was not based on the photos but was based on her memory of what she had seen at the victim’s house. The trial court did not find that the photographic array was impermissible, but did grant appellant’s motion to suppress insofar as the photo identification was concerned, stating that he would allow in-court identification if Clements could make it.

Decided July 14, 1989.

Lennie L. Darden III, for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.

At trial, Clements testified she lived right across the street from the burglary victim and that around mid-morning on the date in issue, she observed a man drive up, play momentarily with the victim’s dog, then enter the victim’s house. Although no precise measurement of the distance between Clements and the man she observed is in the transcript, Clements described the distance in terms of the layout of the courtroom and also testified that she was farsighted. Clements stated she told the police the man she had seen was a thin white male, partially bald, with dark-rim glasses and a mustache, and after noting that appellant no longer had a mustache and had changed his hair style, positively identified appellant as the man she had seen entering the victim’s home.

“Based on the evidence we find nothing which tainted the pretrial identification by photo spread, and nothing in that identification which would taint [Clements’] in-court identification of appellant. Whether a subsequent in-court identification is tainted depends on all the circumstances of the case. Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Cits.] In the instant case there is absolutely no evidence to show that the photo spread identification was tainted in any way.” Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548) (1988). “Any conflicts in the evidence concerning appellant’s identity were resolved against him by the jury. [Cit.] Moreover, ‘(e)ven if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. (Cit.)’ [Cit.] Appellant has presented no grounds for reversal.” Evans v. State, 188 Ga. App. 379, 381 (373 SE2d 70) (1988).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Banke, Presiding Judge.

text:
    A89A1137.
    TERRACE SHOPPING CENTER JOINT VENTURE v. OXFORD GROUP, INC.
    (384 SE2d 679)
   Banke, Presiding Judge.

The two parties to this appeal were named as defendants in a personal injury action arising from a “trip and fall” accident which occurred on the premises of a shopping center owned by the appellant and managed by the appellee. The appellee asserted a cross-claim against the appellant based upon the indemnity and insurance provisions appearing in the management agreement governing the relationship between the parties. The trial court granted summary judgment to the appellee on this cross-claim, while denying a motion for summary judgment filed by the appellant. This appeal followed.

Section 3.2.11 of the management agreement provides, in pertinent part, as follows: “Both owner [i.e., the appellant] and [the appel-lee] acknowledge that owner currently is responsible for maintaining all insurance coverage on the project. . . .” Section 7.3 of the agreement reads: “Indemnity by the owner. The owner shall indemnify [appellee] against and hold and save [appellee] free and harmless from any liability or expense . . . arising out of injuries or damages to persons or property, by reason of any cause whatsoever (other than the gross negligence, the wilful and intentional misconduct of [appel-lee] or its agents or employees, or bad faith by [appellee] in failing to perform its duties hereunder) occurring on or around the project, or elsewhere. The owner also further agrees to list the [appellee] as ‘additionally’ named insured on any and all liability insurance policies maintained by owner with insurance to that effect.”

The appellant contends that the above indemnification provision must be considered unenforceable pursuant to OCGA § 13-8-2 (b), which provides as follows: “(b) A covenant, promise, agreement, or understanding in or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building, structure, appurtenances, and appliances, . . . purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the prom-isee, his agents or employees, or indemnitee is against public policy and is void and unenforceable, provided that this subsection shall not affect the validity of any insurance contract, workers’ compensation, or agreement issued by an admitted insurer.” Held:

In McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496 (343 SE2d 513) (1986), this court held that where a general contractor undertakes both to indemnify a property owner against the latter’s negligence and to maintain liability insurance covering the negligence of the owner, the indemnification provision is enforceable because, under such circumstances, it is clear that “the parties intended coverage by insurance, not ultimately indemnification of the ‘indemnitee’ . . . against its own negligence. . . .” Quoting from Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28-29 (262 SE2d 794) (1980), the court in McAbee concluded that such a contractual undertaking is not voided by OCGA § 13-8-2, “ ‘since neither the insurance clause nor the contract’s “hold harmless clause” requires of either . . . (contracting party) that the one indemnify the other and hold him harmless from his own sole negligence. Rather, the insurance clause shifts the risk of loss to the insurance company regardless of which party is at fault. [Cit.]’ ” Id. 178 Ga. App. at 498. Finding no basis upon which the contractual undertaking at issue in McAbee can be distinguished from the one at issue in the present case, we conclude that the trial court was correct in granting the appellee’s motion for summary judgment on the cross-claim, while denying the appellant’s motion.

Decided July 14, 1989.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Douglas A. Wilde, for appellant.

Victor Alexander, Jr., for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1155.
    TURNER v. CONNOR.
    (385 SE2d 19)
   Banke, Presiding Judge.

The appellee sued to recover for alleged defects in certain used dry cleaning equipment which she had purchased from the appellant. The appellee had paid the appellant $16,000 for the equipment itself and had paid him an additional $10,000 to install it on the premises of her cleaning business. The pre-trial order specified that the claim was based on the appellant’s alleged failure to honor an express one-year warranty on the equipment and further specified that recovery was sought for the following elements of damage: “Costs of repair to put equipment in merchantable condition, amount of additional expense [incurred] for dry cleaning fluid as a result of defective equipment, [and] loss of business as a result of defective equipment.”

The case was tried before a jury. At the conclusion of the appel-lee’s evidence, the trial court directed a verdict in the appellant’s favor with respect to the appellee’s claim for damages for lost business. The jury subsequently returned a verdict against the appellant in the amount of $18,000 on the remaining damage claims. In this appeal from the denial of his motion for new trial or, in the alternative, for judgment notwithstanding the verdict, the appellant contends that this award was not supported by the evidence. Held:

While the evidence would have supported an award of damages in favor of the appellee in some amount, we must agree with the appellant that it did not support an award of damages in the amount of $18,000. With regard to her claim that the defects in the machine had caused her to have to purchase more dry cleaning fluid than she would otherwise have had to purchase, the appellee testified that she did not know how much additional expense she had actually incurred in this regard. She merely introduced evidence showing her total expenditures for dry cleaning fluid during the three years she had been using the machine and testified that, due to leaks in the machine, she was initially using more than half again as much fluid as she should have been using. There was no reasonable basis upon which the jury could have determined from this evidence what portion of her total consumption of dry cleaning fluid during the three-year period in question had been attributable to defects in the machine. Indeed, the appellee has still not suggested, to this date, what a reasonable figure for this element of damages would have been.

The burden is on the plaintiff in a breach of contract action to provide evidence “which will furnish the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages. ... It cannot be left to speculation, conjecture and guesswork.” Bennett v. Assoc. Food Stores, 118 Ga. App. 711, 716 (165 SE2d 581) (1968). That burden clearly was not met with respect to this element of damages.

With respect to the cost of repairing the asserted defects in the machine, the evidence showed total expenditures for such repairs in the amount of $1,120.83. The only other evidence of damages consisted of the appellee’s testimony that, in her opinion, the fair market value of the machine was only about $8,000, which was $8,000 less than she had paid for it. However, the appellee’s opinion in this regard was without probative value inasmuch as she was not qualified as an expert in valuing such machinery and did not disclose how she had arrived at this opinion. See generally Hoard v. Wiley, 113 Ga. App. 328 (1), 332-3 (147 SE2d 782) (1965). Furthermore, even accepting as correct the appellee’s estimate of the disparity between the actual market value of the machine and the amount she had paid for it, the jury could not have awarded her $18,000 based on this theory of recovery without concluding that she had received no value whatever for the $10,000 she had paid for the installation of the machine; and the appellee has suggested no basis upon which the jury would have been authorized to reach such a conclusion.

For the foregoing reasons, we hold that the trial court erred in denying the appellant’s motion for new trial. However, inasmuch as the evidence would have supported an award of damages in favor of the appellee in some amount, we hold that the trial court did not err in denying the appellant’s alternative motion for judgment notwithstanding the verdict.

Decided July 14, 1989.

Bouhan, Williams & Levy, Roy E. Paul, Susan B. Paul, for appellant.

Karen D. Barr, for appellee.

Judgment affirmed in part and reversed in part.

Sognier and Pope, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A1227.
    WILLIAMS v. THE STATE.
    (385 SE2d 28)
    Decided July 14, 1989.

      H. Pierre, Jr., for appellant.

      James L. Webb, Solicitor, Lawrence W. Daniel, Assistant Solicitor, for appellee.
   McMurray, Presiding Judge.

Defendant appeals his conviction of obstruction of a law enforcement officer, OCGA § 16-10-24 (a), a misdemeanor. Held:

In his sole enumeration of error, defendant contends the trial court erred in failing to charge the jury on the felony offense of obstruction of a law enforcement officer, OCGA § 16-10-24 (b). More specifically, defendant argues that had his “requested charge been given, [his] counsel would have been able to argue to the jury the absence of the elements of the offense.”

The record indicates that the trial court fully instructed the jury on the misdemeanor grade of the offense of obstruction of a law enforcement officer, OCGA § 16-10-24 (a). Since defendant was not accused of committing the felony offense of obstruction of a law enforcement officer, OCGA § 16-10-24 (b), it was unnecessary to so charge the jury. “The trial court did not err in refusing to give the charge. ‘A jury charge is properly refused where it is not authorized or adjusted to the evidence adduced at trial. (Cit.)’ [Darden v. State, 165 Ga. App. 739, 740 (2), 741 (302 SE2d 425)].” McNeese v. State, 186 Ga. App. 410, 411 (2) (367 SE2d 235).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1246.
    A89A1265.
    ASKEW v. THE STATE. LANGSTON v. THE STATE.
    (385 SE2d 21)
   Banke, Presiding Judge.

While appellant Askew was operating a motor vehicle in the company of appellant Langston, he was stopped by police for running a red light. Following a brief period of questioning and investigation, Askew was thereupon arrested for running.the red light, driving without a license, driving without proof of insurance, and operating an improperly equipped motor vehicle. Thereafter, a plastic bag containing several packets of cocaine was observed on the floor of the vehicle in front of the front passenger seat, where Langston had been sitting. Upon seizing this contraband, the officers also discovered a loaded firearm beneath the front passenger seat. Based upon these discoveries, both appellants were charged with possession of cocaine and possession of a firearm during the commission of a felony. At the conclusion of a joint trial, the state withdrew the firearm possession charge, requesting that it be nolle prossed. Both appellants were thereafter found guilty of possessing cocaine in violation of the Georgia Controlled Substances Act. Appellant Askew was additionally found guilty of each of the four traffic charges which had been brought against him. These appeals followed. Held:

1. The appellants contend that the trial court erred in allowing the state to call four witnesses whose names had not appeared on the list of witnesses provided by the state. These witnesses included the forensic chemist from the State Crime Laboratory who had analyzed the cocaine, plus three “chain-of-custody” witnesses.

Of the two appellants, only Langston had filed a pre-trial demand for a list of witnesses pursuant to OCGA § 17-7-110. Thus, appellant Askew has no basis upon which to complain of the use of these unlisted witnesses. See generally Jackson v. State, 235 Ga. 857 (221 SE2d 605) (1976). It is, in any event, apparent that the failure to list these witnesses resulted in no prejudice to either of the appellants. At the time of their arraignment, both appellants were presented with a copy of the crime lab report stating the results of the chemical analysis of the cocaine; and this report disclosed both the identity and the involvement not only of the crime lab expert but also of two of the three chain-of-custody witnesses. As for the third chain-of-custody witness — a file clerk at the police station who had logged the contraband into the evidence room — the trial court allowed the appellants an opportunity to interview her before she took the stand. It has not been suggested how the purpose of the Code section has been contravened under these circumstances, nor have the appellants indicated what they might have done differently had they been given additional time to prepare for the testimony of these witnesses. Consequently, we find this enumeration of error to be without merit. Accord Newman v. State, 237 Ga. 376 (3), 382 (228 SE2d 790) (1976); Huff v. State, 141 Ga. App. 66 (1) (232 SE2d 403) (1977); Rutledge v. State, 152 Ga. App. 755 (1) (a) (264 SE2d 244) (1979).

2. Appellant Askew contends that because the cocaine was seized from the passenger side of the vehicle, where appellant Langston had been sitting, there was no evidentiary basis for an inference that he, as opposed to Langston, had been in possession of it. This contention is also without merit.

“ ‘Because the appellant was the driver of the car in which the contraband was found, an inference was authorized that he had possession of the cocaine. Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985). . . . Further, we pointed out in Robinson that the equal access doctrine does not apply where the defendants are alleged to have joint constructive possession of the contraband, as was the case here.’ Howard v. State, 185 Ga. App. 215, 216 (2) (363 SE2d 621) (1987).” Breedlove v. State, 189 Ga. App. 527, 528 (376 SE2d 222) (1988). The appellant’s reliance on In the Interest of C. A. A., 187 Ga. App. 691 (371 SE2d 247) (1988), is misplaced, as the appellant in that case was not shown to have been in “complete control and possession” of the vehicle, but had merely been a passenger therein. In the present case, it appears without dispute both that the appellant was driving the vehicle and that he claimed ownership of it. Viewed in conjunction with the evidence that the cocaine was exposed to view on the floor of the vehicle and that it had been parceled out into seven small plastic bags, this evidence was amply sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt not only that the appellant was aware of the presence of the cocaine in the vehicle but also that he was in joint possession of it with Lang-ston.

3. Under the circumstances, the trial court did not err in charging the jury that it is permissible to infer that the owner of a vehicle is in possession of the property contained therein, provided that such an inference may be overcome by evidence that others had access to the vehicle. See generally Robinson v. State, supra, 175 Ga. App. at 772.

4. The appellant contends that the trial court erred in refusing to reinstruct the jury on the equal access doctrine after having rein-structed them at their request, on the law regarding actual and constructive possession. As the trial court received a negative response from the jury upon asking them, at the completion of the recharge, whether they desired any additional instructions, this enumeration of error is without merit. See Taylor v. State, 174 Ga. App. 900 (6) (331 SE2d 920) (1985).

Judgments affirmed.

Sognier and Pope, JJ., concur.

Decided July 14, 1989.

William H. Newton III, for appellant (case no. A89A1246).

Steve Bennett, for appellant (case no. A89A1265).

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.


text:
    A89A1248.
    SHARP v. THE STATE.
    (385 SE2d 23)
   Sognier, Judge.

Lamar Sharp was convicted of burglary and escape and he appeals.

1. In his first two enumerations of error, appellant questions the sufficiency of the evidence to support his conviction of burglary, arguing that the State showed only appellant’s presence at the scene of the crime, which is insufficient to support a conviction. See Crumley v. State, 185 Ga. App. 795, 796 (366 SE2d 171) (1988). We do not agree.

The evidence adduced at trial, viewed to support the jury’s verdict, showed that in the early morning hours of August 4, 1988, Lowndes County police on routine patrol noticed a broken window in the front door of a lounge in Valdosta. The county police notified the city police department, which investigated. Several city police officers testified that upon entering the lounge, which was closed for the day, they found beer and wine coolers on a pool table and cigarettes and cigarette lighters piled on the floor, and eventually located appellant hiding behind a video game machine. An employee who had closed the lounge that night testified that everything was in order when she left, that she had seen someone who looked like appellant outside the lounge at closing time, and that she had not authorized appellant to enter the lounge after closing. The lounge’s owner, Ida Mae Nelson, testified that thirteen lighters were missing. Nelson also testified that several weeks before trial she spoke on the telephone with a person whose voice she recognized as that of appellant, who admitted breaking into the lounge, and apologized.

We find this evidence sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Notwithstanding appellant’s argument that Nelson’s testimony regarding the telephone call was not credible, leaving only the evidence of appellant’s mere presence at the scene, which is insufficient to support the conviction of burglary, “ ‘[t]he credibility of a witness is a matter for the trier of fact, and this court will not disturb the jury’s finding unless it is insupportable as a matter of law. (Cit.) Since we do not find that to be the situation in the case at bar, we will not disturb the jury’s finding.’ [Cit.]” Burroughs v. State, 186 Ga. App. 40, 41 (1) (366 SE2d 378) (1988).

2. Appellant also contends the trial court erred in its charge on burglary by failing to instruct the jury that the State bore the burden of proving beyond a reasonable doubt that appellant intended to commit a theft, and by failing to define for the jury the term “theft.”

(a) “ ‘ “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same. (Cits.) . . .” [Cit.]’ [Cit.]” Johnson v. State, 187 Ga. App. 803, 804 (3) (371 SE2d 419) (1988). Our review of the charge as a whole persuades us that the trial court charged the jury adequately on intent. Before any evidence was introduced the trial court addressed the jury in preliminary remarks regarding the presumption of innocence, burdens of proof, and reasonable doubt, and specifically cautioned them that the State had the burden of proving each element of the offense beyond a reasonable doubt. In his charge to the jury at the conclusion of the case, the trial judge again repeated his instruction that the State must prove every essential element beyond a reasonable doubt; charged the jury that intent was an essential element of every crime and must be proved by the State beyond a reasonable doubt, and that intent to commit a theft was an element of the crime of burglary; and further instructed the jury that they could not presume intent, but could find “intention or the absence thereof upon a consideration of words or demeanor or conduct and motive and other circumstances connected with the act.” This charge was a thorough and accurate statement of the law, and we find no error here. See generally id.

(b) Nor do we find merit in appellant’s argument that the trial court should have defined for the jury the term “theft.” Appellant did not request the definition, and “ ‘[i]n the absence of request, the court’s failure to define the meaning of terms used in the charge is not ordinarily ground for reversal. (Cits.)’ [Cit.]” Black v. State, 167 Ga. App. 204, 207 (6) (305 SE2d 837) (1983). Moreover, although in Powers v. State, 150 Ga. App. 25, 26 (3) (256 SE2d 637) (1979), cited by appellant, a charge on the elements of rape was held necessary because the accused was charged with burglary with intent to commit rape and because there was no presumption, in the absence of a proper instruction, that a jury is cognizant of the legal definition of rape and would apply the appropriate legal standard in determining whether the defendant had the specific intent to commit rape, id. at 26 (3) (B), “[t]he word ‘theft’ is not, like [‘rape,’] a technical word of art with narrowly defined meaning, but a word of general and broad connotation, covering any criminal appropriation of another’s property to the taker’s use. [Cit.]” Henson v. State, 136 Ga. App. 868, 869 (1) (222 SE2d 685) (1975). Thus, unlike the situation in Powers, supra, it is unlikely that the jury would be unable to understand the trial court’s charge that “[o]ur law says that a person commits the offense of burglary when without authority he enters any building of another with intent to commit a theft therein.” Accordingly, the trial court did not err by failing to define the term “theft.” See generally Dix v. State, 238 Ga. 209, 215 (5) (232 SE2d 47) (1977).

Decided July 14, 1989.

C. Richard Williams, Jr., for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1263.
    ABERNATHY v. THE STATE.
    (385 SE2d 25)
   McMurray, Presiding Judge.

Appellant Abernathy received a citation for disregarding a traffic control device. She demanded a jury trial, was convicted and now appeals. Held:

1. Appellant’s first enumeration of error concerns a remark made by the prosecutor during cross-examination referring to her having been stopped in Gwinnett County for improper passing. Defense counsel objected before appellant responded, and moved for a mistrial on the ground that this statement improperly introduced evidence of a similar act. The trial court sustained the objection and explained to the jury that this was an improper question which they should disregard as it had no relevance to their consideration of the case before them. The trial court further asked the jurors to indicate if any of them were unable to remove the remark from their minds and, upon receiving no such response, denied the motion for mistrial. No further ruling was invoked by appellant in regard to this motion, although a second motion for mistrial was later made based upon an alleged improper remark of the prosecutor during closing argument. “ ‘(T)he failure to renew the motion for mistrial after the curative instructions waives the denial of the motion as an error on appeal.’ [Cit.]” Brown v. State, 187 Ga. App. 347 (1) (370 SE2d 203) (1988). Accord Williamson v. State, 188 Ga. App. 307, 308 (2) (372 SE2d 685) (1988). Thus, this constitutes no ground for reversal.

2. Appellant further asserts that the trial court erred in refusing to grant a mistrial when the prosecutor improperly suggested that the police officer would not testify at trial “and take a risk of being charged with perjury unless he was telling the truth.” We do not find this argument so improper as to require a mistrial. The arresting officer and the appellant were the only witnesses in the case, and since their testimony was contradictory it became a “swearing contest” before the jury. The trial judge instructed the jury that what the attorneys said in closing argument was not evidence.

Decided July 14, 1989.

Scott McLarty, for appellant.

Ken Stula, Solicitor, Kristopher Shepherd, Assistant Solicitor, for appellee.

“A prosecutor is permitted to argue inferences from the evidence, even if such inferences are remote, illogical or unreasonable. [Cits.]” Chews v. State, 187 Ga. App. 600, 604 (4) (371 SE2d 124) (1988). The credibility of the witnesses was a matter to be determined by the jury. OCGA § 24-9-80. The probability or improbability of the police officer’s testimony, as well as his interest or want of interest and personal credibility, could also properly be considered by the jury. OCGA § 24-4-4. “ ‘ “In the absence of a demonstration that a mistrial was essential to preservation of [appellant’s] right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial even where no curative instructions were given. (Cit.)” (Cit.)’ [Cit.] We find no grounds for reversal.” Shivers v. State, 188 Ga. App. 21, 23 (372 SE2d 2) (1988).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1308.
    DELGADO v. THE STATE.
    (384 SE2d 680)
   McMurray, Presiding Judge.

Defendant Delgado appeals his bench trial conviction of trafficking in cocaine. His sole enumeration of error is the overruling of his motion to suppress.

On September 7, 1987, DeKalb County police narcotics officers executed a search warrant in a suite of rooms at a local motel. When they entered the suite there were eight to ten people in the front and back rooms. A sawed-off shotgun, about one pound of marijuana and a briefcase containing an automatic pistol were on a bed, and marijuana residue and cocaine were found around the suite and on the person of many of the occupants. Defendant Delgado knocked on the door while police were securing the scene and writing up the return on the warrant. He was allowed to enter the room and patted-down against the wall for weapons. At that time the officer doing the pat-down observed a clear plastic bag containing what appeared to be cocaine protruding from the left front pocket of defendant’s loose fitting trousers. The suspected contraband was seized and revealed to be cocaine in a field test. Held:

Defendant’s challenge to the validity of the search warrant, and as a result thereof his pat-down search and seizure of the cocaine, must fail. Since he was not a registered guest in the motel room and arrived after the search had begun, he lacked standing to object. “[A]s a mere visitor ... he had no expectation of privacy in the premises of another, where he had neither a proprietary nor a posses-sory interest. [Cits.]” Dennis v. State, 166 Ga. App. 715, 717 (305 SE2d 443) (1983). “The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387). And, an individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person’s premises has not had any of his Fourth Amendment rights infringed. Id. The defendant had no legitimate claim to any expectation of privacy in the premises searched and may not now assert a valid claim of illegal search and seizure. [Cits.]” Staton v. State, 164 Ga. App. 464 (1), 465 (297 SE2d 375) (1982). Accord Rich v. State, 188 Ga. App. 287, 288 (1) (372 SE2d 670) (1988); Todd v. State, 184 Ga. App. 750, 751 (2) (362 SE2d 400) (1987).

Not only was the pat-down authorized under OCGA § 17-5-28 (see Mashburn v. State, 186 Ga. App. 488 (367 SE2d 881) (1988)), it was justified because defendant Delgado was a person “ ‘who might reasonably be involved in the crime . . .’” State v. Hawkins, 187 Ga. App. 826, 828 (1) (371 SE2d 668) (1988). Accord Louis v. State, 188 Ga. App. 435 (2), 436 (373 SE2d 231) (1988). Moreover, the contraband was not discovered as a result of the search, but was actually seen in plain view. The officer’s testimony to this effect was corroborated by defendant’s recreation of the incident during the motion hearing by putting a bag of flour in the same position as the contraband had been in the same pants pocket; the trial judge, who participated in the reenactment, expressly found that he “could see that [defendant] had something in his pocket which appeared to be white powder in a bag.” The plain view exception was clearly met here in that (1) the cocaine was inadvertently discovered, (2) the discovering officer had a legal right to be where he was when he discovered it, and (3) it was immediately apparent that the seized item was contraband. Mitchell v. State, 181 Ga. App. 470 (352 SE2d 647) (1987). Accord Louis v. State, 188 Ga. App. 435, supra. Accordingly, denial of defendant’s motion to suppress was proper.

Decided July 14, 1989.

John W. Folsom, for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    A89A1513.
    HIGHTOWER v. THE STATE.
    (385 SE2d 27)
   Deen, Presiding Judge.

Appellant Charles Hightower and his brother, William, were passengers in an automobile owned and being driven by one Kreg Richardson when a state trooper stopped them for speeding on a Terrell County highway. William was in the front passenger seat, and Charles was seated behind him. A white powdery substance subsequently identified as cocaine was found in a matchbox in Charles’ pocket, and cocaine and related paraphernalia were found behind the dashboard and in the floor between the front and back seats. There was testimony that Charles had attempted to toss items out the window when he saw the patrol car.

The trial court directed a verdict of “Not guilty” for William Hightower, and the jury acquitted Richardson and found Charles guilty as charged. On appeal he enumerates as error the sufficiency of the evidence and the trial court’s sustention of an objection by co-defendant’s counsel during cross-examination of Richardson. Held:

1. First addressing appellant’s second enumeration, we conclude from our scrutiny of the entire record that there was sufficient competent evidence to authorize a rational trier of fact to find appellant guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This enumeration is without merit.

2. Examination of the trial transcript reveals that twice before the incident of which appellant complains, other counsel had objected, and the court had sustained the objections, to appellant’s counsel’s attempts to elicit from Richardson some other explanation than the one Richardson had already given for making contradictory statements as to what he had been doing just prior to taking the drive which resulted in his being stopped for speeding. Richardson had previously lied — and admitted to lying — about his whereabouts and activities because (as he stated when he admitted to the lie) he had not wanted law enforcement authorities to know that he had been heavily engaged in girl-watching. At the time of which appellant complains, the court had temporarily overruled Richardson’s counsel’s objection, but when counsel again interrupted, “Your honor, may I make the fourth objection on this very same issue . . . That’s not relevant ... at all,” the court sustained the objection, stating, “Mr. Martin, I think . . . that’s gone far enough in this . . . Now, whatever could be established — you’ve had opportunity to establish.” The next witness was then called.

Decided July 14, 1989.

C. Truitt Martin, Jr., for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Study of the trial transcript fails to persuade us that continuation of appellant’s counsel’s repetitious line of questioning would have revealed anything “crucial to the . . . development of the defense of this appellant,” as counsel contends in his brief. The transcript makes it clear that any impeachment that might have been sought had already been accomplished; it is difficult to think what significance any further testimony on this same point could have had, as further repetition would not have enhanced the facts’ relevance or materiality. “ ‘The right to a thorough and sifting cross-examination is not abridged by the action of the judge in confining it to matters that are in some manner relevant to the issues of the case on trial.’ ” Allen v. State, 137 Ga. App. 302, 303 (223 SE2d 495) (1976). “[T]he scope of cross-examination . . . necessarily must rest largely within the discretion of the trial judge in order to keep the questioning within reasonable bounds. It is error only when this discretion is abused.” Hudson v. State, 137 Ga. App. 439, 440 (224 SE2d 48) (1976); accord Claypool v. State, 188 Ga. App. 642, 644 (373 SE2d 765). Finding no abuse of discretion here, we find no error.

Judgment affirmed.

Birdsong and Benham, JJ., concur.