author: Deen, Presiding Judge. Carley, Judge,

text:
    76595, 76596.
    DUPREE et al. v. GEORGIA MUTUAL INSURANCE COMPANY; and vice versa.
    (374 SE2d 546)
   Deen, Presiding Judge.

As a result of an automobile collision involving Ms. Ernestine Dupree’s car, she and three of her passengers were killed and four of her passengers were severely injured. Plaintiffs, who are the surviving passengers, the guardians of the surviving minor passengers, and the administrator of the estates of the deceased passengers, brought suit against defendant Georgia Mutual Insurance Company. Alleging that defendant had issued an automobile insurance policy to Ms. Dupree, plaintiffs sought to recover no-fault benefits under that policy and, in addition, damages pursuant to OCGA § 33-34-6 (b) and (c). Defendant answered, raising as a defense the cancellation of Ms. Dupree’s policy prior to the collision.

The case proceeded to trial before a jury. At the close of the evidence, defendant moved for a directed verdict as to its compliance with OCGA § 33-24-44 in notifying Ms. Dupree of her policy’s cancellation. See OCGA § 33-24-45 (d). The trial court granted defendant’s motion as to this issue. Cross-motions for a directed verdict were then made as to defendant’s compliance with former OCGA § 33-34-10 (a) in notifying the Department of Public Safety of the cancellation of Ms. Dupree’s policy. The trial court granted plaintiffs’ motion for a directed verdict as to this issue and held that, as the result of defendant’s failure to comply with former OCGA § 33-34-10 (a) (1), there was no effective cancellation of Ms. Dupree’s policy. Defendant then moved for a directed verdict as to its liability for damages pursuant to OCGA § 33-34-6 (b) and (c). The trial court granted defendant’s motion for a directed verdict as to this issue. As the result of these rulings, the trial court entered a judgment in favor of the plaintiffs, but only for contractual no-fault benefits under the insurance policy.

In Case No. 76595, plaintiffs appeal from the grant of defendant’s motion for a directed verdict pursuant to OCGA § 33-34-6 (b) and (c), and from the grant of directed verdict on the issue of notifying Ms. Dupree of the cancellation of the policy. In Case No. 76596, defendant cross-appeals from the grant of plaintiffs’ motion for a directed verdict with regard to construction of former OCGA § 33-34-10 (a). We will address the cross-appeal first.

Case No. 76596

1. In this case, the insurance policy was issued on October 18, 1984, to be effective through April 18, 1985. On January 3, 1985, the insurer mailed the insured a notice of cancellation, effective January 14, 1985. The insurer, however, did not notify the Georgia Department of Public Safety of the cancellation until February 1, 1985. In doing so, the insurer did not strictly comply with former OCGA § 33-34-10 (a) (1), which provided, in pertinent part, that “[t]he insurer, within five days after the effective date of a permitted cancellation of [no-fault] coverage, shall notify the Department of Public Safety in writing of the cancellation.”

Former OCGA § 33-34-10 (a) (1) did require “insurers to notify the Department of Public Safety before cancellation of no-fault automobile coverage can be effective. . . .” Georgia Farm Bureau Mut. Ins. Co. v. Phillips, 251 Ga. 244 (304 SE2d 725) (1983). However, an insurer’s failure to notify the Department of Public Safety within 5 days of the effective date of the cancellation would only result in the cancellation not being effective until such notification actually was made; it would not result in the total nullification of the insurer’s attempt to cancel the policy. The requirement of notifying the Department of Public Safety of a cancellation of an insurance policy obviously had no purpose of protecting the insured, but rather was intended to further the Department of Public Safety’s enforcement of the vehicle insurance laws. Accordingly, no persuasive reason exists for insisting upon strict compliance with the five-day notification requirement of former OCGA § 33-34-10 (a) (1).

The automobile collision underlying this action occurred on April 10, 1985. Because the cancellation of the insurance policy was effective upon the insurer’s notification to the Department of Public Safety on February 1, 1985, there was no coverage for the collision and the insurer was entitled to the directed verdict it sought.

Case No. 76595

2. Plaintiffs’ enumeration of error concerning the trial court’s grant of the insurer’s motion for a directed verdict as to its liability for statutory penalties, attorney fees, and punitive damages pursuant to OCGA § 33-34-6 (b) and (c) is rendered moot by our holding in Division 1.

3. Plaintiffs also contend that the trial court erred in its ruling that the insurer had complied with OCGA § 33-24-44 in notifying Ms. Dupree of the cancellation of the insurance policy. In this case, the insurer’s bulk mail clerk testified that she prepared a certificate of mailing for 370 notices of cancellation, one of which was addressed to Ms. Dupree. She then personally delivered to the postmaster the 370 pieces of mail along with the certificate of mailing and the P.O.R.S. list, and the post office certified receipt of the 370 pieces for bulk mailing. Under these uncontroverted circumstances, the notice of cancellation provisions of OCGA § 33-24-44 were satisfied, and the trial court properly directed verdict for the insurer on the issue. See Hill v. Allstate Ins. Co., 151 Ga. App. 542 (260 SE2d 370) (1979); State Farm &c. Ins. Co. v. Harris, 177 Ga. App. 826 (341 SE2d 472) (1986).

Judgment affirmed in Case No. 76595; judgment reversed in Case No. 76596.

Birdsong, C. J., Banke, P. J., Sognier, Pope, Ben-ham, and Beasley, JJ., concur. McMurray, P. J., and Carley, J., concur in part and dissent in part.

Carley, Judge,

concurring in part and dissenting in part.

I believe that the trial court correctly entered a judgment in favor of the insureds as to their recovery of no-fault benefits under the policy issued to Ms. Dupree by the insurer. Accordingly, I must respectfully dissent from the majority’s reversal of the judgment in Case No. 76596.

1. Pursuant to OCGA § 33-24-45 (d), the giving of notice to an insured is made a condition precedent to the cancellation of his automobile policy. There is no question that the insurer must strictly comply with that condition precedent. In addition, former OCGA § 33-34-10 (a) (1) provided, in relevant part, that “[t]he insurer, within five days after the effective date of a permitted cancellation of [no-fault] coverage, shall notify the Department of Public Safety in writing of the cancellation.” Nothing in former OCGA § 33-34-10 (a) (1) specified that the giving of notice to the Department of Public Safety was an additional condition precedent to the insurer’s effectuation of a successful cancellation of an insured’s automobile policy. Accordingly, if consideration is limited solely to the language of the applicable statutory provisions, it might be possible to accept the majority’s conclusion that an insurer’s lack of strict compliance with the notice provision of former OCGA § 33-34-10 “would not result in the total nullification of the insurer’s attempt to cancel the policy.” It is my opinion, however, that, notwithstanding the ostensible feasibility of the majority’s conclusion, the interpretation heretofore given to former OCGA § 33-34-10 by the Supreme Court requires a contrary holding.

Former OCGA § 33-34-10 (a) (1) “requirefdj insurers to notify the Department of Public Safety before cancellation of no-fault automobile coverage [could] be effective. . . .” (Emphasis supplied.) Georgia Farm Bureau Mut. Ins. Co. v. Phillips, 251 Ga. 244 (304 SE2d 725) (1983). See also Sentry Indem. Co. v. Sharif, 248 Ga. 395, 397 (282 SE2d 907) (1981); Pearce v. Southern Guaranty Ins. Co., 246 Ga. 33 (268 SE2d 623) (1980). Thus, the Supreme Court has apparently construed an insurer’s compliance with the provisions of former OCGA § 33-34-10 (a) (1) as the satisfaction of a condition precedent to the effective cancellation of an automobile policy. “ ‘[A] provision relating to the essence of the thing to be done, that is to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the Act or proceeding, or when some antecedent or prerequisite conditions must exist prior to the exercise of power or must be performed before certain other powers can be exercised, the statute must be regarded as mandatory.’ ” Barton v. Atkinson, 228 Ga. 733, 740 (187 SE2d 835) (1972). The majority cites no authority for holding that anything short of an insurer’s strict compliance with former OCGA § 33-34-10, as a condition precedent to the effective cancellation of a policy of automobile insurance, would be sufficient. “ ‘The notice requirements of the statutes regarding cancellation of insurance policies are mandatory and require strict compliance and failure to adhere to the requirements results in non-cancellation of the policy. [Cits.]’ [Cit.]” (Emphasis supplied.) Perry & Co. v. New South Ins. Brokers, 182 Ga. App. 84, 86 (2) (354 SE2d 852) (1987).

If the majority were correct, then, notwithstanding the terms of the notice provided to the insured pursuant to OCGA § 33-24-45 (d), the date of effective cancellation of an automobile policy will remain uncertain until the insurer makes its own unilateral determination to provide the notice required by former OCGA § 33-34-10 (a) (1). According to the majority, the cancellation would simply become effective at whatever point in time the insurer might subsequently provide notification to the Department of Public Safety. In my opinion, neither the uncertainty as to the date of cancellation nor the insurer’s unilateral power to determine the effectiveness of the cancellation is warranted. As I construe the statutes, the date of proposed cancellation of an automobile policy must necessarily be established by the terms of the original written notice required to be provided to the insured pursuant to OCGA § 33-24-45 (d) and the effectiveness of that cancellation must necessarily be dependent upon the insurer’s strict compliance with the mandatory notice requirements of former OCGA § 33-34-10 (a) (1). The insurer notified Ms. Dupree that it was electing to cancel her policy effective January 14, 1985. Within five days of that date, the insurer did not provide the additional notice required by former OCGA § 33-34-10 (a) (1). Accordingly, the insurer’s attempt to cancel Ms. Dupree’s policy on the date that it had proposed was ineffective. If the insurer thereafter wished to effectuate a cancellation of Ms. Dupree’s policy to be effective at a later date, it should be required to send her another notice of proposed cancellation pursuant to OCGA § 33-24-45 (d) and the insurer should not be permitted to urge that the effective date of its original cancellation attempt was merely suspended until such time as it might subsequently undertake to provide notice to the Department of Public Safety. The effectiveness of the cancellation of an automobile policy is, in my opinion, controlled by the insurer’s strict compliance with all of the applicable statutory provisions regarding cancellation, and not by the insurer’s unilateral compliance with its own less objective standards. See generally Perry & Co. v. New South Ins. Brokers, supra at 86 (2).

I believe that the trial court correctly construed the five-day time period of former OCGA § 33-34-10 (a) (1) as mandatory, and that the insurer’s failure to comply therewith resulted in the noncancellation of Ms. Dupree’s policy. Therefore, I dissent from the majority’s reversal of the trial court’s grant of the insured’s motion for a directed verdict as to the existence of coverage under the policy.

2. I concur in the affirmance of the judgment in Case No. 76595, but for different reasons than those given by the majority.

It is my opinion that error, if any, in the grant of the insurer’s motion for a directed verdict as to its compliance with the notice requirements of OCGA § 33-34-45 (d) is moot. As previously discussed, regardless of the insurer’s compliance with that statutory provision, the insureds were nevertheless entitled to recover no-fault benefits because the trial court correctly held that there was a noncancellation of Ms. Dupree’s automobile policy as the result of the insurer’s failure to comply strictly with the additional notice provision of former OCGA § 33-34-10 (a) (1).

Decided September 27, 1988

Rehearing denied October 19, 1988

Ken W. Smith, for appellants.

Steven P. Gilliam, Donald T. Hunt, for appellee.

I also agree that the trial court correctly granted the insurer’s motion for a directed verdict as to its liability for statutory penalties, attorney’s fees, and punitive damages pursuant to OCGÁ § 33-34-6 (b) and (c). “[T]his case is one of first impression in Georgia in its interpretation of the specific language in [former OCGA § 33-34-10 (a) (1)], and presented a close question as to the construction to be given this language. Thus . . . the trial court [correctly granted the insurer’s] motion for directed verdict on the issue of bad faith penalties as there was no legal basis for the jury to award such damages. [Cits.]” Johnson v. Nat. Union Fire Ins. Co., 177 Ga. App. 204, 207 (2) (338 SE2d 687) (1985).

I am authorized to state that Presiding Judge McMurray joins in this opinion.


source: Caselaw Access Project

author: Sognier, Judge. Deen, Presiding Judge,

license: Public Domain

text:
    76627.
    MAXWELL v. THE STATE.
    (374 SE2d 800)
   Sognier, Judge.

Thomas McKinley Maxwell appeals from the trial court’s order requiring him to report to the Cobb County Sheriff to begin serving a jail sentence.

The record reveals that on March 27, 1986, appellant pleaded guilty to the offenses of driving under the influence and driving without insurance. A judge of the State Court of Cobb County, sitting pro hac vice, sentenced Maxwell to pay a fine of $1,350 and to serve “24 months probation—fine paid over probation. 3 months in custody beginning 3/31/86.” This sentence was not recorded on the usual preprinted sentence form but was handwritten by the judge on the face of the accusation.

Appellant made arrangements with his employer for leave, and on March 31, 1986, he reported to the jail and requested to be taken into custody to begin serving his sentence. The Sheriff’s Department refused to take him into custody, and he was told to go home, which he did after consulting with his attorney. On April 28, 1986, appellant met with his probation officer, and continued to report regularly thereafter. On April 29, 1986 an order was signed by another judge of the Cobb County State Court outside the presence of appellant, which purported to clarify the March 27, 1986 order, but which, unlike the original order, made completion of the three-month jail term a condition of the probation. On August 31, 1987, yet a third order was signed by another judge, which was entered September 1, 1987, purporting to clarify the original sentence, and finding that appellant had completed his probation but was still required to serve three months’ incarceration, to begin January 5, 1988. That order provided that “the Court is setting a date certain for the [appellant’s] arrest and incarceration which will allow the [appellant] to once again put his affairs in order and also to raise any proper legal challenges and have them heard prior to serving the sentence.” On January 15, such a hearing was held, at the request of appellant, to hear those challenges, which were denied.

1. The State has moved to dismiss the appeal, alleging that because this appeal was not filed until January 15, 1988, four and one-half months after the trial court’s order, the appeal was not timely. However, although the order was entered on September 1, 1987, its very terms stayed its effect until January 5, 1988, both to give appellant a period of time to once again put his personal affairs in order, and also to permit appellant to raise his objections to the order, as of January 5, 1988. As appellant was expressly invited to do so, and as he filed this appeal within the prescribed time after January 5, 1988, the State’s motion to dismiss the appeal is denied.

2. We need not consider the validity of the April 29, 1986 order, as the State conceded at the hearing that it was improper. Appellant contends the trial court erred by ordering him to serve three months’ incarceration in its September 1, 1987 order, because his sentence began to run when he offered himself up to begin serving his sentence. We agree with appellant that the holding in Huff v. McLarty, 241 Ga. 442 (246 SE2d 302) (1978) is applicable to the facts of this case. As in McLarty, appellant surrendered himself to the proper authorities at the time when his sentence actually and properly began; as in Mc-Larty, the authorities erroneously declined to incarcerate him. Appellant was not trying to evade serving his time. He reported on the appointed day and requested to be taken into custody. Further, the State knew where he was and that he was available, after they sent him home, since he was reporting to his probation officer. Both here and in McLarty the defendant did all the State may require or expect of him, and the State, through its own erroneous conduct, thereby lost its right to incarcerate appellant for the “three months in custody beginning 3/31/86” which was his sentence.

Tacking the jail term on to the end of the probationary period here was not a mere “rearrangement” of appellant’s sentence, as urged by the State. Instead, it materially and impermissibly changed the sentence. The original sentence pronounced and recorded on March 27, 1986 was quite specific. It called for 24 months probation, with a fine of $1,350 paid over the probation, and 3 months in custody beginning March 31, 1986. While a trial court has the inherent power to revise or modify its judgments during the same term of court, LeCraw v. Atlanta Arts Alliance, 126 Ga. App. 656, 663 (191 SE2d 572) (1972), the September 1, 1987 order was clearly not entered during the same two-month term of the Cobb County State Court. See Ga. L. 1979, p. 3481, § 1A. Although it is well-settled that a sentencing court retains jurisdiction to correct an error on its records beyond the original term of court, Hopper v. Williams, 238 Ga. 612 (234 SE2d 525) (1977), there was no error in the original sentence. There was no reason why the original sentence should not have been effectuated as written, and no further orders were needed to make the original order “speak the truth.” Consequently, the trial court lacked authority to enter the September 1, 1987 order. Its only purpose was to try to rectify the State’s own mistake in refusing to take appellant into custody on the date his sentence was to begin, or any time thereafter. This was not an allowable purpose, and thus the September 1, 1987 order changing the sentence, clearly not entered in the same term of court, was impermissible. Accordingly, the trial court’s judgment must be reversed.

3. Appellant’s remaining enumerations of error are rendered moot by our decision in Division 2.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Beasley, concurs in Divisions 2 and 3 and in the judgment. Deen, P. J., and Carley, J., dissent.

Deen, Presiding Judge,

dissenting.

1. In its order of August 31,1987, the trial court delayed enforcement of the “in-custody” portion of the appellant’s sentence, so that the appellant could “put his affairs in order and also to raise any proper legal challenges and have them heard prior to serving the sentence.” One most reasonably would understand from that language that the appellant was required to raise any challenges timely from the date of that order, and not from the future date scheduled for serving the “in-custody” portion of the sentence.

However, the appellant’s motion to set aside the order of August 31, 1987, was not filed until January 11, 1988, almost four and one-half months after the order. “A motion to set aside a . . . judgment is not an appropriate remedy in a criminal case. [Cits.] A motion in arrest of judgment must be filed at the term when the verdict and judgment are rendered, as the trial court has no power over the judgment after the term in which it was rendered has passed. [Cits.] The appellant’s motion was not filed within the time provided by law to be considered as a motion for new trial. [Cits.] Finally, the motion does not contain the necessary allegations to receive consideration as an extraordinary motion for new trial. [Cits.] Therefore, the motion was not timely filed and the judgment overruling it, being treated as a dismissal [cit.], the judgment of the trial court must be affirmed.” McRae v. State, 116 Ga. App. 407, 408 (157 SE2d 646) (1967). See also Palmer v. State, 144 Ga. App. 480 (241 SE2d 597) (1978).

The State Court of Cobb County has two-month terms. Ga. L. 1979, pp. 3481, 3483. The appellant’s motion to set aside, construed as an appropriate motion in arrest of judgment, was not filed within the same term as that in which the challenged order was entered. Thus, as in McRae, we should treat the trial court’s judgment overruling the motion as a dismissal, and that judgment of the trial court should be affirmed.

2. Nevertheless, even if the appellant’s challenge to the order of August 31, 1987, was timely, I believe that the trial court’s denial of that motion should be affirmed. “A sentence is not voided because of the state’s delay in attempting to enforce it. Etheridge v. Poston, 176 Ga. 388 (168 SE 25) (1933). This appears to be a prevalent rule. E.g., Ex parte Grouch, 29 Okla. Crim. 343 (233 P 780) (1925); Miller v. Evans, 115 Iowa 101 (88 NW 198) (1901). Of course, there is some point at which a state’s unreasonable delay will be deemed to prevent later enforcement of the sentence. E.g., Yates v. Buchanan, 170 S2d 72 (Fla. App. 1965). Where the state makes no move to initiate the sentence, the defendant must offer himself up if he wishes the term to begin to run. Moreover, an offer which is premature because the sentence may not yet be put into effect is ineffective and may not be deemed continuing. E.g., Dixon v. Beaty, supra, 188 Ga. at 690-691. The defendant’s offer must come at a time when the sentence may lawfully be put into effect. See Crosby v. Courson, 181 Ga. 475 (182 SE 590) (1935); Etheridge v. Poston, supra. See generally Annot., Effect of Delay in Taking Defendant into Custody after Conviction and Sentence, 98 ALR2d 687 (1964).” Huff v. McLarty, 241 Ga. 442, 446 (246 SE2d 302) (1978).

In Huff v. McLarty, where the defendant offered himself up to begin serving his sentence of probation, but both the solicitor and the trial judge erroneously told him that it was premature to begin serving the sentence, the Supreme Court found that the defendant’s sentence had begun to run when the defendant offered himself up. Maxwell contends that as in Huff v. McLarty, his sentence began to run when he presented himself to the sheriffs department on March 31, 1986, and thus his jail term has been served. The trial court actually found that Maxwell’s sentence began to run on March 27, 1986, but considered only the probation part to have been served by Maxwell.

Decided October 19, 1988.

Jack J. Menendez, for appellant.

Patrick H. Head, Solicitor, Melodie H. Clayton, Victoria S. Aronow, Assistant Solicitors, for appellee.

In Huff v. McLarty, the State erroneously prevented the defendant from serving any of his sentence; in the instant case, the State erroneously declined to incarcerate Maxwell on March 31, 1986, but it is uncontroverted that the probation part of the sentence was formally implemented promptly thereafter. In short, the State’s action in this case merely rearranged the order in which Maxwell was to complete the sentence. As found by the trial court, Maxwell still owes the State 3 months in jail, a debt that Maxwell actually negotiated for prior to pleading guilty, and that debt must be paid. I concur with that conclusion.

For the above reasons, I must respectfully dissent.

I am authorized to state that Judge Carley joins in this dissent as to Division 1.


author: McMurray, Presiding Judge.

text:
    77312.
    LEVERETTE v. THE STATE.
    (374 SE2d 803)
   McMurray, Presiding Judge.

Defendant Leverette appeals his conviction of two violations of the Georgia Controlled Substances Act (sale of cocaine). Held:

1. At trial defendant relied upon an entrapment defense. Two law enforcement officers testified as to separate incidents during an undercover investigation in which one of them had accompanied a confidential informant to defendant’s home and had purchased cocaine from defendant. Defendant testified that on each occasion Goff, an individual whom defendant suggested was the confidential informant, asked him to sell the cocaine to her sister-in-law (one of the undercover officers was identified to defendant by the confidential informant as a sister-in-law, the other undercover officer purported to make a purchase for the “sister-in-law”). According to defendant, Goff gave him the cocaine to sell and would return alone after the sale to pick up the money. Defendant stated that he initially refused but participated because he felt sorry for Goff for financial reasons.

Defendant presented as his witness Applegate, a next-door neighbor of Goff. The trial court sustained the State’s relevancy objection to two of defendant’s questions to Applegate. The first question asked: “Were you familiar with [Goff’s] circumstances at that time, whether she was married, had any children or anything like that?” Secondly, following Applegate’s testimony that she had taken Goff somewhere the previous summer (the time during which the undercover investigation which ensnared defendant was being conducted) the second disallowed question was asked: “And on this particular occasion, what was the purpose of the trip?” Defendant’s first enumeration of error challenged the trial court’s sustaining of the State’s relevancy objection to these questions. In that regard, defendant argues that the trial court’s ruling prevented defendant from introducing evidence corroborative of his entrapment defense. Defendant’s offer of proof revealed no relevant evidence responsive to the questions at issue, only that Goff was 19 or 20 years of age, was not working, had two children and that the purpose of the particular trip was to get milk for the younger child.

“ ‘Admission of evidence is a matter which rests largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. Alexander v. State, 239 Ga. 108, 110 (236 SE2d 83). If an item of evidence has a tendency to establish a fact in issue, then it is relevant and admissible. Patterson v. State, 233 Ga. 724, 725 (213 SE2d 612). Georgia law favors admission of any relevant evidence no matter how slight its probative value. Baker v. State, 246 Ga. 317, 319 (271 SE2d 360).’ Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). Under these circumstances the testimony which defendant sought to elicit lacked any probative value, and therefore, was properly excluded. Alexander v. State, 7 Ga. App. 88 (66 SE 274); Butler v. State, 173 Ga. App. 168 (1) (325 SE2d 835).” Hanvey v. State, 186 Ga. App. 690, 692 (4) (368 SE2d 357) (1988).

2. Defendant enumerates as error the trial court’s instruction to the jury that, “[o]nly physicians, dentists, veterinarians or pharmacists are authorized to prescribe and dispense controlled substances, however, an individual such as defendant on trial, is not authorized to sell or dispense any controlled substance.” Defendant argues that this charge is in direct conflict with the charge given on the entrapment defense so that the charge complained of served to negate the defense of entrapment. We find no error in the charge enumerated as error nor conflict with the entrapment defense. The entrapment defense is not a claim that the defendant was authorized to commit the act with which he is charged, but that the State impermissibly encouraged the defendant to commit the crime. See generally Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452) (1984).

Decided October 19, 1988.

Herbert E. Franklin, Jr., for appellant.

David L. Lomenick, Jr., District Attorney, Scott K. Camp, David C. Walker, J. Stephen Archer, Assistant District Attorneys, for appellee.

3. Defendant’s final enumeration of error contends a portion of the trial court’s charge on entrapment was not adjusted to the evidence. The charge complained of states: “However, no entrapment exists where the officers merely furnish an opportunity to commit the criminal offense to a person who is ready and willing to commit the offense. If an officer of the law has reason to believe that the law is being violated, he may proceed to ascertain whether those who are thought to be doing so are actually committing a criminal offense. If the conduct of the officer is such as not to induce an innocence [sic] person to commit a crime, but to secure evidence upon which a guilty person can be brought to justice, the defense of entrapment is without merit.” (Emphasis supplied.)

Defendant argues that the use of the word “officer(s)” as employed above, rather than a broader phrase, directed the jury to consider that an entrapment situation might exist only as a result of the conduct of a law enforcement officer and does not permit the jury to consider the conduct of the confidential informant. However, defendant’s argument overlooks the fact that the language which defendant enumerates as error is immediately preceded by other portions of the charge which state that “a person is not guilty of a crime, if by entrapment, his conduct is induced or solicited by a government officer or employee or agent of either. . . . Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed, except for the conduct of such officer.”

We must look at the whole charge on the subject and determine what consideration a reasonable juror might have placed on the contested charge. Trenor v. State, 178 Ga. App. 351, 355 (343 SE2d 408) (1986). In considering the trial court’s entire charge on entrapment it is clear that a reasonable juror would recognize that the defense of entrapment could arise from the conduct of the confidential informant. The jury could not have been mislead in the manner argued by defendant. Trenor v. State, 178 Ga. App. 351, supra at 355; Baxter v. State, 176 Ga. App. 154, 157 (7), 158 (335 SE2d 607) (1985); Graham v. State, 175 Ga. App. 411, 413 (4), 414 (333 SE2d 664) (1985).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    77134.
    THE STATE v. FRICKS.
    (374 SE2d 749)
   McMurray, Presiding Judge.

The State appeals from the superior court’s order sustaining defendant Fricks’ motion to suppress. Defendant is charged by a three-count indictment with the offenses of carrying a concealed weapon and two violations of the Georgia Controlled Substances Act (possession of methamphetamine and possession of less than one ounce of marijuana). Held:

On May 15, 1987, a State patrolman checked defendant’s vehicle on radar at 68 miles per hour in a 55-mile-per-hour zone. The officer stopped defendant, who was traveling alone. In response to the officer’s request the defendant produced his driver’s license and vehicle registration, which were in order. The officer wrote defendant a warning for speeding. Then the officer returned defendant’s driver’s license and registration, and gave defendant a copy of the warning for speeding. After handing the documents to defendant, the officer asked defendant and was refused permission to search defendant’s vehicle. The officer then asked defendant “if he had any contraband such as drugs, illegal guns, or illegal liquor in his vehicle.” Defendant responded that he had a bottle of wine and a pistol in his vehicle. In response to further questions from the officer, defendant stated that he did not have a license for the pistol which was loaded and on the dash of the vehicle.

The officer, who had previously looked through the window at the dash of the vehicle without seeing a pistol went back to defendant’s vehicle and looked into the vehicle but still did not see the pistol. Subsequently, the officer found a loaded pistol on the dash beneath a glove. At that time defendant was placed under arrest for carrying a concealed weapon. Defendant’s vehicle was impounded and the controlled substances were discovered during a subsequent inventory search of his vehicle.

Under the facts and circumstances of the case sub judice the officer had probable cause to search the dash of defendant’s vehicle following defendant’s statement that he did not have a license to carry a pistol, and that a loaded pistol was located on the dash of defendant’s vehicle. These statements by defendant combined with the officer’s memory of his prior observation of the dash of defendant’s vehicle were sufficient to cause a reasonably prudent person to believe that defendant had committed the offense of carrying a concealed weapon. See OCGA § 16-11-126 (a). Since the officer did not lack probable cause to arrest defendant on the weapons charge the subsequent impoundment of defendant’s vehicle and routine inventory thereof was proper.

Decided September 28, 1988

Rehearing denied October 20, 1988

Roger G. Queen, District Attorney, J. Roger Thompson, Assistant District Attorney, for appellant.

George W. Weaver, Brenda T. Weaver, for appellee.

The officer’s pre-arrest questions to defendant did not trigger the Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), warnings requirement since roadside questioning at a routine traffic stop does not constitute a custodial situation such as occurs when a violator is placed in custody or arrested. LeBrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227); Steward v. State, 182 Ga. App. 659, 660 (2) (356 SE2d 890); Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317). The superior court erred in granting defendant’s motion to suppress.

Judgment reversed.

Pope and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    77149.
    HANCOCK v. THE STATE.
    (374 SE2d 757)
   Deen, Presiding Judge.

Billy Hancock appeals from his conviction of simple assault, alleging a fatal variance between the allegata in the indictment and probata at trial. Held:

The evidence showed that Hancock owed Morrison, the victim, more than $700 for purchases that he made at the victim’s hardware store. Morrison had been trying without success for almost a year to learn Hancock’s address so he could discuss the unpaid bill. Morrison went to a local business where he knew that Hancock would be receiving a check and, after a discussion of the matter, Hancock struck Morrison under the chin with his open hand. Morrison did not attempt to make physical contact with appellant. At trial, appellant admitted that he owed the money to Morrison, that he had been working and had made no effort to pay it during the past year, and that he shoved Morrison under the chin without Morrison’s permission.

Under OCGA § 16-5-23 “(a) A person commits the offense of simple battery when he either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” Appellant was in-dieted for simple battery in that he “[d]id intentionally cause physical harm to the person of Andrew Morrison by striking the said Andrew Morrison about the body with his fist.” Physical contact is required to prove simple battery. Tuggle v. State, 145 Ga. App. 603, 604 (244 SE2d 131) (1978). The State met its burden of proof by the testimony of the victim and appellant’s admission that he struck Morrison with his hand. The trial court charged the provisions of OCGA § 16-5-23 verbatim.

Decided October 4, 1988

Rehearing denied October 20, 1988

Elsie H. Griner, Galen P. Alderman, for appellant.

Lew S. Barrow, District Attorney, Edith M. Edwards, Timothy L. Eidson, Assistant District Attorneys, for appellee.

A variance between the allegata and probata is not fatal unless it misinforms the defendant as to the charges against him or leaves him open to subsequent prosecutions for the same offense. Winter v. State, 171 Ga. App. 511, 512 (320 SE2d 233) (1984). Here we cannot say that appellant was misled or prejudiced in any way. Accordingly, we find that the trial court did not err in overruling appellant’s motion for a new trial.

Judgment affirmed.

Carley and Sognier, JJ., concur.


author: Pope, Judge. McMurray, Presiding Judge,

text:
    76631.
    RICHARDSON v. MAXWELL.
    (374 SE2d 571)
   Pope, Judge.

Plaintiff alleged defendant, while driving an automobile, failed to obey a stop sign and struck plaintiff as he was riding on his bicycle. Conflicting evidence was presented at trial as to whether defendant struck plaintiff. The jury returned a verdict for the defendant. Plaintiff’s motion for new trial, brought on the general grounds, was denied. Plaintiff then appealed to this court.

Plaintiff’s enumeration of errors does not identify any error of the court below. One enumeration merely sets forth plaintiff’s factual contentions and the other enumerations make a statement of a principle of law. Two of the statements of law relate to damages allegedly authorized by the evidence which could not properly be an issue on appeal since plaintiff did not obtain a verdict in his favor. Thus, the errors set forth in plaintiff’s enumeration are meritless. Freeman v. Allstate Business Systems, 166 Ga. App. 249 (304 SE2d 97) (1983).

Moreover, plaintiff’s brief does not comply with Rule 15 of the Rules of the Court of Appeals because it does not contain a copy of the enumeration of errors (see Rule 15 (a) (2)) and because the argument does not correspond to the enumeration of errors and is unsupported by specific references to the record (see Rule 15 (c)). Neither the enumeration of errors nor the brief asserts that the trial court erred in denying plaintiff’s motion for new trial. Instead, the brief argues that this court should reverse the judgment and remand with instructions that defendant “be required to pay for the injuries suffered by the plaintiff.” Thus, plaintiff not only argues that judgment in favor of defendant should be reversed, plaintiff also argues judgment should be entered in his favor. Since plaintiff made no motion for directed verdict at the trial level, such a disposition by this court is unsupportable. At most, the judgment could be reversed, thus permitting the case to be retried.

Decided October 20, 1988.

Alton T. Milam, for appellant.

Thomas E. Greer, for appellee.

However, plaintiff acknowledges in his brief that conflicting evidence was presented as to whether plaintiff was struck by defendant. It is well settled that when conflicting evidence is presented at trial, the jury’s verdict cannot be reversed on appeal. See Ayers v. Young, 210 Ga. 441 (5) (80 SE2d 801) (1954); Hester v. Baker, 180 Ga. App. 627 (6) (349 SE2d 834) (1986); Citizens Jewelry Co. v. Walker, 178 Ga. App. 897 (345 SE2d 106) (1986). Plaintiff’s appeal is groundless and therefore frivolous. Consequently, defendant’s motion for penalty pursuant to Rule 26 (b) is granted and a penalty in the amount of $500 is assessed against plaintiff.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Sognier, Benham and Beasley, JJ., concur. McMurray, P. J. and Carley, J., concur in part and dissent in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

While I concur in most of what is said in the majority opinion, I must respectfully dissent as to the majority’s imposition of a penalty against appellant pursuant to Rule 26 (b) of the Rules of the Court of Appeals of Georgia. I am not disposed to support the majority’s conclusion that appellant’s enumerations of error are so specious as to warrant this court’s imposition of such sanctions.

I am authorized to state that Judge Carley joins in this opinion.


author: Sognier, Judge.

text:
    76831.
    FOWLER v. THE STATE.
    (374 SE2d 805)
   Sognier, Judge.

Roger Cecil Fowler was convicted of aggravated assault, and he appeals.

The record reveals that appellant and his wife divorced several months before the incident at issue, but subsequently began seeing one another again. On the morning of June 12, 1986, appellant drove to the home of the victim, Gary Campbell, who had been having an affair with appellant’s former wife for a number of months prior to the divorce. Appellant confronted Campbell regarding his intentions toward appellant’s former wife, but Campbell rebuffed him and drove away. Appellant followed, chasing Campbell at increasing speeds, and fired three shots at Campbell’s truck, hitting him once. The chase ended when the two trucks collided.

1. Appellant first enumerates as error the trial court’s failure to give his requested charge on the intent required for the offense of aggravated assault. Appellant does not argue that the trial court’s general charge on intent was incorrect as given, but instead contends the specific charge on aggravated assault was incomplete because it did not include the element of “intent to injure.” The trial court instructed the jury that “[i]ntent is an essential element of any crime,” and then set forth the principles articulated in OCGA § 16-2-6. See Griffin v. State, 230 Ga. 449, 452-453 (3) (197 SE2d 723) (1973). The trial court subsequently charged the jury on the elements of assault set forth in OCGA § 16-5-21, but did not include intent to injure. Thus, the element of intent was not repeated during the portion of the trial court’s charge that focused directly on assault. However, we find the general charge on intent sufficient to enable the jury to apply it to the assault count, and “we find nothing in the transcript to support appellant’s contention that the jury could not, or did not, understand the charge on intent as applied to aggravated assault.” Cade v. State, 180 Ga. App. 314, 316 (4) (348 SE2d 769) (1986). Given that the trial court’s charge covered the principles set forth in the requested charge, the court did not err by refusing to give appellant’s charge. See id.

2. Appellant also enumerates as error the trial court’s refusal to give his requested charge on OCGA § 16-2-2, which provides that a defendant shall not be found guilty “of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” However, neither misfortune nor accident was indicated by the evidence adduced at trial, which showed that appellant confronted the victim and then pursued him through downtown Warner Robins, shooting at the victim’s truck and hitting him in the shoulder and rib. “ ‘Deliberately firing a gun in the direction of a human being . . . raises no issue of accident or misfortune when the charge is aggravated assault.’ [Cit.]” Stovall v. State, 169 Ga. App. 691, 693 (4) (314 SE2d 707) (1984). Thus, the evidence did not authorize a charge based on OCGA § 16-2-2, and the trial court did not err by refusing to so instruct the jury. See generally Grant v. State, 161 Ga. App. 403, 404 (4) (288 SE2d 118) (1982).

3. Appellant has failed to support his second enumeration of error by either argument or citation of authority. Therefore, we deem it abandoned pursuant to Rule 15 (c) of this court. Garner v. State, 182 Ga. App. 251, 252 (4) (355 SE2d 451) (1987).

4. Appellant also contends the trial court erred by failing to charge the jury as requested on lesser included offenses, and specifically on reckless conduct, simple assault, and pointing a pistol at another. Although these offenses are lesser included offenses of aggravated assault, Bowers v. State, 177 Ga. App. 36, 37-38 (1) (338 SE2d 457) (1985); Morrison v. State, 147 Ga. App. 410, 412 (249 SE2d 131) (1978), “[i]t is not error to fail to charge the lesser included offense if the jury would be unauthorized to return that verdict based on the evidence. [Cit.]” Watson v. State, 235 Ga. 461, 466 (219 SE2d 763) (1975). In the case at bar, appellant’s witnesses did not materially contest the State’s version of the facts, but instead offered evidence on the defense of temporary insanity, and thus the jury would have been authorized to find only that appellant either was guilty of aggravated assault, the greater offense, or was not guilty. See Newton v. State, 127 Ga. App. 64, 65 (1) (192 SE2d 526) (1972). Accordingly, we find no error in the trial court’s refusal to charge the lesser offenses.

5. Appellant next contends the trial court erred by failing to give his requested charge that in deciding the issue of insanity, the jury is “authorized to consider the opinion, not only of the expert witnesses, but of any witnesses.” Defense witness Wayne Phillips, a close friend of appellant, testified that in his opinion appellant did not know right from wrong at the time of the shooting and could not resist doing what he did, and that appellant had “too many emotions for him to have a concrete decision.” We do not suggest that appellant’s requested charge was an accurate and complete statement of the applicable law. Nonetheless, the trial court’s instructions on credibility of witnesses, the weight to be given expert testimony, and the charge authorizing the jury to consider “[a]ny evidence as to sanity, insanity and mental illness” sufficiently set forth appellant’s requested charge, and thus no error is presented. See generally Farmer v. State, 185 Ga. App. 512, 513 (3) (364 SE2d 639) (1988).

6. In his next enumeration, appellant contends the trial court erred by failing to charge the jury on delusional insanity as requested. However, the record reveals no evidence that appellant met any of the elements of delusional insanity as articulated in Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1986). Indeed, appellant’s clinical psychologist testified he found no evidence of delusional compulsion in appellant. Further, the charge requested by appellant was an incomplete statement of the law on delusional insanity because it did not include the elements that the criminal act be connected to the delusion, and that the delusion must be as to a fact which, if true, would justify the act. See id. at 442. Thus, the failure to charge on these issues was not error. See generally Young v. State, 163 Ga. App. 507, 508 (3) (295 SE2d 175) (1982); see also Graham v. State, 236 Ga. 378, 380-82 (223 SE2d 803) (1976).

7. Finally, appellant contends the trial court improperly increased his initial sentence. The record reveals that at the sentencing hearing on June 5, 1987, the trial court sentenced appellant to seven years’ probation, the first of which was to be served on intensive probation, and ordered him to pay a fine and make restitution to the victim. Appellant then met with his probation officer, but became “highly upset and highly rebellious” when he learned the rules and conditions of intensive probation, and twice walked out of the meeting. The probation officer concluded appellant did not intend to abide by the terms of his probation, and accordingly had him taken into custody. Subsequently, upon the State’s motion for reconsideration of sentence, the court held a second hearing on June 11, 1987. Although the trial court noted that appellant had entered upon the execution of his sentence, the court changed appellant’s sentence to ten years, one of which was to be served in prison.

“ ‘[Judgments of a court are within its breast until the end of the term, and the sentence may be amended at any time during the term and before execution has begun.’ [Cits.]” Schamber v. State, 152 Ga. App. 196, 198-199 (3) (262 SE2d 533) (1979). However, “ ‘[o]nce a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the Fifth Amendment prohibition against double punishment or jeopardy.’ [Cits.]” Brown v. Moody, 243 Ga. 473, 474 (1) (254 SE2d 853) (1979). Although the judgment in the instant case was still within the breast of the court, appellant had begun serving his sentence when he met with the probation officer, and thus the trial judge did not have authority to increase appellant’s sentence. See Inman v. State, 124 Ga. App. 190, 192-193 (1) (183 SE2d 413) (1971). The court was authorized only to modify the sentence by revoking appellant’s probation if the court concluded appellant had violated his probation by refusing to abide by the conditions. Garland v. State, 160 Ga. App. 97, 99 (286 SE2d 330) (1981). Accordingly, the sentence must be vacated and appellant must be resentenced.

Decided October 20, 1988.

George L. Williams, Jr., for appellant.

Theron G. Finlayson, District Attorney, for appellee.

Judgment affirmed as to conviction; judgment vacated as to sentence and case remanded for resentencing consistent with the above guidelines.

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


author: Pope, Judge.

text:
    76479.
    CINCINNATI INSURANCE COMPANY v. PAGE et al.
    (374 SE2d 768)
   Pope, Judge.

Following a multi-car collision, appellant Cincinnati Insurance Company filed an action seeking a declaratory judgment to determine the amount of coverage available under a policy providing automobile liability insurance to appellee James G. Page and his family. A suit had previously been brought against Page by appellee Ray Anthony Couch for damages arising from the collision, and both Couch and Cincinnati filed motions for summary judgment in the declaratory judgment action. Interlocutory appeal was granted from the tried court’s order awarding summary judgment to Couch and denying Cincinnati’s motion for summary judgment.

The controversy involved the limits of liability, as shown on the declarations page of the policy, and reprinted below:

Cincinnati argued on its motion for summary judgment, as it does on appeal, that typewritten words of a contract are entitled to more consideration than words printed on the form, and must govern over any conflicting printed ones. OCGA § 13-2-2 (7). Thus, it insists that the policy was intended to provide total aggregate coverage of $300,000 per occurrence, $300,000 being the single limit of the policy including both bodily injury and property damage liability. However, the trial court found that the insurer’s placement of $300,000 beside the term “Each Person,” and the manner in which the term “SINGLE LIMIT” had been typed in on the declaration, created an uncertainty of meaning as to the provisions of coverage. Because of this ambiguity, the court determined that the policy must be construed most strongly against the insurer and in favor of the insured. OCGA § 13-2-2 (5); see Coren v. Puritan Ins. Co., 184 Ga. App. 667 (2) (362 SE2d 380) (1987).

The trial court reasoned that when the endorsements and the declaration were read together, the $300,000 could be construed as being the limit for any one person’s damages and “SINGLE LIMIT” construed as meaning that the only limit of liability was for “Each Person.” Therefore, because the endorsement addressed a limit both for each person and each accident, but a numerical value was set only for the “Each Person” limit, the insured could reasonably expect that the “Each Accident” limit would have been similarly expressed by a numerical term if such a limit were intended. The court further noted that Cincinnati failed to provide a definition or explanation of the critical term “Single Limit” anywhere within the policy, even though its policy and endorsement forms approved and on file with the State Commissioner of Insurance pursuant to OCGA § 33-24-9 contemplated the importance of assuring clarity with respect to single limit liability coverage. The trial court also rejected Cincinnati’s “expressio unius est exclusio alterius” argument on the ground that “the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney. [Cit.]” Cincinnati Ins. Co. v. Davis, 153 Ga. App. 291, 295 (265 SE2d 102) (1980). Based on the above considerations, the trial court concluded that the insurance contract was ambiguous and declared as a matter of law that it provided a limit of liability of $300,000 per person.

Appellant enumerates as error the grant of summary judgment to appellee Couch and the denial of its motion, urging that the policy was not ambiguous and the trial court applied an unreasonable and strained construction in finding that it provided coverage in the amount of $300,000 per person. It further assigns error in the trial court’s consideration of extraneous documents.

“ ‘We begin with the proposition that an insurance policy, even when ambiguous, is to be construed by the court. . . .’In making an assessment we consider the pertinent legal principles, which the trial court also applied. Because insurance policies are contracts of adhesion, drawn by the legal draftsman of the insurer, they are to be construed as reasonably understood by an insured. [Cit.] ‘Exceptions, limitations and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms.’ [Cit.] In brief, although the cardinal rule of construction is to ascertain the intention of the parties, if the language is susceptible to two different constructions the one most favorable to the insured will be adopted. [Cit.]” (Indention omitted.) St. Paul &c. Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (1) (358 SE2d 925) (1987).

We can in no way disagree with the trial court’s conclusion that the manner in which the term “Single Limit” was typed upon the declaration form created an uncertainty of meaning as to the provisions of coverage. And, as the trial court also correctly ruled, the failure of the insurer to provide a definition or explanation of the critical term “Single Limit” within the policy authorized the court to consider extrinsic evidence to resolve the ambiguity. Thus the court properly considered evidence that by attaching the provisions and endorsements that had been previously submitted to and approved by the State Commissioner of Insurance pursuant to OCGA § 33-34-9, Cincinnati could have issued a policy which unambiguously stated that $300,000 was the combined limit for both bodily injury and property damage for each accident; and that in failing to do so, Cincinnati violated its own underwriting guidelines. The burden is on the insurer to make its intent clear and unmistakable and to show explicitly any exceptions to coverage. Capital Ford Truck Sales v. United States Fire Ins. Co., 180 Ga. App. 413, 418-419 (349 SE2d 201) (1986); accord MAG Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169 (1) (367 SE2d 63) (1988).

“There are three steps in the process of contract construction. The trial court must first decide whether the contract language is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction (OCGA § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must then resolve the ambiguity. Travelers Ins. Co. [v. Blakey, 255 Ga. 699 (342 SE2d 308) (1986)].” Travelers Ins. Co. v. Blakey, 180 Ga. App. 520 (349 SE2d 474) (1986). The trial court here found as a matter of law, after utilizing this procedure, that the insurance policy provided a limit of liability of $300,000 per person. However, our own review of the policy and our application of the pertinent rules of construction convinces us that because of the placement of the term “$300,000 Single Limit” upon the endorsement, an ambiguity remains as to whether it pertains solely to bodily injury liability, or solely to property damage liability, or encompasses both; it is likewise unclear whether the declaration applies to each person or to each accident. Hence the language is susceptible to more than two different constructions, and there is no one construction most favorable to the insured which can be adopted as a matter of law. “Accordingly, the grant of summary judgment to [appellee Couch] must be reversed and this issue submitted to the jury for resolution. [Cits.]” International Business Investments v. Archer Motor Co., 187 Ga. App. 97, 99 (369 SE2d 268) (1988).

Decided October 5, 1988

Rehearing denied October 21, 1988

William S. Goodman, Judy F. Aust, for appellant.

Robert D. Hocutt, Alan B. Gordon, Yehuda Smolar, Stanley T. Snellings, Rhodes H. Jordan, Douglas F. Aholt, for appellees.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Benham, J., concur.


text:
    77046.
    DOE et al. v. CHAMBERS.
    (374 SE2d 758)
   Pope, Judge.

This appeal arises from adoption proceedings initiated by appellants John and Jane Doe. Pursuant to a written agreement in which the unwed biological mother relinquished her parental rights, the baby girl, who was born on February 16, 1987, was delivered to the Does on March 2, 1987. The Does filed a petition for adoption on March 25, 1987 and on April 20, 1987 appellee Clint Chambers, as natural father of the child, filed a petition to legitimate her. The Does filed an objection to the legitimation and a motion to intervene, which was granted, and a hearing was set. Upon the grant of the Does’ motion to bifurcate the hearing in order for the question of Chambers’ “opportunity interest” to be determined first, a hearing on that issue was scheduled for October 5, 1987, at which time it was stipulated that, based on the results of a human leucocyte antigen (HLA) blood test, Chambers was the biological father of the child. On October 8, 1987, the superior court issued an order finding that Chambers had not abandoned his opportunity interest to develop a relationship with his child and was entitled to pursue his legitimation petition.

A parental fitness hearing was held over a three-day period in January 1988. In the course of the fitness hearing the trial judge informed counsel for both parties that he was reconsidering his findings in the opportunity interest hearing and might reverse his decision, based on changes in the testimony of witnesses from that previously given. However, at the close of the testimony the court stated that there had not been sufficient evidence to cause him to change his decision that Chambers had not abandoned his opportunity interest. In ruling on the question of Chambers’ fitness, the judge noted that if the issue to be determined was the best interests of the child, his decision would be simple to make; but that under In re Baby Girl Ea-son, 257 Ga. 292 (358 SE2d 459) (1987), it was not a question of whether the Does were more qualified to raise the child, but whether Chambers was unfit to do so. The court concluded that Chambers had had problems and was “not a perfect parent,” but that there had been no showing of his present unfitness to have custody of his own child. The court then ruled that Chambers was entitled to legitimate the child and ordered that he be given immediate custody. The Does appeal. Held:

1. After careful review of the transcripts of both hearings and the depositions of the parties and witnesses, we conclude that there are no grounds for reversal. While there are contradictions and inconsistencies in the evidence, the trial court conducted the proceedings with impeccable regard for the standards established in In re Baby Girl Eason, supra. There was evidence to sustain Chambers’ position that he never knew the mother was pregnant and did not learn of his daughter’s birth until some two months after the fact; and that he then vigorously pursued his opportunity interest to establish his parental relationship. Once the determination had been made that Chambers did not abandon this interest, the court correctly heard evidence as to his fitness to be the child’s custodial parent. “[A] fit biological father who pursues his interest in order to obtain full custody of his child must be allowed to prevail over strangers to the child who seek to adopt.” Eason, 257 Ga. at 296. Thus, in circumstances such as this one, the court does not apply the best interests of the child standard. If the father “has not abandoned his opportunity interest, the standard which must be used to determine his right to legitimate the child is his fitness to have custody of the child.” Id. at 297.

“In such a case, the parent is entitled to custody of the child unless the third party shows by ‘clear and convincing evidence’ that the parent is unfit or otherwise not entitled to custody under [statutory provisions not at issue here]. Additionally, evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his natural child; clear and convincing evidence of present unfitness is required. [Cits.]” Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). Although Chambers’ past lifestyle was far from exemplary, it was not atypical of many restless young people, and at the age of twenty-two he appears ready and able to assume his parental responsibilities. Accordingly, reviewing the evidence in the light most favorable to the appellee, we conclude that a rational trier of fact could not have found by clear and convincing evidence that Chambers’ rights to custody have been lost. Accord In re S. E. H., 180 Ga. App. 849 (350 SE2d 833) (1986); Carr v. Towns, 172 Ga. App. 691 (1) (324 SE2d 489) (1984).

Decided October 4, 1988 —

Rehearing denied October 21, 1988

Richard L. Moore, Rebecca Walton-McFalls, for appellants.

William E. Brewer, for appellee.

2. We cannot agree with appellants’ contention that the trial court’s failure to make detailed written findings of fact and conclusions of law as required under OCGA § 9-11-52 (a) in all contested child custody cases mandates remand to the trial court and leave to file another appeal. See Jordan v. Jordan, 179 Ga. App. 155 (1) (345 SE2d 675) (1986). Formerly in non-jury trials this statute was held to be mandatory in requiring “findings of fact and conclusions of law in contested divorce, contested alimony and contested custody of children actions.” Githens v. Githens, 234 Ga. 715, 716 (217 SE2d 291) (1975). However, as rewritten by the enactment of Ga. L. 1987, p. 1087, § 1, which is controlling here, OCGA § 9-11-52 (a) now requires separate specific findings of fact and conclusions of law in non-jury trials only “upon request of any party made prior to such ruling, . . .” Subsection (c) provides, inter alia, that “[w]hen findings or conclusions are not made prior to judgment to the extent necessary for review, failure of the losing party to move therefor after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.” (Ga. L. 1987, p. 1057, § 1). Appellants neither requested separate written findings and conclusions prior to the court’s ruling, as required by subsection (a) as now amended, nor moved therefor after judgment pursuant to subsection (c). Thus, while more specific written findings are often preferable, by their silence appellants have waived any objections at this time.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Benham, Judge.

text:
    76571.
    THE STATE v. BISHOP.
    (374 SE2d 808)
   Benham, Judge.

This appeal is from the trial court’s grant of a motion to suppress evidence against appellee, who was arrested for possessing alcohol while under age. OCGA § 3-3-23. The State argues that the evidence was not obtained in violation of appellee’s rights. The evidence produced at the hearing on the motion was as follows: Appellee was a passenger in a vehicle that was stopped by a police officer for a malfunctioning rear light. After a brief investigation, the driver was arrested for D.U.I. While he was out of the range of appellee’s hearing, the driver asked the officer if appellee could be allowed to drive the vehicle away from the scene, rather than have it towed away. The officer, in an attempt to comply with the driver’s request, returned to the vehicle and asked appellee to get out. Appellee got out of the vehicle at the officer’s behest, and they conversed, at which time the officer smelled alcohol on appellee’s breath. Appellee was unaware that the driver wanted him to drive the car, and he had not made any attempt to do so. Without telling appellee about his rights regarding self-incrimination, the officer gave him an alcosensor test, which showed that he had ingested alcohol. The officer then asked him to produce his driver’s license, which showed that he was under 21 years old, the legal age for consuming alcoholic beverages. He was arrested on that basis, and subsequently filed a motion to suppress all evidence obtained by the officer on the grounds that there was no probable cause for the arrest and that he was required to incriminate himself through the testing and the showing of the license.

Based on the evidence, the trial court was authorized to find that the officer’s primary purpose for administering the test was to determine whether or not appellee was in a suitable condition to drive the vehicle from the scene; that the officer approached appellee only in an attempt to comply with the driver’s request that appellee drive the car rather than having to pay to have it towed; but that appellee was not required to submit to the officer’s investigatory attempts, since the driver’s request had not been conveyed to appellee, nor had appellee indicated any desire to drive or otherwise take control of the vehicle. An officer must have a reasonable and articulable suspicion that a person is involved in criminal activity to justify seizing that person for a brief period of time without probable cause to make an arrest. State v. Noble, 179 Ga. App. 785 (347 SE2d 722) (1986). While it would have been proper, had appellee indicated he was going to drive the vehicle, for the officer to administer the test and check appellee’s driver’s license to ensure that he was a licensed driver and would not be driving under the influence of alcohol, the officer was not within his right to do so in this case, due to the absence of appellee’s expression of desire or consent to assume control of the vehicle as its driver. There was no proper reason for the administration of a field sobriety test or an examination of appellee’s driver’s license. In the absence of the necessary reasons for the investigative detention, the officer’s administration of the alcosensor test, his request for appellee’s driver’s license after he registered a .06 reading on the test, and his subsequent arrest of appellee violated appellee’s Fourth Amendment rights. The trial court acted correctly in granting appellee’s motion to suppress, for the fruits of an illegal arrest are not admissible in evidence in a criminal trial. Adams v. State, 153 Ga. App. 41 (264 SE2d 532) (1980). The evidence supports the trial court’s judgment, and so we affirm it.

Decided October 21, 1988.

Ken Stula, Solicitor, Dean C. Broome, Jr., Assistant Solicitor, for appellant.

Howard T. Scott, Bradley S. Wolff, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Banke, Presiding Judge. Sognier, Judge, Beasley, Judge,

text:
    76906.
    MADDOX v. THE STATE.
    (374 SE2d 810)
   Banke, Presiding Judge.

Maddox was convicted of violating the Controlled Substances Act by possessing methamphetamine with intent to distribute. On appeal, he enumerates as error the denial of his motion to suppress the contraband on the ground that it was seized during an unlawful, warrant-less search of his motor vehicle.

The appellant and a male companion were observed by Officer Tyner of the Hall County Sheriff’s Department standing next to a truck parked at a convenience store at approximately 3:00 o’clock in the morning. Upon being questioned by the officer, the appellant stated that the truck belonged to him and that its headlights were inoperative. A second patrol car arrived at the scene, and the two officers agreed to escort the appellant while he drove his truck to a location where, according to him, he would be able to get mechanical assistance. One patrol car preceded the truck, while the other followed it. En route, the officers received information by radio that two warrants were outstanding for the appellant’s arrest. Based on that information, the officers directed the appellant to pull his truck over to the side of the road and placed him under arrest.

When asked if there was any particular towing service he preferred to pick up his truck, the appellant responded that he wanted the vehicle to be left at the side of the road. His companion thereupon volunteered to make arrangements to have the disabled vehicle picked up. The appellant was then taken to the sheriff’s office by one of the officers, while his companion was driven to a nearby telephone booth by the other officer. However, because of certain comments made by the companion which cast doubt on whether he would actually be able to arrange for the retrieval of the vehicle, the officer radioed for a wrecker and immediately returned to the scene of the arrest, where he conducted a search of the vehicle “to secure anything of value.” The officer testified that he was back on the scene within only a few minutes after leaving. During the course of the search, a syringe and other drug paraphernalia were seized from under the armrest between the driver and passenger seats, and a white powdery substance was seized from the floorboard on the passenger side. The white powder was ultimately determined to be methamphetamine. Held:

1. In New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981), the United States Supreme Court held that a contemporaneous warrantless search of the interior of a motor vehicle conducted in connection with a custodial arrest of the vehicle’s driver may be considered a lawful search incident to arrest even though the vehicle is no longer occupied. The appellant contends that the Belton rationale cannot be extended to the present case because the search was conducted not merely after his removal from the vehicle but also after his removal from the scene. However, in State v. Watkins, 182 Ga. App. 431 (356 SE2d 82) (1987), we upheld the validity of an automobile search on the basis of Belton under precisely such circumstances, citing State v. Hopkins, 163 Ga. App. 141, 143 (2) (293 SE2d 529) (1982), for the proposition that “ ‘[t]he decisive factor is whether the arrestee was, at the time of his arrest, a “recent occupant” of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search.’ ” State v. Watkins, supra at 433. (Emphasis from original.) See also Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986). Since, in the present case, the evidence established without dispute that the search occurred within a few minutes of the appellant’s removal from the vehicle, we hold that the motion to suppress was properly denied.

The appellant’s reliance on Whisnant v. State, 185 Ga. App. 51 (363 SE2d 341) (1987), is misplaced. In that case, the search occurred some two hours after the initial stop and arrest of the driver and after the vehicle had already been seized and transported to the county jail.

2. Having determined that the search was conducted as a lawful incident to the appellant’s custodial arrest, we do not reach the issue of whether the search could also be upheld as a valid inventory search. See generally State v. Hopkins, supra.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., and Pope, J., concur. Carley, Sognier, Benham, and Beasley, JJ., concur specially.

Sognier, Judge,

concurring specially.

I agree with Judge Beasley that the judgment in this case is correct because the items were seized under a valid inventory search under South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976) and Colorado v. Bertine, 479 U. S. 367 (107 SC 738, 93 LE2d 739) (1987), and not because of a search incident to a lawful arrest under the Belton principles (New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981)). However, I cannot concur in all that is postulated in her special concurrence.

I am authorized to state that Judge Carley and Judge Benham join in this special concurrence.

Beasley, Judge,

concurring specially.

I concur in the judgment because the items were seized pursuant to a valid inventory search under Opperman and Colorado v. Bertine, 479 U. S. 367 (107 SC 738, 93 LE2d 739) (1987), and not because of a search incident to a lawful arrest under the Belton principles.

The Belton and Opperman cases and their underlying rationales for motor vehicle searches are different, and it is important to maintain the distinction, as the United States Supreme Court does. These two cases represent two types of warrantless but permissible vehicle searches but not the only two which the Court has identified. United States v. Ross, 456 U. S. 798 (102 SC 2157, 72 LE2d 572) (1982), decided the same year as Belton but after it, also involved the search of a vehicle and containers found therein. The search and seizure was treated neither as an inventory search nor as a search incident to arrest. See footnotes 2 and 11. It focused instead on a third category, the scope of vehicle searches as permitted in Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925), that is, where there is probable cause to believe there is contraband in the vehicle.

The Court held that search of the containers could proceed if such would be within the scope of a search authorized by a magistrate based on probable cause to believe the vehicle contained contraband. This would include containers “that may conceal the object of the search.” Id. at 825. Although Belton also embraced containers in the vehicle as being within the scope of the vehicle search, it arose from a different foundation and we, like the Supreme Court, must differentiate the categories so as not to lose sight of the reason for each rule. As the Court stated, “[n]o single rule of law can resolve every conflict” in cases of warrantless searches of stopped vehicles.

The facts do not support an application of the Belton principles. When the truck was searched, appellant, the one person who was arrested, was already on his way to jail in a patrol car with one of the officers and distanced by miles from the truck. The arrest was complete, insofar as on-the-scene aspects of the procedure employed by the officers were concerned. They perceived no need to search the vehicle as an incident of the arrest or as part of the process of arrest. Instead, they allowed defendant access to the vehicle to get cigarettes, advised him to secure it, acceded to the request to let the passenger arrange its removal and drove away.

As far as defendant was concerned, he thereafter was not coming back, and he had lost all control of the truck. When they drove away, his access to it and its contents evaporated. He could not even give any further instructions or directions regarding its custody or contents, as he could no longer communicate with the passenger who was to make arrangements for its removal from the roadside.

The passenger, who was not arrested, was also no longer at the scene, as he and the other officer had driven away. Enroute to a phone, the passengers’ statements and attitude, and the circumstances, led that officer to believe that the passenger, who was serving as arrestee’s agent, was also not coming back to assume any control of the truck. He would not be permitted to drive it away, because of its lack of lights, and it was fairly clear that he was not going to make arrangements for its towing, as originally indicated. The officer returned to the truck to assure security, knowing there were tools inside, and decided enroute to arrange for its towing himself. He called for towing and inventoried the contents.

Belton does not fit these circumstances. It refines the particular exigency principle developed in Chimel v. California, 395 U. S. 752 (89 SC 2034, 23 LE2d 685) (1969), which is founded on “the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to prevent the concealment or destruction of evidence.” New York v. Belton, supra at 457. The Court endeavored to delineate a more definitive guideline than provided by Chimel for law enforcement officers and courts with respect to the physical scope of the search of a person arrested in an automobile setting. The Court held: “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile . . . [and] the contents of any containers found within the passenger compartment,. . . .” New York v. Belton, supra at 460. See the Court’s explanation of its Belton holdings in Michigan v. Long, 463 U. S. 1032, 1048 (103 SC 3469, 77 LE2d 1201) (1983).

In fashioning this rule, the Court designated what area would be considered “within the immediate control of the arrestee” for constitutionally permissible vehicle searches incident to arrest. Keeping in mind the purposes which legitimize such a search, i.e., to prevent the arrestee’s access to weapons or his concealment or destruction of evidence, the search in this case does not fall within the category. Removal of the arrestee from the scene had already accomplished these ends, and there was no intention or reason to search the vehicle as part of the arrest. Even if the period of time involved here can be considered “contemporaneous,” the search was not incident to the arrest. It was not made to secure the arrestee or the contents of the vehicle from the arrestee’s grasp.

Decided October 21, 1988.

G. Hammond Law III, for appellant.

C. Andrew Fuller, District Attorney, for appellee.

An application of Belton requires at least some semblance of a relationship between an arrestee’s access to the vehicle’s passenger compartment and the search, else the rationale for this type of warrantless search disintegrates and the logic of the principles espoused in Chimel and Belton vanishes. The “necessity” for the intrusion into a person’s property which is created by the reasons and purposes of a Chimel/Belton authorization were not even claimed to be present and had in fact vanished. State v. Ludvicek, 147 Ga. App. 784 (250 SE2d 503) (1978) discussed this fundamental prerequisite of necessity in the inventory search context. See also Michigan v. Long, supra at 1048-1050, and a more recent automobile search case, New York v. Class, 475 U. S. 106, 111 (106 SC 960, 89 LE2d 81) (1986). The result of the majority’s opinion would come close to allowing the search of a vehicle with every arrest.

On the other hand, the search was a valid automobile inventory search. Both officers testified that, while they were on the road in separate cars on separate missions, having left the scene a few minutes before, they had each independently decided to impound the truck. The officer who had taken the passenger to call someone to come for the truck became convinced that no one would come for it. So he returned to find it unlocked and, after calling for towing, he inventoried it so as to secure its contents as a routine procedure of the department before turning it over to the tow truck operator. As such, the search was a valid exercise of the law enforcement agency’s caretaking function, which was recognized in Cady v. Dombrowski, 413 U. S. 433, 441 (93 SC 2523, 37 LE2d 706) (1973). Opperman, supra; Colorado v. Bertine, supra; Colsson v. State, 177 Ga. App. 840, 841 (2) (341 SE2d 318) (1986); Goodman v. State, 255 Ga. 226, 229 (13) (336 SE2d 757) (1985); State v. Gilchrist, 174 Ga. App. 499, 500 (1) (330 SE2d 430) (1985). Cf. Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983).

        South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976).

        New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981).


text:
    76937.
    RICHARDSON v. THE STATE.
    (375 SE2d 813)
   Pope, Judge.

Under a seven-count indictment, appellant Van Richardson was tried for (1) aggravated assault upon a peace officer (Deputy J. A. Pope) with a pistol during the performance of his official duties; (2) aggravated assault upon a peace officer (Deputy Chet Powell) with a pistol during the performance of his duties; (3) aggravated assault with a pistol upon the jailer, Deputy Guy Carter; (4) aggravated assault with a pistol upon a county employee, Jack Hood; (5) aggravated assault with a pistol upon an inmate, Gerald McMillan; (6) possession of a firearm during the commission of a crime; and (7) attempted escape. The jury returned a verdict of guilty but mentally ill as to all counts except Count 5, of which appellant was acquitted. Appeal is brought from the denial of appellant’s motion for new trial.

The charges arose from an incident occurring at the Colquitt County Jail on November 26, 1986, where appellant was in legal custody, when Deputy Powell returned appellant from a visit to a mental health facility. Powell removed appellant’s handcuffs and Pope gave him a cigarette. When Powell told appellant he had to “go back upstairs” to the jail cells, appellant dropped his pants and bent over, telling Pope he could “kiss his ass.” Suddenly appellant pulled up his pants and grabbed a gun, which a deputy had left on the counter, and began firing. Pope and Powell were wounded and the other men in or near the room took cover or fled. Appellant ran out into the courtyard with the gun and was shot twice and disabled by Pope as he appeared to be climbing over the jail fence.

At trial appellant raised the defense of insanity, with two psychiatrists appearing on behalf of the defense. Dr. Gaston Loomis testified that appellant had a form of manic depressive mental illness and was in a hypomanic phase; that manic depressive illness was a disorder of mood, as opposed to a disorder of content such as schizophrenia, in which a person’s moods “shift so significantly that it alters their way of thinking.” Dr. Loomis further stated that appellant had a long history of being diagnosed and treated as manic depressive, but when examined that morning before the shootings was hypomanic, “which was not normal but not yet manic.” He also testified that people who are manic are considered in many cases not to be able to distinguish between right and wrong, but in his opinion, at the time he saw appellant about an hour before the incident, he knew right from wrong.

Dr. H. J. Choi, who examined appellant about a week later, testified that he diagnosed him as a “manic hypopsychotic patient,” who was at that time insane and delusionary and unable to control his behavior. However, appellant knew he was there for a psychiatric evaluation and also knew he had criminal charges pending against him. Dr. Choi treated appellant for the next 40 days, during which time his medication was steadily increased, and during which time Dr. Choi concluded appellant was suffering from a mental illness.

Dr. Kenneth Fuller, a rebuttal psychiatrist for the State, testified that when he examined appellant prior to the trial, appellant knew the charges against him and “described the events surrounding the incident coherently [and] logically,” although he could not remember how Pope was shot. In Dr. Fuller’s opinion appellant was mentally ill, but knew right from wrong.

Appellant’s mother and former father-in-law testified that he had been committed to a mental hospital when he was seventeen and had been “in and out” for the next fourteen years; that he never shot anyone at home, but would “terrify” them; that even when he was on his medication he had to go back to the hospital several times; and that appellant was violent and “crazy.”

1. Appellant contends that the evidence was insufficient to authorize a rational trier of fact to find the essential elements of aggravated assault beyond a reasonable doubt, arguing that neither Carter nor Hood were in the presence of the gun when it was fired at Powell and Pope. However, the jury could have found that appellant’s actions placed Carter and Hood in reasonable apprehension of receiving a violent injury in that the shooting occurred in an enclosed office, and both men testified that they fled into other rooms because they feared that they too would be shot. “A person commits the offense of aggravated assault when he assaults: . . . [w]ith a deadly weapon . . . which ... is likely to or actually does result in serious bodily injury.” (Emphasis supplied.) OCGA § 16-5-21 (a) (2). “Taken in the light most favorable to the State, there was sufficient evidence to convince a rational trier of fact of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]; Daughtry v. State, 180 Ga. App. 711 (350 SE2d 53) [(1986)].” Davis v. State, 184 Ga. App. 230, 231 (1) (361 SE2d 229) (1987).

2. Appellant asserts that the evidence was insufficient for the jury to have found him sane beyond a reasonable doubt. He urges that since he showed by a preponderance of the evidence that he suffered from a “mental abnormality,” the State then had the burden of establishing beyond a reasonable doubt that he was not insane, which it failed to do. We do not agree.

“In Brown v. State, 250 Ga. 66, 71-72 (295 SE2d 727) (1982), the Supreme Court held that ‘an appropriate standard of appellate review of the sufficiency of the evidence with regard to a jury’s finding of sanity in a criminal case is whether after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime.’ In announcing this standard of review, the Court reaffirmed its previous holdings that ‘because jurors are not bound by the opinions on sanity of either lay or expert witnesses, the jury may reject defense testimony on insanity even if uncontradicted; the presumption of sanity does not disappear upon the introduction of evidence to the contrary and may be relied upon by the jury even after the introduction of evidence of insanity.’ [Cit.]” McMachren v. State, 187 Ga. App. 793, 794 (1) (371 SE2d 445) (1988). The evidence presented by appellant does not meet the test of insanity which would require a verdict of not guilty by reason of insanity. Salter v. State, 257 Ga. 88 (1) (356 SE2d 196) (1987); accord McMachren, supra; Tarver v. State, 186 Ga. App. 905 (1) (368 SE2d 828) (1988).

Decided October 21, 1988.

Thomas L. Kirbo III, for appellant.

3. Appellant protests that the trial court erred in not charging without request that once the defendant has illustrated his insanity the State is required to rebut such showing beyond a reasonable doubt; and at that point, to further instruct the jury that if they believed beyond a reasonable doubt that the defendant committed the acts charged, and was sane at the time of commission of these acts and was capable of distinguishing between right and wrong, then it would be their duty to find him guilty.

“No request was made for such a charge and the court did instruct the jury that ‘intent ... is an essential element [of any crime and must be proved by the State] beyond a reasonable doubt.’ The court also defined insanity and mental illness and reviewed all the possible verdicts in reference to these defenses. The Supreme Court has established that ‘where the charge of the court includes instruction as to insanity but places the burden of proof as to each essential element of the crime, including intent, upon the state beyond a reasonable doubt, it is not error for the court not to instruct the jury, specifically, absent a request, as to any burden of proof regarding sanity.’ Powell v. State, 237 Ga. 490, 492 (1) (228 SE2d 875) (1976). Since ‘the instructions given clearly placed the burden of proof as to the essential elements of the [offenses], including intent, upon the state beyond a reasonable doubt, there is no merit in the enumeration.’ [Cits.] It follows that the trial court did not err in denying [appellant’s] motion for new trial.” Rose v. State, 177 Ga. App. 55, 57 (3) (338 SE2d 510) (1985).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

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


author: Banke, Presiding Judge. Beasley, Judge,

text:
    77381.
    McGUIRE v. THE STATE.
    (374 SE2d 816)
   Banke, Presiding Judge.

The appellant brings this out-of-time appeal from his convictions of rape and aggravated sodomy, pursuant to an order of the trial court allowing such an appeal based on “[g]ood and sufficient reason having been shown. . . Held:

1. The appellant enumerates as error the admission of similar transaction testimony regarding an incident which had occurred five years prior to the incident for which he was on trial. He contends that this testimony was inadmissible both because of a lack of similarity between the two incidents and because a rape charge brought against him as a result of the prior incident had been no-billed by a grand jury.

The appellant’s argument that the two transactions were dissimilar is patently without merit. In both instances, the alleged victim testified that she and several others were riding home with the appellant from a social outing; that after first dropping off all of the other passengers, the appellant drove her to a secluded area for the expressed purpose of relieving himself; that she attempted to flee when the car stopped but was restrained by him from doing so; that the appellant thereupon assaulted her sexually in the back seat of the vehicle; and that he then calmly drove her to her destination.

“The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” Johnson v. State, 242 Ga. 649, 653 (250 SE2d 394) (1978). In the case before us, we have no hesitancy whatever in holding that the two transactions were sufficiently similar to render evidence of the earlier transaction admissible for the purpose of illustrating the appellant’s motive, plan, scheme, bent of mind, and course of conduct. Accord Davis v. State, 180 Ga. App. 190 (2) (348 SE2d 730) (1986); O’Neal v. State, 170 Ga. App. 637 (1) (318 SE2d 66) (1984).

The fact that a grand jury had no-billed the criminal charge against the appellant resulting from the prior incident did not preclude the admission of the evidence, since “the no-bill left unresolved the issue of whether the defendant. . . was in fact the perpetrator of the prior offense. . . .” Williams v. State, 178 Ga. App. 581, 590 (344 SE2d 247) (1986).

2. During cross-examination by the state’s attorney, the appellant testified that during the social gathering from which he had given the alleged victim a ride home, he had noticed that the victim was sitting on the sofa with her pants unbuckled. Asked by the state’s attorney whether he had made up his mind at that point to drop off his other passengers before taking the victim home, the appellant responded, “No sir . . . If I wanted to have sex that night I could have had sex with several of my friends, but I am not that type of person.” The trial court ruled that by so testifying, the appellant had opened the door to the introduction of evidence concerning his past criminal record. Over the appellant’s continuing objection, the state’s attorney was thereupon permitted to question the appellant regarding whether he had been arrested on sex-related charges on various specific occasions in the past. We must agree with appellant that the trial court committed reversible error in permitting this line of questioning.

In Jones v. State, 257 Ga. 753, 758 (363 SE2d 529) (1988), the Georgia Supreme Court, overruling its short-lived decision to the contrary in Phillips v. State, 254 Ga. 370 (329 SE2d 475) (1985), held that “a defendant does not put his ‘character in issue’ within the meaning of OCGA § 24-9-20 (b) by inadvertent statements regarding his own good conduct.” Under the Jones decision, the appellant’s statement that he was “not that kind of person” clearly did not operate to place his character in issue so as to open the door to proof of his past criminal record. Moreover, assuming arguendo that the statement could be considered a denial by the appellant that he had committed any sexual offenses in the past, “his testimony [would] not be subject to rebuttal by proof of prior arrests.” Jones, supra at 759. As the allowance of this line of questioning cannot be considered harmless under the circumstances, it follows that the appellant’s convictions must be reversed.

3. We do not reach the appellant’s contention that the trial court erred in refusing to grant a mistrial in response to certain alleged violations of the rule of sequestration, as this alleged error is unlikely to recur upon the retrial of the case.

Judgment reversed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Carley, Sognier, Pope, and Benham, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

It is noted at the outset of the opinion that this is an out-of-time appeal. Because of the state of the record, the trial court’s order permitting such should be vacated and the case remanded with direction, as was done in Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985). Cf. Johnson v. State, 182 Ga. App. 477 (356 SE2d 101) (1987). See the authorities cited in the dissent in Conway v. State, 183 Ga. App. 573, 575 (359 SE2d 438) (1987).

Decided October 21, 1988.

Harry J. Bowden, Jonathan J. Wade, for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Joseph J. Drolet, Assistant District Attorneys, for appellee.

At the conclusion of the trial, the court called defendant forward again, after imposing sentence and excusing the jury, and informed him: “you have a right to file a motion for new trial in your case. If you desire to file such motion, it must be filed within 30 days of today. Moreover, the law provides that in lieu of filing a motion for new trial, you may go by direct appeal. If you desire to go by direct appeal you may file a notice of appeal, but such notice must be filed within 30 days. Moreover, there is a panel of superior court judges consisting of 3 in number who would review any sentence imposed by this court. If you desire for it to be reviewed, such application for review must also be filed within 30 days from today’s date.”

Final judgment was entered on October 16, 1987. No motion for new trial was filed but sentence review was applied for on November 12 by defendant’s counsel. The sentence as imposed was affirmed by the panel on March 30, 1988.

In the interim, defendant wrote to the trial judge on January 11 and asked for an out-of-time appeal and for appointed counsel. As a basis for his request, he stated in the letter that he had been told by trial counsel that a motion for new trial and appeal had been filed, but that he later learned it had not been done.

Apparently based on this letter and the status of the case, and without hearing, the court appointed the public defender and on January 27 granted an out-of-time appeal. There is no evidence that the court inquired into the truth of defendant’s assertions or the reason no timely appeal had been taken. The public defender filed a notice of appeal on January 27. This was more than two months beyond the statutory period provided. OCGA § 5-6-38 (a).

As we acknowledged in Shirley v. State, 188 Ga. App. 357 (373 SE2d 257) (1988) “an out-of-time appeal is unauthorized if the loss of the right to appeal was attributable to defendant sleeping on or waiving his rights.” Thus, consideration of the merits is premature.