author: Benham, Judge.

text:
    A89A0731.
    BROOKS v. THE STATE.
    (382 SE2d 432)
    Decided May 26, 1989.
    Reginald C. Brooks, pro se.

      Glenn Thomas, Jr., District Attorney, John B. Johnson III, As

      sistant District Attorney, for appellee.
   Benham, Judge.

Appellant was convicted of possession of cocaine with intent to distribute and possession of a firearm during the commission of a felony. The arresting officers testified that while executing a search warrant, they found appellant in the kitchen of the house they searched, holding two bags of cocaine and armed with a pistol.

1. In his first enumeration of error, appellant complains of improper argument by the prosecuting attorney. Specifically, appellant complains of three instances in which the prosecuting attorney implied that there was a danger of violence in the course of this arrest and in law enforcement efforts to counter the drug business. Two of the references alluded to the dangers in the execution of the search warrant, and in light of testimony that appellant was armed with a pistol at the time of the arrest and commented to one of the arresting officers that he could have already killed him if he wanted to, we find that the prosecuting attorney’s argument was a fair comment on the evidence. The other argument appellant finds offensive was a suggestion that it was necessary in cases such as this one to protect the identity of the confidential informant who provided the information which led to the issuance of the search warrant pursuant to which the officers entered the house and found appellant with drugs in his hands and a gun on his belt. Considering that it was defense counsel who elicited the testimony of a police officer that informants’ identities were kept confidential to protect their lives, we do not find the prosecuting officer’s argument improper. A prosecuting attorney arguing the case to the jury has the right to “make any argument which is reasonably suggested by the evidence.” Durden v. State, 250 Ga. 325 (6) (297 SE2d 237) (1982). This case differs from Bryant v. State, 164 Ga. App. 543 (3) (298 SE2d 272) (1982), in that the argument there was not based on the evidence whereas the argument here was. We find no error in the trial court’s denial of appellant’s motions for mistrial based on the argument of the prosecuting attorney.

2. Appellant’s remaining enumerations of error are deemed abandoned because they are not supported by argument or citation of authority. Adams v. State, 187 Ga. App. 340 (3) (370 SE2d 197) (1988).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A89A0392.
    THE STATE v. KING.
    (382 SE2d 613)
   McMurray, Presiding Judge.

Defendant King is charged by indictment with a violation of the Georgia Controlled Substance Act, possession with intent to distribute of more than one ounce of marijuana. The State appeals from the grant of defendant’s motion to suppress evidence. Held:

A police officer observed defendant driving a catering truck. The officer had arrested defendant eight months previously for driving while his license was suspended and for possession of marijuana. Based on this earlier incident, the officer suspected that defendant’s license was still under suspension. The officer followed defendant and turned on his blue lights. Defendant turned into the parking lot of a restaurant. While the officer was advising his radio dispatcher concerning the stop, defendant exited his vehicle and entered the restaurant. The officer followed defendant into the restaurant and found that he had telephoned someone. As the officer told defendant that he needed to speak to him outside, defendant told the person whom he had telephoned to come up to the restaurant because he was about to be arrested. After the officer and defendant had exited the restaurant, defendant stated in response to the officer’s inquiries that he didn’t have his driver’s license and that it was still suspended. At this point, the officer placed defendant in the back of his patrol car and requested a license check on defendant to confirm that his license was still suspended. The defendant’s father arrived at the scene. The officer placed defendant under arrest. The defendant’s father, owner of the catering truck operated by defendant, repeatedly asked the officer to permit him to drive his truck home rather than having it towed. Defendant also requested that his father be permitted to drive the catering truck home. The officer refused this request. Defendant gave the keys to the catering truck to his father, asking him to take the vehicle home. The defendant’s father left the scene, but was stopped by a second police officer who demanded the keys to the catering truck operated by defendant. Defendant’s father surrendered the keys which were returned to the catering truck. Upon the return of the keys the officer unlocked the truck and commenced a search of the vehicle. In the truck officers found the evidence suppressed by the grant of defendant’s motion including marijuana and drug paraphernalia.

The State contends that the search of the vehicle driven by defendant was valid as an incident to a lawful custodial arrest. “The United States Supreme Court has held that ‘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.’ New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981).” Oswell v. State, 181 Ga. App. 35 (351 SE2d 221). This exception to the probable cause requirement has been broadly applied to authorize vehicular searches conducted at roadside even after the driver has been taken into custody and separated from his vehicle (State v. Watkins, 182 Ga. App. 431, 433 (356 SE2d 82)), and transported from the scene (Maddox v. State, 188 Ga. App. 883, 884 (1) (374 SE2d 810)). However, “it has never been extended so far as to permit the impoundment of a vehicle under circumstances in which impoundment would not otherwise be permitted.” Whisnant v. State, 185 Ga. App. 51, 52 (2), 53 (363 SE2d 341). “Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000) (1976). Impoundment is not permissible ‘ “(w)hen the driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove (the) vehicle which is capable of being safely removed.” ’ State v. Ludvicek, 147 Ga. App. 784, 786 (250 SE2d 503) (1978).” Whisnant v. State, 185 Ga. App. 51, 52 (2) 53, supra. See also State v. Darabaris, 159 Ga. App. 121 (282 SE2d 744).

Under the evidence in the case sub judice, the superior court was authorized to conclude that the impoundment was improper. Where the impoundment is unreasonable the resulting inventory search is invalid. State v. Thomason, 153 Ga. App. 345, 349 (265 SE2d 312).

There was also ample evidence from which the superior court could conclude that the search of the catering truck was conducted as an incident of its seizure or impoundment. Thus, while a search of the truck may have been authorized as an incident to defendant’s arrest, under the facts and circumstances of the case sub judice, the superior court was authorized to conclude that the search was tainted by the prior illegal impoundment of the vehicle. Thus, we find no error in the superior court’s determination that there was no valid inventory search and no valid search incident to an arrest.

The State also argues that the search of the catering truck in defendant’s possession was supported by the arresting officer’s determination of probable cause. During the previous arrest of defendant the officer had seized a briefcase which contained marijuana from defendant’s vehicle. The officer testified that while arresting defendant in the case sub judice for driving with a suspended license, he heard defendant instruct his father to take his briefcase and “some kind of bag” out of the catering truck and go home. According to the officer, at that point defendant began to struggle and become abusive. The State argues that the previous arrest of defendant when there was marijuana in the briefcase, along with defendant’s aggressive state, gave the officer probable cause to believe the vehicle contained contraband.

Decided May 2, 1989

Rehearing denied May 30, 1989

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellant.

Bert W. Cohen, for appellee.

First, we note that there was contradictory evidence as to whether defendant actually struggled with or was otherwise physically aggressive with the officer. The superior court was authorized to conclude that no such behavior was manifested by defendant. As to the defendant’s obvious desire to remove certain items from the truck, such in the light of the previous arrest, might arouse one’s suspicions. However, “[a] suspicion or ‘strong reason to suspect’ is an insufficient foundation for a finding of probable cause. Henry v. United States, 361 U. S. 98, 101 (1959). Probable cause would exist for the warrant-less search of a vehicle only if the facts and circumstances would cause a reasonably prudent person to believe that contraband was present in the vehicle. Cunningham v. State, 133 Ga. App. 305, 307 (211 SE2d 150) (1974).” Fuqua v. State, 142 Ga. App. 632, 633 (1) (236 SE2d 685). In the case sub judice, it was equally probable that defendant’s desire for the removal of items from the truck arose from some legitimate rather than criminal concern. Thus, probable cause did not arise from the knowledge of the arresting officer at the time he began the search of the truck. The superior court did not err in granting defendant’s motion to suppress evidence.

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A89A0493.
    THE STATE v. CLARK.
    (382 SE2d 670)
   Sognier, Judge.

The State appeals from the trial court’s grant of Furman Clark’s motion to withdraw his plea of guilty.

The record reveals that appellee entered a plea of guilty to voluntary manslaughter on November 10, 1986 and received a twenty-year sentence, which was subsequently vacated by this court in Clark v. State, 186 Ga. App. 106 (366 SE2d 361) (1988). After remand and prior to resentencing appellee moved to withdraw his plea, and the trial court granted his motion.

Decided May 16, 1989

Rehearing denied May 30, 1989

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellant.

Jackson & Schiavone, G. Terry Jackson, Michael G. Schiavone, for appellee.

Appellee has filed a motion to dismiss the instant appeal on the ground that the order entered below was not the type of ruling from which the State is authorized to appeal. The State may appeal from orders or judgments (1) setting aside or dismissing accusations or indictments; (2) arresting judgment of conviction upon legal grounds; (3) sustaining pleas or motions in bar when the defendant has not been put in jeopardy; and (4) sustaining a motion to suppress evidence illegally seized. OCGA § 5-7-1. “This statute must be strictly construed against the state in allowing appeals. [Cit.]” State v. Gribble, 169 Ga. App. 446 (313 SE2d 720) (1984). We agree with appellee that the order appealed from in the case at bar does not fall within any of these categories. The motion filed by appellee “could not be construed as a motion in arrest of judgment, as it did not relate to a nonamendable defect appearing on the face of the record,” State v. Asinoff, 173 Ga. App. 573 (327 SE2d 237) (1985), nor was it a plea in bar of trial. Compare State v. Benton, 246 Ga. 132 (269 SE2d 470) (1980). The State cites State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978) as authority for its contention that the order below was void and thus appealable by the State. This argument is without merit, as a trial court is authorized to allow a defendant to withdraw a guilty-plea prior to resentencing. Mullins v. State, 134 Ga. App. 243-244 (2) (214 SE2d 1) (1975). Further, we decline to adopt the State’s argument that the analysis employed in cases such as Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982), in which a direct appeal from the denial of a plea of double jeopardy was authorized in order to safeguard a defendant’s Fifth Amendment rights, should be extended to broaden the State’s right of appeal in criminal cases. See generally Gribble, supra. This court being without jurisdiction to entertain this appeal, appellee’s motion to dismiss is granted.

Appeal dismissed.

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


text:
    A89A0561.
    LYNBURN ENTERPRISES, INC. v. LAWYERS TITLE INSURANCE CORPORATION.
    (382 SE2d 599)
   McMurray, Presiding Judge.

Plaintiff purchased two tracts of land in DeKalb County, Georgia. Defendant Lawyers Title Insurance Corporation issued to plaintiff a title insurance policy covering the tracts. The policy insured plaintiff against loss or damage if title proved to be unmarketable. An exception for defects in the survey was not included in the policy.

One of the tracts purchased by plaintiff was described in the deed (and the policy) as follows: “[A]ll that tract or parcel of land, lying and being in Land lot 213 of the 18th District of DeKalb County, Georgia, and being more particularly described as follows: BEGINNING at an iron pin located in the Southwest corner of Bancroft Circle and Second Street; thence South 79 degrees 33 minutes 01 seconds East 33.65 feet to an iron pin; thence South 21 degrees 16 minutes 31 seconds East 163.17 feet along the Westerly right-of-way of Second Street (40 foot right-of-way) to an iron pin in the Northwest corner of Second Street and a twenty foot public alley; thence South 69 degrees 27 minutes 35 seconds West 210.69 feet along the Northern side of said public alley to an iron pin; thence North 20 degrees 44 minutes 04 seconds West 54.35 feet to an iron pin on the Southeast side of Bancroft Circle; thence North 34 degrees 06 minutes 34 seconds East an arc distance of 211.78 feet, (said arc having a radius of 752.23 feet and having a chord distance of 211.08 feet) following the curvature of the Southeast side of the right-of-way of Bancroft Circle to an iron pin; thence North 42 degrees 10 minutes 30 seconds East 8.74 feet to an iron pin and the point of beginning, containing .630 acres and described according to survey by Clifford R. Smith, dated December 12, 1985.”

After purchasing the property, plaintiff began to develop it. Soon, plaintiff discovered that the eastern and western boundaries of the property were shorter (by 20 feet) than described in the deed and that, consequently, plaintiff purchased less acreage (about 15 percent) than it thought it had purchased.

Plaintiff made a demand upon defendant for the payment of plaintiff’s loss. When defendant refused plaintiff’s demand, plaintiff commenced this action to recover the proceeds of the insurance policy. Following discovery, defendant moved for summary judgment. The motion was granted and plaintiff appealed. Held:

“In construing a deed to land, what is most material and most certain should prevail over that which is less material and less certain, and distances and computed contents should yield to ascertained boundaries and monuments.” Stewart v. Latimer, 197 Ga. 735 (2) (30 SE2d 633). “In Leverett v. Bullard, 121 Ga. 534 (2) (49 SE 591), it was said that ‘[wjhenever in a conveyance the deed refers to monuments actually erected as the boundaries of the land, it is well settled that these monuments must prevail, whatever mistakes the deed may contain as to courses and distances.’ ” Stewart v. Latimer, supra at 742. Accord Weathers Bros. Transfer Co. v. Loyd, 224 Ga. 157 (160 SE2d 346).

In the case sub judice, the southern boundary of the property is marked by a public alley; the western boundary runs from a point on Bancroft Circle to the public alley; and the eastern boundary runs from a point at the intersection of Bancroft Circle and Second Street to the public alley. Thus, the southernmost points of the eastern and western boundaries are fixed by an ascertained boundary, i.e., the public alley, and they cannot be extended to accommodate the distances set forth in the deed. Stewart v. Latimer, 197 Ga. 735, supra; OCGA § 44-4-5.

It follows that plaintiff purchase exactly what it bargained for — the property lying between Bancroft Circle, Second Street and the public alley. The mere fact that the length of the call lines did not meet plaintiff’s expectations is of no consequence. Plaintiff received good title to the land in question. See Land Trust Co. v. Morgan, 22 Ga. App. 388 (95 SE 1006). This action to recover title insurance proceeds cannot, therefore, be permitted to stand. See Shaver v. Title Guaranty &c. Co., 163 Tenn. 232 (43 SW2d 212, 213), wherein it was held: “It is true . . . that the object of a purchaser in procuring an abstract of title, or a guaranty of title, is to secure himself additionally in the performance of the obligations of the grantor, but we think his security, while so increased, is thus limited; that is, it indemnifies only as to the title which the grantor has undertaken to convey and for which he has made himself responsible.”

Relying upon U. S. Life Title Ins. Co. of Dallas v. Hutsell, 164 Ga. App. 443 (296 SE2d 760), plaintiff contends that defendant insured more than the marketability of title. Specifically, plaintiff argues that defendant insured the length of the boundary lines as described in the legal description. We disagree. In U. S. Life Title Ins. Co. of Dallas v. Hutsell, supra, the title company’s agent affirmatively stated that “the survey has been insured” and we ruled that “defects of survey . . . may be sufficiently related to the standard notions of title defect or encumbrance as to be a risk allowed coverage by title insurance.” Id. at 445. In the case sub judice, on the other hand, the policy is silent regarding defects in the survey and, simply put, it does not insure against such risks.

Defendant carried its burden of demonstrating the absence of a genuine issue of material fact. Accordingly, defendant was entitled to a judgment as a matter of law. OCGA § 9-11-56 (c).

Judgment affirmed.

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

Decided May 4, 1989

Rehearing denied May 30, 1989

Gail C. Flake, for appellant.

Dana G. Diment, Cullen C. Wilkerson, for appellee.


text:
    A89A0603.
    In the Interest of R. J.
    (382 SE2d 671)
   Sognier, Judge.

R. J., who was 16 years old at the time the alleged offenses were committed, appeals from an order of the Juvenile Court of Fulton County transferring to superior court for prosecution charges against him of aggravated assault on a police officer and aggravated assault.

The complaint in the juvenile court alleged that appellant had struck the victims in the head with an iron pipe; that the victims were a Fulton County police officer who was attempting to make an arrest and a MARTA bus driver who was attempting to aid the police officer; that both victims had been hospitalized and were in serious condition; and that appellant had admitted committing the assault.

1. Appellant contends the juvenile court failed to follow OCGA § 15-11-39 (a) (3) (A) at the transfer hearing because it failed to require the State to introduce evidence that appellant committed the delinquent acts.

(a) Appellant argues that the juvenile court illegally substituted the findings of fact made by a referee at a prior preliminary detention hearing for evidence that appellant committed the delinquent acts alleged. We do not agree. The transcript of the transfer hearing reveals that the juvenile court judge found that at a preliminary detention hearing presided over by a referee findings of fact were made, including a finding that probable cause existed to believe appellant, using an iron pipe, had struck and seriously injured a police officer and a MARTA bus driver who came to the officer’s aid. The findings of the referee were made the order of the court. However, the transcript does not reveal that those findings were used as a substitute for the presentation of evidence at the transfer hearing. Rather, additional evidence was presented, including testimony from Detective Robert Willbanks, an investigator for the Atlanta Homicide Task Force Assault Unit and the original complainant. Although Willbanks did not actually witness the incident, he was the officer called to the scene to investigate, and in the course of his investigation he interviewed eyewitnesses. Willbanks was also involved in the apprehension of appellant. He testified that when he arrived at the scene, some 15 or 20 marked police cars from several jurisdictions were present, as were representatives of the media and approximately 75 to 100 or more spectators. Willbanks further testified that based on his investigation, it was his belief that both victims received blunt trauma head wounds to the back of the head, the result of being struck by a heavy iron pipe wielded by appellant, and that as a result the police officer was in a nursing home and would never be able to return to work. Appellant and a companion fled and were apprehended by Willbanks and 10 or 15 other officers in the woods adjacent to the scene. Thus, it is apparent that the juvenile court heard evidence at the transfer hearing, and did not substitute therefor the referee’s findings of fact in determining that reasonable grounds existed to believe appellant committed the offenses alleged.

(b) Appellant also alleges that because the referee’s findings of fact were based primarily on a custodial statement made by appellant, he was denied the opportunity to challenge the admissibility of that statement when, at the transfer hearing, the juvenile court substituted the referee’s findings of fact for evidence that appellant committed the delinquent acts. However, appellant fails to support his assertion that the referee’s findings were based on appellant’s custodial statement. Evidence was heard at the preliminary detention hearing showing that the police had chased a car which eventually crashed through the wall of an apartment building; that appellant’s older brother was scuffling with a police officer over possession of the officer’s gun, which discharged; that spectators were urging appellant to assist his brother; and that appellant was involved in the assault. Thus, the referee’s findings of fact were based on evidence heard as well.

(c) Contrary to appellant’s argument, this court’s pronouncement in C. L. A. v. State of Ga., 137 Ga. App. 511 (224 SE2d 491) (1976) that a transfer hearing is “of a totally different nature” from a preliminary detention hearing does not mean that a higher standard of proof that the child committed the delinquent act is required in a transfer hearing. In C. L. A. this court made clear only that a transfer hearing was different from a preliminary detention hearing in that, unlike the preliminary detention hearing, several other showings must be made in addition to the showing that there are reasonable grounds to believe the juvenile committed the acts alleged. Thus, we find no merit in appellant’s assertion that the use of the referee’s findings of fact substituted a lesser standard of proof than that required under OCGA § 15-11-39.

Although we agree with appellant that some of Willbanks’ testimony was clearly hearsay, which would not suffice to support a conviction, OCGA § 15-11-39 (a) (3) “requires only that the court find that there are ‘reasonable grounds to believe’ that the child committed the act alleged, not ‘proof beyond a reasonable doubt’ as is required for a conviction. [Cit.]” In re K. S. J., 258 Ga. 52, 53 (1) (365 SE2d 820) (1988).

(d) We need not address specifically appellant’s remaining arguments as to this issue, as they are based exclusively on appellant’s contention that the juvenile court illegally substituted the referee’s findings of fact for the taking of evidence, and we have found no merit in this contention. See Div. 1 (a), supra.

“[T]he [juvenile] court’s determination [as to transfer], if based on evidence, will not be controlled by the appellate court. [Cit.] . . . In the instant case, pretermitting deciding whether the evidence might support a finding that [appellant] is guilty of the [acts alleged], we find that the court did not abuse its discretion in finding that there were reasonable grounds to believe that [appellant] committed [the acts alleged].” In re K. S. J., supra at 53 (1).

2. Appellant next contends the juvenile court erred by failing to require that the State present evidence of appellant’s amenability to treatment or lack thereof before balancing that factor against the community’s interest in processing him as an adult. We find no merit in this contention.

OCGA § 15-11-39 (a) (3) (C) permits transfer if the court in its discretion determines there are reasonable grounds to believe, inter alia, that “[t]he interests of the child and the community require that the child be placed under legal restraint and the transfer be made.” Although here, as in the cases relied upon by appellant, the State introduced no evidence that appellant was not amenable to treatment, the situation sub judice differs from the cases cited by appellant in that here the decision to transfer was not based even in part on a finding that appellant was not amenable to treatment. Rather, the juvenile court presumed, and thus found, that appellant was amenable to treatment: “He has no record. ... In his socio-economic status, if he were an incorrigible or bad person or . . . given to violence, we would have had a record a long, long time ago. ... So we have to look at him and say this individual has a right to treatment as a juvenile. We have to assume he’s amenable to treatment as a juvenile.” The juvenile court judge gave appellant the benefit of a full presumption that he was fully amenable to treatment, and thus, even if the failure of the State to present evidence on this factor was error, appellant can show no harm. “[I]t is well established that ‘(a)n appellant must show harm as well as error to warrant reversal. (Cit.)’ [Cit.]” Raines v. State, 186 Ga. App. 239, 242 (4) (c) (366 SE2d 841) (1988).

The Supreme Court has held that OCGA § 15-11-39 “subsumes the juvenile’s amenability to treatment within the concept, ‘the interest of the child,’ and authorizes a juvenile court to transfer to the superior court a juvenile who is amenable to treatment if the juvenile court finds that the amenability factor is outweighed by the interests of the community in processing the child as an adult.” In the Interest of J. J. S., 246 Ga. 617, 618 (1) (272 SE2d 294) (1980). See also Spradley v. State, 161 Ga. App. 180, 181 (288 SE2d 133) (1982). In the case sub judice, after finding that appellant was amenable to treatment, the juvenile court went on to state that “[w]e have to, however, look and see if there is a public interest in the criminal Court prosecution in this that outweighs that, and that’s what I’m basically interested in at this point.” The juvenile court thus properly followed the procedure mandated by OCGA § 15-11-39, and we find no reversible error in the State’s failure to present evidence on appellant’s amenability to treatment.

Decided May 16, 1989

Rehearing denied May 30, 1989

Raoul Lerow, Catherine B. Lerow, for appellant.

3. Appellant finally enumerates as error the criteria used by the juvenile court in determining the interest of the community. Appellant argues that the legislature intended to define that phrase narrowly and to limit it to issues of community safety or the dangerousness of the juvenile. However, appellant cites no authority for that conclusion, and we must assume that the statute means what it says, involving a broader range of community interests. “Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. [Cit.]” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987). Here, the juvenile court judge concluded that “[t]he alleged victim was a public servant engaged in the performance of dangerous duties when he was grievously injured and struck down. In this case, the court finds that the interest of the public in having active involvement in the decision making process by the grand jury and, if indicated, by a traverse jury is compelling. Additionally, the court finds that the public’s right to know the events and the outcome is compelling in these circumstances.”

The juvenile court’s determination was based on evidence. The function of this court is limited to ascertaining whether some evidence exists to support the juvenile court’s determination. “ ‘Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this court.’ [Cit.]” In re E. W., 256 Ga. 681, 683 (353 SE2d 175) (1987). Accordingly, we affirm the order of transfer.

Judgment affirmed.

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

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, George J. Robinson, Jr., Assistant District Attorneys, for appellee.


text:
    A89A0753.
    LISLE v. BANK OF LOGANVILLE.
    (382 SE2d 675)
   Sognier, Judge.

The Bank of Loganville brought suit against F. W. Lisle to recover the balance due on a note executed by the Loganville Factory Outlet (LFO) and allegedly personally guaranteed by Lisle. The trial court entered judgment on the jury’s verdict of $49,234.76, and Lisle appeals.

Construed to uphold the jury’s verdict, the evidence adduced at trial disclosed that on July 19, 1983 LFO executed a promissory note for a $50,000 line of credit from appellee. The note was signed by appellant and Larry Beall in their capacities as officers of LFO, and was renewed three times by the execution of identical notes. Charlie Kelley, appellee’s chairman, Stanley Kelley, appellee’s president, and Beall all testified that both Beall and appellant signed personal guarantees for the first three notes, and that Beall executed a guaranty agreement for the last renewal but appellant never signed that guaranty despite having agreed to do so. The guaranty agreements, which were printed on the reverse side of each note, provided in pertinent part: “For value received the undersigned . . . hereby unconditionally guarnatee(s) (sic) the payment of the Note . . . and all extensions or renewals thereof . . . .” The bank officials testified they were unable to produce the guarantees at trial because each original note had been sent to LFO as a renewal note was executed, and LFO did not produce the notes in response to an earlier notice to produce. They testified further that although appellee had a standard procedure of microfilming loan documents upon execution, during the relevant time period the bank employee in charge of microfilming had failed to copy the back sides of notes issued by appellee, and thus appellee had no copies of the guaranty agreements at issue. Appellant denied having signed any personal guarantees, and testified that he had not produced the notes and guarantees in response to appellee’s notice to produce because he did not have the notes and because no guaranty agreements existed. Beall testified that when LFO first defaulted, he observed appellant search his files for the notes and guarantees and vow to burn them if he located them.

1. Appellant contends the trial court erred by admitting into evidence carbon copies of the four promissory notes in derogation of the best evidence rule. This enumeration is without merit. Even assuming, without deciding, that the documents admitted were not the highest and best evidence of the existence of the notes, appellant did not contest the existence of the notes (as opposed to the guarantees) or the terms thereof. “Thus, since the only effect of the evidence complained of was to establish a state of facts which the [appellant] admitted to be true, the admission of such [evidence] can not be held to be harmful error.” Steinhauer & Wight v. Adair, 20 Ga. App. 733, 735 (4) (93 SE 280) (1917); see Battle v. Braswell, 107 Ga. 128, 130 (1) (32 SE 838) (1899).

Decided May 16, 1989

Rehearing denied May 30, 1989

Webb, Fowler & Tanner, Anthony O. L. Powell, for appellant.

Charles R. Hager III, for appellee.

2. Appellant next enumerates as error the admission into evidence of a conformed copy of the guaranty agreement on the grounds that the document was a “forgery,” that it was not authenticated, and that its admission was unduly prejudicial. We do not agree.

The transcript reveals that after establishing that each guaranty agreement was contained on the reverse side of the corresponding promissory note, that the originals could not be produced, and that the guaranty agreements had not been microfilmed due to a clerical error, appellee then tendered a copy of the form guaranty agreement that was printed on the back of each note at issue. This exhibit had Beall’s signature and the designation “s/ F. W. Lisle” on the other signature line, which the testimony established was done by appellee’s counsel for demonstrative purposes. The document was properly authenticated through Charlie Kelley’s testimony that the document was a fair representation of the guarantees signed by appellant. See Consolidated &c. Corp. v. Syncroflo, Inc., 164 Ga. App. 275, 276-277 (1) (294 SE2d 643) (1982). There is no question of forgery or prejudice because the witness unequivocally stated that appellant did not sign the exhibit. See OCGA § 16-9-1 (a).

3. Appellant’s enumerations 2, 3, and 5 concerning the sufficiency of the evidence and the court’s charge to the jury are without merit in view of our decisions in Divisions 1 and 2, supra, as well as this court’s ruling in a prior appearance of this action, Bank of Loganville v. Lisle, 187 Ga. App. 763 (371 SE2d 215) (1988).

Judgment affirmed.

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


text:
    A89A0416.
    BOYD v. BOYD.
    (382 SE2d 730)
   Benham, Judge.

This discretionary appeal raises the question whether an ex-spouse’s obligation to make a lump sum cash payment to his ex-wife should be characterized as alimony for garnishment purposes. Appellant, appellee’s ex-wife, contends that the trial court, in ruling on appellee’s traverse of the garnishment appellant filed, erred in classifying as “non-alimony” a lump sum cash payment appellee owed her in accordance with their divorce decree. The trial court’s classification led it to conclude that 25 percent, not 50 percent, of the former husband’s income was subject to garnishment. See OCGA § 18-4-20 (d), (f). We agree and affirm the judgment.

All three of appellant’s enumerations of error require the same legal and factual analysis, i.e., what is a “division of property” and what is “alimony.” OCGA § 19-6-1 (a) defines alimony as “an allowance out of one party’s estate, made for the support of the other party when living separately. It is either temporary or permanent.” (Emphasis supplied.) Alimony is distinctly different from an equitable division of property between husband and wife, the latter being an allocation of assets acquired during the marriage to the parties, based on their respective equitable interests in those assets. See, e.g., Head v. Hook, 248 Ga. 818 (285 SE2d 718) (1982), and Stokes v. Stokes, 246 Ga. 765 (273 SE2d 169) (1980), which provide numerous examples of the alimony/division of property dichotomy. The distinction is also recognized in the statutory language of OCGA § 19-5-5 (b) (6), regarding divorce petitions: “Where alimony or support or division of property is involved, the property and earnings of the parties, if such is known [shall be shown in the petition].” “It cannot be denied that alimony and equitable property division are not synonymous. [Cit.]” Peters v. Peters, 248 Ga. 490 (2) (283 SE2d 454) (1981). OCGA § 18-4-20 (f) provides that 50 percent of the debtor’s weekly disposable earnings shall be subject to garnishment “if the judgment upon which the garnishment is based is a judgment for alimony or for the support of any dependent of the defendant, provided the summons of garnishment shall contain a notice to the garnishee that the garnishment is based on the judgment for alimony or the support of a dependent.”

Let us now examine appellant’s claim in the context of the foregoing legal framework. The divorce decree included in the record shows that appellant’s divorce petition prayed “for child support and equitable division of property, and transfer of title of her car into her name.” The decree provides for $80 per week child support, and a “practical, fair and equitable division of [the parties’] property . . .” and sets out specific items of realty and personalty with direction for distribution. The last item in that distribution states, “In order to equalize the value of these assets, the husband shall pay the wife $27,000 . . . due and payable upon the signing of this Order. . . . Upon receipt of the . . . $27,000 the wife shall quitclaim her interest in the business assets, the shop building, and the one acre lot to the husband.” There is no reference to the word “alimony” in the divorce judgment and decree, which was drafted by appellant’s divorce attorney at the trial court’s direction, and appellant’s present counsel stipulated that her former counsel argued during the divorce hearing that appellant was not seeking alimony, but a division of property. By all indications, appellant intended to receive her equitable share of the marital estate, and not a support payment from appellee’s estate. The first time appellant characterized the money she sought as alimony was in the affidavit for continuing garnishment. But even in the body of that document, it is alleged that appellee “is indebted to the Plaintiff for a property settlement due under the order in a divorce,” and that she is seeking $16,657.78 plus costs. Appellee filed a traverse of appellant’s affidavit, claiming it to be untrue or legally insufficient. The trial court granted the traverse, finding that the payment sought was of a “non-alimony nature” and, therefore, OCGA § 18-4-20 (f) did not apply. We granted appellant’s application for discretionary appeal to determine the correctness of the trial court’s ruling, and we find no error.

Contrary to appellant’s assertions, the $27,000 award did not clearly constitute lump sum alimony for the purposes of OCGA § 18-4-20 (f). The nature of the relief sought and granted to appellant in the divorce decree is not alimony as it is defined. The terms of the decree in this case describe an exchange of assets between the parties, and it is clear that alimony is not involved. Appellant’s reliance on | Stone v. Stone, 254 Ga. 519 (330 SE2d 887) (1985), and Winokur v. Winokur, 258 Ga. 88 (365 SE2d 94) (1988), is misplaced because in both cases the court was asked to draw a distinction between different types of alimony, i.e., periodic alimony, lump sum alimony, and permanent alimony. In the case before us, the distinction that must be drawn is between alimony and equitable division of property. Moreover, the rule set forth in Winokur makes it clear that the Stone analysis of the nature of the property interest created applies only when the intention of the parties is ambiguous. The Winokur rule is: “If the words of the documents creating the obligation state the exact amount of each payment and the exact number of payments to be made without other limitations, conditions or statements of intent, the obligation is one for lump sum alimony payable in installments.” Id. at 90. (Emphasis supplied.) As we noted earlier, the document creating the obligation, the divorce decree, clearly states that the property allocation is intended to provide a “practical, fair and equitable division of [the parties’] property,” and that the payment from appellee to appellant is to be made “in order to equalize the value of these assets. . . .” The statements in the decree; the condition that once the money is paid, appellant is obligated to release her interest in certain specific property acquired during the marriage; the absence of the use of the word “alimony” or any indication that support for appellant is intended; and the other evidence of record that alimony was not being sought lead us to the inexorable conclusion that the money owed to appellant is part of the equitable division of marital property, and not alimony. The trial court did not err in characterizing the sum sought as “non-alimony,” thereby requiring application of the 25 percent garnishment rate.

Decided May 30, 1989.

T. Lee Bishop, Jr., for appellant.

Donald E. Strickland, for appellee.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0214. A89A0215.
    BRENNON v. THE STATE. GLENN v. THE STATE.
    (382 SE2d 682)
   Sognier, Judge.

Ike Deleno Brennon and Ray Allen Glenn were convicted of attempt or conspiracy to commit trafficking in cocaine. Their appeals are consolidated in this opinion.

Viewing the evidence to uphold the verdict, the jury was authorized to believe that police officers in Glynn County received information from an undercover law enforcement agent regarding the suspicious behavior of appellant Glenn. Pursuant to this information, the police placed the motel room in which Glenn stayed when he arrived in Brunswick under observation. Police also obtained a list of the telephone calls placed by Glenn from his room. Included in the list was the telephone number of a night club in McIntosh County owned by appellant Brennon and operated by his sister, Juanita Jackson. While the motel room was under observation, Jackson was seen parking in a space near Glenn’s room, walking up the stairs leading to his room, and emerging with another woman shortly thereafter. The two women departed and were followed by the police. When the police subsequently stopped Jackson, her car was searched with her consent and five plastic bags containing what later was established to be 243.8 grams of 80.1 percent pure crack cocaine were found in her handbag. Jackson gave a statement to Officer Dennis Krauss and testified at trial that she had obtained the cocaine from Glenn at the motel. Jackson testified that her brother, appellant Brennon, had given her $7,500 and asked her to pick up a package from Glenn, and that she gave Glenn the money and received the cocaine in exchange. Shortly after Jackson was stopped, an automobile in which Brennon was a passenger was driven into the parking lot of the motel where Glenn was staying. The occupants looked around for a few minutes without leaving the vehicle, then began driving away. The police stopped the vehicle and discovered no contraband, but found large amounts of cash on the occupants as well as a gun claimed by a co-defendant. Execution of a search warrant on Glenn’s motel room revealed $7,413 in cash but no contraband.

1. Both appellants contend the trial court erred by charging the jury on conspiracy because the charge was not supported by the evidence. “ ‘ “(I)t is the duty of the judge, with or without request, to give the jury an appropriate instruction as to the law on each substantive point of issue involved in (a) case” so as to enable the jury to judiciously decide the guilt or innocence of a defendant. (Cits.)’ [Cit.]” Turner v. State, 178 Ga. App. 888, 890 (3) (345 SE2d 99) (1986). We do not agree with appellants that no evidence regarding the offense with which they were charged was introduced at trial. Compare Joiner v. State, 163 Ga. App. 521, 523 (5) (295 SE2d 219) (1982). “A conspiracy may be reflected by inference arising from a deduction from acts and conduct showing a common design to act together for the accomplishment of an unlawful purpose. [Cit.]” Camp v. State, 181 Ga. App. 714, 717 (3) (353 SE2d 832) (1987). There was sufficient evidence produced at appellants’ trial to authorize a rational trier of fact to find that a conspiracy existed to commit trafficking in cocaine and that appellants were members of that conspiracy. Thus, the evidence authorized a charge on the law of conspiracy. See generally Hart v. State, 185 Ga. App. 141 (1) (363 SE2d 599) (1987).

2. Christmas v. State, 171 Ga. App. 4, 6-7 (1) (318 SE2d 682) (1984) controls both appellants’ second enumerations adversely to them.

3. Appellants enumerate as error the denial of their motions for directed verdict and new trial made on the basis that the testimony of Jackson, an accomplice, was not corroborated by independent evidence as required by OCGA § 24-4-8. However, independent of Jackson’s testimony, evidence was adduced that Jackson and Brennon are siblings, that she operated Brennon’s night club for him, that Glenn placed telephone calls from his motel room to Brennon’s night club, that Jackson thereafter arrived at Glenn’s motel room, that Glenn was found with nearly $7,500 cash in his possession, and that Brennon was present at the parking lot near Glenn’s motel room shortly after the time the alleged transaction between Jackson and Glenn occurred. “A defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. ‘However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. (Cit.)’ [Cit.]” Thurston v. State, 186 Ga. App. 881-882 (1) (368 SE2d 822) (1988). We find the testimony of Jackson, the accomplice, was sufficiently corroborated by independent evidence and the evidence was sufficient to justify a rational trier of fact to find appellants guilty beyond a reasonable doubt, in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Appellant Brennon enumerates as error the trial court’s denial of his motion to suppress. However, the transcript reveals that the only motion to suppress was made on behalf of Jackson regarding the contraband found in her automobile. Since the evidence showed that Brennon was not an occupant of that vehicle, he lacks standing to contest the legality of the search and seizure of the vehicle. Prothro v. State, 186 Ga. App. 836, 837 (3) (368 SE2d 793) (1988).

5. Appellant Brennon contends the trial court erred by failing to allow his counsel to recall a State witness, Officer Dennis Krauss, for further cross-examination, citing Martin v. State, 151 Ga. App. 9, 15-17 (8) (258 SE2d 711) (1979). The record reveals that Brennon’s counsel sought permission from the trial court to reserve the right to recall Krauss for cross-examination for the purpose of impeaching the validity of the affidavit he executed to obtain the search warrant for appellant Glenn’s motel room, specifically regarding the officer’s testimony about what Jackson told him, information which the officer thereafter used as the basis of the affidavit.

Pretermitting the question whether the trial court’s refusal to allow appellant Brennon’s counsel to recall the witness for cross-examination was erroneous, the testimony by Krauss regarding the basis for the search warrant did not affect Brennon, who was not present or otherwise interested in the search of Glenn’s motel room and thus had no standing to object to the validity of the affidavit. See generally Mecale v. State, 186 Ga. App. 276, 277-278 (367 SE2d 52) (1988); see also Lewis v. State, 188 Ga. App. 205, 206 (3) (372 SE2d 482) (1988). We therefore need not address the State’s arguments that Brennon’s failure to move for a continuance to obtain the affidavit or the prior availability of the affidavit to appellant’s counsel distinguish the case sub judice from the situation in Martin, supra.

6. Appellant Brennon finally asserts error in the tried court’s refusal to give the jury his request to charge no. 5 b, embodying the principle of “equal theories” of guilt and innocence where circumstantial evidence is the sole evidence adduced. The charge requested by appellant is virtually identical to that requested in Dunn v. State, 251 Ga. 731, 734 (6) (309 SE2d 370) (1983), in which the Supreme Court noted that the requested charge is not appropriate in cases where there is direct evidence. Id. at 735. In the case sub judice, there was sufficient direct evidence in the form of Jackson’s testimony (corroborated by circumstantial evidence, see Division 3, supra) from which the jury could find Brennon conspired to traffic in cocaine. Thus, the trial court did not err by refusing to charge the jury as requested by appellant Brennon. Id.

Decided May 17, 1989

Rehearings denied May 31, 1989

Richard D. Phillips, for appellant (case no. A89A0214).

Lloyd D. Murray, Laura A. Marcantonio, for appellant (case no. A89A0215).

W. Glenn Thomas, Jr., District Attorney, Richard H. Taylor, John B. Johnson III, Assistant District Attorneys, for appellee.

Judgments affirmed.

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


author: Carley, Chief Judge.

text:
    A89A0254.
    JAMES v. THE STATE.
    (382 SE2d 658)
   Carley, Chief Judge.

Under the circumstances described in the companion case of Jones v. State, 191 Ga. App. 332 (381 SE2d 575) (1989), appellant and two of her companions were arrested for violating the Controlled Substances Act. The three were jointly indicted for the drug violations. One of the co-indictees entered a plea of guilty. Appellant and Scott Reid Jones pled not guilty. Jones unsuccessfully moved for severance, and he and appellant were brought to trial before a jury. When Jones took the stand in his own defense, appellant sought to impeach him by introducing his prior conviction for possession of marijuana. The trial court refused to allow Jones to be impeached. Instead, the trial court ordered a mistrial as to appellant, and a severance for her to be tried separately at a later date. Appellant made no objection at the time of the trial court’s rulings. However, she subsequently filed a plea of double jeopardy as against being retried on the drug charges. Pursuant to Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982), appellant brings this direct appeal from the trial court’s order overruling her double jeopardy plea.

“[T]he grant or denial of a motion to sever is left in the discretion of the trial court. . . . [Cit.] In the exercise of that discretion, the trial court ‘should grant a severance before or during the trial whenever it appears “necessary to achieve a fair determination of the guilt or innocence of a defendant.” [Cit.]’ [Cit.]” (Emphasis supplied.) Baker v. State, 238 Ga. 389, 391 (2) (233 SE2d 347) (1977). Accordingly, that the severance and mistrial were ordered after jeopardy had attached is no ground for sustaining appellant’s plea of double jeopardy. See United States v. Aguilar, 610 F2d 1296 (5th Cir. 1980).

Decided May 9, 1989

Rehearing denied May 31, 1989

W. Keith Davidson, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Appellant urges, however, that the double jeopardy clause bars her retrial because the severance and mistrial were precipitated by bad-faith conduct on the part of the State and trial judge. See generally Cobb v. State, 246 Ga. 619 (272 SE2d 296) (1980). According to appellant, the State and the trial court were apprised by Jones’ pretrial motion for severance that she would attempt to impeach him should he choose to testify. Thus, appellant urges that the State’s refusal to support and the trial court’s refusal to grant a severance until after jeopardy had actually attached evidences bad-faith conduct.

The record does reflect that the issue of Jones’ possible impeachment by appellant was raised prior to trial. The record would not, however, support a conclusion that the failure to grant a severance at that time was the result of any bad-faith conduct on the part of the State or the trial court. Instead, it appears that any delay in granting a severance was entirely attributable to appellant. At no point prior to trial did appellant substantiate the existence of Jones’ prior conviction or her ability to impeach him by introduction of a certified copy of that prior conviction. This shows that the trial court, in the proper exercise of its discretion, refused to grant a pre-trial severance based solely on appellant’s unsubstantiated assertions that Jones was subject to impeachment. It does not show that the subsequent grant of the severance — after appellant had substantiated her assertions and produced a certified copy of the prior conviction — was the result of any bad-faith conduct. The trial court did not err in overruling appellant’s plea of double jeopardy. See generally Morris v. State, 180 Ga. App. 896 (350 SE2d 851) (1986).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    A89A0262.
    THE STATE v. SOSEBEE.
    (382 SE2d 681)
    Decided May 16, 1989
    Rehearing denied May 31, 1989.
    C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellant.

      Eddie Benton, Jr., for appellee.
   Deen, Presiding Judge.

In the instant case appellee Sosebee was indicted and tried on a charge of theft by deception, the indictment alleging that Sosebee unlawfully obtained $8,000 from the sale of a boat without disclosing the existence of a known valid lien on the property. A Hall County jury found him guilty as charged, and he was sentenced to ten years’ confinement and ordered to make restitution in the amount of $500.

The State appeals, alleging that it was error to require restitution of only $500 (the minimum amount required to sustain a conviction) when the indictment averred a theft of $8,000. The State bases its appeal on OCGA § 5-7-1 (2), contending that the trial court’s order is one which arrests the judgment of conviction on legal grounds, as specified in subsection (2). The State further alleges that the sentence was void and therefore directly appealable.

OCGA § 5-7-1 states the only grounds on which the State may properly appeal in a criminal case, and the statute is construed strictly against the State. State v. Clendinin, 136 Ga. App. 303 (211 SE2d 71) (1975). See also, e.g., State v. Eaves, 185 Ga. App. 740 (365 SE2d 535) (1988); State v. Bryant, 182 Ga. App. 698 (356 SE2d 656) (1987); State v. Asinoff, 173 Ga. App. 573 (327 SE2d 237) (1985). We find that the order appealed from does not represent any of the statutorily enumerated instances in which the State has the right to appeal. See, e.g., State v. Gribble, 169 Ga. App. 446 (313 SE2d 720) (1984). We find, moreover, that the sentence below is not void. See State v. O’Neal, 156 Ga. App. 384 (274 SE2d 575) (1980); cf. State v. Johnson, 183 Ga. App. 236 (358 SE2d 840) (1987); State v. Shuman, 161 Ga. App. 304 (287 SE2d 757) (1982). The appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Birdsong and Benham, JJ., concur.


text:
    A89A0641.
    MILNER v. THE STATE.
    (382 SE2d 666)
   Deen, Presiding Judge.

The appellant, Grady Milner, was convicted of DUI, driving after being declared a habitual violator, and driving without proof of insurance.

On July 26,1987, police were summoned to investigate a “fender-bender” automobile collision at a housing project. When the investigating officer arrived, several people were standing around the two vehicles, and the officer inquired as to who were the drivers. The appellant, who was noticeably intoxicated, responded that he was the driver of the vehicle that had struck the other, parked vehicle. A subsequent intoximeter test revealed a blood alcohol content of .29 grams percent. The appellant had no proof of insurance upon himself or in the car. The appellant had no driver’s license because of his habitual violator status.

At trial, the appellant’s wife testified that she had been driving the car at the time of the collision. She explained that she was not at the scene when the police arrived because she had returned to a laundromat to look for her purse, which contained her driver’s license. Held:

1. The appellant contends that the trial court should have directed a verdict of acquittal on all charges because the only evidence of the appellant’s guilt was his uncorroborated confession. The uncorroborated confession to which the appellant refers is his response to the investigating officer’s initial inquiry about who were the drivers. The appellant’s volunteering that he drove one of the cars was an admission, but it certainly did not constitute a confession. “While admissions are to be scanned with care and considered, along with other evidence, for what they are worth, it is not required that they be corroborated by other evidence, as are confessions to a crime. Sheffield v. State, 188 Ga. 1, 11 (9) (2 SE2d 657).” Brown v. State, 167 Ga. App. 851, 852-53 (307 SE2d 737) (1983). The evidence in this case authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt, and the trial court properly denied the appellant’s motion for directed verdict of acquittal. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the trial court erred in not striking for cause a juror who was employed as a correctional officer. However, this correctional officer did not possess full police powers and had not conducted investigations outside of her correctional facility, and was not required to be stricken for cause. Kent v. State, 179 Ga. App. 131 (345 SE2d 669) (1986).

3. The trial court gave a standard jury instruction on voluntary intoxication as not being an excuse for any criminal act. We reject the appellant’s contention that this jury charge gives a jury the impression that it cannot give less weight to a statement made while drunk than to one made while sober.

Decided May 15, 1989

Rehearing denied May 31, 1989

Jones & Geeter, Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, Al C. Martinez, Jr., Assistant District Attorney, for appellee.

4. The trial court admitted into evidence a copy of the appellant’s entire driving record, which included about 20 traffic offenses that were committed more than five years before the offenses for which he was declared a habitual violator. The trial court overruled the appellant’s objection that the extraneous data contained , in the record served only to prejudice the jury. In similar situations, this court has repeatedly found no reversible error in the admission of the complete driving record despite its admission of such irrelevant other traffic offenses. Beasley v. State, 157 Ga. App. 94 (276 SE2d 144) (1981); Hester v. State, 159 Ga. App. 642 (284 SE2d 659) (1981); Noles v. State, 164 Ga. App. 191 (296 SE2d 768) (1982); Key v. State, 166 Ga. App. 546 (305 SE2d 20) (1983); Harper v. State, 175 Ga. App. 703 (334 SE2d 30) (1985). We do the same here.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Banke, Presiding Judge.

text:
    A89A0877.
    TATE v. THE STATE.
    (382 SE2d 688)
   Banke, Presiding Judge.

The appellant was convicted of robbery and criminal attempt to commit armed robbery, based on two separate incidents which occurred on the same day. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that the testimony of the two victims was insufficient to overcome his alibi defense. This contention is without merit. Both victims picked the appellant out of a police lineup and positively identified him during the trial. The evidence, considered as a whole, was amply sufficient to enable a rational trier of fact to reject the appellant’s alibi defense and to conclude beyond a reasonable doubt that he was the assailant in both instances.

2. The appellant’s conviction of criminal attempt to commit armed robbery must nevertheless be reversed due to the absence of any evidence that he was armed with “an offensive weapon, or any replica, article, or device having the appearance of such a weapon” on the occasion in question. OCGA § 16-8-41 (a). While the presence of a weapon during the commission of a robbery may be established without proof that the weapon was actually seen, “ ‘[s]ome physical manifestation of a weapon is required, ... or some evidence from which the presence of a weapon may be inferred.’ ” Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987), quoting People v. Coleman, 128 Ill. App.3d 538 (2) (470 NE2d 1277) (1984). With respect to the criminal attempt charge for which the appellant was tried, the victim’s testimony was merely that the appellant had approached him with his hand in his jacket pocket. Contrary to the state’s assertion in its brief, the victim did not state that the appellant had “his finger in his pocket as if he had a pistol.” The witness was not asked what, if anything, it appeared to him the appellant might have had in his pocket besides his hand, and he did not volunteer any opinion on the issue. While a conviction of criminal attempt to commit robbery would clearly have been authorized under the circumstances, a conviction of criminal attempt to commit armed robbery was not.

3. The appellant contends that on two separate occasions during closing arguments, the state’s attorney made remarks which were “unfairly and fatally prejudicial” to him. On the first such occasion, the state’s attorney argued that defense counsel had used “cheap lawyer tactics” and “shyster tactics” during the trial and that his every objection had been “hogwash.” While we tend to agree with the appellant that the characterization of his counsel’s tactics as those of a “cheap lawyer” and a “shyster” went well beyond the bounds of propriety, no objection was made to these remarks. Rather, the only objection made by defense counsel on the occasion in question concerned a reference by the state’s attorney to “other cases” which he (defense counsel) had tried in the past. This objection was sustained by the trial court, and no further curative action was requested. Accordingly, this portion of the state’s closing argument presents nothing for review on appeal. See Hall v. State, 180 Ga. App. 881, 881-2 (350 SE2d 801) (1986).

Later during the closing argument, defense counsel moved for a mistrial in response to the following remarks made by the state’s attorney concerning a videotape which had been made during the commission of the completed robbery and which evidently showed the perpetrator’s body but not his facial features: “Did you notice the way he was walking in the TV tape? I submit to you he was probably on dope, because he was rubbing his nose.” The trial court declined to grant a mistrial in response to this comment but did instruct the jury that “anything that [the state’s attorney] says is not evidence.” The state’s attorney then proceeded as follows: “But I submit to you that, did you notice how he was kind of light-footing it in there and seemed kind of a little — walked a little funny? Whoever was doing that, and I submit that the defendant was probably doing it to buy a little more dope.” Defense counsel again moved for a mistrial at this time, and the trial court responded by admonishing the state’s attorney as follows: “I don’t think there’s any evidence of that, and I’m going to ask you not to go into that.”

Decided May 19, 1989

Rehearing denied May 31, 1989

H. Haywood Turner III, for appellant.

Douglas C. Pullen, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.

The state presented no evidence during the trial of this case that the appellant used drugs. Rather, the repeated argument by the state’s attorney that the commission of the robbery was connected to the use of “dope” by the appellant was based purely on speculation. The use of such argument has previously been condemned by this court in Hall v. State, supra, where, as in the present case, it was evidently designed to discredit the defendant’s alibi testimony. Id. 180 Ga. App. 885. We must agree with the appellant that the trial court’s mild admonishment to the state’s attorney, unaccompanied by any instructions to the jury to disregard the remarks, was inadequate under the circumstances to erase the resulting prejudice to him, with the result that he is entitled to a new trial. Accord Josey v. State, 89 Ga. App. 215 (3) (79 SE2d 64) (1953); Smith v. State, 118 Ga. App. 464 (1) (164 SE2d 238) (1968).

Judgment reversed.

Sognier and Pope, JJ., concur.


author: Benham, Judge. Deen, Presiding Judge,

text:
    A89A0277.
    ADAMS v. PPT, INC. et al.
    (382 SE2d 732)
   Benham, Judge.

This is an appeal from a grant of summary judgment. Appellant Adams, an individual and resident of Louisiana d/b/a Adams Construction Company, subcontracted with appellee PPT, Inc., to perform concrete finishing services for PPT at a site in Clayton County, Georgia. The contract price was $56,781.61. Adams performed some of the work and submitted a bill to PPT for partial payment, which PPT refused to pay. Adams sued PPT and its insurance company, appellee Royal Insurance Company of America (Royal) for damages, alleging breach of contract and indemnification therefor (Counts One and Three) and unjust enrichment/quantum meruit (Count Two). Appellees defended against the action, alleging, inter alia, that Adams was a non-resident contractor who failed to register with the State Revenue Commission as required by the Nonresident Contractors Act (Act) (OCGA § 48-13-30 et seq.), and was therefore precluded from bringing an action for payment on the contract under OCGA § 48-13-37. Adams contended that as a mere provider of services, he was exempt from the taxation provisions of OCGA § 48-8-63 and therefore exempt from complying with the requirements of the Act. Both sides moved for summary judgment, and the trial court granted appellees’ motion and denied appellant’s. Adams appeals.

1. Appellant argues that the trial court failed to recognize his exempt status under OCGA § 48-8-63. He bases his exemption on a letter he received from the Georgia Department of Revenue, Sales and Use Tax Division, which states that “persons engaged in providing labor services only, not requiring the furnishing of material, machinery and equipment, are not required to secure registration with this office under the provisions of OCGA § 48-8-63.” Assuming that appellant is within the category described, his exempt status in that regard, without more, does not confer upon him an automatic exemption from compliance with OCGA § 48-13-30 et seq. See George C. Carroll Constr. Co. v. Langford Constr. Co., 182 Ga. App. 258 (355 SE2d 756) (1987), wherein this court rejected appellant’s contention that compliance with OCGA § 14-2-310 et seq. exempted it from compliance with OCGA § 48-13-30 et seq. OCGA § 48-13-31 states that “nonresident contractor [s] desiring to engage in the business of contracting in this state shall register with the commissioner . . . and shall report to the commissioner as provided by rule with respect to the tax liability of the contractor pursuant to the business including, but not limited to, liability under Chapter 8 of Title 34.” (Emphasis supplied.) The same phrase is used in OCGA § 48-13-32, which requires contractors to execute a bond with the commissioner. The emphasized phrase indicates that the registration requirements of the Act were intended to address considerations other than the exemption Adams claims, and it cannot be said as a matter of law that exemption as to one provision means exemption from the other.

In defining the term “contractor,” OCGA § 48-13-30 does not exempt a provider of services, so appellant’s argument for exclusion on that basis, raised in his second enumeration of error, also fails. In addition, the work that appellant contracted to perform was related to the construction of commercial buildings and included pouring and finishing concrete, placing post tensioning, installing steel wire and concrete in stair landings, and distributing dirt. Contrary to appellant’s assertion, that activity was within the statutory definition of “constructing . . . buildings . . . [or] [an] other type of structure, project, development, or improvement... of real property. ...” OCGA § 48-13-30.

2. We do agree with appellant’s assertion that the trial court erred in granting appellee’s motion for summary judgment, but for a different reason. It was undisputed that Adams was a nonresident contractor and that he did not comply with the requirements of the Act. “Clearly since 1972, a nonresident contractor is required to register in order to maintain an action to recover payment for performance of a contract in the courts of this state.” George C. Carroll Constr. Co. v. Langford Constr. Co., 182 Ga. App. 258, 261, supra. However, this court recently held that OCGA § 48-13-37, the section that precludes contract actions for noncompliance, “is a forum-closing sanction that closes the courts of Georgia to the offender until such time, if ever, when the offender can substantially comply, within the meaning of OCGA § 1-3-1 (c), with the provisions of the Nonresident Contractors Act. [Cits.]” Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481, 483 (379 SE2d 6) (1989). “The effect of a forum-closing statute is to deny subject-matter jurisdiction to the courts until such time, if ever, when the statutory impediment is removed. [Cits.]” Id. When the parties moved for summary judgment, there was a question whether Adams was required to comply with the Act. Once the trial court determined that appellant was required to comply (which it apparently did in order to justify the grant of summary judgment), the trial court was also required to conclude that it did not have subject matter jurisdiction of the case absent such compliance. Therefore, the trial court could not rule on the merits of the case, i.e., it could not grant appellees’ motion for summary judgment. The lack of statutory compliance with the Act does not go to the merits of the case but serves as a reason for abatement of the case. Id. The appropriate action for the trial court was to enter an involuntary dismissal pursuant to OCGA § 48-13-37, which would not be an adjudication on the merits. OCGA § 9-11-41 (b); Taco Bell v. Calson Corp., supra. For the foregoing reason, we reverse the trial court’s grant of summary judgment to appellees.

Decided May 31, 1989.

William A. Wehunt, for appellant.

Judgment reversed.

Birdsong, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

In the case of Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481 (379 SE2d 6) (1989) cited in the majority opinion, two judges concurred specially. While concurring fully with the majority opinion, I also concur in what is said in the mentioned special concurrence in Taco Bell Corp.

J. Ben Shapiro, Jr., April Rich, for appellees.


text:
    A89A0477.
    LITTLE et al. v. LIBERTY SAVINGS BANK, FSB.
    (382 SE2d 734)
   Sognier, Judge.

Patricia Ann Little and her husband, William Deryl Little, brought suit against Liberty Savings Bank, FSB and Adams Distributing Company d/b/a Macon Tile & Carpet Company to recover damages for injuries Mrs. Little sustained when she slipped and fell in the bank’s building. The trial court granted summary judgment to Liberty Savings Bank, and the Littles appeal.

The record reveals that Mrs. Little was employed by INA Insurance Company, which rented office space in appellee’s building. Appellee contracted with Adams Distributing to replace the carpeting in the eleventh floor hallway of the building. Mrs. Little testified by deposition that as she exited the elevator on the eleventh floor early in the afternoon of June 20, 1985, she and the others on the elevator noticed that the carpet had been removed, exposing the concrete floor. She walked down the bare hallway to the lunchroom, where she stayed for approximately 25 minutes. As she stepped back into the hallway from the lunchroom, which she testified had solid wood doors that swung outward (although there was testimony that the doors opened inward), upon taking her first step Mrs. Little slipped on carpet glue placed on the floor by employees of Adams Distributing and fell, injuring her leg and back. Mrs. Little recalled smelling the glue after she fell, and stated that the floor looked shiny and wet. William David Andre, appellee’s operations manager, testified by affidavit that, other than requesting “that the carpeting be laid in stages so that persons in the building could use the hallways at all times,” appellee gave no instructions to Adams Distributing regarding the method or manner of installation, and inspected the work only after completion.

Appellants contend the trial court erred by granting appellee’s motion for summary judgment because material factual questions remain regarding whether Adams Distributing was acting as an independent contractor and whether appellee exercised the requisite degree of care.

“[W]here a landowner surrenders a portion of his premises to an independent contractor!,] the landowner is relieved of his duties with regard to the portion of the premises which he no longer controls. [Cit.] . . . ‘Possession may be defined as having personal charge of or exercising the rights of management or control over the property in question. Custody and control are the commonly accepted and generally understood incidents of possession.’ [Cit.]” Towles v. Cox, 181 Ga. App. 194, 195-196 (351 SE2d 718) (1986). In the instant case, although there is evidence Adams Distributing was an independent contractor, the record also reveals that the hallway was kept open for use by appellee’s tenants or invitees, and that appellee specifically instructed Adams Distributing to sequence the work so as to permit access to the hallway at all times. Accordingly, “it cannot be said that [Adams Distributing] had possession and control of the premises to the exclusion of [appellee] such that [appellee] had no duty of care as an owner for the safety of invitees on the premises. Under the circumstances, whether [appellee] as owner of the property, [Adams Distributing] as contractor, or both were in control of the premises and, therefore, ‘responsible for the work,’ should be decided by the jury. [Cit.]” Williams v. Nico Indus., 157 Ga. App. 814, 817 (2) (b) (278 SE2d 677) (1981), overruled in part on other grounds, Malvarez v. Ga. Power Co., 250 Ga. 568, 569 (300 SE2d 145) (1983).

Appellee contends that the grant of summary judgment in its favor nevertheless was correct because Mrs. Little failed to exercise ordinary care to notice and avoid an obvious hazard. We do not agree.

To recover in a slip and fall case involving a foreign substance, “the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). “ ‘The basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known condition. . . . (Cit.) (Cit.)’ ” Folks, Inc. v. Dobbs, 181 Ga. App. 311, 312 (1) (352 SE2d 212) (1986).

Appellee’s argument is that appellants cannot claim lack of knowledge of the presence of the glue because Mrs. Little was aware when she entered the lunchroom that the carpeting had been removed. “However, it is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids. The true issue in a slip and fall case such as the instant one is whether ‘the plaintiff was without knowledge of the (foreign) substance’ which precipitated his slip and fall. [Cit.]” Telligman v. Monumental Properties, 161 Ga. App. 13,16 (288 SE2d 846) (1982). Construed in favor of appellants as respondents on motion for summary judgment, the evidence reveals that there was no glue in the hallway and no workers were present when Mrs. Little entered the lunchroom, and that when she exited by pushing the solid wood door outward, “as [she] opened the door . . . and stepped out, [her] feet just shot out from under [her].” She testified that she did not see or smell the glue until after she fell. “Under this construction of the evidence, appellant, though in the exercise of due care, was ‘without knowledge of (the) presence’ of the [glue] which caused her to slip and fall. . . [cit.],” Telligman, supra at 17, whereas appellee, having employed Adams Distributing to replace the carpet, had constructive knowledge of the presence of the glue. Compare Gateway Mgmt. Co. v. Sutton, 189 Ga. App. 296 (375 SE2d 462) (1988). Accordingly, as appellee’s knowledge was superior to Mrs. Little’s, we conclude the trial court erred by granting summary judgment to appellee. See Telligman, supra at 17.

Decided May 31, 1989.

J. Michael Carpenter, for appellants.

Mary M. Katz, Robert R. Gunn II, for appellee.

Judgment reversed.

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


text:
    A89A0707.
    KAYSEN v. THE STATE.
    (382 SE2d 737)
   Banke, Presiding Judge.

The appellant, charged in the State Court of Glynn County with driving under the influence of alcohol, speeding, and driving with a suspended license, moved for discharge and acquittal based on the state’s failure to honor his demand for trial filed pursuant to OCGA § 17-7-170. The trial court denied the motion, and this appeal followed.

The terms of the State Court of Glynn County commence on the first Monday of every other month. Ga. L. 1981, p. 3359, § 5. In support of his motion for discharge, the appellant submitted the affidavit of the clerk of the state court, who averred that criminal juries were impaneled during the January, March, May, and September terms of court in 1988. The appellant filed his demand for trial on April 28, 1988, two days before the end of the March term, and filed his motion for discharge and acquittal on December 7, 1988. Held:

The state’s contention that the appellant is not subject to acquittal because no jury qualified to try him was impaneled during the term in which the demand was filed is without merit. OCGA § 17-7-170 (b) provides: “If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted. . . .’’In Waller v. State, 251 Ga. 124, 126 (3) (303 SE2d 437) (1983), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984), the Georgia Supreme Court held that where the demand is filed during a term in which there is no jury impaneled to try the case, “the time allowed by the two-term trial requirement [does] not begin to run until the term following that during which the demand was filed.” We interpret this to mean that, in computing the time allowed by the two-term requirement, terms or remainders of terms during which no jury is impaneled are not counted. Thus, assuming that there was no longer any jury impaneled during the last two days of the March term, when the appellant’s demand was filed, the demand did not become effective until the May term, meaning that the case was required to be tried, at the latest, before the end of the September term, which was the next succeeding term thereafter during which a criminal jury was impaneled. As the appellant was not tried prior to the end of that term, it follows that the motion for discharge and acquittal should have been granted.

Decided May 31, 1989.

Lane & Tucker, Alan D. Tucker, for appellant.

Richard H. Taylor, Solicitor, for appellee.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A0160.
    FORD v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (382 SE2d 659)
   Carley, Chief Judge.

Prior to 1980, an injured party was allowed to stack multiple uninsured motorist coverages if the tortfeasor was totally uninsured but an injured party was not allowed to do so if the tortfeasor was merely underinsured. See Cotton States Mut. Ins. Co. v. Austin, 143 Ga. App. 309 (238 SE2d 253) (1977). In 1980, the legislature amended OCGA § 33-7-11 (b) (1) (D) so as to redefine “uninsured motor vehicle.” The courts have since construed this redefinition of “uninsured motor vehicle” as evidencing a legislative intent to extend the right to stack multiple uninsured motorist coverages to those parties who have been injured by an underinsured tortfeasor. See State Farm Mut. Auto. Ins. Co. v. Hancock, 164 Ga. App. 32 (295 SE2d 359) (1982). The issue presented for resolution in this appeal is the extent to which one who has been injured by an underinsured tortfeasor has the right to stack.

That issue arises in the following context: Appellant-plaintiff was injured when his employer’s vehicle was struck by a vehicle that was being operated by Jerry Miller. Miller has a policy of automobile insurance which provides $25,000 in bodily injury liability coverage. Appellee-defendant is appellant’s own automobile insurance carrier and, in that capacity, it provides appellant with $15,000 in uninsured motorist coverage. Appellant’s wife also has her own automobile policy with appellee which provides $15,000 in uninsured motorist coverage. Appellant is an insured under his wife’s policy. Appellant’s employer has an automobile policy which provides $40,000 in uninsured motorist coverage. Appellant is an insured under his employer’s policy.

Appellant brought suit against Miller and he also served appellee. Appellee filed an answer in its own name and it thereby became a party to the action. See generally Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980). Subsequently, appellee filed a motion for summary judgment, urging that, although appellant was an insured under his wife’s and his employer’s policies, he was not entitled to stack the uninsured motorist coverages of those policies. Since the $25,000 in liability coverage available under Miller’s policy exceeded the $15,000 in uninsured motorist coverage available under appellant’s own policy, it was appellee’s contention that it had no contractual obligation to provide any uninsured motorist benefits to appellant. Appellant filed a cross-motion for summary judgment, urging that, as an insured under his wife’s and his employer’s policies, he was entitled to stack the uninsured motorist coverages of those policies. Because the $25,000 in available liability coverage was less than the entire $70,000 in uninsured motorist coverage available pursuant to stacking, it was appellant’s contention that appellee had the contractual obligation to provide him up to $15,000 in coverage under his own policy and then to provide him coverage up to the limits of his wife’s policy. The trial court conducted a hearing on the cross-motions and granted summary judgment in favor of appellee and denied appellant’s motion for summary judgment. It is from that order of the trial court that appellant brings this appeal.

Appellee relies upon the wording of the 1980 amendment to OCGA § 33-7-11 (b) (1) (D), as subsequently amended in 1986, as the support for its contention that appellant has no right to stack the uninsured motorist coverages of his wife’s and his employer’s policies. That statute provides, in relevant part, that an “uninsured motor vehicle” is a vehicle as to which there is liability insurance “with available coverages which are less than the limits of the uninsured motorist coverage provided under the insured’s insurance policy, but the motor vehicle shall only be considered to be uninsured for the amount of the difference between the available coverages under the . . . liability insurance ... on such motor vehicle and the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policy. . . .” (Emphasis supplied.) OCGA § 33-7-11 (b) (1) (D) (ii). According to appellee, one is not an “insured” under a given policy and that policy cannot be considered to be his unless he is the named insured therein. Thus, appellee urges that one who is injured by an underinsured motorist would be authorized to stack only the uninsured motorist coverages of those policies wherein he is the named insured.

The statute speaks in terms of “the insured’s” policies, not of “the named insured’s” policies. If, in consideration of the payment of a premium, an injured party would otherwise be entitled to benefits under a given policy, he is as much an “insured” thereunder as the named insured would be and, insofar as the right to receive benefits is concerned, that policy is as much his as it is the named insured’s. Appellee recognizes that the construction of OCGA § 33-7-11 (b) (1) (D) (ii) that it advances has been implicitly rejected in previous decisions of this court. See Travelers Indem. Co. v. Md. Cas. Co., 190 Ga. App. 455 (379 SE2d 183) (1989) (injured party insured for purposes of stacking uninsured motorist coverages under her mother’s and her employer’s policies); Lewis v. Atlanta Cas. Co., 179 Ga. App. 185 (345 SE2d 858) (1986) (injured party insured for purposes of stacking uninsured motorist coverage under his employer’s policy); Georgia Farm Bureau Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 173 Ga. App. 844 (328 SE2d 737) (1985), aff'd 255 Ga. 166 (336 SE2d 237) (1985) (injured party insured for purposes of stacking uninsured motorist coverage under his host driver’s policy). We now explicitly reject such a construction of OCGA § 33-7-11 (b) (1) (D) (ii). “The statute is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is the beneficiary.” (Emphasis supplied.) State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 714 (177 SE2d 257) (1970).

It is undisputed that appellant is an insured under his wife’s and his employer’s policies. It follows that appellant is entitled to stack the respective $15,000 and $40,000 uninsured motorist coverages of those policies on the $15,000 coverage of his own policy. Since the $70,000 in uninsured motorist coverage available to appellant exceeds the $25,000 in liability coverage available under Miller’s policy, appellee is contractually obligated, as appellant’s own uninsured motorist carrier, to provide him up to $15,000 in coverage and then to provide him coverage up to the limits of his wife’s policy. See Travelers Indem. Co. v. Md. Cas. Co., supra. The trial court erred in granting summary judgment in favor of appellee and in denying appellant’s motion for summary judgment.

Judgments reversed.

McMurray, P. J., and Beasley, J., concur.

Decided May 9, 1989

Rehearing denied June 1, 1989

Hodges, Erwin & Hedrick, William H. Hedrick, for appellant.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dawn G. Benson, for appellee.


text:
    A89A0375.
    WEDDINGTON v. THE STATE.
    (382 SE2d 661)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of three counts of armed robbery and two counts of criminal attempt to commit robbery. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Appellant enumerates as error the trial court’s denial of a motion for a mistrial based upon the presence in the jury room of an alternate juror during deliberations.

As soon as it was brought to the attention of the trial court that, through an oversight, the alternate juror had been present during the first twenty-five minutes of deliberations, the jury was called back to the courtroom. The trial court inquired whether the presence of the alternate juror had influenced the deliberations and, according to the record, “all jurors responded in the negative.” The jurors were then admonished not to consider anything that the alternate juror might have said or done. Under the circumstances, it was not error to deny appellant’s motion for a mistrial. See generally Johnson v. State, 235 Ga. 486, 493 (6) (220 SE2d 448) (1975); Duncan v. State, 155 Ga. App. 624, 626 (4) (271 SE2d 878) (1980).

2. One of appellant’s enumerations relates to an alleged deficiency in his arraignment. However, an irregularity, if any, in appellant’s arraignment was waived both by the failure to object in a timely fashion in the trial court and by the filing of a motion to quash one count of the indictment. See Shorter v. State, 155 Ga. App. 609 (1) (271 SE2d 741) (1980); Davis v. State, 135 Ga. App. 203, 205 (2) (217 SE2d 343) (1975).

3. Appellant enumerates as error the trial court’s failure to instruct the jury on the defense of abandonment of a criminal enterprise.

No written request for such a jury instruction was ever submitted to the trial court and, even had there been such a request, the evidence did not authorize the giving of such a charge. All of the elements of the crime of attempted robbery having been shown, there was no error in the tried court’s failure to charge on abandonment. See Merritt v. State, 183 Ga. App. 135, 137 (2) (358 SE2d 293) (1987).

4. Appellant enumerates as error the overruling of a special demurrer to that count of the indictment which had charged him with armed robbery by alleging that he “did unlawfully on or about August 31, 1987, with the intent to commit a theft, take U. S. currency from Yolanda Brown at the Circle K store at 3017 Bull Street by use of an offensive weapon, a gun. . . .” According to appellant’s special demurrer, the cashier’s correct name was “Yolanda Holmes,” not “Yolanda Brown.”

It would appear that appellant’s right to file the special demurrer was waived because it was not presented to the trial court at or before arraignment. See Carter v. State, 155 Ga. App. 49 (1) (270 SE2d 233) (1980). Moreover, even if the special demurrer was not untimely, the asserted discrepancy in the name of the victim constitutes nothing “more than [a] minor and technical [deficiency as] to which [appellant] has failed to show that he was unable to adequately prepare his defense or that he was otherwise prejudiced thereby. [Cits.]” Miller v. State, 182 Ga. App. 700, 701-02 (356 SE2d 900) (1987). The allegations were otherwise sufficient to apprise appellant of the charges against him so as to “prepare his defense intelligently and to protect [himself] from double jeopardy. [Cits.]” State v. Eubanks, 239 Ga. 483, 484-85 (238 SE2d 38) (1977). It was not error to overrule the special demurrer.

5. Appellant enumerates as error the denial of his motion to sever the offenses for separate trials.

“The right of severance where the offenses are joined solely on the ground that they are of the same or similar character is ‘because of the great risk of prejudice from a joint disposition of unrelated charges.’ [Cit.]” Dingler v. State, 233 Ga. 462, 464 (211 SE2d 752) (1975). However, where, as here, the similarity of the crimes reaches the level of a pattern, severance of the crimes for trial is not required. Cooper v. State, 253 Ga. 736, 737 (2) (325 SE2d 137) (1985). “ ‘[I]n this particular kind of circumstance [, severance] lies within the sound discretion of the trial judge. . . .’ [Cit.]” Wilson v. State, 188 Ga. App. 779, 780 (1) (374 SE2d 325) (1988). “Denial of the motion to sever was not an abuse of the wide discretion [of] the trial court. . . . [Cit.]” Reeves v. State, 258 Ga. 619, 620 (2) (373 SE2d 16) (1988).

6. The admission into evidence of a gun found in appellant’s room is enumerated as error.

“ ‘The admission of evidence is a matter which rests largely within the sound discretion of the trial judge.’ [Cit.] . . . ‘The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value,’ [cits.] and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. [Cit.]” Baker v. State, 246 Ga. 317, 319 (271 SE2d 360) (1980). With regard to the three armed robbery counts, appellant’s possession of a pistol was relevant to establish that he had access to a gun. The evidence was not erroneously admitted.

Decided May 9, 1989

Rehearing denied June 1, 1989

C. Jackson Burch, for appellant.

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

7. Appellant enumerates as error the admission into evidence of his two custodial statements. He urges that his rights to remain silent and to have an attorney present were not knowingly and voluntarily waived because he was under the influence of cocaine.

The trial court conducted a Jackson-Denno hearing. “The trial court’s findings as to factual determinations and credibility relating to the admissibility of statements will be upheld on appeal unless they are clearly erroneous. [Cit.]” Henson v. State, 258 Ga. 600, 601 (1) (372 SE2d 806) (1988). Based on the testimony of the detective who interviewed the appellant, the trial court was authorized to conclude that appellant’s waiver of his constitutional rights was voluntarily and knowingly made, and was not the product of a will overborne by the influence of narcotics.

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.