text:
    A91A0540.
    WILLIAMS v. THE STATE.
    (405 SE2d 716)
   Birdsong, Presiding Judge.

Ira L. Williams appeals his judgment of conviction of trafficking in cocaine and his sentence. The indictment averred appellant committed the trafficking offense by being “knowingly in possession of more than 28 grams of a mixture with a purity of more than ten percent COCAINE.”

The evidence when viewed most favorably to support the verdict and judgment of conviction shows the following. Agent McClain and a confidential informant (Cl) went to a certain apartment complex to buy cocaine. Agent McClain stayed in the undercover car while the Cl attempted to make preliminary arrangements for the sale. The Cl went to a next-door, unoccupied apartment by mistake, but appellant opened the door of the targeted apartment and a conversation with the Cl ensued. Appellant then “motioned” for Agent McClain to come up to the porch. Appellant suspected McClain of being a policeman and questioned him repeatedly about it. Agent McClain staunchly denied any police affiliation, and said if appellant did not want to make the deal that McClain and the Cl would leave. Appellant then stated “yes, we’ll do the deal,” and invited the two men into the targeted apartment. After everyone was seated, appellant went upstairs and conversed with a man, later identified as Charles Nor-wood. Agent McClain overheard appellant tell Norwood that they needed to contact someone. Appellant came downstairs and again asked McClain if he was a cop, which McClain again denied. Appellant and Norwood subsequently had a short conversation downstairs and discussed meeting someone at a certain Captain D’s location. Appellant and Norwood exited the apartment together, Norwood drove off and appellant returned to the apartment. The Cl asked appellant how long it would be before the deal could be completed, and appellant replied, “a short time, ten or fifteen minutes from now.” A while later Norwood and two other men returned and went into the kitchen where the Cl and appellant were engaged in general conversation. Norwood informed McClain they were ready to do the deal. Agent McClain left the apartment ostensibly to get the drug money, but used his “body-bug” to transmit the “takedown” word to police backup. Agent McClain returned, handed the money to one of the men who was named Greg Strachan, and was handed about five ounces of rock cocaine by Strachan. Appellant was standing one to three feet behind McClain at the time. As McClain exited the apartment, backup police arrived and when they announced “police,” appellant slammed the apartment door shut. McClain immediately kicked the door open, and appellant and three other men were observed “running through the apartment” trying to get out the back door. The fleeing men were subdued and placed under arrest. Appellant enumerates eight errors. Held:

1. In addition to the general grounds, appellant asserts the trial court committed reversible error in overruling his motion for directed verdict of acquittal.

When an enumeration of error is based, as in this case, upon the overruling of a motion for directed verdict of acquittal grounded at trial on insufficiency of the evidence, the proper test for an appellate court to apply is “the beyond a reasonable doubt test” as expressed in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436).

OCGA § 16-2-20 pertinently provides: “(a) Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of the commission of the crime, (b) A person is concerned in the commission of a crime only if he . . . (3) Intentionally aids or abets in the commission of the crime. . . .” (Emphasis supplied.)

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the crime charged as a “party thereto.” Jackson v. Virginia, supra. Appellant’s enumerations of error 1-4 are without merit. See Divisions 2, 3, 4, and 5 below.

2. Appellant asserts the trial court committed reversible error in finding appellant guilty of possession of more than 28 grams of cocaine of a mixture with a purity of more than ten percent cocaine where the expert witness tested only a sample of the suspected cocaine and not the total sum.

State Exhibit No. 1 included five separate plastic bags, each containing a “chunky material” that was purchased by Agent McClain at the crime scene, and all placed within a larger sealed plastic bag and transported to the Georgia State Crime Laboratory (Crime Lab) without apparent tampering.

The State’s expert is a forensic chemist and supervisor of the Drug Identification Section of the Crime Lab. Over the course of the last 20 years, he has analyzed probably 20,000-30,000 samples which he determined or opined contained cocaine. The expert visually examined the contents of each of the five separate plastic bags and determined “all the powder appeared to be identical in nature and color and consistency.” (Emphasis supplied.) He next took random samples from each of the five bags and performed a “thin layer chromatography” test that determines “composition” of some of the material; the “thin layer chromatography” was positive for cocaine. The expert then conducted a very sophisticated “Foyer transform nuclear magnetic resonance spectroscopy” test of the samples, which was positive for cocaine. State Exhibit No. 1 was then weighed, and the total weight of the cocaine mixture itself was determined to be approximately 140 grams. Although the expert did not perform “an exact test” to determine the purity of the mixture “down to a percentage,” he did, based upon all his experience in running tens of thousands of cocaine samples and also upon the results of the particular tests performed on the samples taken from each of the five separate bags, form an opinion as to the purity of the mixture in question. The expert opined that based upon “the tests that I ran and my experience, I estimated that [the mixture] was approximately ninety percent [pure cocaine].” The mixture was “in the ninety percent range, maybe eighty-five, eighty-eight, ninety-two . . . what I call boat level cocaine, which are large amounts of cocaine that came straight up from South America.” Moreover, the expert opined “there’s no question at all” that the mixture would be well over ten percent purity.

The trial court gave the jury a timely cautionary instruction, before the expert gave his opinion as to the mixture’s purity, that subsequently it would “tell you in some detail that you can believe or disbelieve the testimony of any witness, expert or otherwise. Mr. Mills can give you his opinion as to what he did or didn’t do and the basis of that . . . and you can take that evidence and weigh it and I’ll instruct you on how to do that at the end of the trial.”

Appellant’s enumeration of error number 5, as crafted, is without merit. This case is distinguishable from Payton v. State, 177 Ga. App. 104 (338 SE2d 462) where “mature stalks” of marijuana plants were weighed in attempting to calculate the weight of marijuana, as that substance is defined by statute; and, also this case is distinguishable from Taylor v. State, 144 Ga. App. 534 (241 SE2d 590) where it was asserted no quantitative analysis was performed but quantity was determined merely by reading the label on the bottle containing the substance. Moreover, based on the posture of the record as above discussed, we hold that failure to conduct an “exact test” to determine the purity of the mixture down to a specific percentage of cocaine would affect only the weight and not the admissibility of the expert’s opinion regarding the purity thereof. “The weight to be given the expert’s opinion is, in all cases, a question for the jury” (Adams v. State, 196 Ga. App. 723, 724 (397 SE2d 12)). We will not invade the province of the jury merely because it must have determined the expert’s testimony was credible in order to arrive at its verdict of guilty of “the offense of trafficking cocaine,” as averred. See Division 1 above.

3. We find that the trial court did not commit reversible error in failing to give defendant’s request to charge regarding circumstantial evidence.

This case clearly is distinguishable from Dawson v. State, 183 Ga. App. 94, 96 (2) (357 SE2d 891) on which appellant relies wherein the State conceded “that the evidence adduced at trial as to [the cocaine and the methamphetamine charges] was circumstantial,” and the issue of a circumstantial evidence instruction was not addressed.

Appellant, citing Price v. State, 180 Ga. App. 215 (348 SE2d 740) and Cook v. State, 185 Ga. App. 585 (364 SE2d 912), however, also argues it was reversible error for the trial court to fail to give, with or without request, a charge on circumstantial evidence as contained in OCGA § 24-4-6 and to fail to instruct the jury that a conviction based on circumstantial evidence is permissible only if the offense charged was proved beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis.

The case at bar involves both direct and circumstantial evidence. An instruction on the full text of OCGA § 24-4-6 includes therein all the language which appellant maintains should have been charged. However, this type of instruction is required only when the case is totally dependent upon circumstantial evidence. Wofford v. State, 196 Ga. App. 284 (2) (395 SE2d 630), citing Arnett v. State, 245 Ga. 470 (4) (265 SE2d 771) and Beard v. State, 193 Ga. App. 877 (2) (389 SE2d 384); see Broski v. State, 196 Ga. App. 116 (3) (395 SE2d 317). Appellant’s enumeration of error number 6 is without merit.

4. Appellant enumerates as his seventh enumeration of error that the trial court committed reversible error by giving a charge on actual and constructive possession where the evidence did not warrant the same.

Appellant argues that “actual possession” is required by OCGA § 16-13-31 to authorize a conviction for trafficking thereunder. However, in 1988, the legislature amended Chapter 13 of Title 16 of the OCGA, relating to controlled substances, for the purpose inter alia “to eliminate the requirement that a person be in actual possession of certain controlled substances to be guilty of certain offenses.” Ga. L. 1988, p. 420. In doing so, the legislature effectively deleted the word “actual” preceding the word “possession” in paragraphs (1) and (2) of subsection (a) and in the introductory paragraphs of subsections (b) and (c) of OCGA § 16-13-31. Compare Ga. L. 1988, p. 420, § 2. This Act became effective on March 28, 1988 (Ga. L. 1988, p. 424, § 4), and the crime of trafficking in this case was committed on March 16, 1989, as averred in the indictment. Thus, contrary to the authority cited by appellant, either actual or constructive possession would suffice to establish the element of possession necessary to support a conviction of trafficking in the case at bar. Compare White v. State, 196 Ga. App. 813, 815 (397 SE2d 299) with Alvarado v. State, 194 Ga. App. 781 (391 SE2d 668); Christopher v. State, 190 Ga. App. 393 (2) (379 SE2d 205).

Both the Supreme Court and this court have recognized that the difference between actual and constructive possession is most assuredly one of degree, and often it is difficult to say where one ends and the other begins. Dalton v. State, 249 Ga. 720 (2) (292 SE2d 834); Alvarado v. State, supra at 782; aff’d, State v. Alvarado, 260 Ga. 563 (397 SE2d 550); Neal v. State, 130 Ga. App. 708, 711 (2) (204 SE2d 451). As in Alvarado, supra, the type of possession, if any, was a question of fact for the jury to decide, and the trial court did not err in instructing on both concepts. The trial judge has the duty, with or without request, to give the jury an appropriate instruction as to the law on each substantive point or issue involved in a case so as to enable the jury to judiciously decide the guilt or innocence of a defendant. Ancrum v. State, 197 Ga. App. 819, 822 (2) (399 SE2d 574). Moreover, appellant does not cite authority to support or otherwise argue that the instruction, as given, contained any erroneous statement of law; accordingly, any such appellate issue is deemed abandoned. Court of Appeals Rule 15 (c) (2). Appellant’s seventh enumeration of error is without merit.

Decided April 17, 1991.

Joseph M. Todd, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

5. Appellant asserts in his eighth enumeration of error, citing Burge v. State, 103 Ga. App. 682, 683 (2) (120 SE2d 200) that the trial court committed reversible error in failing to give his request to charge “regarding any presumption that no crime has been committed.”

The trial court inter alia instructed the jury that the State has the burden of proof beyond a reasonable doubt to prove each and every essential element of the crime charged in the bill of indictment; that the burden always remains on the State and never shifts to the defendant; that defendant does not have to prove anything; that every person is presumed innocent until proven guilty; that no person shall be convicted of a crime unless each and every element of the crime is proved beyond a reasonable doubt; that mere presence of appellant at the scene of the crime, if any, at the time of its perpetration, would not be sufficient alone to convict any defendant of. a crime; that to warrant conviction in a criminal case the jury must be satisfied that there is sufficient evidence' to convict appellant beyond a reasonable doubt; and, of the statutory elements of the offense of trafficking in cocaine. It is not required that the trial court include the exact language of written requests to charge when the same principles are given in the general charge and, in this case, the substance of defendant’s requested charge was contained in the trial court’s general charges on burden of proof, presumption of innocence, and mere presence at the scene of a crime, if any. Herrod v. State, 182 Ga. App. 876 (2) (357 SE2d 317).

Judgment affirmed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A0028.
    SMARR v. THE STATE.
    (405 SE2d 561)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault. He appeals his conviction and the denial of his motion for new trial.

Construed in a light most favorable to the verdict, the evidence adduced at trial shows the following: Early in the evening on May 24, 1989, Patricia Ann Stacey (“Stacey”) drove appellant to an open area of a housing project where appellant unknowingly bought some fake cocaine from an individual known as “Miami.” Stacey and appellant left the project but returned just a few minutes later, at which time appellant demanded that Miami give back appellant’s money, claiming that he had been sold “soap” instead of the drug he thought he was buying. After Miami refused to give back his money, appellant and Stacey again left the project but came back a second time; this time appellant was carrying a gun. The victim, in the meantime, had taken Miami’s place in the drug-selling area, and appellant and the victim began to argue. Appellant grabbed the victim by the collar, put the gun in the victim’s mouth and shot the victim in the neck.

1. Appellant contends that the evidence was insufficient to support the conviction because the sole evidence against him was the uncorroborated testimony of his accomplice Stacey. OCGA § 24-4-8 provides: “The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient.” “[T]he rule that a felony conviction is not to be had on the uncorroborated testimony of an accomplice applies only when the accomplice is the sole witness upon whose testimony the state relies. [Cits.]” McDaniel v. State, 158 Ga. App. 320 (279 SE2d 762) (1981). In the instant case, Stacey testified at trial that she drove appellant to the project and witnessed the appellant buy drugs, argue with Miami and the victim and shoot the victim in the neck. Another witness for the State testified that she saw appellant buy drugs from Miami and argue with the victim, and a third witness for the State testified that he saw appellant argue with the victim, grab the victim by the collar, put the gun in the victim’s mouth and shoot the victim in the neck. In addition, Stacey’s cousin testified at trial as to several telephone conversations she had with the appellant the day after the incident in which appellant admitted to having shot the victim. We conclude, therefore, that there was sufficient corroborating testimony from the three other witnesses. Moreover, appellant’s argument that the testimony of these three witnesses should be disregarded because their testimony was biased and/or inconsistent is without merit. “Determination of the witnesses’ credibility is, of course, within the discretion of the trier of fact. [Cits.]” Miasso v. State, 191 Ga. App. 222, 223 (381 SE2d 315) (1989). Based upon the evidence adduced at trial, any rational trier of fact could have found the appellant guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates as error the admission of the testimony of a State’s witness describing the victim’s medical condition, specifically her statements that the victim could not move his lower extremities and was hooked up to a life-support system. This testimony was offered into evidence after the court sustained an objection by appellant’s counsel to the State’s attempt to admit into evidence a photograph of the victim in the hospital. The transcript reveals that although counsel for the appellant objected to the line of questioning at the time he raised his objections to the admission of the photograph, counsel failed to object to the admission of the allegedly objectionable testimony at the time it was offered. “ ‘ “In order to raise on appeal contentions concerning admissibility of evidence, ‘the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.’ (Cits.)” ’ [Cit.]” McBurse v. State, 182 Ga. App. 759 (3) (357 SE2d 144) (1987). See also Merritt v. State, 255 Ga. 459 (2) (339 SE2d 594) (1986). Thus, appellant’s failure to object to the testimony resulted in a waiver of his right to object on appeal.

3. We find no merit in appellant’s enumeration of error that the trial court erred in failing to give appellant’s request to charge on reasonable doubt. “ ‘ “[I]t is no longer necessary to give the exact language of requests to charge when the same principles are fairly given to the jury in the general charge of the court. (Cit.)” (Cit.)’ [Cit.]” Daniels v. State, 184 Ga. App. 689 (2) (362 SE2d 775) (1987). “ ‘When the charge in the present case is taken as a whole, the jury was clearly informed of the correct applicable law as to what constitutes a reasonable doubt.’ [Cits.]” Cordova v. State, 191 Ga. App. 297 (3) (381 SE2d 436) (1989). See also Walthour v. State, 196 Ga. App. 721 (5) (397 SE2d 10) (1990).

4. Finally, the appellant argues that the trial court erred in charging the jury as follows: “Aggravated assault is an intentional crime. In other words, it must involve either the specific intent or criminal negligence.” While that portion of the charge on the necessary state of mind for aggravated assault was incorrect (see Bowers v. State, 177 Ga. App. 36 (1) (338 SE2d 457) (1985)), we find that a fair reading of the remainder of the court’s charge emphasizing the special intent needed to prove aggravated assault adequately corrected the misstatement. “Considering the charge in its entirety, the elements were adequately explained to the jury with sufficient clarity so as not to mislead the jury. [Cits.]” Walker v. State, 193 Ga. App. 100 (1) (386 SE2d 925) (1989). Moreover, the evidence establishes without conflict that aggravated assault occurred and the appellant simply denies being the one who committed it. “As this defense did not put into issue criminal intent, the court’s error in instruction was harmless. [Cits.]” Burton v. State, 256 Ga. 690, 691 (2) (353 SE2d 180) (1987).

Decided April 18, 1991.

John A. Pickens, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Richard E. Hicks, Assistant District Attorneys, for appel-lee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0319.
    RANDALL v. TIMBERLAKE ASSOCIATES, INC.
    (405 SE2d 564)
   Birdsong, Presiding Judge.

E. G. Randall appeals from the grant of summary judgment to Timberlake Associates, Inc. (“Timberlake”) in a suit on a note.

The record shows that Preferred Image, Inc. (“Preferred”) borrowed $8,000 from Timberlake, and the debt was secured by a note signed by Randall as the authorized agent for Preferred. Randall also signed a UCC Form 1 Financing Statement which showed that the debtors were “Preferred Image and E. G. Randall”; and Randall’s signature on the form did not indicate whether her signature was as the corporation’s representative or in her individual capacity. The financing statement, however, does not reflect that Randall’s personal guaranty was given for the loan.

When the debt was not paid, Timberlake sued Preferred on the note and Randall on the personal guaranty which Timberlake alleged was created by the UCC Form 1. Later, Timberlake also asserted that recovery from Randall personally was warranted because she had commingled her assets with the corporation’s and because Randall had personally guaranteed the debt in a letter. Subsequently, the trial court granted summary judgment to Timberlake against both Randall and Preferred. Preferred did not file a notice of appeal and is not a party to this appeal.

Randall alleges that the trial court erred by granting summary judgment against her in her individual capacity because the trial court improperly struck and refused to consider her untimely response to Timberlake’s motion and because the judgment against her was not warranted by the evidence. She contends that judgment was authorized only against Preferred Image, Inc. Held:

1. Relying on Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (374 SE2d 785) and Walton v. Datry, 185 Ga. App. 88, 93 (363 SE2d 295), Randall contends the trial court should have considered her response to Timberlake’s motion for summary judgment even though it was not filed in accordance with Rule 6.2 of the Uniform Rules for the Superior Courts. Although initially this argument appears to have merit, closer examination of the precedents on this issue shows that trial courts may not refuse to consider affidavits which were untimely under Rule 6.2, but which were timely under the applicable sections of the Civil Practice Act, e.g., OCGA §§ 9-11-6 (d) and 9-11-56 (c) and (e). In this appeal, however, it appears Randall did not attempt to file an affidavit because the evidence she relied on in opposing the motion was already on file with the court. Instead, she sought only to file a response to the motion and the statements required by Rule 6.5. As the Civil Practice Act does not specifically authorize filing of these pleadings, there is no conflict with Rule 6.2, and we cannot say the trial court erred by refusing to consider Randall’s response to the motion. Nevertheless, it is difficult to comprehend any benefit to be gained by granting on August 3, 1990, a motion to strike, filed on February 21, 1990, the response, filed on February 19, 1990, to a motion for summary judgment filed on December 27, 1989.

2. Regarding the merits of the grant of summary judgment, Tim-berlake’s motion asserted that it was entitled to recover from Randall because she personally guaranteed the debt in the UCC Form 1, she acknowledged her responsibility for the debt in a letter after the default on the note, and she commingled her personal funds with Preferred’s corporate funds. The trial court, however, granted summary judgment finding that Randall’s letter, written on June 27, 1986, “removes all genuine issues of material fact as to whether defendant Randall personally guaranteed repayment of the debt.”

This letter, however, does not create or confirm Randall’s enforceable personal guaranty because the letter is on Preferred’s letterhead and is signed by Randall as “President.” Further, Randall’s statement, “I am giving my personal guarantee that the loan will be paid in full,” is not enforceable as a personal guaranty for the note since there was no consideration: The loan was then in default, and Timberlake specifically rejected the offers contained in Randall’s letter.

Further, a financing statement (UCC Form 1) is not sufficient to create a personal guaranty. There were no words of guaranty on the financing statement (see OCGA § 11-3-416), and a financing statement constitutes notice of a security interest; it does not create the interest. See OCGA § 11-9-105 (1); Kubota Tractor Corp. v. C & S Nat. Bank, 198 Ga. App. 830 (403 SE2d 218).

Decided April 18, 1991.

Gary Bross & Associates, Gary W. Bross, Lorraine R. Silvo, for appellant.

Louis E. Bridges, for appellee.

Additionally, review of the portions of Randall’s deposition Tim-berlake relied upon to authorize the piercing of Preferred’s corporate veil shows that they are not sufficient to authorize a grant of summary judgment against Randall personally. “ ‘The concept of piercing the corporate veil is applied in Georgia to remedy injustices which arise where a party “has over extended his privilege in the use of a corporate entity in order to defeat justice, perpet(r)ate fraud or . . . evade contractual or tort responsibility.” ’ ” Cheney v. Moore, 193 Ga. App. 312-313 (387 SE2d 575). This evidence Timberlake relies upon can be construed to show that Randall received funds from the corporation or used corporate funds to pay credit card bills for what she claims were corporate expenses, and not that Randall abused the corporate privilege. Since Randall is entitled to receive the benefit of all doubts and to have the evidence construed in her favor (Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843)), this evidence was not sufficient to authorize the grant of summary judgment.

Judgment reversed.

Pope and Cooper, JJ., concur.


text:
    A91A0344.
    FARMER v. STATE OF GEORGIA.
    (405 SE2d 569)
   Cooper, Judge.

Appellant seeks to appeal the order of the trial court refusing to set aside a rule absolute giving judgment on a bond forfeiture. Appellant was arrested on September 23, 1987, for violation of OCGA § 16-13-30.1 of the Georgia Controlled Substances Act and was released from custody after posting a cash bond in the amount of $7,000. When appellant failed to appear for arraignment, a notice of execution hearing was sent by mail to him at the address listed on his bond. The hearing was held on May 27, 1988, at which time appellant did not appear, and a judgment absolute was entered against appellant on June 10, 1988. On April 10, 1989, appellant appeared in court, pled guilty to possession of cocaine and was sentenced; almost one year later, appellant filed a Motion to Set Aside Forfeiture of an Appearance Bond seeking to set aside the judgment absolute entered by the trial court on June 10, 1988. The trial court denied the motion, and this appeal followed.

Decided April 18, 1991.

Alan I. Begner, Russell G. Burnett, Paul C. Munger, for appellant.

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

A proceeding brought for forfeiture of a bond is a summary civil action accomplished pursuant to OCGA § 17-6-71. See State v. Slaughter, 246 Ga. 174 (1) (269 SE2d 446) (1980). A motion to set aside a rule absolute giving judgment on a bond forfeiture can be brought under OCGA § 9-11-60 (d) if there is a nonamendable defect which appears upon the face of the record or pleadings. See Osborne Bonding Co. v. State, 163 Ga. App. 648 (295 SE2d 577) (1982). However, any appeal from a trial court’s ruling on a motion to set aside a judgment can properly be brought before this court only by first securing the grant of an application for discretionary appellate review. OCGA § 5-6-35 (a) (8). Lewis v. Sun Mgmt., 187 Ga. App. 591 (370 SE2d 840) (1988). See also American Druggists Ins. Co. v. Harris, 253 Ga. 535 (322 SE2d 496) (1984) dismissing a direct appeal of an order overruling an extraordinary motion for a new trial of a proceeding brought for forfeiture of a bond. Accordingly, this direct appeal must be dismissed.

Appeal dismissed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0570.
    HENDRICKS v. ENTERPRISE FINANCIAL CORPORATION.
    (405 SE2d 566)
   Birdsong, Presiding Judge.

Richard L. Hendricks appeals the order of the trial court partially granting appellee Enterprise Financial Corporation’s (Enterprise) motion for summary judgment as to appellant’s affirmative defenses of release, estoppel and waiver, and as to count one of appellant’s counterclaim of fraud.

Appellee’s predecessor corporation, JMS Financial, provided certain financing for the Georgia Nut & Bolt Company owned by appellant, his brother Allen (Al) Hendricks, and his mother. Appellant executed an unconditional guarantee agreement in his personal capacity as part of the financial arrangements with JMS. Appellant subsequently left the company believing he had been released from the guarantee by appellee; the company defaulted and appellant refused to honor his unconditional guarantee agreement.

The record reflects the chief executive officer of JMS, now president of appellee, had become concerned about the perceived conflict between the brothers in managing the company and had written a letter suggesting “an immediate attempt to reconcile your differences” be made. Appellant and his brother Allen discussed appellant’s quitting the company, transferring all his stock to Allen, and obtaining a release from his personal guarantee from appellee. Thereafter appellant drafted a letter to JMS, which pertinently states: “In order to promote uniformity of direction in [the company] ... I have reached an agreement with A1 Hendricks in which I agree to transfer to him my remaining . . . interest in [the company] in exchange for the simultaneous release of my personal guarantee. ... I have discussed this agreement with [my attorney] and he is prepared to execute the appropriate documents immediately upon receiving my personal guarantee from you.” Appellant apparently transferred the stock to his brother by giving a copy of the letter to his attorney, and “directing him to accomplish that”; thereafter going to the meeting with the officers of JMS.

Appellant claims that JMS by a pattern of conduct, including its prior conduct in releasing others from their personal guarantees, its failure to voice any objection at the meeting or at any other time to the stock transfer and proposed release arrangement, and by its CEO’s having subsequently caused him to believe that the reason he had not received release from his personal guarantee was that she was waiting to confirm the stock transfer was complete, did in fact enter into an agreement to release the guarantee or in the alternative did engage in conduct constituting estoppel and waiver. Held:

1. Appellant admits inter alia in his deposition that after taking the letter to his attorney he met with the CEO and another officer of JMS; these officers read the letter and said they had no discussion of it. Prior to this meeting appellant admits he can recall no particular discussion with JMS officers about being released from his personal guarantee; he had an agreement with his brother about transferring the stock, typed up the letter, and presented the letter for the first time to JMS at the meeting. Appellant also admits that before the meeting no one from JMS ever asked him to leave the company or to transfer his stock to his brother; and, no one from JMS ever specifically said the terms of the letter were acceptable. Appellant further admitted in his deposition testimony that he resigned from the stock company and surrendered his stock interest at the time the letter to JMS was drafted and “on or about that exact time” of his meeting with the officers of JMS.

To the extent other evidence offered by appellant is inconsistent with these admissions and such inconsistencies are not reasonably explained in the record, we must apply the rule found in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680). Compare Gentile v. Miller, Stevenson & Steinichen, 257 Ga. 583 (361 SE2d 383).

2. It is clear from the evidence of record that no written agreement was ever entered between appellee or its predecessor JMS and appellant releasing, canceling, or otherwise terminating appellant’s personal guarantee agreement. Pursuant to OCGA § 13-5-30 (2), the personal guarantee agreement had to be and was executed in writing. As the contract of guaranty had to be in writing under the Statute of Frauds, “so likewise, under the general rule, any proposed modification thereof, to be effective, must also have been in writing.” Sikes v. Mallonee, 11 Ga. App. 632 (1) (75 SE 988); see Littman v. Suburban Opticians, 244 Ga. 702, 705 (261 SE2d 607); see also Johnson v. Ashkouti, 193 Ga. App. 810 (1) (389 SE2d 27). The guarantee agreement is clear and unambiguous. “Parol evidence is not admissible to vary or contradict the unconditioned promise to pay provided in a note or a guaranty agreement. ‘The cases are legion that a complete and unambiguous instrument cannot be varied or contradicted by reliance upon inconsistent parol statements.’ ” Rizk v. Jones, 148 Ga. App. 473, 474 (251 SE2d 360), aff’d 243 Ga. 545 (255 SE2d 19).

Assuming arguendo appellant’s parol evidence was admissible no different result would result. Appellant concedes appellee never expressly accepted his offer, but in essence asserts subsequent words and conduct by appellee’s officers caused him to believe that his offer to leave the company and to transfer his stock in return for the release of his personal guarantee had been accepted; and, that in reliance thereon he was induced to and did transfer the stock and leave. Certain of appellee’s subsequent conduct, however, could not have induced such action by appellant, as appellant by his own admission (see Division 1) concedes he resigned from the company and transferred his stock at the time the letter was drafted and “on or about [the] exact time” of the meeting with JMS.

Although under OCGA § 13-5-31 certain performed and partially performed agreements are enforceable without writing, the parol evidence relied upon by appellant in support of the alleged agreement releasing his guaranty is inadequate for this purpose. The part performance referred to in OCGA § 13-5-31 rests upon the principle of estoppel. Nowell v. Mayor &c. of Monroe, 177 Ga. 648, 653 (171 SE 136). Thus, “[wjhere the law requires a contract to be in writing [as must any subsequent agreement to modify effectively a contract required to be in writing under the Statute of Frauds] , a court of equity will enforce an agreement not so executed only where ‘the parties have so acted upon and by virtue of the contract as that it would be a fraud to permit the defendant to repudiate it.’ [Cits.] The relief granted in such a case is allowed upon the principle of estoppel, and it is incumbent upon the complainant to show not only that his act was performed in pursuance of and on the faith of the contract, but that it was accepted by the other party in accordance therewith, mutuality of action or its equitable equivalent being an essential ingredient of the cause of action.” (Emphasis supplied.) Id. at 652-653.

In this case, there exists no evidence giving rise to a genuine issue of material fact that appellee expressly or impliedly accepted appellant’s offer, or that it ever obtained any personal use of the relinquished stock.

Although estoppel usually is an issue of fact (Tally v. Atlanta Nat. &c. Trust, 146 Ga. App. 585, 589 (246 SE2d 700)), like other issues of fact an estoppel case may be resolved as a matter of law through the vehicle of summary judgment where, as here, plain, palpable, and undisputed evidence shows that an estoppel has not occurred (cf. Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670)). Compare Regional Pacesetters v. Halpern Enterprises, 165 Ga. App. 777, 781 (1) (300 SE2d 180) with Peter E. Blum & Co. v. First Bank &c. Corp., 156 Ga. App. 680, 682 (2) (275 SE2d 751) (motion for judgment on pleadings). Under the attendant circumstances, the subsequent words and conduct of appellee’s officers fail to create any genuine issue as to the existence of any equitable equivalent to mutuality of action.

Assuming appellant did not cause a transfer of his stock before his initial meeting with appellee’s officers, nothing the officers said or did, as reflected in this record, reasonably could have generated a subsequent detrimental reliance or would otherwise have given rise to such inducement on the part of appellant. The guarantee agreement signed by appellant clearly and unequivocally provides that “this guaranty embodies the whole agreement of the parties and may not be modified except in writing, and no course of dealing between Lender [JMS Financial] and any of the undersigned [appellant] shall be effective to change or modify this guaranty.” (Emphasis supplied.) We are satisfied, as a matter of law, that this clear and unambiguous provision served to place appellant on due notice that he could not thereafter reasonably rely upon any words or other course of dealing to his inducement, other than a modification agreement actually reduced to writing, in order to change or modify the written guarantee; and, of equal importance, in view of this provision appellee could not reasonably expect that its particular conduct, even when such conduct is viewed in the light most favorable to appellant, would induce the asserted action or forbearance on the part of appellant. See generally OCGA §§ 13-3-44 (a); 24-4-27; compare Peter E. Blum &c., supra, and Hawkins Iron &c. Co. v. Continental Ins. Co., 128 Ga. App. 462, 464 (3) (196 SE2d 903); see also Fidelity &c. of Maryland v. West Point Constr. Co., 178 Ga. App. 578 (1) (344 SE2d 268).

Decided April 18, 1991.

Fine & Block, Paul R. Jordan, for appellant.

Smith, Gambrell & Russell, E. Kendrick Smith, Cullen C. Wilkerson, for appellee.

Examining the record in its totality, we find Nowell, Sikes, and Rizk, supra, to be controlling, and the authority relied upon by appellant to be distinguishable.

3. Regarding grant of summary judgment as to count one of the counterclaim, we likewise find the trial court did not erf. The record, in view of its posture as reflected in Division 1, above, contains no genuine issue of material fact as to any fraudulent misrepresentation, actual or constructive, by appellee’s agents transmitted to appellant before he acted to transfer his stock and leave the company.

4. Assuming any semblance of issues of fact exist in the record in support of each of appellant’s defenses and count one of his counterclaim, such semblances are at best “shadowy” in nature. “Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and, ‘while there may be some “shadowy semblance of an issue” (cit.), the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.’ ” Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515). We are satisfied that the appellee/ plaintiff has met the requisite test required for the issuance of summary judgment.

Appellant’s other enumerations of error and assertions in his brief are without merit.

Judgment affirmed.

Pope and Cooper,_ JJ., concur.


author: Andrews, Judge.

text:
    A90A0671.
    WISE v. CITY OF ADEL et al.
    (406 SE2d 142)
   Andrews, Judge.

On certiorari our decision reversing the trial court in Wise v.City of Adel, 195 Ga. App. 559 (394 SE2d 540) (1990) was reversed in City of Adel v. Wise, 261 Ga. 53 (401 SE2d 522) (1991). Accordingly, our decision is vacated and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided April 19, 1991.

Morris & Webster, Craig A. Webster, for appellant.

Young, Young & Clyatt, Robert M. Clyatt, for appellees.


author: Beasley, Judge.

text:
    A91A0025.
    DUMAS v. THE STATE.
    (405 SE2d 571)
   Beasley, Judge.

1. Timothy Lamar Dumas’ first enumeration attacks the sufficiency of the evidence in connection with his conviction of trafficking in cocaine, OCGA § 16-13-31.

The evidence showed that through a paid confidential informant the DeKalb County police made arrangements to purchase cocaine from an individual known only as Tim. Tim did not appear at the first scheduled rendezvous, so another drug buy was scheduled the following day. One of the police officers drove with the informant to the designated location. Several officers were in a separate, surveillance vehicle. One of them was wearing a device allowing the conversation in the other vehicle to be monitored. The informant telephoned Tim and the appellant appeared.

The informant asked if he had it, meaning the cocaine. He responded that he did, and the officer instructed him to get into the backseat of the car, which he did. The terms were two ounces of cocaine for $2,400. The officer asked if it was $1,200 each, and appellant said yes. He then gave the officer a plastic bag containing a white powdery substance and was arrested. The substance was later determined to be 55 grams of 65 percent pure cocaine.

Appellant argues, without elaboration or particularity, that the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) was not met. We hold to the contrary that it was satisfied.

2. The second enumeration contends that the trial court erred in denying defendant’s request to charge the jury that “a jury is not im-panelled to answer the question: Is the defendant guilty? The question you are to decide is: Has there been any testimony in this courtroom which proves the guilt of the defendant beyond a reasonable doubt?”

As authority in support of this requested charge, John v. State, 33 Ga. 257, 268 (1862), and OCGA § 24-4-5 are cited. The Code section contains the same principle as found in the case and states: “Whether dependent upon direct or circumstantial evidence, the true question in criminal cases is not whether it is possible that the conclusion at which the evidence points may be false, but whether there is sufficient evidence to satisfy the mind and conscience beyond a reasonable doubt.”

Decided April 19, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Gregory A. Adams, Assistant District Attorneys, for appellee.

The trial court charged the jury in the precise language of the Code section, as well as on the presumption of innocence and the State’s burden of proving each and every element of the crime charged beyond a reasonable doubt. Refusing to charge the language from the case was not error. Allen v. State, 259 Ga. 303 (3) (379 SE2d 513) (1989).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A91A0784.
    TRILLET v. VULCAN MATERIALS COMPANY.
    (405 SE2d 572)
   Birdsong, Presiding Judge.

This appeal arises from the grant of summary judgment to a proprietor in a “slip and fall” case. Robert C. Trillet contends that Vulcan Materials Company, the owner of a quarry, was not entitled to summary judgment because genuine issues of material fact remain for trial.

The record shows that at 7:00 a.m. on September 25, 1987, apparently before sunrise Trillet loaded his dump truck at Vulcan’s quarry, stopped his truck at the scale house, and stepped from his truck onto a concrete pad next to the scale house. Trillet took “three or four” steps to hand paperwork to someone working in the scale house, and stepped back to his truck to push a tarp over the load.

Trillet testified that he took “two or three steps” and that he “just stepped off of it in the dark. [He] couldn’t see that there wasn’t a slab there.” He also testified that he probably was looking at his truck rather than the ground, but he “really [doesn’t] know what [he] was looking at. All [he knows is he] turned around to push the tarp back. And precisely what [he] was looking .at, [he] couldn’t say definitely.” Trillet knows, however, that he got back to the truck “and put [his] hand on the tarp and just barely touched it, and it went on back. And I was falling in the same process.”

Trillet contends that Vulcan’s negligence caused his injury because the area where he fell was not lighted and because there was no railing around the pad, or warning of the drop-off. The record shows that although there was no light for the pad where Trillet fell, there was a light for the pad at the rear of the scale house where employees entered.

Vulcan moved for summary judgment asserting that it was not liable for Trillet’s injury because Trillet knew the area was dark, knew he was standing on a concrete pad and knew there was no railing around the pad.

The motion was supported by an affidavit from a Vulcan employee who stated that he was working at the quarry on the day that Trillet fell and had worked there since 1972. His affidavit stated there had been no reports of anyone ever falling from the pad, and further stated the pad was approximately five feet by four feet and was nine and one-half inches above ground level. Held:

As the respondent to a motion for summary judgment, Trillet is entitled to all reasonable inferences and all reasonable doubts arising from the evidence and to have the evidence construed in his favor (McNish v. Gilbert, 184 Ga. App. 234 (361 SE2d 231)) and against Vulcan (Jonesboro Tool &c. Corp. v. Ga. Power Co., 158 Ga. App. 755 (282 SE2d 211)). Further, the general rule is that issues of negligence are not appropriate for summary adjudication (Smith v. Southeastern &c. Ins. Co., 258 Ga. 15, 16 (365 SE2d 105)) unless the movant demonstrates plainly and palpably that he did not contribute to the proximate cause of the injury (Ryder Truck Rental v. Carter, 189 Ga. App. 43, 44 (374 SE2d 830)) and that reasonable minds could not disagree (North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346)).

“For [Trillett] to recover under a common law negligence theory, there must have been a defective condition on [Vulcan’s] premises, which defect was the cause of [Trillet’s] fall and of which [Vulcan] had superior knowledge. The law is clear that the basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Thus, 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 the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” (Citation and punctuation omitted.) Froman v. George L. Smith &c. Auth., 197 Ga. App. 338-339 (398 SE2d 413).

In this instance, however, two dangers or defects were working in combination: the absence of lighting and the drop-off from the pad. Although it can be argued that Trillet was equally aware of the dark, nothing in the record shows that Trillet had any knowledge of the drop-off. On the other hand, the light at the similar pad for the employees’ entrance is evidence from which it can be inferred that Vulcan had superior knowledge of the danger associated with an unlighted pad. Accordingly, an issue of fact remains on this issue. Therefore, “ ‘[i]n the instant case the evidence does not mandate a judgment as a matter of law; a scrupulous sifting and weighing of the evidence by a jury is required.’ [Cit.]” Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245).

Decided April 19, 1991.

Daniel, Hadden & Meadors, A. E. Daniel III, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Brian R. Neary, for appellee.

Judgment reversed.

Pope and Cooper, JJ., concur.


author: Banke, Presiding Judge.

text:
    A90A0396.
    PEEKS et al. v. DEPARTMENT OF HUMAN RESOURCES et al.
    (406 SE2d 142)
    Decided April 22, 1991.

      William Q. Bird, Robert K. Finnell, for appellants.

      Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Mary F. Russell, Bruce M. Edenfield, Assistant Attorneys General, Shaw, Maddox, Graham, Monk & Harris, C. Wade Monk II, for ap-pellees.
   Banke, Presiding Judge.

This is a wrongful-death action filed against the appellees by the appellants. The trial court granted summary judgment to the appel-lees, and in Peeks v. Dept. of Human Resources, 196 Ga. App. 562 (396 SE2d 511) (1990), this court affirmed that ruling with respect to two of the appellees (Manney and May), while reversing with respect to the other two (Patel and the DHR). However, on certiorari, the Georgia Supreme Court reversed the latter portion of our decision, thereby holding that all four of the appellees were entitled to judgment as a matter of law. Georgia Dept. of Human Resources v. Peeks, 261 Ga. 96 (403 SE2d 36) (1991). In accordance with the decision of the Supreme Court, Divisions 2 and 3 of our previous decision are hereby vacated, and the judgment of the trial court is hereby affirmed in its entirety.

Judgment affirmed.

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


text:
    A91A0247.
    A91A0248.
    THOMAS v. THE STATE. ARMOUR v. THE STATE.
    (405 SE2d 512)
   Andrews, Judge.

Thomas and Armour were jointly tried by a jury on charges of armed robbery, possession of a firearm during the commission of a crime, and theft by receiving stolen property. Thomas was found guilty on all three charges, and Armour was convicted only on the theft charge. They appeal from the judgments and sentences entered on the convictions.

The victim was robbed of her car at gunpoint by two men as she left the post office. Nine days after the robbery Armour was arrested driving the victim’s stolen car with Thomas as a passenger. A DeKalb County police officer on routine patrol noticed that the passenger in the car ahead of her kept suspiciously turning back to look at her. After a computer check revealed that the car was reported stolen, the officer followed the car to an apartment complex, where she observed the driver back the car into a parking space. She then positioned her patrol car in front of the car and called for backup. For the next three to four minutes Armour and Thomas sat in the car looking at the officer, who remained in her patrol car. Then both appellants exited the car and began to walk off in opposite directions. At that point the officer arrested both men. The victim later positively identified Thomas as one of the robbers. She could not positively identify Armour, though she stated she was 35 percent sure that Armour was the other robber.

Case No. A91A0247

1. In his second and third enumerations of error Thomas claims he cannot be found guilty of both armed robbery of the car and theft by receiving the stolen car, for which he received consecutive sentences of 20 and 10 years. We agree. “The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief.” Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980). An essential element of the crime of theft by receiving is, “that the goods had been stolen by some person other than the accused. . . .” Austin v. State, 89 Ga. App. 866, 868 (81 SE2d 508) (1954).

There was evidence sufficient to support Thomas’ conviction on either of the charges. Though positively identified by the victim, Thomas denied that he was the armed robber. Even if the jury believed Thomas about the robbery, the evidence showed he was arrested in the stolen car nine days later along with Armour under circumstances which would have justified the jury to convict him of theft by receiving the stolen vehicle. Although the rule against inconsistent verdicts in criminal cases has been abolished (Milam v. State, 255 Ga. 560, 562 (341 SE2d 216) (1986)), the verdicts here are not merely inconsistent, but are mutually exclusive. “The general rule dispensing with the necessity for consistency as between the acquittals and guilty verdicts under a multicount indictment or information is not ordinarily applied where the jury returns multiple convictions as to crimes which are mutually exclusive of each other.” 18 ALR3d 259, 283.

The state argues that the problem created by these repugnant verdicts can be cured if we set aside the theft by receiving conviction and sentence, and allow Thomas’ armed robbery and possession of a firearm convictions to stand. Though mindful of the decision in Milanovich v. United States, 365 U. S. 551, 555-556 (81 SC 728, 5 LE2d 773) (1961), which reversed mutually exclusive convictions and ordered a new trial, we are not bound by that decision because it interprets the applicable federal criminal statutes rather than the Georgia statutes at issue here, and involves no generally applicable constitutional principles. Hepner v. Southern R. Co., 182 Ga. App. 346, 350 (356 SE2d 30) (1987). We are persuaded by the reasoning of Justice White in his concurring opinion in United States v. Gaddis, 424 U. S. 544, 550 (96 SC 1023, 47 LE2d 222) (1976). “[A] jury, having convicted on the robbery count, should, stop there without going on to consider the [theft by receiving] count. If the jury is erroneously permitted, however, to consider and convict on the [theft by receiving] count as well, such a conviction casts absolutely no doubt on the validity of the robbery conviction. Under such circumstances it is not impossible to say upon which count, if either, a properly instructed jury would have convicted the defendant. It may be concluded with satisfactory certainty that the jury, having convicted for both offenses, would have convicted of robbery if .it had been properly instructed. The verdict on the robbery shows that the jury found each element of that offense to have been established beyond a reasonable doubt. That the jury went on to find that the defendant also [received] the proceeds of the robbery — whether on a different date and on different proof or not — casts no doubt on the trustworthiness of the findings on the robbery count ... for those findings [on the theft by receiving count] are factually consistent with the findings on the robbery count. In all cases in which the court correctly instructs the jury on the elements of the crime of robbery, any resulting conviction and sentence should be sustained. In those cases in which the jury also convicts of [theft by receiving], that conviction and any sentence on it should simply be vacated. A new trial on the robbery count in any such case would result in an expenditure of court resources and the possibility of an acquittal — through loss of evidence or other causes — of a reliably convicted defendant for no reason.” Id. at 551-553 (White, J., concurring).

Accordingly, Thomas’ conviction and sentence for theft by receiving is vacated. His convictions and sentences for armed robbery and possession of a firearm in the commission of a crime are affirmed.

2. In enumerations of error four and five, Thomas claims that his character was improperly placed into issue when the state introduced evidence of counterfeit drugs and a marijuana cigarette found in the victim’s car after it was recovered from the appellants. Because no objections to introduction of this evidence were made at trial, we will not consider these claims on appeal. Mundy v. State, 259 Ga. 634, 635 (385 SE2d 666) (1989).

3. We need not address Thomas’ enumeration of error one which claims that the trial court erred by failing to grant appellant’s motion for a new trial. This enumeration is not supported in the brief by citation of authority or argument, and is deemed abandoned. Rule 15 (c) (2); Boyce v. State, 184 Ga. App. 578, 580 (362 SE2d 229) (1987). Even if appellant’s brief arguably raises the claimed error, appellant’s failure to make reference to specific portions of the transcript where the error occurred, results in a waiver of this issue. Rule 15 (c) (3); Palmer v. State, 186 Ga. App. 892, 894 (369 SE2d 38) (1988).

4. In his sixth enumeration of error, Thomas claims his trial counsel was ineffective in failing to object to the introduction of evidence allegedly placing his character into issue. Thomas’ appellate counsel did not participate in the trial or the motion for new trial, and now raises the issue of ineffectiveness for the first time on appeal. We remand this case for an evidentiary hearing on the claim of ineffectiveness of trial counsel. If the trial court determines that the defendant was denied effective assistance of counsel, he is entitled to a new trial. If the court finds counsel was not ineffective, then Thomas may appeal that order within 30 days. Johnson v. State, 259 Ga. 428, 429-430 (383 SE2d 115) (1989); French v. State, 198 Ga. App. 210 (401 SE2d 67) (1990); Frazier v. State, 195 Ga. App. 599, 600-601 (394 SE2d 396) (1990).

Case No. A91A0248

5.In his first enumeration of error Armour asserts that the trial court erred by denying his motion to sever his trial from that of his co-defendant, Thomas. In his second related enumeration, he claims that the failure to sever caused reversible error when pursuant to OCGA § 24-9-20 the trial court limited his cross-examination of Thomas by refusing to allow him to impeach Thomas with a prior felony conviction for robbery. At trial Thomas elected to take the stand in his own behalf, and gave testimony contrary to a pre-trial statement he had voluntarily given to police implicating Armour. In its cross-examination, the state used the statement to impeach Thomas, thereby introducing the statement by Thomas which was antagonistic to Armour’s defense. Though Thomas was thereafter subject to cross-examination by Armour, the trial court refused to allow Armour to use the prior robbery conviction to impeach Thomas because, as a defendant who had not placed his character in issue, no evidence of general bad character or prior convictions were admissible against him. OCGA § 24-9-20; Williams v. State, 257 Ga. 761, 762 (363 SE2d 535) (1988). Nor was there any claim that the prior conviction was otherwise admissible to show a common design, purpose or some other rational connection with an offense at issue. See Jones v. State, 257 Ga. 753, 757-758 (363 SE2d 529) (1988).

The issue is whether the trial court should have granted Armour’s motion to sever the case when the state introduced Thomas’ statement implicating Armour, in order to avoid possible prejudice to Armour’s Sixth Amendment right to confront the witness against him. The defendant requesting a severance “must make a clear showing of prejudice and a consequent denial of due process.” Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975). The trial judge has the discretion to 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.’ ” Id. at 129 (quoting American Bar Association Minimum Standards relating to joinder and severance). In exercising this discretion the court considers three factors: “Whether a joint trial will create confusion of evidence and law; whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and whether the co-defendants will press antagonistic defenses.” Harrell v. State, 253 Ga. 474, 475 (321 SE2d 739) (1984). We agree that the state’s use of Thomas’ statement implicating Armour introduced an element of antagonism between the co-defendants, and that the trial court’s refusal to sever had the effect of limiting Armour’s Sixth Amendment right to confront Thomas on cross-examination with the prior conviction. However, antagonism alone between co-defendants is not enough to require severance, rather Armour must also demonstrate he was harmed by the failure to sever. Cain, supra at 129-130.

In Terry v. State, 190 Ga. App. 570, 571 (379 SE2d 604) (1989), we briefly observed without reaching the issue, that where co-defendants have antagonistic defenses, to preclude a defendant from introducing evidence of the other defendant’s prior criminal record may deny that defendant his right to a thorough cross-examination of the witnesses against him. “ ‘[T]he Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the states by the Fourteenth Amendment. It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.’ ” Lingerfelt v. State, 235 Ga. 139, 140 (218 SE2d 752) (1975) (quoting from Pointer v. Texas, 380 U. S. 400, 403 (85 SC 1065, 13 LE2d 923) (1965). However, the confrontation clause does not prevent the trial judge from imposing any limits on cross-examination.

“On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. ... We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ ” (Citation omitted and emphasis supplied.) Delaware v. Van Arsdall, 475 U. S. 673, 679-680 (106 SC 1431, 89 LE2d 674) (1986).

Armour sought to impeach Thomas with an unrelated prior criminal conviction, not for the purpose of showing some form of bias, but for the sole purpose of impeaching the general credibility of the witness. In Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974), the court distinguished between a general attack on a witness’ credibility by use of a prior criminal conviction and the more focused attack “by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” In both Davis and Delaware violation of the confrontation clause was found in limitations to cross-examination of a witness for potential bias. In concurring with the majority opinion in Davis, Justice Stewart emphasized “that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past . . . criminal convictions.” Davis, supra at 321. Thomas’ prior robbery conviction was unrelated to any bias or other relevant issue in the case. Thomas himself vigorously denied that he made the statement implicating Armour in the armed robbery. Moreover, to prove that Thomas was a convicted robber would have been of questionable value to Armour in defending the theft by receiving charge since he was arrested in the company of Thomas in possession of the stolen automobile. Under these circumstances the trial judge acted within his discretion, and Armour was afforded his Sixth Amendment right to an effective cross-examination. See Johnson v. State, 258 Ga. 504, 505-506 (371 SE2d 651) (1988).

Accordingly, we find no clear showing of prejudice or denial of due process resulting from the refusal to sever. The trial judge did not abuse his discretion in denying Armour’s motion for severance.

6. In his third enumeration of error Armour contends the evidence was insufficient to support his conviction for theft by receiving the stolen automobile. Armour was apprehended driving the stolen car nine days after the armed robbery. Thomas, who was positively identified by the victim as the armed robber, was a passenger in the car with Armour. Although the victim testified she could not positively identify the man with Thomas during the armed robbery, she did testify she was “thirty-five percent sure” that Armour was the other man participating in the armed robbery. Additionally, as the arresting officer followed the suspected stolen car, the passenger, Thomas, acted suspiciously as he kept turning around to look at her. When the officer followed the car to an apartment complex, she observed Armour back the car into a parking place, putting the vehicle tag out of her view. The officer positioned her patrol car in front of the stolen car and called for assistance. She remained in her patrol car as Armour and Thomas sat in the stolen car looking at her for approximately three to four minutes, before both men exited the car and began to walk off in opposite directions prior to being placed under arrest. Armour did not testify at trial, although in his statement to police, elicited by Armour’s counsel during cross-examination, he claimed that he had borrowed the car from a friend and did not know it was stolen. “Possession (of stolen property) alone is not sufficient to show guilty knowledge; however, possession together with other circumstances and evidence may be used to infer the knowledge required by the statute.” Ingram v. State, 160 Ga. App, 300 (287 SE2d 304) (1981). Whether Armour’s explanation of how he came into possession of the car was believable was a jury question. Id. His recent possession of the stolen car, along with the other attendant circumstances, was a sufficient basis for a rational trier of fact to find Armour guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 3, 1991

Rehearing denied April 23, 1991

William V. Hall, Jr., for appellant (case no. A91A0247).

John H. Tarpley, for appellant (case no. A91A0248).

Robert E. Wilson, District Attorney, Barbara B. Conroy, Gregory A. Adams, Assistant District Attorneys, for appellee.

Judgment affirmed in part, reversed in part, and case remanded with direction in Case No. A91A0247. Judgment affirmed in Case No. A91A0248.

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

       Immediately prior to Thomas’ cross-examination by the state, Armour made two motions in anticipation of the state’s introduction of the statement. Armour offered a certified copy of Thomas’ prior conviction and moved on the basis of the confrontation clause of the Sixth Amendment that he be allowed to impeach Thomas with the conviction in the event that Thomas’ statement implicating him was introduced. When this motion was denied, Armour renewed his motion claiming that a severance was necessary to avoid an abridgement of his right to fully confront and cross-examine Thomas as a witness against him. The motion to sever was also denied.

       Under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), Thomas’ statement implicating Armour would have been inadmissible until Thomas elected to testify and became subject to cross-examination by Armour. Nelson v. O’Neil, 402 U. S. 622 (91 SC 1723, 29 LE2d 222) (1971). “The confrontation clause is not violated by admitting a declarant’s out-of-court statement as long as the declarant is testifying as a witness and subject to full cross-examination.” Durham v. State, 240 Ga. 203 (240 SE2d 14) (1977).

       Whether or not it was error to prevent Armour from impeaching the general credibility of Thomas in the context of the armed robbery charge is a closer question. On that charge the State relied heavily on Thomas’ statement implicating Armour, so any impeachment of Thomas’ credibility had the potential to do serious damage to the State’s case. However, we need not address this issue since any such error was rendered harmless when the jury found Armour not guilty of the armed robbery. See Delaware v. Van Arsdall, supra at 475 U. S. 683-684.


text:
    A91A0896.
    JARALLAH v. AETNA CASUALTY & SURETY COMPANY et al.
    (405 SE2d 510)
   Banke, Presiding Judge.

The appellant sued the three appellees and a fourth defendant seeking damages for various alleged tortious acts, including interference with contract, intentional infliction of emotional distress, defamation, fraud, and invasion of privacy. The appellees moved for summary judgment; and on or about June 20, 1990, the trial court entered an order both granting the motion and directing that judgment be entered in the appellees’ favor pursuant to OCGA § 9-11-54 (b), based on an express determination that there was no just reason for delay. On July 19, 1990, the appellant filed a motion for reconsideration; and on October 29, 1990, the trial court entered an order denying that motion. In the meantime, on October 16, 1990, the court granted summary judgment to the remaining defendant. On October 29, 1990, the appellant filed the present appeal from the denial of his motion for reconsideration. Held:

Decided April 1, 1991

Rehearing denied April 23, 1991.

Taj Jarallah, pro se.

Freeman & Hawkins, Andrew H. Meyer, Neely & Player, Andrew J. Hamilton, Linda B. Foster, for appellees.

An order granting summary judgment on any issue or as to any party is, of course, subject to review by direct appeal. See OCGA § 9-11-56 (h). It is well settled that a motion for reconsideration does not extend the time for filing a notice of appeal. See Littlejohn v. Tower Assoc., 163 Ga. App. 37 (293 SE2d 33) (1982). Ordinarily, where a grant of summary judgment does not dispose of all of the issues in the case, it may be reviewed on appeal from the final judgment entered in the case as well as by direct appeal. See Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978). However, “[i]f the trial court does certify that the [summary] judgment is final and ripe for review under [OCGA § 9-11-54 (b)], the time for appeal begins to run.” Id. It follows that by failing to file a timely notice of appeal from the grant of the appellees’ motion for summary judgment in this case, the appellant lost his right to obtain appellate review of that ruling. Accord Cherry v. Hersch, 193 Ga. App. 471, 473 (2) (388 SE2d 64) (1989).

Appeal dismissed.

Carley and Beasley, JJ., concur.


author: Pope, Judge.

text:
    A91A0022.
    In the Interest of J. B. et al., children.
    (405 SE2d 574)
   Pope, Judge.

J. B. and M. B. are brothers. A petition for delinquency was brought against each of them and each admitted the respective allegations against him and was adjudicated delinquent. At a partial disposition hearing on August 18, 1989, the judge of the juvenile court ordered both boys to have their hair cut by 4:00 that afternoon. An earlier appeal of the haircut order to this court was dismissed without prejudice on the ground that the order was not reduced to writing and therefore not appealable. In the Interest of J. B., 195 Ga. App. 520 (394 SE2d 143) (1990). The “Partial Disposition Order” for the two juveniles to cut their hair was finally reduced to writing and entered August 24, 1990, nunc pro tunc to August 18, 1989, and the current appeal was filed to this written order.

Decided April 23, 1991.

Watson & Watson, Herman A. Watson III, Bruce S. Harvey, for appellants.

Michael E. Neidenbach, for appellee.

First, we note that the record contains no final order of disposition of the cases and thus, the order appealed from, a preliminary, non-final order, is not a final judgment which is directly appealable to this court. See OCGA § 5-6-34 (a). Moreover, the appeal must be dismissed because the issue presented is moot. When the judge announced his order at the August 18 hearing, he also announced he would entertain a motion for supersedeas if such a motion were filed in writing before 4:00 that day. The record shows no such motion was filed. Instead, the appellants complied with the order.

This is not a case which should be reviewed, even though the issue is moot, on the ground that the error is capable of repetition and yet evades review. See Chastain v. Baker, 255 Ga. 432 (339 SE2d 241) (1986). The order was made moot by the appellants’ own actions. Appellants had the opportunity to move for supersedeas and a certificate for immediate review but instead complied with the order. Nothing in the record suggests the order is likely to be repeated since over one year elapsed between the hearing at which the order was announced and the entry of the written order and yet the record contains no additional orders or further discussion of the appellants’ hair length.

Appeal dismissed.

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


text:
    A91A0073.
    JEFFERSON v. THE STATE.
    (405 SE2d 575)
   Andrews, Judge.

Jefferson appeals his conviction on 16 counts of armed robbery, five counts of rape, ten counts of aggravated assault, three counts of aggravated sodomy, and 23 other offenses for which he was sentenced to 24 life terms and 375 years to run consecutively.

The record establishes that pursuant to Jefferson’s arrest as a suspect in a rape and armed robbery, Augusta police officers secured a valid warrant to search his house. The warrant identified ten items to be seized, including an automatic pistol, clothing and shoes Jefferson had allegedly worn during the commission of the crime, several items of jewelry which had been stolen from the victim, and a 1976 Oldsmobile. At the time of the instant search, Augusta police were also conducting an extensive search for a serial rapist who had been involved in approximately 30 attacks.

Decided April 25, 1991.

Harry B. James III, for appellant.

Michael C. Eubanks, District Attorney, for appellee.

During the search of Jefferson’s home, which was necessarily thorough since the jewelry could be easily hidden, officers observed and seized over 100 items not listed on the warrant. The additiional items, which had been identified during the serial rape investigation and therefore were recognized by the officers, included blood-stained guns, jewelry matching that taken from several of the rape victims, clothing of other victims and newspaper articles about the attacks.

Jefferson claims that the trial court erred in denying his motion to suppress the seized evidence which was not listed in the warrant and argues that the search was exploratory. We do not agree.

It is undisputed that the officers in this case were acting within the scope of a valid search warrant when they searched Jefferson’s house. Evidence of another crime discovered while searching pursuant to a valid search warrant may be lawfully seized. OCGA § 17-5-21 (b); Bing v. State, 178 Ga. App. 288 (342 SE2d 762) (1986); see also Horton v. California, 495 U. S. _ (110 SC 2301, 110 LE2d 112) (1990).

Clearly, the officers had probable cause to believe that the additional property was tangible evidence of the commission of a crime, even though the property was not listed in the warrant. “It is not necessary under the law that the officer know with certainty that the item is stolen at the time of the seizure, only that there be probable cause to believe that this is the case. [Cits.]” Whittington v. State, 165 Ga. App. 763, 765 (302 SE2d 617) (1983). The officers’ recognition and identification of the additional property as that which was sought in the serial investigation makes its seizure lawful. In the Interest of A. B., 194 Ga. App. 665 (391 SE2d 683) (1990); Bowen v. State, 194 Ga. App. 80 (389 SE2d 516) (1989). Because the seizure was lawful, Jefferson’s motion to suppress was properly denied.

Judgment affirmed.

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


author: Carley, Judge. Beasley, Judge,

text:
    A91A0136.
    ANDERSON v. THE STATE.
    (405 SE2d 504)
   Carley, Judge.

After a jury trial, appellant was found guilty of driving under the influence. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Although all of the provisions of OCGA § 40-6-391 (a) were not applicable, the trial court’s jury charge nevertheless included an instruction on the entirety of that Code section. The giving of this charge is enumerated as error.

“ ‘ “It is not usually cause for new trial that an entire Code section is given [.] . . . This is so even though a part of the charge may be inapplicable under the facts in evidence. (Cits.)” ’ [Cit.]” McBurse v. State, 182 Ga. App. 759, 760 (4) (357 SE2d 144) (1987). In the instant case, “[w]e will neither impute ... an adverse construction to the charge nor [infer an inability on the part] of the jury to select that portion of the statute obviously applicable to the facts and the issues presented for their determination.” Rowles v. State, 143 Ga. App. 553, 557 (3) (239 SE2d 164) (1977). Accordingly, this enumeration is without merit.

2. In addition to the exhibits and the accusation, the jury was allowed to have a copy of the trial court’s charge in its possession while deliberating. Appellant urges that, in allowing the jury to have a copy of the charge, the trial court committed procedural error.

The practice of allowing the jury to have a copy of the trial court’s charge is “an irregular practice and not to be condoned. . . .” Davis v. Ins. Co. of N. A., 163 Ga. App. 280, 282 (1) (294 SE2d 353) (1982). See also Chattahoochee Brick Co. v. Sullivan, 86 Ga. 50, 67 (6) (12 SE 216) (1890) (“irregularity”); Gholston v. Gholston, 31 Ga. 625, 638 (11) (1860) (“unsafe practice”); Woodard v. State, 91 Ga. App. 374 (2) (85 SE2d 723) (1955) (“highly irregular”). However, we cannot reach the ultimate issue of whether the trial court’s allowance of this “irregular practice” mandates reversal of the judgment in the instant case. Although appellant preserved the right to enumerate error as to the substance of the trial court’s charge, he did not preserve the right to enumerate as procedural error the trial court’s submission to the jury of a copy of the charge. See Chattahoochee Brick Co. v. Sullivan, supra at 67 (6); Woodard v. State, supra at 374 (1, 2). Compare Davis v. Ins. Co. of N. A., supra at 280 (1).

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in Division 2 but, although I do not concur in Division 1, I concur in the affirmance of the conviction.

Because of the wording of the accusation, it was error to give OCGA § 40-6-391 (a) in its entirety. Two counts of the three-count accusation charged DUI crimes. Count 1 charged that Anderson did “operate a motor vehicle . . . while under the influence of intoxicating liquors, drugs. . . .” Count 2 charged that he did “operate a motor vehicle . . . while there was 0.12 percent or more by weight of alcohol in his blood. . . The court instructed the jury as to all four subsections. There was no evidence of drug influence, so a conviction under either subsection (2) or subsection (3) would be invalid as unsupported by the evidence.

Decided April 1, 1991

Rehearing denied April 29, 1991

Harrison & Harrison, Samuel H. Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Rosanna Musengo, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellee.

The accusation went out with the jury, and it had difficulty dealing with the two counts. Among other questions it asked, “Why are there two counts of DUI?” The court responded: “I can’t help you. You just should render separate verdicts on each Count.” After further deliberation the jury asked: “Can the Judge explain the first Count to us again?” The response was: “. . . I’m sorry, I can’t help you. The answer is no. You will have to go with the Charge and the evidence that you have.”

The jury found defendant guilty on both counts. The court sentenced him on Count 1, the “liquors, drugs” count, and the sentencing form shows that a nolle prosequi order was entered on Count 2 (rightly or wrongly). The peculiarities of this case, that is, the wording of Count 1 and the evidence limited to alcohol intoxication, required an exclusion of subsections (2) and (3) from the jury instruction. “ ‘Where the inapplicable instruction authorizes the jury to reach a finding of guilty by a theory not supported by the evidence of record, we cannot say as a mater of law that the charge was neither confusing nor misleading. (Cit.)’ ” Joiner v. State, 163 Ga. App. 521, 523 (4) (295 SE2d 219) (1982).

The charge, coupled with the wording of Count 1, authorized the jury to find defendant guilty of driving under the influence of drugs or both alcohol (“liquor”) and drugs. This would be reversible except for the fact that the jury also found defendant guilty of subsection (4) involving solely alcohol. This renders the error harmless despite the sentence’s bottoming on Count 1, of which appellant does not complain.


author: Carley, Judge.

text:
    A91A0168.
    PROGRESSIVE PREFERRED INSURANCE COMPANY v. DAVIS.
    (405 SE2d 529)
   Carley, Judge.

The relevant facts in this declaratory judgment action are as follows: Appellant-defendant Progressive Preferred Insurance Company issued an automobile insurance policy which provided coverage for three specified vehicles. On Friday, June 23, 1989, the insured telephoned his insurance agent and orally requested that the coverage under his policy with appellant be changed so as to delete the existing coverage on a 1978 Ford flatbed truck and to extend that coverage to a 1981 Toyota truck. This request was communicated to appellant by the agent and a new endorsement was drawn which provided substituted coverage for the Toyota truck under the existing policy as of June 19, 1989. On Saturday, June 24, 1989, the insured apparently left a message with his agent’s answering service requesting that the Ford truck be added back to the policy. It appears to be undisputed, however, that this communication was never received by the agent until the following Monday. Meanwhile, on Sunday, June 25, 1989, the Ford truck was involved in a collision wherein appellee-plaintiff Margaret Davis was injured. On Monday, June 26, 1989, the insured did speak directly with his agent and requested that the Ford truck be added back to the existing policy. This request was communicated by the agent to appellant and an endorsement was issued adding the Ford truck as an insured vehicle under the existing policy as of Monday June 26, 1989, the day after the collision.

On this evidence, cross-motions for summary judgment were filed. The trial court granted appellee’s motion and denied appellant’s motion, on the ground that the insured had made no written request to change or cancel his coverage on the Ford truck. Appellant appeals from the order of the trial court granting summary judgment in favor of appellee and denying its motion for summary judgment.

OCGA § 33-24-44.1 (a) provides, in relevant part, that “[a]n insured may request cancellation of an existing insurance policy . . . by making a written request for cancellation of an insurance policy to the insurer or its duly authorized agent stating a future date on which the policy is to be canceled.” Subsection (e) further provides that “an insurance policy which by its terms may be canceled by the insured shall be canceled in accordance with this Code section.” (Emphasis supplied.) The trial court concluded that this statute applied to the facts of the instant case and that the insured had attempted an ineffective oral cancellation rather than an effective written cancellation of coverage on the Ford truck.

OCGA § 33-24-44.1 speaks in terms of the “cancellation” of an existing insurance “policy.” “Cancellation” is defined as the “[abandonment of [a] contract.” Black’s Law Dictionary (4th ed. 1951). OCGA § 33-24-44.1 does not speak in terms of the mere “substitution” of that item of specified property which is to be afforded “coverage” under an existing insurance policy. “Substitution” is defined as “[p]utting in place of another thing, change of one thing for another, serving in lieu of another. ...” Black’s Law Dictionary (4th ed. 1951). There is no evidence of the insured’s intent or attempt to abandon or cancel his existing policy of insurance with appellant. The insured was originally provided coverage for three vehicles and he merely requested that that exact same coverage continue with the Toyota truck being substituted for the Ford truck as one of the three insured vehicles under the existing policy.

Decided April 9, 1991

Rehearing denied April 29, 1991

Brock & Clay, Marjorie M. Rogers, Karen G. St. Amand, for appellant.

Davidson & Fuller, Stephen P. Fuller, for appellee.

It is undisputed that the existing policy was never cancelled in its entirety and that the insured was provided continuous coverage for three vehicles. However, on the date of the collision, the Ford truck was not among those three insured vehicles because the insured had previously made a valid enforceable oral request for a change of coverage. “The oral order for change of coverage was in the nature of a binder, and enforceable according to its terms, whatever they were. [Cits.]” Allstate Ins. Co. v. Reynolds, 138 Ga. App. 582, 584 (2) (227 SE2d 77) (1976). See also OCGA § 33-24-33 (a). It follows that the trial court erred in denying appellant’s motion for summary judgment and in granting summary judgment in favor of appellee.

Judgments reversed.

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


text:
    A91A0130.
    A91A0398.
    HENDRIX v. THE STATE. POPE v. THE STATE.
    (405 SE2d 576)
   Birdsong, Presiding Judge.

These are consolidated appeals. Steven M. Hendrix appeals his convictions for possession of cocaine with intent to distribute, possession of a firearm during the commission of a felony, and failure to provide proof of auto insurance. Jonathan L. Pope appeals his convictions for possession of cocaine with intent to distribute and possession of a firearm during the commission of a felony. Both complain of the fines imposed with prison sentences on the cocaine charges.

The evidence, construed in favor of the verdict on appeal (Sirmans v. State, 195 Ga. App. 835, 837 (395 SE2d 307)), showed that about 2:00 a.m. on November 13, 1989, appellant Hendrix and appellant Pope were stopped for traffic offenses. Hendrix, the driver, was unable to provide proof of insurance and show a driver’s license. A computer check showed his license had been suspended. As Hendrix was being arrested, the passenger, Pope, left the car and made a telephone call for the purpose of getting someone to come and get the vehicle. Pope was arrested after a police check revealed an outstanding warrant against him for failure to pay probation costs. The police immediately impounded the vehicle. During an inventory search, they found in the glove compartment three handguns, including a .357 Ruger revolver; in the locked trunk they found a plastic bag containing 24.2 grams of “crack” cocaine; and between the passenger seat occupied by Pope and the passenger door where he exited to make his telephone call, was found a leather bag containing small plastic bags with white residue. These small bags were of the sort frequently used in drug sales.

Hendrix produced at the scene two papers. On one paper was written: “I Kenneth A. Young A perfect state of mind is renting my car to Stephen M. Hendrick [sic] on this date of 5 of Nov 1989 for one seven day Period will pick my car up on 12th of Nov 89. Renting for the Sum of $150.00 . . . Kenneth A Young (Renter) Stephen M Hendrix (Rentee) [date/witnesses].” Appellant Hendrix also produced a “bill of sale,” dated November 6, 1989, showing he purchased the vehicle from Kenneth Young as of that date by agreement to “take up payments.” Held:

1. The driver and owner of an automobile, in the absence of any circumstances to the contrary, is presumed to have possession and control of contraband found in the automobile, but this presumption is rebuttable by evidence of equal access. Moore v. State, 155 Ga. App. 149, 150-151 (270 SE2d 339). More precisely, where immediate and exclusive possession of an automobile is shown, the inference is authorized that the owner of such property is the owner of what is contained therein. This inference, however, is a rebuttable presumption, and the inference does not arise where there is evidence that the defendant has not been in possession of the vehicle for a period of time prior to the discovery or that others have had access to it. Farmer v. State, 152 Ga. App. 792, 795 (264 SE2d 235). Considering fully the evidence offered by appellant Hendrix to show either that he did not legally own the car or that the original owner had equal access to it, we conclude the jury could rationally find it unreasonable to believe the previous owner of the vehicle would have left 24.2 grams of cocaine and three guns in his car when he rented and then sold it to appellant Hendrix eight days before Hendrix was arrested. The question of reasonability of hypothesis is a jury question, and we will not disturb their finding unless it is insupportable as a matter of law. Harris v. State, 236 Ga. 242 (223 SE2d 643); Lewis v. State, 149 Ga. App. 181 (254 SE2d 142); Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474). The presumption of possession and control being thus unrebutted, the jury could rationally find by inference that the driver and owner of the automobile (appellant Hendrix) had direct physical control over the cocaine in the locked trunk (to which he had the key) and the guns in the glove compartment, so as to be in actual possession of them; or that he had the power and intention to exercise dominion or control so as to be in constructive possession. Anderson v. State, 166 Ga. App. 459, 460 (304 SE2d 550). The evidence is sufficient to enable a rational trier of fact to find Steven M. Hendrix guilty of possession of cocaine with intent to distribute, possession of a firearm during the commission of a felony, and failure to provide proof of insurance, according to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. As to appellant Pope, the conviction for possession of cocaine with intent to distribute is supported by the evidence that a small leather bag containing plastic bags of the sort used in the sale of cocaine, with white residue, was found between the passenger seat where he sat and the door where he exited to make his phone call; and by the evidence that when he saw Hendrix being arrested, Pope made a phone call whereby he attempted to have someone retrieve the vehicle, which would prevent its being impounded and searched. The evidence evinces at least a power and intention in Pope to exercise dominion or control of the vehicle and the cocaine, so as to amount to constructive possession. Anderson, supra. As to the cocaine charge, the evidence is sufficient to enable a rational trier of fact to find appellant Pope guilty beyond a reasonable doubt. Jackson v. Virginia, supra.

We find otherwise as to Pope’s conviction for possession of a firearm during commission of a felony. No evidence has been suggested to us that Pope had knowledge, actual or constructive, of the guns in the closed glove compartment. As to Pope, conviction on that charge is reversed.

3. We must vacate the imposition of fines in the sentence awarded to each appellant in addition to the prison sentences handed down for the cocaine charge. Contrary to what the State contends, OCGA § 17-10-8 does not authorize the imposition of a fine in every case where probation might have been given. It provides: “In any case where the judge may, by any law so authorizing, place on probation a person convicted of a felony, the judge may in his discretion impose a fine on the person so convicted as a condition to such probation.” (Emphasis supplied.) This means only that the trial court may impose a fine when the trial court is authorized to and, in fact, does award “such probation.” Where the trial court does not award probation, the imposition of a fine in addition to a prison sentence is outside the trial court’s discretion and not authorized by any law cited to us. See Castillo v. State, 166 Ga. App. 817 (305 SE2d 629). The imposition of a fine in each case is therefore vacated. See Taylor v. State, 149 Ga. App. 362, 364 (254 SE2d 432).

Decided April 29, 1991.

Russell & Mingledorff, John D. Russell, for appellant (case no. A91A0130).

Jerry C. Gray, for appellant (case no. A91A0398).

Timothy G. Madison, District Attorney, for appellee.

Convictions in Case No. A91A0130 affirmed, and sentence of fine vacated. Convictions in Case No. A91A0398 affirmed in part and reversed in part, and sentence of fine vacated.

Pope and Cooper, JJ., concur.