text:
    A90A1863.
    A90A2022.
    WORKMAN v. THE STATE. SMITH v. THE STATE.
    (402 SE2d 76)
   Birdsong, Presiding Judge.

Oren Johnny Workman and James Samuel Smith were prosecuted jointly for burglarly and theft of a motor vehicle. A directed verdict of acquittal was granted to Workman as to burglarly, but he was found guilty of motor vehicle theft. Smith was found guilty of burglarly and motor vehicle theft. Their appeals are consolidated.

The evidence showed Smith worked occasionally for Major Adderton. Without permission or authority he used a key from Adderton’s truck keyring to enter Adder ton’s barn. He appropriated a disc grinder tool which he pawned after another person drove him and appellant Workman to the pawn shop.

According to statements of both defendants, Smith and Workman then visited Frenchie’s Poolroom for an hour. Upon leaving they saw a red Ford pickup truck in a parking lot at Moultrie State Bank. Workman did not testify at trial, but according to Workman’s statement made after he was arrested, his companion (who was left unidentified in the reading of the statement to the jury) became interested in the Ford pickup until Workman urged him to “come on.” They went to Wanda’s Bar & Grill where they drank beer and met a girl; his companion left briefly and returned. When the three finally left the bar, the red Ford pickup was parked near the door. Workman was under the impression that the truck belonged to the girl. Workman, his companion, and the girl got into the truck and drove to his companion’s mother’s house in Sarasota, Florida. Later, his companion reported he had sold the truck to a person named “Bug.” Workman and his companion then returned to Moultrie.

Smith testified that it was Workman who became interested in the Ford pickup in the bank parking lot and that Smith urged him to leave it alone. While they were in Wanda’s Bar & Grill, Workman left and then returned. Contrary to an earlier statement, Smith testified they met no girl in the bar. When he and Workman left the bar, the red Ford truck was sitting by the side of the road and they got in it. Smith testified he was drunk and it “didn’t really hit [him]” that the truck was stolen until they got on down the road. Smith also testified Workman drove the truck, and that he knew the truck was stolen but rode around in it with Workman. In one statement, he stated they drove to Smith’s mother’s house on 47th Street in Sarasota, Florida, and he testified he saw Workman sell the truck in Florida.

The burglarly and motor vehicle theft occurred on February 15, 1990. In April, Smith’s attorney filed a demand for a list of witnesses. Trial commenced May 17, 1990. At trial, the trial court denied motions to suppress the identification testimony of two witnesses from Sarasota, Florida, Randy Mink and Fred McLean. Randy Mink had introduced Fred McLean to Workman and Smith; McLean bought the stolen truck. Both Mink and McLean had been shown an impermissibly suggestive photographic display of only two persons, Workman and Smith. The trial court granted the motions to suppress Randy Mink’s identification testimony but denied the motion as to McLean because McLean testified that independently of having seen any photographs, he was absolutely certain Workman was the person who sold him the Ford truck. Mink testified at trial without identifying Workman or Smith, but he testified that he told Fred McLean about the truck for sale and he went with McLean to a house on 47th Street in Sarasota where a man sold McLean the truck for $200 and an agreement to take up the payments. Smith’s attorney moved also to exclude McLean’s testimony on grounds that despite Smith’s timely demand for the list of witnesses in April, the State had produced Mink’s and McLean’s names as witnesses only three days before trial, on May 14. Held:

1. Smith contends it was reversible error for the trial court to refuse to exclude the testimony of McLean and Mink for failure of the State to provide a list of witnesses within a reasonable time prior to trial pursuant to OCGA § 17-7-110. The State supplied no legal, excuse for its violation of the mandatory requirements of § 17-7-110. The record shows the State failed to provide a list of witnesses including McLean and Mink simply because it made no attempt to investigate or locate these witnesses until the Saturday before trial on Thursday. The State made no attempt to show that the witnesses were “newly discovered” and that it was not aware of them earlier. See OCGA § 17-7-110. And,* the trial court made no finding that appellant Smith could be protected by some other form of relief than exclusion of the evidence. See Gilbert v. State, 159 Ga. App; 326 (283 SE2d 361); Murphy v. State, 158 Ga. App. 278 (279 SE2d 728).

Nevertheless, we find no cause to reverse Smith’s conviction for motor vehicle theft. Neither Randy Mink nor the purchaser of the vehicle, McLean, provided directly incriminating. evidence against Smith. McLean only identified Workman as the person who sold him the vehicle. Although Mink testified he went with McLean to 47th Street to buy the truck, and Smith in a statement had said he and his “friend” went to Smith’s mother’s house on 47th Street where his friend (i.e., as he testified at trial, Workman) sold the truck, it was Smith himself who provided the evidence upon which his conviction is reasonably and overwhelmingly based, both as to the burglarly of Adderton’s barn and as to his complicity in the motor vehicle theft. We find the error probably did not contribute to the verdict against Smith and was harmless. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515).

2. Appellant Workman makes no objection to McLean’s and Mink’s testifying on grounds the State did not timely provide a list of witnesses, but did object that McLean’s testimony was induced by an impermissibly suggestive lineup procedure. We find that McLean’s testimony identifying Workman was not inadmissible as having been tainted. McLean testified that he was absolutely “one hundred percent” certain of his identification at trial of Workman as thé person who sold him the Ford pickup. Accordingly, any impermissibly suggestive lineup procedure prior to trial did not affect his trial testimony and it was not error to allow his identification of Workman at trial. See Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548).

Decided February 1, 1991.

Short & Fowler, Thomas S. Bishop, for appellant (case no. A90A1863).

3. As matters of fact, the trial court did not inject itself into the trial by merely asking a question which established jurisdiction; nor did the trial court improperly “chastise” Smith’s counsel outside the presence of the jury when counsel stated she would make her objections on appeal; nor did the trial court curtail counsel’s attempt to make any motion.

4. The evidence authorized a jury charge as to involuntary intoxication, burglarly by breaking and entering, and theft committed during a burglary. The defendant Smith did not request a charge on the lesser included offense of theft by taking and the failure to give it was not error. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354). The charges as given were not confusing or likely to mislead the jury, as appellant Smith contends on appeal. We find no merit in Smith’s contentions concerning error in the jury charge.

5. Smith complains of the insufficiency of the evidence to support the verdict of guilty and the trial court’s refusal to render a directed verdict of acquittal. Inasmuch as we find the evidence was sufficient to persuade a rational trier of fact of appellant Smith’s guilt beyond a reasonable doubt (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)), it follows that the trial court did not err in denying a directed verdict of acquittal, and Smith is not entitled to a new trial on general grounds.

6. Workman did not object to McLean’s and Mink’s testifying on grounds the State had not timely submitted their names to him in a list of witnesses. McLean’s testimony identifying Workman as the person who sold him the Ford truck in Sarasota, coupled with Workman’s own statement wherein he admitted the general circumstances of going to Florida with a “companion” in a truck which was proven to be stolen, are overwhelmingly corroborative of Smith’s testimony identifying himself as Workman’s “companion” and identifying Workman as the person who stole, drove and sold the truck. See, as to the necessity of evidence to corroborate the testimony of an accomplice to a crime, Myers v. State, 260 Ga. 412, 413 (395 SE2d 811); Birt v. State, 236 Ga. 815, 826 (225 SE2d 248). The evidence is sufficient to sustain the conviction of Workman for motor vehicle theft, according to the standard of Jackson v. Virginia, supra.

Judgments affirmed.

Banke, P. J., and Cooper, J., concur.

Edith M. Edwards, for appellant (case no. A90A2022).

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A2106.
    SMITH v. WINN.
    (402 SE2d 79)
   Banke, Presiding Judge.

The appellant filed this action against the appellee on August 22, 1988, seeking to recover for injuries allegedly sustained in an automobile accident which had occurred on December 9, 1986. On September 13, 1988, a return of service was filed stating that after a diligent search the appellee could not be found within the jurisdiction of the court. No further action was taken to perfect service until approximately a year later, when, on September 9, 1989, the appellant moved the court for the appointment of an agent for service of process. Service was thereafter perfected upon the appellee on November 7, 1989, some 14 months after the filing of the complaint and 11 months after the running of the statute of limitation. The trial court granted summary judgment to the appellee on the ground that the appellant had failed to exercise due diligence in attempting to perfect service, and this appeal followed. Held:

1. “Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cit.] The plaintiff has the burden of showing that due diligence was exercised. [Cits.] Ordinarily, ‘(t)he determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.’ [Cit.]” Shears v. Harris, 196 Ga. App. 61, 62 (395 SE2d 300) (1990). The trial court was authorized to conclude in this case that the appellant had failed to establish that he had acted in a reasonable and diligent manner in attempting to effect service as quickly as possible.

2. The appellant contends that there is evidence that the apellee fraudulently attempted to avoid service by misrepresenting his whereabouts and that an issue of fact consequently remains as to whether the limitation period was tolled pursuant to OCGA § 9-3-96. That Code section provides that, if a defendant is “guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” (Emphasis supplied.) Because it is not alleged that any conduct on the part of the appellee prevented the appellant from learning of the cause of action or filing this suit, OCGA § 9-3-96 is clearly inapplicable. See generally Bates v. Metro. Transit Sys., 128 Ga. App. 720, 721 (197 SE2d 781) (1973). Moreover, fraud will not operate to toll the statute of limitation where, as in the present case, ordinary diligence is not exercised to discover it. Georgia Power Co. v. Womble, 150 Ga. App. 28 (1) (256 SE2d 640) (1979). Accordingly, the court did not err in granting summary judgment to the appellee based on the running of the statute of limitation.

Decided February 1, 1991.

Repasky & Bates, Fred R. White, for appellant.

Bovis, Kyle & Burch, Charles M. McDaniel, Jr., for appellee.

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A90A2140.
    FEAGIN v. THE STATE.
    (402 SE2d 80)
   Birdsong, Presiding Judge.

A. P. Feagin, Sr., appeals his bench trial conviction of criminal trespass asserting insufficiency of evidence.

The alleged victim, Gleason Fowler, claims appellant interfered with Fowler’s right of use of a road giving access to the northern portion of his property, by barricading it and driving spikes into the ground. The trail meanders on both appellant’s and Fowler’s property. Appellant denied he drove spikes into the ground and asserts that he did erect barricades across the road, but only within the boundaries of his own property, after detecting the unauthorized dumping of garbage upon his land.

The criminal trespass accusation avers appellant did “knowingly and without authority enter upon the premises of another person, to-wit: Gleason Fowler ... for an unlawful purpose, to-wit: to drive metal spikes into the private roadway of . . . Gleason Fowler.” (Emphasis supplied.) Held:

1. 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). But, we note that in this case, the transcript contains repeated instances of testimonial hearsay. “Hearsay evidence is without probative value and will not establish fact in issue even in the absence of a timely objection.” Roney v. State, 192 Ga. App. 760, 761 (1) (386 SE2d 412). Accordingly, hearsay, such as Fowler’s testimony regarding a conversation during which a hunter reported that appellant had been observed putting metal files (apparently at some unidentified point) in the road, is without probative value.

2. OCGA § 16-7-21 pertinently provides: “(a) A person commits the offense of criminal trespass when he intentionally damages any property of another without his consent and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without his consent” and “(b) A person commits the offense of criminal trespass when he knowingly and without authority ... (1) Enters upon the land or premises of another ... for an unlawful purpose ... (2) Enters upon the land ... of another person . . . after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden; or . . . (3) Remains upon the land or premises of another person . . . after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.”

In Ross v. State, 195 Ga. App. 624 (1) (b), 625 (394 SE2d 418), we held “[t]his case is distinguishable from those cases in which an indictment [or accusation] avers several different manners in which the offense was committed, and there exists evidence sufficient to support a finding of guilt as to one of these averred manners; and, those cases where an appellant was an aider and abettor to the crime as averred. In this case, appellant was the only averred perpetrator and only one manner of crime commission was averred. While an unnecessary description of an unnecessary fact averred in an indictment need not be proved, in criminal law even an unnecessarily minute description of a necessary fact must be proved as charged. If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. No averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance.” (Citations, punctuation, and emphasis omitted.)

During bench trial the court observed that “[u]nless you have [a] survey, I don’t know ... on whose property [the road is] on [at any given point].” And at the close of the hearing, even though this was a criminal trial, the court announced the following findings: “[T]hat the pathway is on both properties and that the victim . . . does have an easement of wild property by prescription. . . . And so the [c]ourt is going to say that by using that for 20 years [the victim] has developed an easement into [appellant’s] property. So the [c]ourt will find you guilty of criminal trespass.”

Appellant asserts most persuasively, inter alia, that the evidence is insufficient to establish the existence of an easement by prescription in favor of Gleason Fowler. Pretermitting this question, however, is the fact that the accusation avers only one manner in which the offense of criminal trespass was committed, and that is by the appellant entering the premises of Gleason Fowler, for the unlawful purpose of driving metal spikes into the private roadway of the said Fowler. The accusation does not aver multiple means of crime commission, nor does it aver the commission of criminal trespass by the means prohibited by OCGA § 16-7-21 (a). Rather the accusation avers acts of trespass which would be criminal under OCGA § 16-7-21 (b), and which require as proof thereof that appellant in fact entered the premises of Fowler for the unlawful purpose therein averred.

There exists no probative evidence that appellant entered the land of Fowler to drive metal spikes; the hearsay evidence offered to show that appellant drove the spikes, even if admissible, failed to show the alleged unlawful act occurred on Fowler’s property. Fowler did testify that appellant put some files in the road, without being required to testify as to the source of his knowledge; however, as to this particular testimony, Fowler failed to state, and the record does not otherwise establish, that these acts occurred on land other than appellant’s.

Both Fowler and a deputy sheriff testified they observed a cable pulled across the trail, and Fowler testified that one end of the cable was tried to a tree located upon his property. Nevertheless, there is no evidence establishing that this act or acts occurred either when appellant entered Fowler’s land after having been told not to do so or that he remained thereon and committed the act after having been given notice to leave. In fact, Fowler made an admission in open court that prior to the occasion testified to by the deputy sheriff he “hadn’t been able to contact” appellant. Although the barrier apparently continued to be maintained after Fowler objected in the presence of appellant, the record does not establish that it was maintained thereafter upon any part of Fowler’s property. Moreover, the maintenance of a “barrier” was not averred in the accusation as the means in which the criminal trespass was committed. Thus, proof of the offense in this “wholly different” manner would constitute a fatal variance within the meaning of Ross, supra.

Decided February 1, 1991.

Robert E. Bergman, for appellant.

Douglas C. Pullen, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

Likewise, it would constitute a fatal variance to prove that the offense was committed by the unaverred and “wholly different” manner of impairing Fowler’s use of an easement by prescription by appellant’s acts of driving spikes or maintaining a barrier upon his own property. See Ross, supra. As in Bowman v. State, 258 Ga. 829, 833 (376 SE2d 187), “[cjivil liability might have attached” but criminal trespass, as averred in the accusation, has not been proven.

This case is distinguishable from Strozier v. State, 187 Ga. App. 16 (369 SE2d 504) which is cited by the State. In Strozier it was averred that appellant did enter and remain upon the land and premises of another after being advised to depart (see OCGA § 16-7-21 (b) (3)), and the complaining witness testified that “defendant was on her property when she made repeated requests for him to leave.” Id. at 18. Thus in Strozier, a jury question was presented as to whether appellant had committed the averred criminal trespass; and, it was for the factfinder in that case to decide the weight of the evidence and witness credibility.

This case is also distinguishable from Kerr v. State, 193 Ga. App. 165 (387 SE2d 355) where appellant was charged with two counts of criminal trespass under OCGA § 16-7-21 (a) and OCGA § 16-7-21 (b), respectively. Although Kerr would support a holding that the Crime of criminal trespass can be committed by “interfering with access to the property” under a proper crafted charge of violation of OCGA § 16-7-21 (a), as above stated, no such averment was made in this case. Accordingly, appellant’s conviction on such a “wholly different” basis would result in a fatal variance as above discussed.

Judgment reversed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2141.
    In the Interest of H. T., a child.
    (402 SE2d 83)
   Birdsong, Presiding Judge.

Casey Holloway appeals the termination of his parental rights of the child H. T. Appellant contends the trial court erred in issuing a finding only that the child was deprived and that there is clear and convincing evidence of present parental misconduct, while failing to make a finding that the deprivation is likely to continue or will not be remedied and is likely to cause serious physical, mental, emotional or moral harm to the child, pursuant to OCGA § 15-11-81 (b) (4) (A) (ii), (iii) and (iv); and while failing to find that termination of parental rights is in the best interest of the child, after proper consideration. Held:

Decided February 1, 1991.

Leigh G. Brogdon, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Margot M. Cairnes, William F. Ladson, Jr., for appellee.

As the appellee, the Georgia Department of Human Resources, points out, this court has held that the requirements of the Juvenile Court Code in regard to findings of fact are mandatory; and in the absence of such findings, appeals are to be remanded with direction that the trial court vacate the judgment, cause appropriate findings and conclusions of law to be made, and enter a new judgment thereon, after which the losing party shall be free to enter another appeal. See Upshaw v. Dept, of Family &c. Svcs., 144 Ga. App. 222 (241 SE2d 41); Crook v. Ga. Dept, of Human Resources, 137 Ga. App. 817, 819 (224 SE2d 806). This court has held that a dry recitation that certain legal requirements are met is insufficient to satisfy the requirements of the law with regard to termination of parental rights. Beasley v. Jones, 149 Ga. App, 317, 319 (254 SE2d 472). See In the Interest of G. K. J., 187 Ga. App. 443, 444 (370 SE2d 490); In the Interest of A. T., 187 Ga. App. 299, 301 (370 SE2d 48).

The attempts of the appellee Department in this case to rationalize why the trial court’s order should be affirmed despite its deficiencies, merely prove appellant’s point. When a court forever severs the bonds between natural parent and child, its official order must on its face prove adherence to the strict requirements of the laws authorizing this drastic act in specific cases. Appellate review of this action should not require inferential conclusions or even guided speculation as to the reasons for the judgment; equally important, the process of careful articulation is a powerful aid in the trial judge’s adjudication. See Spivey v. Mayson, 124 Ga. App. 775, 776 (186 SE2d 154). We are not inclined to chisel away at this important safeguard.

Accordingly, this judgment is reversed and the case is remanded to the trial court for the findings of fact and conclusion of law required in these cases.

Judgment reversed and case remanded with direction.

Banke, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A91A0131.
    POWELL et al. v. FERREIRA et al.
    (402 SE2d 85)
   Andrews, Judge.

Van P. Powell, a minor child, was attacked and bitten by the defendants’/appellees’ dog in September 1988. The child and his father sued the defendants to recover damages, including punitive damages under OCGA § 51-12-5.1. Plaintiffs/appellants claim the trial court erred by granting partial summary judgment in favor of the defendants on the issue of punitive damages.

OCGA § 51-12-5.1 (b) applies to all causes of action arising after July 1, 1987, and provides that: “Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” See McClure v. Gower, 259 Ga. 678, 681-682 (385 SE2d 271) (1989). Though OCGA § 51-12-5.1 (b) requires proof of “clear and convincing” evidence to support an award of punitive damages by the trier of fact, on summary judgment the question remains whether a genuine issue of material fact exists as to whether the defendants’ actions showed “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b); see Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (389 SE2d 355) (1989) (construing award of punitive damages under OCGA § 51-12-5). “The cardinal rule of the summary [judgment] procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. [Cit.]” Daniel v. Bank South Corp., 183 Ga. App. 274, 277 (358 SE2d 664) (1987). “ ‘[T]he party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.’ ” Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148) (1981).

Accordingly, we construe the evidence and all inferences therefrom in favor of the plaintiffs. The defendants knew their dog had bitten another child about two years prior to this attack. The defendants and their two minor children feared the dog might bite non-family members and took precautions to keep the dog enclosed in their house away from the public.

The present attack occurred inside the defendants’ house. The minor plaintiff, Van Powell, was invited over to the defendants’ house by Tyrone Ferreira, the minor son of defendants, Ferreira. The defendants were home, but they were in another part of the house, and were not aware until they heard the attack that Van was in the house with Tyrone. When the two children entered the house they were in a room closed off from the dog. Shortly after they arrived, Tyrone told Van to go outside while he went upstairs in the house to get something to eat. According to Van, Tyrone told him to go outside because he thought the dog might try to charge past him when he opened the door to the room to gain entry to the rest of the house. Van went outside the house, and the outside door was closed. After a few minutes, Van stated that he heard Tyrone’s voice from inside the house, and he was “almost positive he [Tyrone] did say to come in . . . And he may have been talking to Blue [the dog] to get him into a room or something. I don’t know. But I assume he was talking to me.” Tyrone said he remembered calling out to the dog, but did not ask Van to come back in the house. Van opened the door and let himself back into the defendants’ house. The room he entered led to a stairway, and as Tyrone came through the door at the top of the stairway, the dog bolted through the open door, down the stairs, and attacked Van.

The defendants did not want other people’s children in their house because of the previous dog bite incident. Although the defendants’ children claimed they did not invite friends over to the house, there was evidence that Van had been in the defendants’ house on one occasion prior to the attack. Only after the dog attacked Van was Tyrone told by defendants that he was not allowed to bring friends over to the house. Defendant Daley (now Mrs. Ferreira) deposed that since they did not expect a non-family member to be in the house, they took no particular precautions to confine the dog to a portion of the house. According to the Ferreira children, when non-family members were invited over to the house, they kept the dog closed off in another room.

In order to establish liability in a dog bite case, “[i]t must appear that the animal had a propensity to do the act which caused the injury and that the defendant knew of it.” Chandler v. Gately, 119 Ga. App. 513, 519 (167 SE2d 697) (1969). The issue on summary judgment is whether, in light of the defendants’ knowledge of the previous dog bite, the actions they took or failed to take to prevent a similar occurrence amounted to evidence of wilful or wanton misconduct or that entire absence of care that raises the presumption of conscious indifference to the consequences. In Parsons v. Ponder, 161 Ga. App. 723 (288 SE2d 751) (1982) this court found sufficient evidence to support the jury’s punitive damages award where the defendant knew the dog had previously bitten another person, and, despite that knowledge, the dog was allowed to roam free. Contrary to Parsons, the evidence here shows the defendants exercised at least some degree of care to confine the dog in their house, and keep it closed off in another room when they knew a non-family member was present. Though the defendants’ lack of strict control over access to the house by non-family members may have amounted to negligence, even gross negligence, it is not evidence of wilful misconduct or an entire want of care necessary to create a genuine issue with respect to punitive damages. See Alliance Transp. v. Mayer, 165 Ga. App. 344, 345 (301 SE2d 290) (1983) (mere negligence alone, although gross, will not authorize the recovery of punitive damages).

Decided February 1, 1991.

Valente & Strauss, John J. Strauss, for appellants.

Downey, Cleveland, Parker & Williams, William S. Allred, for appellees.

We find no merit in the plaintiffs’ contentions that the trial court improperly construed the evidence or applied an erroneous “clear and convincing” standard to the summary judgment motion. The trial court properly granted partial summary judgment in favor of defendants on the issue of punitive damages.

Judgment affirmed.

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


author: Carley, Judge.

text:
    A90A1747.
    GEORGIA SUBSEQUENT INJURY TRUST FUND v. ITT-RAYONIER, INC. et al.
    (402 SE2d 54)
   Carley, Judge.

The relevant facts in this workers’ compensation case are as follows: In 1979, an employee of appellee-employer injured her back in an employment-related accident and appellee-insurer commenced the payment of workers’ compensation benefits at what was the then-maximum rate of $110 per week. The employee eventually returned to work but, in March of 1983, she again injured her back in yet another employment-related accident. Although the maximum benefits for an employment-related accident had been raised to $135 per week, the employee was nevertheless afforded only $110 per week in benefits as if the condition of her original 1979 back injury had merely changed for the worse. In November of 1984, however, the employee sought a full $135 per week in benefits on the ground that she had suffered an entirely new and subsequent injury to her back in 1983 which was independently compensable at the then-applicable maximum rate. The employee’s claim was controverted, but not on the basis that she had actually suffered a mere change-of-condition rather than a new and subsequent injury to her back in March of 1983. The claim was controverted only on the basis that the one-year statute of limitation for filing a claim for a new and subsequent injury suffered in March of 1983 had otherwise run. In March of 1985, however, the employer and insurer did accept liability as to the independent compensability of the employee’s March 1983 back injury and she began receiving $135 rather than $110 per week in benefits. It was not until April of 1985 that the employer and insurer filed notice of a claim for reimbursement from appellant-Subsequent Injury Trust Fund (Fund). The Fund denied this claim on the ground that it had been untimely filed. An Administrative Law Judge (ALJ) found that the claim for reimbursement had been untimely filed with the Fund and, upon its de novo review, the Full Board adopted the ALJ’s award. On appeal to the superior court, however, the Full Board’s award was reversed with direction that an award for reimbursement from the Fund be entered. The Fund sought and was granted leave to file a discretionary appeal from the superior court’s order.

“An employer or insurer shall notify the administrator of the [F]und of any possible claim against the [F]und as soon as practicable, but in no event later than 78 calendar weeks following the injury or the payment of an amount equivalent to 78 weeks of income or death benefits, whichever occurs last.” (Emphasis supplied.) OCGA § 34-9-362 (a). The employer and insurer seek reimbursement from the Fund for the payment of benefits for an injury that was suffered by the employee in March of 1983, which injury clearly occurred more than 78 calendar weeks before any notification was provided to the Fund in April of 1985. Accordingly, unless the April 1985 notification was provided to the Fund before the equivalent of 78 weeks of benefits had already been paid to the employee for her March 1983 injury, the employer and insurer have no viable claim for reimbursement. “Failure to comply with the [notification] provisions . . . will constitute a bar to recovery from the . . . Fund.” OCGA § 34-9-362 (c).

Insofar as the employee has been paid benefits since March 1983, it would appear that the April 1985 notice to the Fund was indeed untimely. However, it is the employer’s and insurer’s contention that their April 1985 notification was timely because those benefits which were paid to the employee before March 1985 cannot be considered as the payment of benefits for her March 1983 injury, but must be deemed to be the payment of benefits for a worsened change in the condition of her original 1979 injury. Thus, under the employer’s and insurer’s analysis, the employee had been paid benefits for her March 1983 injury only since March 1985 and their April 1985 notification to the Fund was timely.

It is true that, until March of 1985, the employee was erroneously being paid only $110 in weekly benefits as if she had merely suffered a change in her condition rather than an independently compensable new accident in March of 1983. However, this error was apparently entirely attributable to the employer’s and insurer’s own initial mistaken determination that, under the applicable law, the employee’s March 1983 injury was compensable only as to a change-of-condition rather than independently compensable as a new accident. See Central State Hosp. v. James, 147 Ga. App. 308, 309 (lb) (248 SE2d 678) (1978). It was this error in the ostensible basis upon which benefits were actually payable to the employee which was eventually rectified in March of 1985, when the independent compensability of the employee’s March 1983 injury was acknowledged and she finally began to receive the full $135 in weekly benefits to which she was entitled for that new injury. Accordingly, regardless of the erroneous ground upon which the employee had been receiving benefits prior to March of 1985, throughout that time period benefits were correctly payable because she had suffered a new and subsequent injury in March of 1983.

Decided January 10, 1991

Rehearing denied February 4, 1991.

Michael J. Bowers, Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, K. Prabhaker Reddy, for appellant.

Kissiah & Associates, Richard C. Kissiah, James R. Gardner, E. Lee Southwell III, for appellees.

There is no statutory provision authorizing the employer and insurer to urge their own unilateral mistake of law as a basis for securing reimbursement from the Fund. “After they take effect, the laws of this state are obligatory upon all the inhabitants thereof. Ignorance of the law excuses no one.” OCGA § 1-3-6. “An employer or insurer shall notify the administrator of the [F]und of any possible claim against the [F]und ... in no event later than . . . the payment of an amount equivalent to 78 weeks of income or death benefits. . . .” (Emphasis supplied.) OCGA § 34-9-362 (a). “The word ‘shall’ in a statute ‘is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission.’ [Cit.]” Spivey v. Mayson, 124 Ga. App. 775, 777 (186 SE2d 154) (1971). Having failed to provide notification to the Fund before the equivalent of 78 weeks of benefits had been paid to the employee for her March 1983 injury, the employer and the insurer are barred from seeking reimbursement from the Fund for those benefits paid to the employee for that injury. The superior court’s order is, therefore, erroneous and must be reversed.

Judgment reversed.

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


text:
    A90A1788, A90A1789.
    HASKINS et al. v. LAU’S CORPORATION, INC. (two cases).
    (402 SE2d 58)
   Carley, Judge.

Appellant-plaintiffs in these companion cases were robbed and seriously injured in the parking lot of appellee-defendant’s restaurant. Appellants brought suit, alleging that appellee had negligently failed to provide adequate warning or adequate security for its patrons. Appellants appeal from the trial court’s grant of appellee’s motion for summary judgment.

1. In opposition to the motions for summary judgment, appellants adduced evidence of another criminal attack on appellee’s patrons occurring in the parking lot several days before they were injured. Appellants urge that this evidence demonstrates the existence of a genuine issue of material fact regarding appellee’s superior knowledge and liability.

“In actions to recover for injuries resulting from the criminal misconduct of third persons on business premises, evidence showing that criminal acts have occurred on the premises in the past is admissible to show that the proprietor had reasonable grounds for apprehending the occurrence of such acts in the future, but only if there is a ‘substantial similarity’ between the prior criminal acts and the criminal act giving rise to the plaintiff’s claim. [Cits.] Whether a ‘substantial similarity’ exists must be determined by the facts of each individual case. It is not required that the offenses be identical. ‘All that is required is that the prior (incident) be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated (incident).’ [Cit.] The prior [offense] ... in the present case [is] similar to the offense which resulted in [appellants’] injuries in the obvious respect that each involved a criminal assault against a [restaurant] patron in the parking lot. . . .” MARTA v. Allen, 188 Ga. App. 902, 903-904 (1) (374 SE2d 761) (1988).

Moreover, the prior and instant offenses occurred at night, only four days apart, and, in each incident, an elderly couple was attacked, with the woman being knocked to the ground and her purse taken. “On balance . . ., we conclude that the prior [offense is] admissible on the issue of whether [appellee] knew or should have known that there was an unreasonable risk of danger from criminal assault at the location in question.” MARTA v. Allen, supra at 904 (1). See also Burdine v. Linquist, 177 Ga. App. 545 (340 SE2d 198) (1986); Bay-shore Co. v. Pruitt, 175 Ga. App. 679 (1) (334 SE2d 213) (1985). Compare Grandma’s Biscuits v. Baisden, 192 Ga. App. 816, 817 (1) (386 SE2d 415) (1989) (wherein the record did “not reveal whether the prior assault occurred inside the restaurant or outside, or even whether it involved a patron of the restaurant.”); Adler’s Package Shop v. Parker, 190 Ga. App. 68, 70 (la) (378 SE2d 323) (1989); Tolbert v. Captain Joe’s Seafood, 170 Ga. App. 26, 28 (2) (316 SE2d 11) (1984).

“ ‘ “(I)n order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient if in ordinary prudence he might have foreseen some injury would result from his act or omission and that consequences of a generally injurious nature might result. . . .” (Cits.)’ [Cit.]” (Emphasis in original.) Bayshore Co. v. Pruitt, supra at 680 (1). “Because . . . the prior [incident] of criminal activity was admissible and probative evidence of appellee’s prior knowledge, there remains a question of fact for the jury on this issue. . . . [Cit.]” Burdine v. Linquist, supra at 547. “The cases relied upon by [appellee] are distinguishable . . . and do not demand a contrary result. In McCoy v. Gay, [165 Ga. App. 590 (302 SE2d 130) (1983)], . . . [t]wo of the three prior offenses offered as evidence were adjudged insufficiently similar . . . because they had occurred ‘at or in close proximity to the actual guest facilities provided by the Inn’ rather than in the parking lot, which was ‘on the periphery of the premises some distance from the actual Inn facility itself.’ [Cit.] Although the third offense had occurred in the parking lot, it had taken place some ten years earlier. . . . [Cit.]” MARTA v. Allen, supra at 904 (1).

2. Moreover, appellee’s president testified he had undertaken a periodic nighttime patrol of the parking lot immediately following the prior similar incident. Construing the evidence most favorably for appellants, a genuine issue of material fact would, therefore, also remain as to whether appellee, having undertaken to provide security for its patrons in its parking lot, did so non-negligently. See Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 876 (3) (392 SE2d 535) (1990); Grandma’s Biscuits v. Baisden, supra at 818 (2); Adler’s Package Shop v. Parker, supra at 70 (1b); Atlanta Center Ltd. (A.B.V.I. Corp.) v. Cox, 178 Ga. App. 184 (341 SE2d 15) (1986). As the movant for summary judgment, appellee failed to demonstrate that, as a matter of law, ordinary care in the exercise of the duty it had assumed to provide parking lot security did not require additional security measures, such as increased lighting, issuing warnings to its patrons, instituting a constant nighttime patrol, or offering to escort patrons to their cars.

3. As the movant for summary judgment, appellee likewise had the burden to establish that, as a matter of law, its alleged negligence was not the proximate cause of appellants’ injuries. Appellee adduced no evidence that, if it owed appellants the duty to provide them with security in its parking lot, its breach of that duty was not the proximate cause of their injuries. Indeed, there is evidence that appellants would have heeded any warnings and utilized the services of an escort.

Decided January 17, 1991

Rehearing denied February 4, 1991

Dozier, Akin & Lee, Lester Z. Dozier, Jr., for appellants.

Bentley, Karesh, Seacrest, Labovitz & Campbell, Edwin A. Tate II, Jean F. Johnson, for appellee.

Judgments reversed.

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


text:
    A90A1851.
    HORNSBY et al. v. ODUM.
    (402 SE2d 56)
   Carley, Judge.

In this tort action, appellant-plaintiff Mrs. Donna Hornsby sought damages for personal injuries which she allegedly sustained in an automobile collision and her husband sought damages for loss of consortium. They appeal from the judgment of the trial court entered on the jury’s verdict for appellee-defendant and from the denial of their motion for new trial.

1. The collision occurred on February 12, 1987. Three weeks thereafter, Mrs. Hornsby was involved in yet another motor vehicle collision. The evidence was in conflict as to whether any injury that she suffered resulted from the collision with appellant or from the subsequent collision. “ ‘[T]he general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote. . . .’ [Cits.] . . . ‘ “Questions of negligence . . . and proximate cause are peculiarly matters for the jury. . . .” ’ [Cit.] . . . Therefore, whether the [subsequent collision] was the sole proximate cause of [appellants’ alleged] injuries . . . [was] an issue for the jury to decide.” Herren v. Abba Cab Co., 155 Ga. App. 443, 444 (271 SE2d 11) (1980). Accordingly, the general verdict for appellee was authorized by the evidence and the trial court did not err in overruling the motion for new trial on the general grounds.

2. Appellants filed a pre-trial motion in limine to exclude evidence related to the subsequent collision. The purported overruling of that motion is enumerated as error.

The record demonstrates that, after appellants had conceded that the fact of a subsequent injury and the fact of a settlement would be permissible matters of inquiry, the trial court ruled that the amount of any settlement and the source of any benefits or cash compensation would be excluded as irrelevant. Accordingly, it appears that the trial court granted all that appellants had requested. The testimony which was subsequently adduced during trial was within the bounds of the trial court’s favorable ruling on appellants’ motion in limine. “Thus, at every turn of these proceedings [appellants’] own procedures contributed to the [rulings] of which [they now complain]. ‘One cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.’ [Cit.]” Stephenson v. Wild-wood Farms, 194 Ga. App. 728, 729 (391 SE2d 706) (1990).

3. Appellants enumerate as error the trial court’s giving of certain jury instructions.

The trial court correctly charged that there could be no recovery of non-economic losses “ ‘ “unless the injury is a serious injury as defined in subsection ([13]) of [OCGA § 33-34-2].” . . . [Cit.]’ ” (Emphasis in original.) Pinkston v. Hagin, 157 Ga. App. 2, 3 (2) (276 SE2d 67) (1981). “Since the jury returned a verdict in favor of the defendant, error, if any, in giving [the charges regarding nominal damages and the calculation of any award for future pain and suffering] would be harmless. [Cit.]” Luke v. Spicer, 194 Ga. App. 183, 184 (4) (390 SE2d 267) (1990). The giving of an instruction regarding the exercise of ordinary care for one’s own safety was adjusted to the evidence adduced at trial. See generally Brown v. Williams, 191 Ga. App. 147, 148-149 (381 SE2d 308) (1989).

4. The Chief Judge of the Recorder’s Court of Gwinnett County was properly designated to act as judge of the State Court of Gwinnett County pursuant to OCGA § 15-1-9.1 and, therefore, the judgment in this case is not void. Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664 (1) (399 SE2d 269) (1990). Appellants’ reliance on Adams v. Payne, 219 Ga. 638 (135 SE2d 423) (1964) is misplaced. That case predates enactment of OCGA § 15-1-9.1 and construes constitutional and statutory provisions which have since been repealed or substantially amended. Moreover, the actions taken in the instant case are in full compliance with the mandate of that decision: “A proper written and filed request . . . was an indispensable prerequisite to clothe [the designated judge] with jurisdiction [and] power to act in this case” and that “indispensable prerequisite” was met here. Adams v. Payne, supra at 641. Likewise, the instant judgment is not void for having been entered on a date which was subsequent to the specific time period for which the temporary assistance of the designated judge had been requested. Morris v. Clark, 189 Ga. App. 228, 229-230 (1) (375 SE2d 616) (1988).

Decided January 14, 1991

Rehearing denied February 4, 1991.

Smolar, Pelletier, Roseman & Barnes, Yehuda Smolar, Thomas Allan Rice, for appellants.

Fain, Major & Wiley, Charles A. Wiley, Jr., Gary W. Powell, for appellee.

Judgment affirmed.

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


text:
    A89A1024.
    CENTRAL OF GEORGIA RAILROAD COMPANY v. SWINDLE.
    (402 SE2d 806)
    Decided February 4, 1991.

      Hatcher, Stubbs, Land, Hollis & Rothschild, Richard Y. Bradley, Robert C. Martin, Jr., for appellant.

      Butler & McDonald, James E. Butler, Jr., C. Frederick Overby, for appellee.
   Carley, Judge.

In Central of Ga. R. Co. v. Swindle, 194 Ga. App. 24 (389 SE2d 779) (1989), we affirmed the judgment that was entered on the jury’s verdict in favor of appellee-plaintiff in this Federal Employers’ Liability Act case. However, the Supreme Court granted appellant-defendant’s application for a writ of certiorari and reversed our holding. Central of Ga. R. Co. v. Swindle, 260 Ga. 685 (398 SE2d 365) (1990). Accordingly, the judgment of the Supreme Court is made the judgment of this court and the judgment of the trial court is hereby reversed.

Judgment reversed.

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


text:
    A90A1922.
    SHEPARD v. STREETMAN.
    (402 SE2d 87)
   Carley, Judge.

In McKinnon v. Streetman, 192 Ga. App. 647 (385 SE2d 691) (1989), the judgment entered on a jury’s verdict in favor of appelleeplaintiff in this tort action was reversed and the case was thereafter retried. A jury verdict was again returned in favor of appellee and appellant-defendant now appeals from the judgment that was entered thereon. The facts, insofar as they are relevant to resolution of the instant appeal, are set forth in the original opinion and need not be repeated.

Appellant enumerates as error only the denials of his motions for a directed verdict and for judgment notwithstanding the verdict. The contention is that the evidence demanded a finding that, as a matter of law, appellee assumed the risk of being mauled by a tiger while engaged in his employment at appellant’s private zoo.

The evidence shows that appellee was not hired to enter the cages and come into direct contact with the animals therein. Compare Lundy v. Stuhr, 185 Ga. App. 72 (363 SE2d 343) (1987). He was hired to perform general maintenance tasks, including raking the areas outside the cages. The evidence did not demand a finding that appellee was injured after he intentionally chose to come into direct contact with the tiger. Compare LaHoste v. Yaarab Mounted Patrol, 89 Ga. App. 397 (79 SE2d 570) (1953). The jury was authorized to find that he was injured when the tiger reached its paw through an aperture in the cage and mauled him while he was otherwise engaged in his raking duties outside the cage. According to appellee, he was following appellant’s instructions with regard to how and where to rake when he was injured. “One of the duties of a master is that of refraining from giving orders which will require the servant to put himself in a position where he will be subject to risk of injury from a dangerous instrumentality.” Cherokee Brick Co. v. Hampton, 16 Ga. App. 53, 54 (5) (84 SE 328) (1915). Thus, the evidence would authorize a finding that appellant breached this duty by instructing appellee to rake in such close proximity to the tiger cage that it was possible for the tiger to reach its paw through the aperture and maul him.

While there is also evidence that appellee was aware of the aperture in the cage, had previously seen the tiger reach its paw through that aperture, and had specifically been warned with regard thereto, there is no evidence demanding a finding that appellee either knew exactly how far the tiger could reach its paw through the aperture or was aware that, if he stood where appellant had instructed him to perform his raking duties, there was a decided risk of being mauled. Accordingly, it cannot be said that appellee’s recovery for the breach of appellant’s duty is barred, as a matter of law, under the theory that the risk of being mauled by the tiger was knowingly assumed as an incidence of his employment. “As a general rule, the contractual relation of master and servant includes an implied agreement on the part of the servant to assume the risks ordinarily incident to the service for which he is employed, but this term of the contract (which is implied from the nature of the relation created by the contract of service) may be abrogated by a distinct order on the part of the master to use a dangerous appliance in the manner directed by the master, accompanied by an implied assurance that the instrumentality which the servant is directed to use is safe. Under such circumstances, the order of the master may amount to a waiver of his right to insist upon the servant’s implied obligation to assume risks, which will thereafter estop the master from asserting that the servant assumed the hazard attending the act which the master himself directed.” Cherokee Brick Co. v. Hampton, supra at 53-54 (1). See also Seagraues v. ABCO Mfg. Co., 118 Ga. App. 414 (164 SE2d 242) (1968). “Since the servant is authorized to act upon the belief that the master will properly perform all his duties growing out of the relation, he is also justifiable in taking for granted that the master will not give him an order which will expose him to unusual danger and to risks not already assumed by him.” Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259, 263 (5) (58 SE 249) (1907). “ ‘When we say that a man appreciates a danger, we mean that he forms a judgment as to the future, and that his judgment is right. But if against this judgment is set the judgment of a superior, — one, too, who from the nature of the callings of the two men, and of the superior’s duty, seems likely to make the more accurate forecast, — and if to this is added a command to go on with his work and to run the risk, it becomes a complex question of the particular circumstances whether the inferior is not justified, as a prudent man, in surrendering his own opinion and obeying the command. The nature and the degree of the danger, the extent of the plaintiff’s appreciation of it, and the exigency of the work, all enter into consideration, and no universal rule can be laid down.’ ” Bush v. West Yellow Pine Co., 2 Ga. App. 295, 299-300 (3) (58 SE 529) (1907). There being no “universal rule,” it was for the jury to resolve the “complex question” of whether, under the “particular circumstances” of the instant case, appellee assumed the risk of the employment-related injury that he suffered. It follows that the trial court correctly denied appellant’s motions for a directed verdict and judgment notwithstanding the verdict.

Decided February 4, 1991.

Glover & Blount, Gary A. Glover, Percy J. Blount, for appellant.

Bell & Bell, David B. Bell, for appellee.

Judgment affirmed.

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


text:
    A90A1983.
    In the Interest of A. L. T. et al., children.
    (402 SE2d 97)
    Decided February 4, 1991.
    Cheryl Taylor, pro se.

      Michael J. Bowers, Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Margot M. Cairnes, Ken W. Smith, for appellee.
   Carley, Judge.

Appellant-natural mother appeals from the judgment of the juvenile court terminating her parental rights and awarding permanent custody to appellee-Georgia Department of Human Resources.

1. Appellee’s motion to dismiss the appeal is denied.

2. Appellant enumerates the general grounds.

The evidence shows the following: In 1987, the three minor children were adjudicated as being “deprived” within the meaning of OCGA § 15-11-2 (8) (A) and placed in the temporary custody of the county Department of Family & Children’s Services for 18 months. Thereafter, this temporary award of custody was extended for an additional two years. The children were placed in foster homes. Throughout this period, appellant exercised her visitation rights only sporadically. She was unable to maintain steady employment or a stable home situation. She repeatedly failed to make efforts to comply with a court-approved plan for family reunification. Additionally, there was evidence of the diminution of emotional ties on the part of the children and of the benefits to them of the stable home environment provided by the foster home. “[P]arental unfitness supporting a termination of parental rights can be caused ‘ “ ‘either by intentional or unintentional misconduct resulting in abuse or neglect of the child or by what is tantamount to physical or mental incapacity to care for the child.’ ” ’ [Cit.]. . . . [T]he evidence in this case [is clear and convincing], and ... no basis exists for reversing the judgment of the juvenile court. [Cits.]” In the Interest of E. P. N., 193 Ga. App. 742, 748 (2c) (388 SE2d.903) (1989).

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A90A2066.
    BARKLEY v. THE STATE.
    (402 SE2d 88)
   Sognier, Chief Judge.

Andrew Barkley was convicted of possessing cocaine with the intent to distribute, and he appeals, enumerating the general grounds.

Construing the evidence to support the verdict, the transcript reveals that 54 individually wrapped pieces of crack cocaine were found by Griffin police officers when they executed a search warrant for an apartment at 214-C Kentucky Avenue. Griffin police officers had been investigating appellant and his co-defendant, Debbie Ann Williams, for approximately six to seven months before the officers, based on their own surveillance and also on information from confidential informants regarding purchases of crack cocaine from appellant and Williams a few days earlier, obtained the search warrant for the premises. There was evidence that appellant and Williams were at the apartment five months earlier when another search warrant had been executed there. Officers used a vacant apartment next to 214-C to conduct their surveillance, going there “practically every night” to watch 214-C. Keith Daniel, a narcotics officer involved in the surveillance, testified that based on the observation of appellant’s activities at 214-C, he concluded that appellant resided there with Williams. A gas company bill for 214-C for the month preceding the search, addressed to appellant at 214-C and found in the apartment, was admitted into evidence. The cocaine was found in an unmarked box in the master bedroom in a locked closet containing men’s and women’s clothing. Williams and her child, along with one Clarence Rucker, were in the house when searched; appellant arrived while the search was in progress. Appellant had been seen leaving the apartment several hours earlier.

Appellant contends the evidence was insufficient for the jury to have concluded that he possessed the cocaine because the State failed to prove he resided in the apartment or, alternatively, because Rucker had equal access to the cocaine. We find no merit in either argument. The police surveillance of the apartment, in addition to the other evidence adduced, amply supported, if not demanded, a finding by the jury that appellant resided in 214-C. As to appellant’s equal access argument, the contraband was in a closed box on the shelf in a locked closet. No explanation was set forth in the transcript for Rucker’s presence in the apartment; no evidence was adduced regarding how long he had been present or whether he was a regular visitor. “ ‘If contraband is not in an open, notorious and equally accessible area, the equal access rule does not apply. This rule is not invoked as to persons who visit the (premises) prior to the search unless they are shown to have been on the premises either previously or frequently so as to have equal access with the defendant. (Cit.)’ [Cit.]” Nolton v. State, 193 Ga. App. 200, 201 (2) (387 SE2d 364) (1989).

From the evidence adduced, we conclude that a rational trier of fact reasonably could have found appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Nolton, supra at 201-202 (2).

Decided February 4, 1991.

Johnny B. Mostiler, for appellant.

W. Fletcher Sams, District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A2097.
    DALE v. THE STATE.
    (402 SE2d 90)
   Carley, Judge.

Appellant was tried before a jury and found guilty of trafficking in cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Contrary to appellant’s assertion, there is no requirement that the trial court summon additional prospective jurors in panels of 12. “If, for any reason, after striking from the panel there remain less than 12 qualified jurors to try the case, the presiding judge shall summon such numbers of persons who are competent jurors as may be necessary to provide a full panel.” (Emphasis supplied.) OCGA § 15-12-160. The procedure that was employed by the trial court in the selection of appellant’s jury has long been authorized by law. See Bird v. State, 14 Ga. 43, 52 (2) (1853).

2. Appellant moved for a continuance based upon the absence of his neighbor, who had been subpoenaed as a witness for the defense. The denial of this motion is enumerated as error.

Although the witness had been subpoenaed by appellant, she was hostile to the defense. According to appellant, the absent subpoenaed witness was the true owner of the contraband and she had “set him up.” However, the witness had apparently never been interviewed and it was conceded that, if she testified, she undoubtedly would not exonerate appellant by accepting inculpatory responsibility. There was no showing that the witness would be present by the next term of court. Under these circumstances, it was not an abuse of discretion to deny appellant’s motion for a continuance. Brock v. State, 177 Ga. App. 430 (339 SE2d 403) (1986). Moreover, appellant testified in his own defense and inculpated the absent witness. Accordingly, the refusal to continue the trial in order that appellant could produce a witness who presumably would have impeached rather than corroborated his exculpatory testimony was not harmful.

3. Cocaine and $1,400 in cash were discovered in a search of appellant’s home which was conducted pursuant to a warrant. Appellant moved to suppress this evidence on the ground that the warrant had been issued without probable cause. The denial of this motion is enumerated as error.

Decided February 4, 1991.

Mary E. Erickson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Alfred D. Dixon, Carl P. Greenberg, George J. Robinson, Jr., Assistant District Attorneys, for appellee.

The warrant was issued based upon an affidavit wherein an officer averred that, after having been informed of the presence of cocaine in appellant’s home, he then used the informant to make a purchase of cocaine from appellant at that location. The trial court correctly ruled that, under “the totality of the circumstances,” the affidavit provided the issuing magistrate with a substantial basis for concluding that probable cause existed. The facts recited in the affidavit indicate that the affiant received a tip, the reliability of which he then corroborated by having the informant actually enter appellant’s house and return with drugs. These facts demonstrate a “ ‘fair probability that contraband or evidence of a crime will be found in a particular place.’ [Cit.]” State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984). The only requirement is that the affidavit demonstrate the existence of probable cause to issue a search warrant. It is not necessary that the affidavit show the existence of appellant’s guilt beyond a reasonable doubt.

4. At the hearing on the motion to suppress, there was no evidence that the affidavit upon which the search warrant was issued contained deliberate falsehoods or had been made with reckless disregard for the truth or that the affiant had consciously omitted material information which, if it had been included in the affidavit, would have been indicative of the absence of probable cause. See Ferrell v. State, 198 Ga. App. 270 (1) (401 SE2d 301) (1991); Amerson v. State, 177 Ga. App. 97, 100 (5) (338 SE2d 528) (1985). Compare Redding v. State, 192 Ga. App. 87 (383 SE2d 640) (1989); Daniels v. State, 183 Ga. App. 651 (359 SE2d 735) (1987).

5. The cocaine was discovered in a box in a locked closet in appellant’s home. Appellant was permitted to testify that the box belonged to his neighbor, that he had understood that it contained her personal effects, that he had permitted his neighbor to store the box at his home temporarily, and that he had no knowledge that the box contained contraband. “In view of this, the argument by [appellant’s] counsel that he was prevented from introducing evidence to explain [appellant’s] conduct and ascertain motives pursuant to [OCGA § 24-3-2] is without merit.” Humphries v. State, 154 Ga. App. 596 (1) (269 SE2d 90) (1980). See also Brown v. State, 179 Ga. App. 280 (346 SE2d 85) (1986).

Judgment affirmed.

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


text:
    A90A2147.
    A90A2148.
    HOOVER v. THE STATE. HALL v. THE STATE.
    (402 SE2d 92)
   Carley, Judge.

After their arrest at a protest against abortion, appellants were tried before a jury and found guilty of obstruction of a public passage in violation of OCGA § 16-11-43 and unlawful assembly in violation of OCGA § 16-11-33 (1). The trial court held that there was a merger of the latter crime into the former crime, and a judgment of conviction and sentence only for obstruction of public passage was accordingly entered against each appellant. Appellants filed separate notices of appeal, but they assert identical enumerations of error. The two appeals are hereby consolidated for appellate disposition in this single . opinion.

1. Appellants enumerate the general grounds as to their convictions for obstruction of a public passage.

The evidence, when construed most favorably for the State, was sufficient to authorize a rational trier of fact to find appellants guilty of obstruction of a public passage beyond a reasonable doubt. McMonagle v. State, 196 Ga. App. 300 (1) (395 SE2d 821) (1990). Compare Kerr v. State, 193 Ga. App. 165, 168 (5) (387 SE2d 355) (1989) (holding that the evidence therein would not authorize a conviction under the specific allegations of an accusation which had charged the defendant with unlawful assembly in violation of OCGA § 16-11-33 (1)). The evidence in the instant cases showed that, without authority of law, appellants did purposely or recklessly obstruct a public passage in such a way as to render it impassable without unreasonable inconvenience or hazard and then failed to remove the obstacle after receiving a reasonable official request or order of a peace officer to do so. This evidence authorized appellants’ convictions for obstructing the public passage in violation of OCGA § 16-11-43. What appellants ultimately intended to achieve by so doing is irrelevant to their guilt.

2. Appellants contend that the evidence was insufficient to authorize their convictions for unlawful assembly in violation of OCGA § 16-11-33 (1). Error, if any, has been rendered harmless by virtue of the trial court’s holding that, under the principle of merger, only judgments of conviction and sentences for violation of OCGA § 16-11-43 should be entered. Glisson v. State, 181 Ga. App. 585 (1) (353 SE2d 202) (1987).

3. Appellants enumerate as error the trial court’s denial of their motions for new trial on the ground of improper argument by counsel for the State.

“Of the incidents cited by the appellants] in support of this enumeration, only one prompted an objection and [was preserved for review] by this court, the remaining having been waived by . . . failure to raise them at trial. [Cit.]” Taylor v. State, 183 Ga. App. 314, 317 (11) (358 SE2d 845) (1987). The one objection to the argument of counsel for the State that was raised below is not, however, that which has been raised on appeal. “Grounds which may be considered on motion for new trial or on appeal are limited to those which were raised at trial. [Cits.] As the issue argued on appeal was not raised before the trial court, this enumeration of error presents no question for consideration on appeal.” Proffitt v. State, 181 Ga. App. 564, 566 (2) (353 SE2d 61) (1987).

4. The trial court’s exclusion of evidence which was purportedly relevant to appellants’ defense of justification is enumerated as error.

Appellants’ personal conviction that no abortion should be lawful is irrelevant to the defense of justification under OCGA § 16-3-21. To constitute justification under that statute, the defendants must be acting in response to another’s “imminent use of unlawful force.” A lawful abortion conducted in compliance with OCGA § 16-12-141 would not constitute “imminent use of unlawful force.”

Appellants contend that, even if their actions were not justified under the specific provisions of OCGA § 16-3-21, they were nevertheless entitled to assert the defense of justification under the more general provisions of OCGA § 16-3-20 (6). Under that provision, the defense of justification can be claimed “[i]n all other instances which stand upon the same footing of reason and justice as those enumerated in this [A]rticle [2 of Chapter 3 of Title 16].” However, it has been held that, in order to “stand upon the same footing of reason and justice,” a defense of justification under OCGA § 16-3-20 (6) would still have to be premised upon the asserted prevention of “imminent use of unlawful force.” Henderson v. State, 136 Ga. App. 490, 492-493 (1) (221 SE2d 633) (1975). As discussed above, appellants’ defense of justification is not so premised.

It follows that appellants were not precluded from producing evidence of a viable defense of justification. Appellants are certainly entitled to exercise their constitutionally protected rights of free speech and peaceable assembly in order to protest the lawfulness of abortions, but, in doing so, they are not otherwise “justified” in violating such of this State’s criminal laws as proscribe the obstruction of a public passage.

Judgments affirmed.

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

Decided February 4, 1991.

Jones, Day, Reavis & Pogue, R. Matthew Martin, for appellants.

James L. Webb, Solicitor, R. Lee O’Brien, Jr., Helen A. Roan, Assistant Solicitors, for appellee.


text:
    A90A2186.
    VARNER v. THE STATE.
    (402 SE2d 94)
   Birdsong, Presiding Judge.

Donald Varner appeals his conviction of armed robbery. He raises, as reversible error, the State’s injection into evidence of the fact that one of appellant’s co-defendants, who did not testify at trial, had pled guilty to the same offense (see Boatwright v. State, 193 Ga. App. 141 (387 SE2d 386); Mindock v. State, 187 Ga. App. 508 (370 SE2d 670)), and the admission in evidence of appellant’s guilty pleas in two other armed robberies which appellant contended were too dissimilar to be “similar transactions.” See Black v. State, 186 Ga. App. 406 (367 SE2d 238). Held:

Assuming that error occurred in both respects as contended by appellant, we find such error is not just cause to reverse this conviction. The evidence showed that the victim was robbed at gunpoint by two intruders in his apartment in the presence of his five children and his pregnant girl friend and others. The robbers used a sawed-off shotgun and a .9mm semi-automatic, pointed the shotgun at the victim’s head and threatened to blow his head off if he did not turn over his money. One robber pointed his gun at the pregnant woman’s abdomen. The occupants of the apartment were terrorized and forced to lie on the floor while the robbers demanded more money. The police were called by another person, and they arrived as the robbers drove off. When police stopped the getaway car a few minutes later, appellant was driving and in it were the two robbers who had wielded the guns and the girl friend of one of them, with ski masks used in the robbery, guns, and the victim’s money and personal papers.

The victim was immediately brought to the arrest scene to identify the car and to identify the robbers with ski masks removed. The victim had seen the car before the robbery; it had followed him when he, his girl friend, and her sister had left his apartment to check on the girl friend’s baby after receiving a false call concerning the baby’s welfare. Appellant, who lived in the victim’s neighborhood, was driving the car then but tried to hide his face. The robbery occurred when the victim, his girl friend, and her sister returned to his apartment. At the arrest scene, the victim recognized this same car; he did not know the two persons who had held him at gunpoint, but he did know the driver of the car, appellant Donald Varner. The evidence of appellant’s guilt on the charge of armed robbery is so overwhelming that not only is it highly probable the errors did not contribute to the judgment, but any such error was harmless beyond a reasonable doubt, including any error that might rise to constitutional proportions. Hamilton v. State, 239 Ga. 72, 73 (235 SE2d 515); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133). We therefore find no cause to reverse the judgment of the jury.

Decided February 4, 1991.

Rumsey & Ramsey, Austin L. Ramsey III, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, Linda S. Finley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2237.
    HERTZ CORPORATION v. McCRAY.
    (402 SE2d 298)
   Birdsong, Presiding Judge.

Appellant Hertz Corporation appeals the order of the state court directing verdict for appellee Ida McCray in a bench trial.

Appellee rented a car from appellant, and elected to purchase an optional loss/damage waiver. This waiver, in effect, provided that appellant waive any claim , against appellee for loss or damage to its rental car unless it results from, inter alia, “the use of the car, with [appellee’s] permission, by persons other than authorized operators.”

Appellant brought suit against appellee for damages to the rental vehicle. Appellee admitted, during her testimony, that she loaned the car to Bobby C. Lampley who subsequently wrecked the car. Held:

1. In a bench trial there is no jury verdict. Thus, it is procedurally incorrect to move for a directed verdict; and such motion, as well as the grant thereof, will be construed as one for involuntary dismissal under OCGA § 9-11-41 (b). State of Ga. v. Hamm, 193 Ga. App. 184 (387 SE2d 344). “ ‘Under Sec. 41 (b), a trial judge in a non-jury case expressly has the power to adjudicate the case on the merits at the conclusion of plaintiff’s case. If the trial judge has the power of adjudication of the facts upon motion for involuntary dismissal in a non-jury case, he must weigh the evidence. There is no obligation in the statute that the judge in determining the facts must consider plaintiff’s evidence in a light most favorable to the plaintiff. Since the court determines the facts as well as the law, it necessarily follows that the motion may be sustained even though plaintiff may have established a prima facie case.’ ” Kennery v. Mosteller, 133 Ga. App. 879, 880-881 (212 SE2d 447). “ ‘Thus, in cases of this nature, the trial judge sits as trier of fact, and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them.’ ” Safeway Ins. Co. v. Holmes, 194 Ga. App. 160, 161 (1) (390 SE2d 52).

2. Appellant asserts the trial court erred in not permitting appellant’s witness to be questioned about the witness’ qualifications to testify as to appellant’s books and records.

During the course of the trial, appellant called as a witness the southeast regional damage appraiser for the Hertz Corporation and attempted through this witness to lay the foundation for the introduction of certain copies of documents alleged to be business records of Hertz. Although the witness testified initially that he was familiar with the method used by plaintiff in keeping books and records and with the records of Hertz of this particular transaction relating to the subject of this lawsuit, the trial court sustained several varying objections to the testimony of this witness concerning the type of business records maintained by Hertz in the ordinary course of business, and whether the entries on certain records were made at or near the time of the occurrence of the transaction to which they referred.

OCGA § 24-3-14 prescribes the statutory standard for the admission in evidence of records made in the regular course of business. This Code section is to be liberally interpreted and applied. OCGA § 24-3-14 (d).

The trial court stated that appellant must show the witness “keeps these records” and “they are kept under his control and supervision.”

Before a writing or record is admissible, under OCGA § 24-3-14 (b), a foundation must be laid through the testimony of a witness who is familiar with the method of keeping the records and who can testify thereto and to facts which show that the entry was made in the regular course of a business at the time of the event or within a reasonable time thereafter. Suarez v. Suarez, 257 Ga. 102, 103 (2) (355 SE2d 649). Copies of business records can be admitted without accounting for the absence of the originals once the above foundation has been laid; likewise photostatic reproductions or duplicate originals of any original business record or document are admissible in lieu of the original. Wiggins v. State, 249 Ga. 302, 305 (2) (c) (290 SE2d 427); Smith v. Smith, 224 Ga. 442, 443 (1) (162 SE2d 379). A witness identifying business records under OCGA § 24-3-14 does not have to have personal knowledge of the correctness of the records or have made the entry himself. Davis v. State, 194 Ga. App. 902, 904 (2) (392 SE2d 327); Whittington v. State, 155 Ga. App. 667 (2) (272 SE2d 532); see Smith v. Bank of the South, 141 Ga. App. 114 (232 SE2d 629) (lack of personal knowledge of making of business records affects weight not admissibility). Moreover, unlike the so-called “official records” exception of some jurisdictions, the Georgia Business Records Act does not require that the person laying the foundation for business records’ admissibility be the custodian of the records, that is, be the person who “keeps the records” under his “control and supervision.” Thus, “[n]o particular person, such as a bookkeeper or salesman, is required to be called,” rather, “[a]ny person who is familiar with the method of keeping the records and can identify them may lay the necessary foundation.” Green, Ga. Law of Evid. (3d ed.), Business Entries, § 313. It would appear that the necessary degree of familiarity could be obtained through a number of common business practices, such as being the records’ custodian, making the entries during the usual course of employment, observing the method of records keeping through on-the-job training, experience or observation, or by attending courses of instruction sponsored by the business regarding the method of keeping the particular business records in question. The manner in which familiarity is obtained, like the question of whether the witness has personal knowledge of the particular business entry, goes only to weight and not to document admissibility. Cf. Smith, supra. Thus, it is apparent the trial court required overly stringent foundation requirements as a prerequisite to document admissibility.

However, a case will not be reversed merely because error may have occurred. Appellant is required to show harm as well as error to prevail on appeal (Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892)), and this appellant must show by the record as harm cannot be established by unsupported assertions contained in trial briefs (Rowe v. Rowe, 195 Ga. App. 493 (393 SE2d 750)). The record in this case reflects that appellant made no proffer as to the contents of the documents, and that except for Plaintiff’s Exhibit A, which was admitted in evidence, none of the other exhibits in question is attached to the record of trial. Further, Plaintiff’s Exhibits B, C, D, E and F do not appear to have been formally offered in evidence by appellant. Further, examination of the record and transcript shows that the missing documents were at best identified by name, and that no attempt was made to identify their contents for record and subsequent appellate purposes. Under these circumstances, appellant has failed to show harm within the meaning of Baker and Rowe, supra. “It is a well-established appellate rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of error is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.” (Punctuation omitted.) Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418).

3. Appellant asserts the trial court erred in not allowing into evidence an “Alabama Municipal Court Judgment” certified under seal of the clerk of courts.

Review of the record and transcript reflects that the so-called “Alabama Municipal Court Judgment” has not been attached thereto, nor was any proffer made as to the document’s content at trial. Further, examination of the pages of the record cited by appellant in its brief reflects that appellant attempted to introduce into evidence a document which he apparently had marked as “Plaintiff’s Exhibit G for identification.” Appellant did not further describe either the caption of this document or its contents for the record. Counsel for the appellee made an immediate objection to the introduction of the document, and in so doing described it as being “a copy of what purports to be an Alabama ticket.” The trial court observed that “if the police officer himself were here and said ... I wrote that ticket . . . and gave it to a party. That would still be inadmissible.” (Emphasis supplied.) Appellant did not object to either the characterization by appellee’s counsel or by the trial court of the offered exhibit as being a “ticket.” Further, while appellate counsel stated on the record that the document had been certified with a stamp and stated that the clerk of the municipal court certified it, he did not attempt to re-characterize the document as being any more than an issued traffic “ticket.” Accordingly, as in Division 2 above, nothing before us establishes the actual content of the exhibit; appellant has failed to show the existence of any harm that would necessitate reversal. See generally Baker, Rowe, and Ross, supra.

4. Appellant asserts that the trial court erred in ruling that appellant had not proven a contract violation relating to an unauthorized driver of the rented vehicle.

The prime contention of appellant in this regard is that “once it was established by the evidence that appellee had permitted the use of said rented vehicle, it was appellee’s burden of proof at trial to prove the qualification of such operator to be classified as an authorized operator” within the meaning of the rental contract.

The persuasiveness of appellant’s assertion of error, unsupported by any citation of legal authority, is far from apparent on its face, as it is a general rule under Georgia law, that the alleged injured party who asserted breach of contract has the burden of proof. Compare Dobbs v. Titan Properties, 178 Ga. App. 389, 391 (3) (343 SE2d 419); Adamson Co. v. Owens-Illinois Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913) and James v. Emmco Ins. Co., 71 Ga. App. 196, 199 (2) (30 SE2d 361) with Nikas v. Hindley, 99 Ga. App. 194, 199 (108 SE2d 98). “[T]his [c]ourt indulges in the presumption that the trial court’s decision is correct, and decisions will not be reversed on argument of error not supported by authority, if authority is available, unless error is apparent without further research. In the case before us, the error is not apparent without further research, accordingly, we presume the trial court has not [erred].” Georgia-Pacific Corp. v. Lumber Prods. Co., 590 P2d 661, 666 (9) (S.C. Okla.).

Decided February 4, 1991.

Karl J. Howe, Jr., for appellant.

Ida McCray, pro se.

Additionally, the basic rental contract reflects that appellee accepted appellant’s offer to purchase a “Loss/Damage Waiver (LDW)” or “loss/damage waiver option.” The rental contract pertinently provides: “If you accept the loss/damage waiver option, which is not insurance, at the beginning of the rental, Hertz will waive your responsibility for such loss or damage unless it results from: (A) The use of the car, with your permission, by persons other than authorized operators ... or (C) By your . . . allowing the car to be used as prohibited by paragraph 5 of this agreement. ...” (Emphasis supplied.) Examining the rental contract on its four corners, it is apparent appellant’s legal claim relies substantially upon the contention that it is protected under an exception to the “loss/damage waiver option” from having waived appellee’s responsibility for loss and damage to the automobile by virtue of the fact that appellee allowed an unauthorized operator, within the meaning of the contract, to use the vehicle. “A party who seeks the' advantage of an exception in a contractual stipulation as the basis of his claim is charged with the burden of proving facts necessary to bring himself within such exception.” 17A CJS, Contracts, § 578. Accordingly, appellant had the burden of proof, and the trial court did not err in holding that “no evidence was introduced to show that the nephew was not an authorized driver.”

Appellant’s other assertions likewise are without merit.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A2256.
    MARTIN v. THE STATE.
    (402 SE2d 95)
   Birdsong, Presiding Judge.

Appellant Weldon Martin appeals his conviction for burglary of a convenience store on October 25, 1989. He complains of the admission of “similar transaction” evidence of another convenience store burglary, contending there was no “absolute” proof he committed the burglary in the similar transaction. Held:

We find no error. “Absolute” proof is not required that a defendant committed the offense in a similar transaction; and, “we have held that the standard of proof of reasonable doubt is not applicable to the proof that the defendant was the perpetrator of the independent crimes, but only to the proof that he or she was the perpetrator of the crimes for which the accused is on trial. [Cits.]” Williams v. State, 251 Ga. 749, 784 (312 SE2d 40); Simmons v. State, 186 Ga. App. 886, 887 (369 SE2d 36); Thomas v. State, 176 Ga. App. 53, 54 (335 SE2d 135). What is required is that there be evidence that the defendant was the perpetrator of the independent crime (Johnson v. State, 193 Ga. App. 618, 619 (388 SE2d 866)) and sufficient similarity or connection between the independent crime and the offense charged, such that proof of the former tends to prove the latter. State v. Johnson, 246 Ga. 654 (1) (272 SE2d 321). Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it. Childs v. State, 176 Ga. App. 549, 552 (336 SE2d 309).

The evidence showed that appellant was arrested at a bank while attempting to cash a check he had received at a pawn shop in exchange, for more than $500 in coins. Appellant was driving a 1979 white Ford F-100 XLT pickup truck which had been reported stolen on October 15, 1989. In the truck were found Several items stolen in a similar burglary of a convenience store in the ¡early morning hours of October 15, 1989, in Forsyth County. Also found in the truck was a Browning .12 gauge shotgun taken in the burglarly which is the subject of this prosecution.

The evidence of the Forsyth County burglary was admissible as a similar transaction because it unquestionably showed a sufficient connection to and a similarity between the two burglaries, both in scheme, method and design; and it provided circumstantial evidence that appellant was the perpetrator of the separate burglary. Johnson v. State, supra, 193 Ga. App. 618, 619; Childs, supra. Moreover, the independent crime was not one unconnected in fact to this one; the circumstances of appellant’s arrest while in possession of a stolen truck containing a gun taken in the burglary charged in this case and items taken in another burglary, constitute a distinct connection between the burglaries and the theft of the truck. That connection is the appellant himself. We find all this evidence to be admissible not only as constitution of proof of a “similar transaction,” but as part of the circumstances of his arrest. See Felker v. State, 252 Ga. 351, 359 (314 SE2d 621). There was sufficient circumstantial evidence to support a finding that appellant was a party to and thus a perpetrator of the earlier burglary. Childs, supra.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.

Decided February 4, 1991.

Louis M. Turchiarelli, David L. Cannon, for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.


text:
    A90A1621, A90A1622.
    BETHUNE v. THE STATE (two cases).
    (402 SE2d 276)
   Birdsong, Presiding Judge.

Appellants Kevin Eugene Bethune and Michael Lomax Bethune were indicted in Douglas County, Georgia, along with Larry Bethune, Darwyn Bethune, Darwyn Bethune, Jr., Juanita Bethune and Mickey Cone, for violations of the Georgia Racketeering Influenced and Corrupt Organizations (RICO) Act, OCGA § 16-14-1 et seq. The indictment alleges the defendants engaged in an enterprise involving a pattern of racketeering activity consisting, as specified in 17 “sections” of the indictment, of theft of motor vehicles, possession of motor vehicles and parts with removed or altered identification, and theft by receiving stolen property, in violation of Georgia law; and for mail fraud (inter alia, re false insurance claims and stolen vehicle reports), and of theft from interstate shipment, in violation of federal law.

Kevin Eugene Bethune and Michael Lomax Bethune pled guilty to the indictment and were sentenced to ten years each, to serve three. The specific violations alleged against Kevin Eugene Bethune and Michael Lomax Bethune were three instances of theft by taking of three different vehicles; one instance of theft from interstate shipping of ten specifically described items or lots of merchandise from Greater Atlanta Shippers Association, including “25 pair of L.A. Gear Tennis Shoes”; theft by taking of a certain vehicle; and theft by receiving stolen property of four certain vehicles, including a “1983 Honda 3-wheeler,” and a “1976 Chevrolet 1-Ton Pickup Truck.”

Kevin Eugene Bethune and Michael Lomax Bethune raised below a plea of former jeopardy, on grounds they had previously pled guilty in Carroll County, Georgia, to theft by taking of the 1983 Honda three-wheeler and the 1976 Chevrolet 1-ton pickup truck, and that Kevin Eugene Bethune had pled guilty to interstate theft of the L.A. Gear tennis shoes in federal court.

Appellants contend the State’s use of these thefts as predicate acts in its RICO prosecution in Douglas County is barred, so that the convictions on the entire RICO prosecution must be reversed. And, they contend the entire RICO prosecution based on all alleged predicate offenses is barred because all the offenses arise from the same conduct and the State could have and should have prosecuted them for the entire spectrum of RICO offenses, in the former Carroll County prosecutions. See OCGA §§ 16-1-7 and 16-1-8. Held:

1. The State correctly concedes that this RICO prosecution could not be based on the theft of the 1983 Honda three-wheeler, the 1976 Chevrolet pickup truck, and the L.A. Gear tennis shoes, as predicate offenses, according to Martin v. State, 189 Ga. App. 483, 496 (376 SE2d 888).

However, the removal of those predicate offenses in the case does not require a reversal of the RICO convictions in this case. In Martin, we reversed the convictions on Counts 3-77 because they were duplicitous of the 75 offenses alleged in Count 1. The court had entered separate convictions on Counts 3-77 and Counts 1, 2, 78 and 79. Those for Counts 3-77, we held, could not stand, but the others were upheld. We see no difference in principle in this case. The removal from this indictment of the theft allegations made in “divisions” 9, 13 and 14 as to the L.A. Gear tennis shoes, the 1983 Honda three-wheeler and the 1976 Chevrolet pickup truck, leave seven predicate offenses, one of which includes many more items stolen from the Greater Atlanta Shippers Association in addition to the L.A. Gear tennis shoes. None of these is duplicitous of any substantive offense for which appellants have pled guilty in any court, and any two of these would be sufficient to sustain the single RICO conviction lodged against each appellant on his guilty plea. OCGA § 16-14-3 (8); see Martin.

As noted in Martin at 495, a RICO conviction requires proof that appellant has committed two or more offenses of the kind included in the RICO statues, as part of an enterprise to engage in a pattern of racketeering activity. The conviction of each appellant in this case for RICO violations is overwhelmingly supported even with the double prosecutions removed. The appellants pled guilty to a sufficient number of valid predicate offenses so as to constitute a RICO violation and on appeal they make no showing that their pleas of guilty as to those prosecuted predicate offenses were invalid for any reason. The State is not required in the first place to prove all the predicate offenses alleged in the indictment, but is required to prove only two beyond a reasonable doubt. Brown v. State, 191 Ga. App. 76, 77 (381 SE2d 101).

Accordingly, it was error not to strike from the indictment, as predicate offenses, the three thefts which had been formerly prosecuted, but the remaining predicate offenses, to which appellants pled guilty, were more than sufficient to support the RICO conviction. There is no reason to infer the guilty pleas to the other offenses were tainted or otherwise affected by the superfluous addition of predicate offenses which had formerly been prosecuted. Error, to be reversible, must be harmful, and we find this error harmless beyond a reasonable doubt, even if it arises to constitutional proportion. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

Decided January 8, 1991

Rehearing denied February 5, 1991

Joel E. Dodson, for appellant (case no. A90A1621).

Alden W. Snead, for appellant (case no. A90A1622).

2. Neither was the prosecution of the remaining valid predicate offenses barred on grounds the State, when it prosecuted the substantive offenses of theft in Carroll County, could have or should have prosecuted appellants for the entire spectrum of RICO offenses.

There is no suggestion on appeal that the other offenses which comprised a pattern of racketeering activity were known to the prosecutor in Carroll County. See OCGA § 16-1-7 (b); Sanders v. State, 188 Ga. App. 774 (374 SE2d 542). OCGA § 16-1-8 (b) (1), barring prosecution for a crime of which the accused could have been convicted on the former prosecution or which involves “the same conduct,” does not defeat a RICO prosecution of other predicate offenses which may be like or somehow connected in purpose to a crime or crimes prosecuted alone. A RICO prosecution is based upon the defendant’s engagement in an enterprise of racketeering activity, not upon the separate or related commission of acts involving “the same conduct.” It would destroy the purpose of the Act to prohibit a valid RICO prosecution on grounds that a defendant might at some time have been prosecuted for an individual act that was similar to the RICO predicate offenses or which might have been part of a larger enterprise. The assertion here made by appellants would utterly destroy the body of criminal law in this state, including the RICO Act, by requiring the State to instigate a RICO prosecution wherever any offense is committed, if it might conceivably have been a predicate act (see OCGA § 16-14-3 (9) (A) (ii-xxvi)) and if the defendant had committed at least one other such predicate act; and it would require the prosecutor in every case to determine whether an offense was conceivably part of an “enterprise” which amounted to racketeering. The chilling effect such requirements would place on all prosecution is obvious.

Our holding that the appellants’ plea of former jeopardy was good as against the prosecution under RICO for offenses previously prosecuted independently, renders appellants’ remaining enumeration moot. But, we find no grounds for reversal of the RICO convictions, based on the plea of guilty to sufficient validly prosecuted predicate offenses where the inclusion of invalid offenses was probably harmless, even as to any constitutional error. Kirkland, supra.

Judgments affirmed.

Banke, P. J., and Cooper, J., concur.

Frank C. Winn, District Attorney, William H. McClain, Assistant District Attorney, for appellee.