text:
    A92A2322.
    CAMPBELL v. THE STATE.
    (429 SE2d 538)
   Andrews, Judge.

Campbell appeals his conviction of aggravated assault.

Viewed in favor of the jury’s verdict, the evidence was that Campbell and his female companion Painter went to the apartment of Askins and Woods where all four consumed alcoholic beverages over a three-hour period. Campbell and Painter argued and Painter cut Campbell on the arm with Campbell’s buck knife. Askins and Woods attempted to break up the argument and it did abate, but then flared back up. Campbell hit Painter and Askins asked them to leave the apartment around 11:00 p.m. All four went outside the apartment but Painter said she did not have the keys to her car. Askins went back into the apartment to call Ross, the apartment maintenance and security man. As Askins was calling, Woods came back into the apartment holding his abdomen where he had been stabbed. Woods testified that “we finally got him [Campbell] to leave. I went outside with them, and all of a sudden, he stabbed me.”

As Ross was coming toward the apartment, he saw Campbell coming from that direction and he had blood on him. When police arrived, Painter denied knowing Campbell and was arrested for obstructing an officer. Painter had a bruised face and a cut on her knee. She did eventually tell the officer that Campbell had struck her. She did not mention any assault by anyone else present. Woods was taken to the hospital and Ross and Askins went with him. Ross locked the apartment with his pass key.

Askins returned to the apartment about 1:20 a.m. with his brother and father to pick up some clothes, since he was afraid to remain there because Campbell had not been found. When Askins and his brother went upstairs, Campbell was lying on Askins’ bed. The brother went back downstairs to get his gun and Campbell went into the bathroom where he removed the lid from the commode and retrieved the knife. Police were called and when they arrived Askins’ brother was holding a gun on Campbell who had blue toilet water on his hands. The knife was found in his pocket, also with blue stains on it.

Campbell and Painter testified that Painter felt threatened by Askins and feared being raped. When they were outside looking for the car keys, Askins went back into the apartment to get his gun. At that point, Campbell pulled his knife. He said Woods came at him like he was going to grab him. As he testified, “I pulled my knife out. I couldn’t get in my car. . . . Then, [Woods] just dove on top of me. The knife ... he got stabbed.”

Campbell then went to a stranger’s apartment and waited. He returned to Askins’ apartment looking for Painter. Thinking that he heard her crying inside, he kicked in the door. He said he dropped the knife in the toilet when he was pulling up his pants after using the toilet.

1. The first enumeration alleges error in the court’s failure to give curative instructions after Askins made the statement during redirect examination that “ [Campbell]’s mean. He’s a bad individual.”

At trial, defense counsel immediately said “I’m going to object.” The court sustained the objection. No motion for mistrial was made nor was there any request for curative instructions.

Prior to this exchange during redirect, on cross-examination, defense counsel questioned Askins about whether Campbell had displayed the knife when Askins found him in his apartment. Askins responded “When Billy Campbell tells you you better get out of his way, to let him go, he means it. He’s a serious man. ... If you’re saying did he pull the knife out and come at me, no, but I knew he had it. . . . You know, he don’t need a knife to be. . . .” At that point, defense counsel interrupted and announced that was all.

When the prosecutor asked Askins to explain his interrupted answer, the statement was made, objected to, and the objection sustained.

“[Ajppellant waived any error due to the court’s failure to give curative instructions by not requesting curative instructions when the objection was sustained. [Cits.]” Price v. State, 204 Ga. App. 288, 289 (1) (419 SE2d 126) (1992).

2. Campbell enumerates as error the court’s grant of the State’s motion in limine concerning the victim’s prior conviction of aggravated assault.

As acknowledged by the argument in Campbell’s brief, at the time of this trial in May 1991, such evidence of specific acts of violence by the victim against third persons was not admissible. Lolley v. State, 259 Ga. 605, 606 (1) (385 SE2d 285) (1989); Hill v. State, 259 Ga. 655, 657 (4) (386 SE2d 133) (1989). There was no error.

3. The third enumeration alleges error in the court’s failure to charge on accident when no written request for such a charge was made by Campbell.

Prior to trial, Campbell filed his written requests to charge on self-defense and justification. Charges on both were given by the court. After the charge was given, the court inquired of counsel if there were objections. Counsel for Campbell made only one objection, involving the self-defense charge, addressed infra in Division 5, and did not reserve further objections. “ ‘The general rule in this state is that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. If, however, the trial court asks if there are objections to the charge, defense counsel must either state his objections or reserve the right to object on motion for new trial or on appeal. Where objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge.’ Rivers v. State, 250 Ga. 303, 309 (298 SE2d 1) (1982).” (Citations omitted.) Bryant v. State, 256 Ga. 273, 274 (1) (347 SE2d 567) (1986). OCGA § 5-5-24 (b).

While it is error for the court to fail to charge without request an accused’s sole defense, Benefield v. State, 204 Ga. App. 87 (418 SE2d 447) (1992), accident was not the sole defense put forward here. Painter, called by Campbell, presented evidence that she was afraid of being raped and that Campbell was defending her. Campbell stated that he thought Askins was going in to get a gun and Woods was to keep him there until he returned. There was no error. Id.

4. Without request, the court gave the pattern charge on circumstantial evidence. Suggested Pattern Jury Instructions, Vol. II, Criminal Cases, p. 11. No objection was made to this charge below nor was any written request made for any additional charge on circumstantial evidence. Here, for the first time, Campbell alleges the court’s failure to include in this charge the language of OCGA § 24-4-6 constitutes reversible error.

No such written request having been made below, there was no error. Postell v. State, 261 Ga. 842 (1) (412 SE2d 831) (1992); Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991); Gidden v. State, 205 Ga. App. 245 (1) (422 SE2d 30) (1992).

5. The fifth enumeration is that the “failure to accurately and fully inform the jury of the charges on justification, self-defense, necessity and no duty to retreat, and failure to give the jury the complete written charges on justification and impeachment as they requested, deprived Campbell of a fair trial and due process, in violation of the 5th and 14th amendments to the U. S. and Ga. Constitutions and Article I, § I, Par. I of the Ga. Constitution.”

The only objection made below to either the charge or recharge given by the court was the statement that “we except to the State’s requested charge number three in regards to self-defense, Spradley v. State matter. [Spradlin v. State, 151 Ga. App. 585 (260 SE2d 517) (1979), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 406 (2) (401 SE2d 599) (1991)]. We object that the statutory language of self-defense is more than sufficient for this purpose, and, therefore, that’s what we base our objection on.”

“ ‘Our law requires that enumerations “shall set out separately each error relied upon” (OCGA § 5-6-40). . . .’ Murphy v. State, 195 Ga. App. 878, 880 (6) (395 SE2d 76) [(1990)]. When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 (Murphy, supra) or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining [enumerations] as abandoned. (West v. Nodvin, 196 Ga. App. 825, 830 (4c) (397 SE2d 567) [(1990)]).” Robinson v. State, 200 Ga. App. 515, 518 (2b) (408 SE2d 820) (1991).

To the extent that the enumeration can be read to assert the objection made below, we consider it.

The instruction taken from Spradlin was that “[s]elf-defense, as its nomenclature implies — is defensive in nature and not offensive. Therefore, it is invoked by necessity and without necessity being present it is inapplicable. Thus, the amount of force which can be utilized is based upon necessity and under no circumstances may legitimate self-defense exceed the bounds necessary for its use. Where the force used exceeds that necessary for defense of the person, the law will consider the defendant the aggressor and if his act results in a homicide — the offense is at least manslaughter.” Spradlin, supra at 586.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982).

Reading the charge as a whole, it did encompass the elements of OCGA § 16-3-21. The court also charged that the State would have the burden of proving that the defendant did not act in self-defense or defense of others and that it would be the jury’s duty to acquit the defendant if the State failed to prove its case beyond a reasonable doubt. These instructions, taken as a whole, were sufficient. Doss v. State, 262 Ga. 499, 500 (3) (422 SE2d 185) (1992).

6. The sixth enumeration is that the court erred in denying the motion for new trial based on defense counsel’s claimed conflict of interest.

Prior to trial, appointed defense counsel informed the court that, after his appointment to represent Campbell, he was appointed to represent Woods, the stabbing victim, on a theft by receiving charge involving a lawnmower. Counsel interviewed Woods concerning that charge without realizing the connection. He announced these facts in Campbell’s presence and stated he would use nothing concerning the pending charge against Woods or anything he had learned from his conversation with him.

As acknowledged during the hearing on the motion for new trial, the only conflict raised was a potential one. “When conflict of interest is raised in a post-conviction proceeding, the petitioner must show actual conflict which caused his counsel’s performance to be adversely affected.” Wharton v. Thomas, 256 Ga. 76, 77 (343 SE2d 694) (1986), citing Jones v. Ivory, 255 Ga. 20 (334 SE2d 666) (1985).

Campbell had “no right to sit back, await a possibly favorable verdict, and then raise the issue for the first time after trial. Jones[, supra.]” Pope v. State, 256 Ga. 195, 214 (26) (345 SE2d 831) (1986). Here, in fact, there was an acquittal on the burglary charge. There was no error.

Decided March 17, 1993.

Alice C. Stewart, for appellant.

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

7. The seventh enumeration also suffers from the “shotgun” approach condemned in Robinson v. State, supra. It complains of numerous evidentiary rulings made by the court. The record reflects, however, that all of these rulings were either not objected to below or were acquiesced in by defense counsel and they present nothing for our review. White v. State, 203 Ga. App. 889, 890 (1) (418 SE2d 149) (1992).

8. Campbell asserts that the court erred in its “inquiry and ruling on the state’s failure to provide Brady/Agurs material,” thereby depriving him of a fair trial.

Pursuant to that motion, the trial court did conduct an in camera review of the State’s files and found no exculpatory material.

Here and at the motion for new trial, Campbell argued that the victim’s hospital records, purportedly showing that the wound was three centimeters long instead of the three inches testified to by witnesses, and the statements of the State’s witnesses should have been turned over. There is no showing, either in the trial court or here, as to how any of this evidence is exculpatory of Campbell, and, therefore, no error has been shown. Bradford v. State, 205 Ga. App. 383, 384 (422 SE2d 74) (1992).

9. Finally, Campbell alleges error in the denial of his motion for directed verdict. As acknowledged by the argument, however, the only motion for directed verdict was made as to the burglary count on which Campbell was acquitted. Therefore, error, if any, in the denial of the motion was harmless.

10. There being evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime of aggravated assault, the judgment is affirmed. Jackson v. Virginia, 443 U. S. 307, 310 (99 SC 2781, 61 LE2d 560) (1979); Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980).

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.

       Campbell was acquitted of the second count, charging burglary of the apartment of Askins.

        Chandler v. State, 261 Ga. 402, 407 (3) (405 SE2d 669) (1991), held that, as of September 12,1991, evidence of specific acts of violence by the victim against third persons is admissible in cases where the defendant claims justification.

       This is also not a situation where an accused makes a timely request for instruction on both accident and self-defense. Turner v. State, 262 Ga. 359, 360 (2) (418 SE2d 52) (1992).

       Appellate counsel entered the case at the motion for new trial stage. The written motion raised only the general grounds, but the court considered the grounds raised orally at the hearing and we treat the motion as amended. OCGA § 5-5-40 (b).


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A92A2363.
    BURKHOLDER v. FORD LIFE INSURANCE COMPANY.
    (429 SE2d 344)
   Cooper, Judge.

Appellant, a widow whose husband had a credit life insurance policy with appellee, brought this action to collect on the policy. She appeals from the trial court’s order granting summary judgment for appellee on the grounds of a material misrepresentation on the policy application as well as appellant’s lack of standing to collect on the policy.

We view the record in the light most favorable to appellant as the nonmoving party on a motion for summary judgment. Approximately three months before his death, appellant’s husband purchased a new Ford automobile. He also purchased a credit life insurance policy with appellee, the purpose of which was to pay off or reduce the debt on the vehicle in the event he died before the loan on the vehicle was paid in full. He had similar policies with appellee on other Fords he purchased since 1983, and appellant says her husband would not have traded the old Ford for a new one if he could not continue that practice. Bank South was listed on the policy as the creditor beneficiary, and the husband’s estate was listed as the second beneficiary.

At the time appellant’s husband purchased the car and insurance, he had a history of heart disease dating back to 1983, including a heart attack and a stroke, and also had lung cancer for which he was being treated with chemotherapy and radiation. Nonetheless, he signed a statement on the policy application saying that, to the best of his knowledge, he was in good health. Appellant says she told appellee’s representative that she and her husband needed a reliable car to drive back and forth to the hospital in Augusta because her husband was “very sick,” but acknowledges she never gave him any specifics regarding her husband’s illness. Appellant also asserts her husband looked ill at the time of the purchase. After her husband died from cardiopulmonary arrest resulting from lung cancer, appellant provided the car dealership with a copy of his death certificate. When the claim on the policy was denied, she filed this action.

1. Appellant argues that her claim should not be barred by her husband’s misrepresentation on the policy application that he was in good health because appellee’s representative knew her husband was very sick when he accepted the application. A misrepresentation on an insurance application will bar recovery under the policy if the misrepresentation is material or the insurer in good faith would not have issued the policy if the true facts had been known, regardless of whether the applicant acted in good faith in completing the application. See Davis v. John Hancock &c. Ins. Co., 202 Ga. App. 3 (1) (413 SE2d 224) (1991); OCGA § 33-24-7 (b). Moreover, the uncontradicted affidavit of appellee’s agent stating that appellee would not have issued the policy in this case had it known of appellant’s husband’s medical condition precludes any genuine issue of fact with respect to materiality and whether the insurer in good faith would not have issued the policy. See Davis, supra; Taylor v. Georgia &c. Ins. Co., 207 Ga. App. 341 (427 SE2d 833) (1993). Appellant asserts that if an insurance company’s agent has knowledge that an applicant has a medical problem at the time the applicant signs the application saying that he does not, the insurance company cannot rely on the misrepresentation as a defense. See Piedmont &c. Ins. Co. v. Gunter, 108 Ga. App. 236 (1) (132 SE2d 527) (1963). However, the agent’s knowledge must be actual rather than constructive (i.e., it is not enough that the agent should have known of a medical problem from the applicant’s physical appearance or should have inquired further). See Interstate Life &c. Co. v. Bess, 35 Ga. App. 723 (3) (134 SE 804) (1926). Moreover, the agent’s knowledge of the medical problem must be specific rather than general, as the insurer may be willing to assume the risk of insuring someone who is generally unhealthy but not someone who suffers from a specific disease. Cf. Jefferson Standard Life Ins. Co. v. Bridges, 147 Ga. App. 5 (2) (248 SE2d 5) (1978) (insurer not estopped from relying on misrepresentation defense as matter of law where it knew insured had been hospitalized the previous month but did not know he had epilepsy); Jessup v. Franklin Life Ins. Co., 117 Ga. App. 389 (2) (160 SE2d 612) (1968) (knowledge that insured was an alcoholic did not constitute knowledge that insured had been hospitalized for acute gastroenteritis and cerebral concussion). In this case, even if appellant’s assertions are accepted in the light most favorable to her, the agent’s knowledge that appellant’s husband was “very sick” did not constitute knowledge that he had previously suffered both a heart attack and a stroke and was currently being treated for lung cancer. Accordingly, the trial court properly granted summary judgment for appellee on this ground.

Decided March 17, 1993.

Richard Phillips, for appellant.

Mack & Bernstein, Adam J. Conti, Jeffrey B. McClellan, Darrell T. Farr, for appellee.

2. Because we have concluded that summary judgment was correctly granted on the merits of the claim, we need not address appellant’s argument that the trial court erred in ruling that appellant was not the proper party to assert the claim.

Judgment affirmed. McMurray, P. J., and Blackburn, J., concur.


author: Andrews, Judge.

text:
    A92A2006.
    WOODS et al. v. KIM.
    (429 SE2d 262)
   Andrews, Judge.

While an invitee on the premises of appellee’s store, Ronald Woods was the victim of a criminal attack. He filed this action claiming appellee failed to exercise ordinary care to keep the premises safe, and failed to provide adequate security for protection of business invitees. Mr. Woods along with his wife, who joined in the action to bring her loss of consortium claim, appeal from the order of the trial court granting summary judgment in favor of appellee.

As he exited from the store after making his purchase, Mr. Woods was confronted by an assailant armed with a sawed-off shotgun, who demanded money, then shot him. The complaint, which states a premises liability claim under OCGA § 51-3-1, alleges that appellee knew or should have known of unsafe conditions on the premises which gave rise to the attack, and that security was inadequate to prevent the attack.

“A proprietor’s duty to invitees is to exercise ordinary care in keeping the premises and approaches safe. The proprietor is not the insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. If the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters.” (Citations and punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991); Winn-Dixie Stores v. Nichols, 205 Ga. App. 308, 310 (1) (422 SE2d 209) (1992). The assailant was unknown to Woods. Although appellee recognized the gunman as one of many high school students who frequented the store, there was no evidence that appellee had previously known the assailant to be violent, or to carry a weapon of any kind. Nevertheless, “[i]n order to prove that the owner had advance notice of the danger of such an assault, evidence is admissible to show a pattern of prior substantially similar criminal assaults on the premises creating a known dangerous condition for which the owner may be held liable.” Reid v. Augusta-Richmond County Coliseum Auth., 203 Ga. App. 235, 237 (1) (416 SE2d 776) (1992); Grandma's Biscuits v. Baisden, 192 Ga. App. 816, 817 (1) (386 SE2d 415) (1989).

The record reflects that appellee’s store is located in a high crime area, and numerous crimes occurred on the premises prior to the present assault. However, most of those crimes were against the store itself. Of those that could have arguably involved an attack of any kind upon a customer of the store: a clerk of the store struck a woman in an argument over correct change; a woman was cut in a domestic dispute with her boyfriend; a man was beaten with a pipe when he refused to say where some of his friends had allegedly gone with the assailant’s money; and a purse was snatched without the use of a weapon. None of these prior criminal acts was substantially similar to the attack on Woods. There is no evidence appellee knew or should have known that conditions on the premises put Woods at risk of being robbed and shot. As a matter of law, appellee owed no duty to protect Woods from the attack at issue. Savannah College of Art & Design v. Roe, 261 Ga. 764, 765-766 (409 SE2d 848) (1991); Nichols, supra at 310; Shell Oil Co. v. Diehl, 205 Ga. App. 367, 368 (422 SE2d 63) (1992); Gay v. Franchise Enterprises, 203 Ga. App. 870, 871-872 (418 SE2d 135) (1992).

Decided February 23, 1993

Reconsideration denied March 18, 1993

Burge & Wettermark, Michael J. Warshauer, for appellants.

Goodman, McGuffey, Aust & Lindsey, Leigh M. Wilco, Constance C. Russell, for appellee.

Since appellee did not know of the dangerous conditions giving rise to the present attack, and knowledge of the conditions “would be necessary, in order to show the existence of even an initial duty on the part of [appellee] to provide preventive security measures,” we find no merit in the claim that appellee failed to provide security adequate to prevent this kind of attack. Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 877 (392 SE2d 535) (1990). There was no evidence that any security efforts undertaken by appellee were otherwise below a reasonable standard of care, made the situation worse by increasing the danger, misled Woods into the belief that the danger had been removed, or deprived Woods of the possibility of help from other sources. Lau’s Corp., supra at 494-495; Reid, supra at 238; Shell Oil Co., supra at 368; Nichols, supra at 310. The trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.

       Although the trial court was unable to consider depositions filed after the order granting summary judgment was entered, they were forwarded by agreement of the parties to this court, and have been considered as part of the record in our determination that no genuine issues of fact remain. See Bishop, supra at 874; Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 309-310 (395 SE2d 898) (1990); Miller, Stevenson &c. v. Fayette County, 190 Ga. App. 777, 778 (380 SE2d 73) (1989); Miller Grading &c. v. Georgia Fed. &c. Assn., 247 Ga. 730, 734 (279 SE2d 442) (1981).


author: Johnson, Judge.

text:
    A92A2431.
    MARS, INC. v. MOORE.
    (429 SE2d 299)
   Johnson, Judge.

On November 15,1991, Sandra Moore filed this negligence action against Mars, Inc. d/b/a Kal-Kan for injuries she sustained when opening a can of Kal-Kan dog food manufactured by Mars. On November 21, 1991, service of process was accomplished upon Mars’ registered agent for service, C. T. Corporation. Mars failed to file an answer within 30 days of service as required by OCGA § 9-11-12 (a). It did not open the default as a matter of right by filing its answer and paying costs within 15 days of default as required by 9-11-55 (a). The trial court denied Mars’ motion to open the default, and granted Moore’s motion for entry of default judgment as to liability by order dated March 17, 1992. We granted Mars’ application for interlocutory appeal to decide whether the trial court abused its discretion in denying its motion to open the default.

The following facts about the default are undisputed: On November 21, 1991, C. T. Corporation mailed the suit papers to Robert DeMaria, a staff officer in Mars’ risk management department. On November 26, 1991, DeMaria sent the papers to Richard Serina of C. N. A. Insurance Companies in New York for handling. Along with the suit papers, DeMaria sent a letter directing that C. N. A. send all correspondence to Kal-Kan, Inc. DeMaria testified by affidavit that since he did not hear anything from Serina he assumed that C. N. A. had provided a defense for Mars and filed an answer. On November 27,1991, Serina received the papers and forwarded them to C. N. A.’s California office for handling. On December 2, 1991, Greg Yeary, a claims supervisor in C. N. A.’s California office, received the papers and mailed them to C. N. A.’s Atlanta office. On December 10,1991, a claims supervisor in the Atlanta office received the papers, determined that the claim would be handled by C. N. A.’s New Jersey office, and mailed the papers there two days later. Angela Gaita, senior claims representative for C. N. A.’s New Jersey office, received the papers on December 18, 1991 and sent them to Atlanta counsel on December 31, 1991 with instructions that he represent Mars in the action. The attorney received the papers on January 8, 1991. On January 9, 1991, Moore filed her motion for default judgment. That same day, Mars’ attorney filed an Entry of Appearance in the case. On January 16, 1991, Mars filed a motion to open default pursuant to OCGA § 9-11-55 (b), supported by the affidavits of Richard DeMaria and the C. N. A. employees previously noted, and attached an answer.

A prejudgment default may be opened on any one of three grounds if four conditions are met. If a party seeking to open a default makes an offer to plead instanter, makes an announcement that he is ready to proceed with a trial on the merits, files an answer setting forth a meritorious defense, and makes a showing under oath that the default occurred due to providential cause, excusable neglect, or that it is otherwise a proper case to open the default, the trial court in the exercise of sound discretion may order the default opened. See Grayson & Hollingsworth v. C. Henning Studios, 194 Ga. App. 531, 532 (391 SE2d 8) (1990); see also OCGA § 9-11-55 (b). “Compliance with the four conditions is a condition precedent; in its absence the trial court has no discretion to open the default.” Id.

Moore contends that Mars failed to meet one of the conditions for opening the default in that it did not set up a meritorious defense. We disagree. Mars’ counsel testified by affidavit that evidence would be presented showing that the can in question was not manufactured by Mars. His affidavit was based upon his investigation of the case, and satisfied the requirement that a party seeking to open a default make a showing that there is a meritorious defense. The record thus shows that Mars satisfied the four conditions precedent which would then authorize the trial court to exercise its discretion in opening the default. See OCGA § 9-11-55 (b). Therefore, the question before this court is whether the facts as noted are supportive of Mars’ claim that the delay in filing his answer was attributable to excusable neglect. “Excusable neglect has been defined as referring to where there is a reasonable excuse for failing to answer.” (Citations, punctuation, and emphasis omitted.) Sears, Roebuck & Co. v. Ramey, 170 Ga. App. 873 (318 SE2d 740) (1984).

We believe that the factual posture of this case is so remarkably similar to those in Sears, supra, that the same result must be reached. In Sears, as in the instant case, there was a good cause for the appellant to believe that the suit was being defended by an insurance company. “ ‘The law should not blindly impose standards which require individuals, in the conduct of their daily business, to distrust the parties with whom they deal.’ ” Id. at 875. Under the facts of this case, any neglect by Mars in following the progress of the case was excusable. See American Erectors v. Hanie, 157 Ga. App. 687 (1) (278 SE2d 196) (1981). Moreover, since Mars filed its answer and announced that it was ready to proceed with the case only ten days after it could have opened the default as a matter of right, Moore was not unreasonably prejudiced by the delay.

Since the evidence demanded a finding of excusable neglect, the trial court abused its discretion in denying Mars’ motion to open the default. It follows that the subsequent entry of judgment as to liability against Mars was also error.

Judgment reversed. Pope, C. J., concurs. Carley, P. J., concurs in judgment only.

Decided March 10, 1993

Reconsideration denied March 18, 1993

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Daniel J. Huff, Todd M. Yates, for appellant.

Ted Marcus, for appellee.


author: Birdsong, Presiding Judge.

text:
    A92A1746.
    GREEN v. THE STATE.
    (429 SE2d 694)
   Birdsong, Presiding Judge.

After being tried for murder, two counts of aggravated assault, armed robbery, and two counts of possession of a firearm during the commission of a felony, Johnny Green was convicted only of the armed robbery. He now appeals that conviction. Green contends the trial court erred by refusing to accept a verdict even though the jury had returned to the courtroom and had announced it had reached a verdict on all charges, by recharging the jury after it had reached a verdict, by giving a repetitive, inaccurate and misleading recharge that was unduly coercive and unfairly suggestive, by excluding the testimony of a clinical psychologist, and by refusing to grant a timely motion for a continuance.

Green’s brief does not comply with Rule 15 of this court; the argument is not numbered sequentially following the enumerations of error, but is one continuous argument. Rule 15 (c) (1). Further, some arguments are without citations of authority. Rule 15 (c) (2). Held:

1. The transcript shows that Green’s first two enumerations of error, concerning charging the jury after the jury announced it had reached a verdict on all counts, arises from the trial court’s attempt to correct what it believed was an erroneous response to the jury’s request for further instruction. Before the recharge could be given, however, the jury advised that it had reached a verdict. Although the jury was returned to the courtroom, it was directed not to announce its verdict, and this verdict was not published. Then the trial court recharged the jury to correct the earlier instruction, and returned the jury for further deliberation. The jury later returned, and published in open court, a verdict finding Green guilty of armed robbery. We find no error.

The trial court is obliged to charge the jury on the law applicable to the case. Pope v. State, 52 Ga. App. 411, 413 (183 SE 630). Therefore, the trial court was authorized to correct any errors in the charge (Turner v. State, 178 Ga. App. 888, 889-890 (345 SE2d 99); Barraza v. State, 149 Ga. App. 738, 739 (256 SE2d 48)), and could do so sua sponte. Litmon v. State, 186 Ga. App. 762, 763 (368 SE2d 530). Thus, the only issue is whether the trial court was precluded from doing so because the jury advised that it had reached and was ready to announce its verdict. Since “[v]er diets acquire their legality from return and publication” (Bradley v. State, 135 Ga. App. 865, 870 (219 SE2d 451)), there was no verdict in this case until it was received and published in open court. Bell v. State, 163 Ga. App. 672, 674 (295 SE2d 147); Harden v. State, 160 Ga. App. 514, 516 (287 SE2d 329). Therefore, we hold that it was not error to recharge the jury because the verdict was not yet received in open court. Mathews v. State, 176 Ga. App. 394, 395 (336 SE2d 259); Maltbie v. State, 139 Ga. App. 342, 345 (228 SE2d 368). As the cases Green relies upon concern verdicts which were announced in open court or were incomplete for some reason, they are not persuasive. Moreover, since the court did not know what the jury’s verdict had been prior to the giving of the corrective charge, it cannot be said that the recharge was an attempt to alter the jury’s verdict. It must be assumed that the verdict as it was actually published was the correct verdict given under the corrective charge. Accordingly, the first two enumerations of error are without merit.

2. Green’s third enumeration contends that the recharge was repetitive, contained inaccurate and misleading statements of the law, was unduly coercive and unfairly suggestive. The argument intended to support the enumeration, however, simply restates or rephrases the enumeration, e.g., “the recharge . . . was not a correct statement of the law” or “failed to charge the correct law,” recites generally what the court stated, e.g., the “court first talked about what was theoretically possible” and “the court talked about conspiracy which it commingled with the definition of robbery,” but the argument cites no authority, identifies no particular erroneous statement of the law, and contains no reference to the transcript. “The mere repetition and rephrasing of an enumeration of error without more is not the argument anticipated [in Rule 15]. The principal purpose of argument is to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support appellant’s allegation of error. A mere recital, or repetition, of the enumerated error is not argument.” (Citations and punctuation omitted.) Chesser v. Wallace, 200 Ga. App. 567-568 (408 SE2d 814). Further, argument merely rephrasing the enumerated errors is insufficient because enumerations are conclusory and insufficient to raise justiciable issues. Craig v. State, 205 Ga. App. 856 (424 SE2d 902); Hunter v. State, 201 Ga. App. 9, 10 (410 SE2d 204). Therefore, this enumeration of error is deemed abandoned. Court of Appeals Rule 15 (c) (3).

3. Green’s fourth enumeration of error contends the trial court erred by excluding the testimony of a clinical psychologist. The argument made is included within the argument of the other enumerations, and has no citation of authority supporting Green’s contention the trial court erroneously excluded this witness. The thrust of the argument presented is Green’s defense “would have been” that he “lacked the mental acumen necessary to form criminal intent,” a defense recognized in our law, that under OCGA § 16-3-3, one cannot be convicted of a crime which was the result of mental disease, injury, defect, or delusional compulsion, and that the psychologist’s testimony may have enabled the jury to reach a proper verdict in light of the evidence presented. While there can be little dispute these contentions are correct generally, they are irrelevant to the trial court’s ruling that excluded the psychologist’s testimony because Green had not complied with the notice procedures of USCR 31.4 (A) and thus the issue was precluded by USCR 31.4 (B). See OCGA §§ 17-7-130; 17-7-131 and Meders v. State, 260 Ga. 49, 51-52 (389 SE2d 320). Since at trial Green acknowledged he had not provided the required notice, and he does not contend that he showed good cause for not doing so, the trial court did not err by excluding this testimony.

4. Finally, Green contends the trial court erred by denying a timely motion for a continuance so that he could receive final written psychological reports. As the party seeking the continuance, Green was required to demonstrate that he used due diligence in obtaining the reports, and the record does not demand a finding that Green exercised diligence in securing the report. OCGA § 17-8-20; Fowler v. State, 195 Ga. App. 874 (395 SE2d 33). Additionally, as the record shows that the psychologist who was to prepare the report testified and rendered his opinion at a pretrial hearing in the case, Green was not deprived of the information in the report. Granting a continuance is committed to the sound discretion of the trial court (OCGA § 17-8-22), and the trial court’s exercise of this discretion will not be reversed on appeal unless it is clear the discretion has been abused. Rhodes v. State, 200 Ga. App. 193, 194 (407 SE2d 442). Under the circumstances of this appeal, we find no abuse of discretion.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.

Decided March 18, 1993.

Friedman, Donaldson & Phillips, Robert P. Phillips III, Todd A. Hall, for appellant.

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


author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A92A1993.
    COFFEE BUTLER SERVICE, INC. v. SACHA.
    (430 SE2d 149)
   Andrews, Judge.

The basic facts of this case are set out in its previous appellate appearance. Coffee Butler Svc. v. Sacha, 258 Ga. 192 (366 SE2d 672) (1988). They will be supplemented only as needed.

After remand pursuant to that opinion (issued April 7, 1988), Coffee Butler twice amended its claims. The trial court then granted summary judgment to Sacha on Coffee Butler’s claims of fraud in the inducement of the contracts and for lost profits allegedly suffered by Coffee Butler as a result of Sacha’s breach of the employment contract (Counts I and II of the Second Amended Complaint). Coffee Butler appeals.

1. The fraud count alleged, in pertinent part, that Sacha, “[a]t the time the parties were negotiating the agreements, . . . represented to plaintiffs that he would (1) convey all assets of Early Bird; (2) use his best efforts and all of his energy to convert former clients of Early Bird to clients of Coffee Butler and solicit new accounts for Coffee Butler in the area Early Bird had serviced; (3) devote and use his expertise and knowledge to benefit Coffee Butler; and (4) not compete directly or indirectly with Coffee Butler — all of which he did not intend to perform ... to induce plaintiffs into entering the . . . agreements.”

“ ‘The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. (Cit.) For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.’ Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). ‘Where there is no evidence (of) scienter, that is, that the false statement was knowingly made with false design, there can be no recovery. . . .’ Day v. Randolph, 159 Ga. App. 474, 475 (283 SE2d 687) (1981).” McCrimmon v. Tandy Corp., 202 Ga. App. 233, 234 (1) (414 SE2d 15) (1991).

While the ten-volume record is replete with references to disputes as to the amount of effort expended by Sacha to fulfill the terms of the employment agreement and further the interests of Coffee Butler after the merger, it is devoid of any evidence that, in 1984, when the agreements were negotiated and entered into, he made any fraudulent statements or that he did not intend at that time to carry out the terms of the agreements.

There is evidence that there were six accounts which Sacha did not include in the list of Early Bird accounts merged with Coffee Butler, for which six accounts he maintained no written records and which six accounts paid him directly in cash, which cash he did not report as income. There is no evidence, however, that Coffee Butler was aware of these six accounts before the merger and, therefore, no evidence of any detrimental reliance by it. Further, there is evidence that it was Sacha’s intention to attempt to convert these small accounts to Coffee Butler.

“On motion for summary judgment, [defendant Sacha] demonstrated the absence.of evidence of fraud, thereby casting upon [Coffee Butler] the burden of presenting specific evidence giving rise to a genuine issue of triable fact. [Cits.]” McCrimmon, supra at 234-235. Demarest v. Moore, 201 Ga. App. 90, 92 (1) (410 SE2d 191) (1991). That burden has not been met.

Further, any oral representations were subsumed by the written agreements constituting the terms of the merger. Campbell v. C & S Nat. Bank, 202 Ga. App. 639, 640 (1) (415 SE2d 193) (1992).

2. Regarding the claim for lost profits as a result of Sacha’s breach of his employment contract, the allegation was that “Coffee Butler has suffered additional damage to its business, on-going operations and profits expected to flow from the agreement with Sacha by Sacha’s failure to render the services called for under said agreement in an amount not less than $500,000.”

After this amendment was added to the complaint in February 1990, additional discovery was engaged in, resulting in Coffee Butler’s response to an interrogatory as to the nature of the claim that “[t]he base amount of damages is calculated by the means set out in the attached Exhibits for the period November 1984 through August 1985. Plaintiffs also assert that they are entitled to damages computed upon the above basis for the period extending through November 1985. The cumulative total of the base amount computed through the above period represents continuing losses suffered each succeeding year. These continuing damages are claimed for a period of five years.”

The exhibits consisted of a listing of 248 former Early Bird accounts which were “lost” after the merger, due to Sacha’s failure to render services agreed upon. Of these accounts, it was shown that 140 left for reasons having nothing to do with Sacha, including office relocations or mergers; bankruptcies; construction sites closed at completion of the project; the loss of two law firms which had represented Sacha in the merger and litigation; and 28 accounts which Coffee Butler determined to “pull” because of the low volume of coffee being consumed. As for the remainder, there was no evidence that any account left because of any action taken or not taken by Sacha. In support of his motion, Sacha submitted his own affidavit which stated that he had reviewed the list of “lost accounts” and that he “took no action to the detriment of Coffee Butler which would in any way have caused any of these accounts to discontinue doing business with Coffee Butler either before or after the merger. Specifically, I did not advise any of those accounts to cease doing business with Coffee Butler, and I did not tell any of those accounts anything negative about Coffee Butler’s services or products. I made every effort possible under the directions and criteria given to me by Coffee Butler to maintain every account which Coffee Butler advised it wanted to be maintained.”

Additionally, the affidavit of Took, a former Early Bird routeman who continued with Coffee Butler as a customer service representative, was submitted. Took went through each account and gave his analysis of the reason for the account leaving. Parts of his analysis were based on statements made to him by employees of the companies which stopped the Coffee Butler Service. While Coffee Butler made a motion to strike this affidavit on the ground it contained inadmissible hearsay, the court did not rule on it before entering the summary judgment and we therefor assume it was implicitly denied. The statements of an agent of one company, made in the course of his employment, to the agent of another received in the course of his employment, regarding the business of the two, is admissible pursuant to OCGA §§ 24-3-33 and 10-6-64. See Uniflex Corp. v. Saxon, 198 Ga. App. 445, 446 (3) (402 SE2d 67) (1991).

The evidence presented in opposition to this was the affidavit and deposition of Williams, Coffee Butler’s founder and chief executive officer, and the depositions of Hulett and Daw, two veterans of the coffee business tendered as experts by Coffee Butler. Williams acknowledged that, while he would be extremely interested in why any account was lost, he did not contact any of the businesses which can-celled accounts because it would have been too expensive. He nonetheless stated that he felt “very certain that the reason ... is because of Mr. Sacha’s lack of performing in the job of his, sales manager, account manager, and retention manager for the accounts that he brought over to the merger.”

Neither expert had any information on why any of the accounts had left Coffee Butler, but based their analysis solely on the fact that the accounts left and the comparison of the total loss with what each would have anticipated would have been lost based on industry norms.

“While ‘(a)n allowance for damages cannot be based on guesswork!, and l)oss of anticipated profits which is completely conjectural is not recoverable,’ (citations and punctuation omitted) Phoenix Airline Svcs. v. Metro Airlines, 194 Ga. App. 120, 126 (390 SE2d 219) (1989), rev’d on other grounds, 260 Ga. 584 (397 SE2d 699) (1990), ‘ “(t)he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, . . .” (Cits.)’ Farmers Mut. Exchange v. Dixon, 146 Ga. App. 663, 664-665 (5) (247 SE2d 124) (1978).” (Emphasis supplied.) Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777, 780 (3) (415 SE2d 516) (1992). There has been just such a failure of proof of causation in this case. Coffee Butler, in the face of the facts of record, may not rest on suppositions and its contention that the jury might make inferences from the mere fact of the loss of the accounts. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Compare Williamson v. Palmer, 199 Ga. App. 35, 36 (1) (404 SE2d 131) (1991).

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Johnson and Blackburn, JJ., concur. Beasley, P. J., concurs in part and dissents in part.

Beasley, Presiding Judge,

concurring in part and dissenting in part.

I respectfully dissent.

1. The movant in summary judgment, Sacha, did not by the evidence “conclusively eliminate all issues” as to the claim for lost profits allegedly caused by breach of his obligations under the employment contract. Kem Mfg. Corp. v. Sant, 182 Ga. App. 135 (355 SE2d 437) (1987). Respondent Coffee Butler was entitled to “all reasonable and favorable inferences,” id., and any doubt must be construed in its favor. Scott v. Owens-Illinois, 173 Ga. App. 19, 20 (325 SE2d 402) (1984).

With this in mind, the evidence showed the following: As vice president, Sacha was responsible for sales and account retention. Within the ten months of his employment, approximately a third of the accounts he had brought into the merger ceased, some for reasons not related to Sacha’s servicing of them, but many for reasons unexplained. There is no evidence of new accounts being opened. Yet in the seven years prior to the merger, Sacha had increased sales.

Decided March 18, 1993.

Whicker, Gandy & Rice, L. Spencer Gandy, Jr., for appellant.

Mozley, Finlayson & Loggins, C. David Hailey, Eric T. Johnson, for appellee.

During the period of his employment, Sacha spent time and energy servicing some accounts which were not included in the merger. He was responsible for transitioning his merged accounts into the combined operations. But he did not call on problem accounts, did not share his knowledge about specific accounts which he required other personnel to deal with, did not guide or direct the sales force or conduct sales meetings, did not devote full workdays to his responsibilities, did not assist other personnel when needed, did not give guidance to the in-office customer service staff, and failed to formulate programs to ease the transition for old customers or to increase sales in low-volume accounts. He admitted that some losses in revenue occurred from lost rapport. He took no action to rectify the losses that were occurring.

The accounts brought to the merger by Coffee Butler did not suffer from loss of gross profit as did the accounts which Sacha brought. Coffee Butler’s other acquisitions did not result in loss of gross profit but instead resulted in increased volume, even though the owner was not retained to personally bring the business’ good will.

All of this, together with the norms in the industry which were testified to, raises a reasonable inference that loss of profits was attributable to Sacha’s inattention to sales. Sacha did not pierce the evidence of causal connection.

2. I concur in Division 1.

       The Supreme Court rejected Coffee Butler’s contention that it was entitled to summary judgment on its claim that Sacha had anticipatorily breached the Consultant Retention Agreement.


author: Pope, Chief Judge.

text:
    A92A2067.
    RIDDLE v. THE STATE.
    (430 SE2d 153)
   Pope, Chief Judge.

Defendant Johnny T. Riddle appeals his conviction for two counts of sexual battery, two counts of child molestation, and two counts of contributing to the delinquency of a minor.

1. Defendant argues the trial court erred in allowing the introduction of evidence of similar transactions without notice to the defendant or a pretrial hearing and by denying defendant’s motion for mistrial based upon this evidence.

(a) In this enumeration defendant initially contends the trial court committed reversible error by allowing the State’s first witness, the grandmother of two of defendant’s alleged victims, to give certain testimony. The witness was asked if, prior to her grandson’s telling her about what the defendant had allegedly done to him, she had any reason to suspect anything “was going on” between her grandson and defendant. She replied: “Yes, I did. About six months prior to that [my grandson] was telling me that [defendant] had taken him to the store, and they were on their way home from the store and that Johnny had him rub him.”

At that point, defendant objected and the jury was sent to the jury room. Defendant objected on the basis that he had not been served with notice of similar transactions concerning that alleged victim and moved for a mistrial on the basis that his character had been placed in issue. The trial court denied the defendant’s motion for a mistrial, called back the jury and instructed the jury not to consider the witness’ last statement.

We hold that this issue is controlled by our decision in Garrett v. State, 188 Ga. App. 176 (1, 2) (372 SE2d 506) (1988). In this case, as in Garrett, “the date alleged in the indictment was not an essential averment, [and] evidence of similar acts occurring within the statute of limitation was evidence of the crime charged and did not fall within the ambit of the rule relating to notice of the State’s intention to present evidence of similar transactions.” Id. at 177 (2). The count of the indictment charging defendant with child molestation of this particular victim stated that on or about October 25, 1990, defendant “[forced D. R.] to perform masturbation on him, said child being under 14 years of age, with intent to arouse and satisfy the sexual desires of said accused.” The similar offense about which defendant complains allegedly occurred in the same manner as the offense giving rise to defendant’s indictment for child molestation of this same child at a later time. The cases relied upon by defendant are inapplicable to this case because in those cases this court refused to allow testimony of an allegedly similar offense against the same victim when the allegedly similar offense was committed in a different manner than the offense giving rise to the indictment. See Dempsey v. State, 197 Ga. App. 674 (1) (399 SE2d 239) (1990); Story v. State, 196 Ga. App. 590, 591 (396 SE2d 547) (1990). Thus, the trial court did not err in denying defendant’s motion for mistrial.

(b) In this same enumeration of error, defendant argues the trial court erred by allowing the State to present evidence of a similar transaction of which the State had given the defendant notice, because a hearing was not held pursuant to Uniform Superior Court Rule 31.3 (B) before that evidence was admitted. Uniform Superior Court Rule 31.3 (B) and our Supreme Court’s decision in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) mandate that a hearing be held before evidence of a similar transaction is admissible at trial. At that hearing the State must make three affirmative showings: (1) it seeks to introduce evidence of an independent offense or act for an appropriate purpose; (2) there is sufficient evidence to establish the accused committed the independent offense or act; and (3) there is a sufficient similarity between the independent offense or act and the crime charged so that the proof of the former tends to prove the latter. Williams, 261 Ga. at 642. “After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” Id.

This court has held, however, in cases in which a Rule 31.3 (B) hearing was held, that the failure of a defendant to object to the introduction of similar transaction evidence on the basis that the State has not made a sufficient showing and/or the trial court has not made the requisite findings as required by Rule 31.3 (B) and our Supreme Court’s decision in. Williams precludes appellate consideration of those issues. See, e.g., Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991) (holding “nothing in . . . Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. If the argument that appellant advances in his brief had been raised in the form of an objection in the trial court, it is possible that. . . Williams might warrant a reversal of appellant’s conviction. In the absence of such an objection, however, any discussion of . . . Williams in the instant case is inappropriate.”). See also McGaha v. State, 204 Ga. App. 248 (418 SE2d 802) (1992); Shields v. State, 202 Ga. App. 659 (2) (415 SE2d 478) (1992).

We must now consider whether the same rule applies if the error alleged on appeal is that no hearing was held prior to the introduction of the similar transaction evidence, and defendant fails to object to the introduction of the evidence on that basis. Rule 31.3 contemplates that the State will bring to the trial court’s attention its intent to present evidence of a similar transaction, the trial court will conduct the requisite hearing at an appropriate time, and the State will have “[t]he burden of proving that the evidence of similar transactions or occurrences should be admitted.” At trial the State shall only present evidence of similar transactions specifically approved by the trial court. As our Supreme Court stated in Williams “before any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to . . . Rule 31.3 (B).” (Emphasis supplied.) Williams, 261 Ga. at 642 (2) (b). Thus, the burden of conducting the requisite hearing before similar transaction evidence can be admitted at trial is placed squarely with the State and the trial court; defendant bears no burden to initiate this procedure. Accordingly, we hold the defendant’s failure to object to the admission of similar transaction evidence on the basis that a Rule 31.3 (B) hearing was not conducted does not constitute a waiver of the procedure dictated by Rule 31.3 (B) and does not preclude our consideration of this issue on appeal. Because the similar transaction evidence in this case was erroneously admitted without the trial court’s conducting a hearing to determine the admissibility of this evidence, and inasmuch as the admission of this evidence was not, under thé facts of this case, harmless error, defendant’s conviction must be reversed and a new trial granted.

2. We will also address other enumerations of error that are capable of repetition on retrial. Defendant argues the trial court erred by allowing a witness to testify that the victim told her defendant also had sexual contact with his sister. Contrary to the State’s contention otherwise, the defendant’s objection was sufficient to invoke OCGA § 24-3-16, the Child Hearsay Statute. We hold that statements made by the victim to the witness about sexual contact between defendant and another child is not admissible evidence under the Child Hearsay Statute. That statute provides: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” (Emphasis supplied.) OCGA § 24-3-16. That statute provides an exception to the hearsay rule only for statements concerning acts of sexual conduct or physical abuse performed on the child making the statement. Statements concerning such acts on other children are not admissible under this exception to the rule prohibiting the admission of hearsay evidence. Nor do we find this testimony was admissible under any other exception to the hearsay rule. See generally Shaver v. State, 199 Ga. App. 428 (1) (405 SE2d 281) (1991).

The State’s reliance on Mantooth v. State, 197 Ga. App. 797 (399 SE2d 505) (1990) is misplaced. In that case, the defendant was charged with molesting two different children. One child was allowed to testify at trial about her eyewitness observation of the defendant’s molestation of the other child. By contrast, although the victim in this case testified at trial, he did not testify about what he observed the defendant do to his sister. It was thus error to permit hearsay testimony concerning the victim’s out-of-court statements concerning the defendant’s molestation of the victim’s sister.

Decided March 18, 1993.

Hill & Henry, W. Ralph Hill, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mary J. Palumbo, Assistant District Attorney, for appellee.

Defendant further alleges in this same enumeration of error that the trial court violated his right to confrontation by failing to call the victim’s sister as a witness. Because we have held the testimony concerning defendant’s sexual contact with the victim’s sister is inadmissible hearsay, it is unnecessary to address this contention.

3. We have considered defendant’s remaining enumerations of error and either find them to be without merit or unlikely to recur upon retrial.

Judgment reversed.

Johnson, J., and Justice George H. Carley concur.


text:
    A92A2235.
    WILLIAMS v. THE STATE.
    (430 SE2d 157)
   Birdsong, Presiding Judge.

Appellant John Henry Williams appeals his judgment of conviction of aggravated assault and possession of a firearm during commission of a crime, and the sentence. His sole enumeration of error is insufficiency of the evidence.

Appellant in essence asserts that because the victim and an eyewitness testified the victim held his ground while being shot at three or four times, and because the bullets missed the victim although fired at very close range, this testimony precludes the State from establishing appellant had an intent to injure the victim. Appellant also asserts that because of this evidence the State failed to establish the victim was in any apprehension of receiving injury. The evidence establishes that appellant fired three or four times at the victim and the bullets passed on either side of the victim and did not strike him; during this time, the victim held his ground and continued to argue with appellant. The victim testified that appellant pulled the gun out, pointed it at him, and shot at him; he was aware a bullet could inflict great bodily injury upon him; and at the time of the incident, the victim did not know what to think regarding whether appellant intentionally was trying to shoot him or just to shoot by him. The eyewitness, who continued to pump gas into his car during the incident, testified he was so scared that he left the soft drink he had purchased at the store when he departed; he believes appellant was trying to scare the victim who did not appear to be afraid of him. Held:

“ ‘The offense of aggravated assault has two essential elements: (1) that an assault, as defined in OCGA § 16-5-20 be committed on the victim; and (2) that it was aggravated by (a) an intention to murder, rape, or to rob, or (b) use of a deadly weapon.’ [Cit.] OCGA § 16-5-20 states: (a) a person commits the offense of simple assault when he either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” (Emphasis supplied.) Knox v. State, 261 Ga. 272, 274 (3) (404 SE2d 269).

Appellant was indicted, inter alia, on a count of aggravated assault with a deadly weapon, which averred that he did “wilfully make an assault upon the person [of the victim] with a certain handgun, same being a deadly weapon. Said act did take place ... in Thomas-ville, Georgia.” (Emphasis supplied.)

Pretermitting whether the indictment could be construed to include an averment of a simple assault by an attempt to commit violent injury is that the averment adequately includes the averment of an assault upon the victim by the act of using a handgun.

The state of mind of either a perpetrator or a victim, including whether a victim has been placed under reasonable apprehension of injury or fear from an event, when in issue may be proved by indirect or circumstantial evidence. See generally OCGA § 24-1-1 (4); see Conklin v. State, 254 Ga. 558, 564 (1b) (331 SE2d 532). Likewise, intent can be so proven. Davis v. State, 53 Ga. App. 325, 326-327 (185 SE 400).

“Intent to injure is not an element of aggravated assault with a deadly weapon. In describing the distinction between the misdemeanor offense of pointing a firearm at another (OCGA § 16-11-102) and aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2) ), the Georgia Supreme Court declared, ‘if the pointing of the firearm placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.’ Rhodes v. State, 257 Ga. 368, 370 (5) (359 SE2d 670) (1987). ‘A simple assault is defined as ... an act which places another in reasonable apprehension of immediately receiving a violent injury. (OCGA § 16-5-20 (a) (2).) An assault becomes aggravated when it is perpetrated ... by use of a deadly weapon. (OCGA § 16-5-21 (a) (2).) Thus, “Aggravated assault with a deadly weapon is completed when a simple assault is committed by means of a deadly weapon,” Scott v. State, 141 Ga. App. 848, 849 (234 SE2d 685) (1977). . . .’ Tuggle v. State, 145 Ga. App. 603, 604 (1) (244 SE2d 131) (1978). It is the reasonable apprehension of harm by the victim of an assault by a firearm that establishes the crime of aggravated assault, not the assailant’s intent to injure.” (Emphasis supplied.) Collins v. State, 199 Ga. App. 676, 677 (405 SE2d 892); accord Turner v. State, 205 Ga. App. 745 (423 SE2d 439); but compare Cline v. State, 199 Ga. App. 532 (405 SE2d 524) (only a general intent and not a specific intent to injure is required for aggravated assault) and Peterson v. State, 204 Ga. App. 532 (1) (419 SE2d 757).

Decided March 18, 1993.

John G. Runyan, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

In this case, the trial court charged the jury that “to constitute an assault in this state, actual injury to the other person need not be shown. It is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury on another person coupled with the apparent ability to commit that injury and that the other person was placed in reasonable apprehension of immediately receiving a violent injury. . . . Now a person commits the offense of aggravated assault when he assaults another person with a deadly weapon.” As appellant took no exception to this charge, has asserted no charging error on appeal, and as the charge is favorable to him, we need not and do not address its accuracy. Suffice it to say, the trial court placed both the issues of intent of appellant and state of mind of the victim in the hands of the jury, and they found appellant guilty as charged.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of aggravated assault and of possession of a firearm during the commission of a crime of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); compare Holbrook v. State, 168 Ga. App. 380, 381 (2) (308 SE2d 869).

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A92A2272.
    GWINNETT COUNTY BOARD OF TAX ASSESSORS v. NETWORK PUBLICATIONS, INC.
    (429 SE2d 696)
   Andrews, Judge.

We granted this application for interlocutory appeal to consider the denial of Gwinnett County Board of Tax Assessors’ motion for summary judgment.

Plaintiff Network Publications, Inc., is a printing company that initially applied for the 80 percent freeport exemption from ad valorem taxation on personal property in Gwinnett County in 1989, after moving there from a non-freeport county in 1988. That application was denied and litigation followed. No resolution of the issue occurred, however, because the case was dismissed when neither party appeared for calendar call. In 1990, the Board of Tax Assessors did not receive the application mailed by Network.

On March 11, 1991, Network again filed for the exemption. On March 29, 1991, the application was denied and the notice of valuation of personal property was received by Network. It is not disputed that, at the time of the March 29 denial, no representative of the Tax Assessors’ office had actually visited Network to view its operations. Seven days later, two officials from the Tax Assessors’ office did visit and view the operations as part of the review of the denial by the Tax Assessors because of Network’s appeal to the Board of Tax Assessors. On April 17, 1991, counsel for the Board advised that it was still the conclusion of the Board that it was unclear that Network was entitled to the exemption and the Board had decided to stand firm with the denial.

In August 1991, Network appealed the denial to the Gwinnett Board of Equalization on the grounds that the denial “violated] Network’s right to due process and equal protection under the laws guaranteed by the Fourteenth Amendment” to the federal Constitution; violated OCGA § 48-5-48.2; and that such violations constituted a cause of action under 42 USCA § 1983, in that Gwinnett County “[p]ursuant to an official policy, ordinance, regulation, or custom on [its] part regarding the granting of freeport exemptions to other qualified applicants, the Board acted to deny Network’s Application . . . and correspondingly, to deprive Network of its rights as secured by the Constitution. . . .” The Board of Equalization upheld the value assessed on Network’s property, thereby affirming the denial of the freeport exemption.

On September 16, 1991, Network filed a notice of appeal in Superior Court, claiming the exemption had been improperly denied in violation of 42 USCA § 1983 and seeking punitive damages and litigation expenses pursuant to OCGA § 13-6-11. The Board of Tax Assessors filed a confession of partial judgment on November 5, 1991 regarding Network’s entitlement to the freeport exemption and a motion for summary judgment on November 25, 1991 regarding the Section 1983 claim and the claims for punitive damages and litigation expenses.

On May 29, 1992, Gwinnett County Superior Court denied the motion for summary judgment, finding only that genuine issues of material facts exist in the action and that order is appealed pursuant to the grant of the application.

1. The first two enumerations deal with the trial court’s failure to grant summary judgment to Gwinnett County on Network’s claims under 42 USCA § 1983 and will be addressed together.

Under OCGA § 48-5-311 (e) (1), a tax appeal may be heard as to matters of “taxability, uniformity of assessment, and value.”

Network contends that, because the issue is taxability instead of claimed unequal valuation, their claim is subject to suit under Section 1983.

Backus v. Chilivis, 236 Ga. 500 (224 SE2d 370) (1976), however, precludes such a claim. Backus involved a class action challenging the ad valorem tax digest and did relate to the issue of unequal valuation. The claims were against various state, county, and city officials, as well as the city and the private company which conducted the appraisals pursuant to contract. While the court determined that the digest did lack the uniformity of valuation required by the Constitution, it nonetheless did not recognize a § 1983 claim. “[T]he procedures provided by Georgia statutes for resolving ad valorem tax disputes bar taxpayers from instituting a § 1983 action founded only on the claim that the assessments are unequal. A complete remedy for such a defect in a tax digest is already provided by state law. . . . The overriding interests of the state in an efficient, expeditious and nondisruptive resolution of ad valorem tax disputes would be seriously impaired, if not destroyed, by the allowance of such suits.” Id. at 505 (III).

“[I]n Logan v. Zimmerman Brush Co., 455 U. S. 422 (102 SC 1148, 71 LE2d 265), the Supreme Court concluded that post-deprivation remedies do not satisfy procedural due process requirements where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action. Logan, supra at 436-437; [cit.]. In so ruling, the court concluded that ‘absent “the necessity of quick action by the State or the impracticability of providing any predeprivation process,” a post-deprivation hearing would be constitutionally inadequate.’ Logan, supra at 436 and cases cited therein. This case clearly involves the conduct of county tax agents occurring in direct implementation of an established county ad valorem tax procedure. However, the Supreme Court consistently has recognized that cases involving the constitutional challenge to the collection of state taxes are of a special class. [Cits.] Certainly, such cases usually necessitate ‘quick action by the State’ and its taxing entities and agents to avoid substantial jeopardy to the state’s overall financial structure. . . . We are satisfied that the linchpin to [taxpayer’s] § 1983 claim is the alleged nonuniform and unequal appraisal procedure approved by the county and implemented by its agents. Accordingly, we find that the 42 USCA § 1983 claim in this case is not cognizable. Backus v. Chilivis, supra.” Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208, 211 (367 SE2d 43) (1988). See also Murray Bakery Prods, v. Bd. of Tax Assessors &c., 258 Ga. 484, 485 (371 SE2d 393) (1988).

While Network argues that “taxability” is a much different issue than valuation and takes this case out of the Backus rationale, we fail to see the distinction. As stated in OCGA § 48-5-311 (e) (2) (A), “[t]he county board of tax assessors shall review the valuation or denial in question. . . .” (Emphasis supplied.) Thus, denial of an exemption of a portion of the property’s value from taxation under the freeport exemption does affect valuation. The rationale of Backus is dispositive. See City of Atlanta v. J. A. Jones Constr. Co., 260 Ga. 658, 659 (2) (398 SE2d 369) (1990) (no § 1983 claim for frustrated bidder on public project).

The statutory review process provided allows an opportunity for the presentation of constitutional challenges to the process and the taxes imposed. “In order to constitute a ‘plain, speedy, and efficient remedy,’ the [U. S.] Supreme Court has stated that the remedies provided in a state court must provide a taxpayer ‘with a full hearing and judicial determination at which she may raise any and all constitutional objections to the tax.’ Rosewell [v. LaSalle Nat. Bank, 450 U. S. 503, 514 (101 SC 1221, 67 LE2d 464) (1981)].” Colonial Pipeline Co. v. Collins, 921 F2d 1237, 1244 (7) (11th Cir. 1991). See Dennis v. Higgins, 498 U. S.__(111 SC 865, 112 LE2d 969) (1991) (the commerce clause confers “rights, privileges, or immunities” within the meaning of § 1983 so that violations are the source of a right of action); Logan v. Zimmerman Brush Co., supra; City of Atlanta v. North By Northwest Civic Assn., 262 Ga. 531, 535 (3) (422 SE2d 651) (1992).

Therefore, Gwinnett County Board of Tax Assessors was entitled to summary judgment on the issue of the availability of a § 1983 claim.

2. The third and fourth enumerations argue that the Board was entitled to summary judgment on the claim for punitive damages. During the argument before the trial court, however, Network withdrew its claim for punitive damages based on MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991), leaving nothing for the trial court’s consideration and, likewise, nothing for our review. See also City of Newport v. Fact Concerts, 453 U. S. 247 (101 SC 2748, 69 LE2d 616) (1981).

Decided March 18, 1993.

Richard A. Carothers, Jonathan A. Weintraub, Loretta J. Mirándola, for appellant.

Andersen, Davidson & Tate, Thomas T. Tate, William M. Ray II, for appellee.

3. Finally, the Board contends it was entitled to summary judgment on Network’s claim for attorney fees and expenses under OCGA § 13-6-11.

Such fees and expenses are generally not allowed unless the defendant has acted in bad faith, been stubbornly litigious, or caused unnecessary trouble and expense, in which case the jury may allow them. The mere failure to pay a claim without suit does not constitute bad faith. Beacon Indus. v. Vanderbunt Concrete, Ltd., 172 Ga. App. 573 (323 SE2d 871) (1984); Allen v. Brackett, 165 Ga. App. 415 (301 SE2d 486) (1983). They are recoverable against a county in a tax dispute. Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 894 (4) (360 SE2d 425) (1987).

However, bad faith does relate to “that which arises out of the transaction upon which the complaint is based. It refers to a time prior to the institution of the suit, not defendant’s conduct in defending the case.” Candler v. Wickes Lumber Co., 195 Ga. App. 239, 243 (393 SE2d 99) (1990). A bona fide dispute as to part of a claim will preclude a finding of stubborn litigiousness.

Here there is evidence that the Gwinnett County Board of Tax Assessors was aware that other counties did allow the freeport exemption for similarly situated printing companies who requested it, although there was no evidence that any other similarly situated printing companies in Gwinnett County had been granted an exemption. A question of fact remains, however, as to its good faith in denying the exemption to Network and as to whether there was a bona fide dispute over Network’s qualifications for it. Ultimately it is a jury question as to whether litigation expenses will be allowed and how much will be allowed. Spring Lake Property Owners Assn. v. Peacock, 260 Ga. 80, 81 (390 SE2d 31) (1990); Gaston v. Mullins, 168 Ga. App. 371 (309 SE2d 166) (1983).

Therefore, the denial of the motion for summary judgment on the OCGA § 13-6-11 issues was not error.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Beasley, P. J., concur.


text:
    A92A2449.
    BANK SOUTH MORTGAGE, INC. v. STARR et al.
    (429 SE2d 700)
   Birdsong, Presiding Judge.

Bank South Mortgage, Inc. appeals from an order denying the confirmation of four foreclosure sales of property securing loans to Harold H. Starr. Starr Property Management, Inc. was dismissed from the action earlier and is not a party to the appeal. Held:

Our first consideration is whether we have jurisdiction over this appeal. Court of Appeals Rule 32 (d); Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (306 SE2d 22).

The record shows that, sifter the trial court entered an order on November 19, 1991, refusing to confirm the foreclosure sales because of irregularities in the sales, on December 19, 1991, Bank South filed a pleading entitled “Motion to Reverse Final Order of November 19, 1991 or To Grant Petitioner a New Trial.” When this motion was denied by the trial court on May 14, 1992, Bank South filed a notice of appeal on June 12, 1992, purporting to appeal from the order denying its motion for a new trial and the earlier order denying confirmation of the foreclosure sale. As the notice of appeal was not filed within 30 days of the entry of the order refusing to confirm the foreclosure sale, our jurisdiction depends upon whether the post-trial motion entitled Bank South to an automatic extension of time in which to file its notice of appeal. See OCGA § 5-6-38 (a); Bigham v. Wright, 194 Ga. App. 194, 195 (390 SE2d 109).

Since the motion to reverse the final order of the trial court was nothing more than a motion for reconsideration, it would not extend the time in which to file the notice of appeal. Guthrie v. D. L. Claborn Buick, 180 Ga. App. 128 (348 SE2d 523). Therefore, the timeliness of Bank South’s notice of appeal depends upon the validity of its motion for a new trial.

“A motion for a new trial is a proper means of seeking a retrial or reexamination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury or a decision by the court thereon.” (Citation, punctuation and emphasis omitted.) Gully v. Glover, 190 Ga. App. 238, 239 (378 SE2d 411). “ ‘A motion for a new trial goes only to the verdict and reaches only such errors of law and fact as contributed to the rendition of the verdict.’ ” Insurance Co. of N. America v. Eunice, 111 Ga. App. 135 (140 SE2d 918). Of course, mere nomenclature is not controlling as it is the substance and function of a pleading that is determinative and not the title. Holloway v. Frey, 130 Ga. App. 224, 227 (202 SE2d 845); Jones v. Spindel, 128 Ga. App. 88, 103 (196 SE2d 22). Consideration of Bank South’s motion for new trial shows it did not contest factual issues or errors contributing to the verdict, but instead challenged only the trial court’s legal conclusions and judgment. Therefore, it was not a proper motion for new trial because challenges to the judgment are not proper grounds for a motion for new trial. State Farm &c. Ins. Co. v. Yancey, 188 Ga. App. 8, 9 (371 SE2d 883); Sands v. Lamar Properties, 159 Ga. App. 718, 719 (285 SE2d 24).

Decided March 18, 1993.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Wade G. Anderson, Linda S. Finley, for appellant.

Culbreth & Sharony, Jackson L. Culbreth, Abraham A. Sharony, for appellees.

Although somewhat couched in the general grounds (e.g., the motion asserts that, “the court’s order is contrary to law,” etc.), Bank South’s motion merely asserted arguments attacking the judgment of the trial court. A new trial, however, is unnecessary to correct a judgment or decree. “ ‘ “If a judgment or decree is erroneous or illegal, direct exception should be taken to it at the proper time.” ’ [Cit.]” Sands v. Lamar Properties, supra. This is not to say that motions for new trial are limited to jury trials. See Gully v. Glover, supra. These motions also may be used when the court decides the case without a jury, “but only to [challenge] the determination of substantive facts by the fact finder.” Sunn v. Mercury Marine, 166 Ga. App. 567, 568 (305 SE2d 6). Therefore, this motion was not a valid motion for new trial within the meaning of OCGA § 5-6-38 (a), and did not entitle Bank South to the automatic stay in filing its notice of appeal. Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447); Bigham v. Wright, supra.

Accordingly, the notice of appeal was not filed within 30 days of entry of the trial court’s judgment denying confirmation of the sale, and this appeal is untimely and must be dismissed. OCGA § 5-6-48 (b) (1); Pillow v. Seymour, supra.

Appeal dismissed.

Beasley, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A0285.
    A93A0286.
    MILLER v. THE STATE. ELDER v. THE STATE
    (430 SE2d 159)
   McMurray, Presiding Judge.

A jury convicted Steve Lorenzo Miller and Juan Monte Elder of burglary and, following sentencing, each moved for a new trial. The trial court denied each defendant’s new trial motion. Defendant Miller appeals in Case No. A93A0285; defendant Elder appeals in Case No. A93A0286. Held:

1. Defendant Miller asserts the trial court erred in permitting the State to introduce palm print evidence because (1) the State failed to provide him with a copy of the written palm print report ten days prior to trial and (2) the State failed to establish the chain of custody for the palm print. These assertions are without merit.

(a) The State orally notified defendant of the existence of the palm print evidence as soon as it came to the State’s attention (i.e., twelve days before trial) and it gave defendant a copy of the written scientific report seven days before trial. It cannot be said, therefore, that the trial court erred in failing to exclude the palm print evidence. Law v. State, 251 Ga. 525, 527-528 (307 SE2d 904) (exclusionary provision of OCGA § 17-7-211 does not come into play unless prosecution fails altogether to furnish scientific report).

(b) “A chain of custody is not involved where distinct and recognizable objects are identified. Starks v. State, 113 Ga. App. 780 (1) (149 SE2d 841); Lord v. State, 134 Ga. App. 683, 684 (215 SE2d 493). Other courts have held this principle to apply to fingerprint evidence. [Cits.] It is our opinion that fingerprints are the type of evidence which need only be properly identified before their admission into evidence.” Roland v. State, 137 Ga. App. 796, 797 (3) (224 SE2d 846).

(c) The trial court did not err in denying defendant Miller’s motion for a new trial.

2. Defendant Elder contends the trial court erred in overruling his motion for a directed verdict of acquittal, denying his motion for a continuance due to the absence of a subpoenaed witness, and charging the jury that an alibi defense involves “a possibility” (rather than an impossibility) of the defendant’s presence at the scene of the crime.

(a) “A motion for a directed verdict of acquittal should be granted only when there is no conflict in evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311). On appeal a reviewing court can consider all the evidence (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)) and must view the evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436).

“Review of the evidence in this matter reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that [Elder] was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, the trial court did not err by denying [Elder’s] motion.” Jones v. State, 201 Ga. App. 102, 103 (2), 104 (410 SE2d 199).

(b) After defendant Miller rested, the trial court instructed defendant Elder to proceed. Defendant Elder moved for a continuance because a subpoenaed witness was not in the courtroom. Recessing for lunch, the trial court gave defendant Elder until 1:00 p.m. to find the witness “and find out what the problem is.” Defendant Elder was unable to find the witness and he moved for an overnight continuance so the witness could “be picked up tonight and brought to the courtroom tomorrow so that he can testify.” In this connection, defendant’s counsel demonstrated that the witness was an alibi witness and that no other witness was able to present alibi testimony; that the witness was expected to testify that on the day in question, he and defendant Elder were together in Dallas, Georgia, a “good way” from the scene of the crime; that the witness attempted to avoid service of the subpoena; that, eventually, the sheriffs department was able to serve the witness with a subpoena at his house at night; that the witness was in the courtroom on the first day of the trial; and that he told the witness to return the next morning. Summing up, defense counsel presented this plan: “You heard the officer testify that he had a little problem [serving the witness with a subpoena]. It took him three or four times to finally track him down Monday night. I think the only way to track him down is to have the officers go out there, pick him up and bring him in here tomorrow so he can testify.” The trial court asked the State to present its position and the assistant district attorney responded: “[W]e’re ready to proceed at this time. We can certainly sympathize with [defense counsel’s] dilemma, but we would defer to the Court’s discretion. ...” Thereupon, the trial court denied the motion for a continuance.

“Granting or denying a continuance is reversible error only where the court has abused its discretion. Smith v. State, 126 Ga. App. 547 (2) (191 SE2d 304). When a criminal defendant moves for a continuance based on a witness’ absence, the trial court’s discretion is not abused unless the defendant has showed the court all of the prerequisites of [OCGA § 17-8-25]. See Keller v. State, 128 Ga. App. 129, 131 (195 SE2d 767) (Evans, J., concurring specially).” Watts v. State, 142 Ga. App. 857 (237 SE2d 231). As it is said, “[w]here the motion complies with all of the requirements of [OCGA § 17-8-25], and there is no counter-showing by the State, it is error to refuse to grant the continuance. Sutton v. State, 46 Ga. App. 664 (168 SE 911).” Frost v. State, 91 Ga. App. 618, 620 (86 SE2d 646).

We think defendant Elder complied with the requirements of OCGA § 17-8-25 and that, in the absence of a counter-showing by the State, the trial court erred in failing to grant the continuance. Frost v. State, supra. The State admits that defendant Elder complied with all of the requirements of OCGA § 17-8-25 save one: the requirement that “the applicant expects he will be able to procure the testimony of the witness at the next term of the court. . . .” We disagree. In our view, defense counsel sufficiently demonstrated that he expected the witness to be in court the next day. Compare Nation v. State, 180 Ga. App. 460, 461 (2) (349 SE2d 479), in which that defendant’s counsel said he did not know when the witness would be able to testify. It was not incumbent upon defense counsel to state with certitude just when the witness would be available to testify. It was enough that defense counsel demonstrated that he reasonably expected that the witness’s presence could be obtained without undue delay.

Decided March 18, 1993.

Frank J. Sparti II, for appellant (case no. A93A0285).

G. Wilson Jones, for appellant (case no. A93A0286).

George C. Turner, Jr., District Attorney, James E. Barker, Assistant District Attorney, for appellee.

(c) We need not address defendant Elder’s final enumeration of error because it is unlikely to recur upon retrial.

Judgment affirmed in Case No. A93A0285; judgment reversed in Case No. A93A0286.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0371.
    MIDDLEBROOKS v. THE STATE.
    (430 SE2d 163)
   McMurray, Presiding Judge.

Via indictment, defendant was charged with three counts of violating the Georgia Controlled Substances Act (one count of selling cocaine, two counts of possessing cocaine with intent to distribute) and one count of obstruction of a law enforcement officer. Following a jury trial, defendant was convicted of selling cocaine and obstructing a law enforcement officer and was sentenced to 15 years in confinement (to serve seven). Defendant moved for a new trial, asserting, inter alia, ineffective assistance of trial counsel. The motion was denied and defendant appeals. In his sole enumeration of error, defendant contends he was denied his constitutional right to effective assistance of counsel. Held:

“The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.” (Citations and punctuation omitted.) Richardson v. State, 194 Ga. App. 358 (390 SE2d 442).

Decided March 18, 1993.

Wayne B. Kendall, for appellant.

Derrick Middlebrooks, pro se.

Daniel J. Porter, District Attorney, Donald L. Johstono, Jr., Assistant District Attorney, for appellee.

In the case sub judice, defendant did not make a showing that counsel’s performance was not reasonable under the circumstances. The mere fact that defendant’s counsel attempted to withdraw from the case (after defendant voiced his dissatisfaction with counsel when the case was called for trial) does not demonstrate deficient performance.

“A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. [Cit.] The trial court’s finding in the instant case is not clearly erroneous.” Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0539.
    EYO v. THE STATE.
    (430 SE2d 161)
   McMurray, Presiding Judge.

Defendant Eyo appeals his conviction of the offense of simple battery. Held:

1. Defendant’s first enumeration of error complains of the admission into evidence of certain photographs taken by the victim a short time prior to the commission of the crime of which defendant was convicted. Defendant argues that the photographs should not have been admitted into evidence because they are not a fair and accurate representation of what they purport to depict.

The victim testified that she and her husband were selling ice cream from a van outside a church on a Sunday afternoon when they were approached by defendant. Defendant, who had been selling ice cream nearby, began shouting that he had warned the victim’s husband not to come to that spot again, and that that spot belonged to him. According to the victim’s testimony, defendant then began driving people away from their van, telling people that they should not buy ice cream from them. When a customer attempted to make a purchase from the victim and her husband the defendant blocked access to their van. When the customer went around to the other side of the van, defendant followed her and would not let her receive the merchandise which she had paid for. When the victim’s husband handed the items which had been purchased to the victim so she could hand them to the customer, defendant pushed the victim and then struck her with his fist.

The photographs in question, designated as State’s Exhibits 2, 3, 4, and 5, were taken by the victim before she was struck by defendant and the victim testified that the photographs were fair and accurate representations. The victim explained that the scenes in the photographs showed defendant talking to the victim’s husband, blocking access to the van, and following the customer around the van.

Defendant’s objection to the admission of the photographs was that: “I don’t know what they depict. They are just the man at the scene. They don’t — she’s trying to introduce them, or the State is, to draw some kind of conclusion, what I don’t know. I think it’s irrelevant. I think their testimony is that he was at the scene and any pictures that also say he was at the scene is superfluous.” Defendant’s objection that the photographs were irrelevant is entirely too vague and general to present any question for determination by the trial court. Yelverton v. State, 199 Ga. App. 41, 43 (2) (403 SE2d 816). “Furthermore, the photograph[s] admitted into evidence merely depicted that which was orally described without objection to the jury. Thus, even if the admission of the photograph[s] was error, it was rendered harmless.” Yelverton v. State, 199 Ga. App. 41, 43 (2), supra. The remaining issues argued by defendant in support of this enumeration of error were not raised before the trial coúrt and therefore will not be considered for the first time on appeal. Daniel v. State, 260 Ga. 555, 556 (3) (397 SE2d 286); Yelverton v. State, 199 Ga. App. 41, 43-44 (2), supra.

2. Defendant is a native of Nigeria who has been a resident of the United States since 1977. While defendant did not know the victim prior to the incident at issue, he recognized her husband as another native of Nigeria but a member of an opposing tribe with whom his tribe had a history of animosity in their native country. Defendant’s remaining enumeration of error contends that the trial court erred in refusing to allow testimony from defendant as to the conflict between their tribes in Nigeria so as to establish an element in his justification defense.

“Trial courts are vested with wide discretion in admitting evidence and will not be reversed in the absence of an abuse of discretion. Baker v. State, 246 Ga. 317, 319 (271 SE2d 360); Flowers v. State, 191 Ga. App. 396, 398 (381 SE2d 768).” Norton v. State, 195 Ga. App. 737, 738 (395 SE2d 34). Defendant testified that he was selling ice cream from his truck outside a church after Sunday services when the victim approached and began ordering people away from his vehicle. According to the defendant’s account of the events at issue, when he went to the victim’s husband to complain about her behavior, the husband and then the victim began pushing and scuffling with him, and that he struck the victim only after she grabbed him in the groin area and started dragging him. After considering the conflicting accounts of the events outside the church that Sunday afternoon, we find no abuse in the trial court sustaining the State’s objection to the relevance of the defendant’s proffered evidence of tribal strife in Nigeria since the excluded evidence clearly failed to shed any light on the events at issue. The trial court did not err in curtailing this irrelevant and immaterial line of questioning. Harris v. State, 168 Ga. App. 159, 160 (2), 161 (308 SE2d 406); Decker v. State, 139 Ga. App. 707 (2), 708 (229 SE2d 520).

Decided March 18, 1993.

Franklin, Moran & Boyle, Brooks S. Franklin, for appellant.

Paul L. Howard, Jr., Solicitor, Deborah W. Espy, Lawrence W. Daniel, Assistant Solicitors, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.