text:
    73210.
    GUNTER v. THE STATE.
    (356 SE2d 276)
   Beasley, Judge.

Defendant was indicted for possession of diazepam and less than one ounce of marijuana in violation of the Georgia Controlled Substances Act. He pleaded nolo contendere to the charge on possession of diazepam and guilty to the charge on possession of marijuana. The trial court sentenced him to three years probation under the Georgia First Offender Act, OCGA § 42-8-60 et seq., and ordered him to pay a fine of $500. At the time of his arrest the police seized from defendant’s van a revolver, a rifle and a shotgun.

After defendant was sentenced, he filed a motion for return of his property which was the subject only of the no-billed charge and was not related to the charges supporting the sentence. He invoked OCGA § 17-5-2, which requires return of certain seized property when a person is released without a charge relating thereto, unless it is contraband. The trial court denied defendant’s motion and this appeal followed.

In his sole enumeration of error, defendant contends that the trial court erred in denying his motion for the return of property. We agree. This issue is controlled by our decision in LoGiudice v. State, 164 Ga. App. 709 (4) (297 SE2d 499) (1982): “There is no evidence that the gun collection was contraband, as required under [OCGA § 17-5-51] . . . Once it was determined that the guns were not contraband (i.e., because they were not stolen property or used in the commission of a crime), they should have been immediately returned to the defendant or to some party designated by him to receive his property.”

It is argued that defendant is not entitled to possess the guns because he is now a “convicted felon” due to his plea of nolo contendere to the felony charge in this case, and such possession would be violative of OCGA § 16-11-131 (b).

However, since he was dealt with under the First Offender Act, there has been no adjudication on the plea; it has simply been tendered and accepted for the purpose of imposing punishment which, if successfully completed by defendant, will relieve him of any judgment of guilt and hence of any conviction. OCGA § 42-8-62. That section expressly provides: “The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.” The wording of OCGA §§ 42-8-63 and 42-8-64 also demonstrate that there is no conviction unless there is an adjudication following non-fulfillment of the court’s terms.

As explained in State v. Wiley, 233 Ga. 316, 317 (210 SE2d 790) (1974): “Any probationary sentence entered under this Act is preliminary only, and, if completed without violation, permits the offender complete rehabilitation without the stigma of a felony conviction.” Again in Favors v. State, 234 Ga. 80, 86 (214 SE2d 645) (1975), the Supreme Court states: “under our law, the formal act of ‘conviction’ is not completed for a person who satisfactorily completes the probationary period.” We recognized this in Hightower v. Gen. Motors Corp., 175 Ga. App. 112, 113 (1) (332 SE2d 336) (1985). The point is that while there is an acceptance of the plea for the purpose of imposing a period of probation, there is no adjudication based on that plea. Rather, the court act of adjudicating is suspended and will never occur if probation is fulfilled.

That being the case, there is no legal bar to the return of defendant’s property as he has demanded. Whether a subsequent adjudication on his nolo plea, resulting from violation of probation, would subject him to a charge under OCGA § 16-11-131 (b) if he still possesses the guns, is a question for another day.

Judgment reversed.

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

Benham, Judge,

dissenting.

Appellant seeks return of the firearms to him rather than to his designated agent, contending that the strictures of OCGA § 16-11-131 are not applicable to him because he is not a convicted felon. “Felony” is defined in OCGA § 16-11-131 (a) (1) as “any offense punishable by imprisonment for a term of one year or more ...” Illegal possession of diazepam fits within the definition of felony. The question is whether the action taken on appellant’s plea of nolo contendere under the First Offender Act amounts to a conviction so as to deprive him of the right to possess a firearm.

Decided April 3, 1987

Roman A. DeVille, for appellant.

Robert E. Wilson, District Attorney, James W. Richter, Barbara Conroy, Assistant District Attorneys, for appellee.

This court has held that one who has been sentenced after entering a plea of nolo contendere “has been adjudged guilty and convicted of said offense . . .” Nelson v. State, 87 Ga. App. 644, 648 (75 SE2d 39) (1953). “[A] sentence based on a plea of nolo contendere is a conviction [Cits.] . . .” Windsor Forest v. Rocker, 121 Ga. App. 773 (2) (175 SE2d 65) (1970). Because I have been unable to find Georgia case law on the ramifications of the entry of a plea under the First Offender Act on a defendant’s ability to possess a firearm, I have turned to the decision of the U. S. Supreme Court in Dickerson v. New Banner Institute, 460 U. S. 103 (103 SC 986, 74 LE2d 845) (1983). In construing the applicability of the firearms disabilities contained in the Omnibus Crime Control & Safe Streets Act of 1968 (18 USCA § 921 et seq.), the Supreme Court equated entry and notation of a guilty plea, followed by the imposition of a sentence of probation pursuant to a law similar to the First Offender Act, with being “convicted.” Combining the holdings of Nelson, supra, and Windsor Forest, supra, with that of the U. S. Supreme Court in Dickerson, supra, I conclude that the entry of a plea of guilty or nolo contendere under the First Offender Act, followed by the imposition of a sentence of probation is, for purposes of OCGA § 16-11-131, tantamount to being “convicted.” Having been convicted of a felony by pleading nolo contendere and being sentenced therefor under the First Offender Act, appellant is not entitled to possess a firearm, and the guns at issue herein should not be returned to him.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Judge Sognier join in this dissent.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    71175.
    JOHNSON v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al.
    (357 SE2d 164)
    Decided April 6, 1987.

      Larry D. Ruskaup, James M. Arron, Jr., for appellant.

      Richard B. Eason, Jr., W. Meade Burns, Jr., Roger Mills, for appellees.
   Pope, Judge.

A portion of our judgment rendered in this case at 178 Ga. App. 431 (343 SE2d 709) (1986) has been affirmed in part and reversed in part by the Supreme Court on certiorari. Southeastern Fid. Ins. Co. v. Johnson, 256 Ga. 713 (352 SE2d 760) (1987). Accordingly, insofar as our earlier judgment is inconsistent with the judgment of the Supreme Court, we vacate our earlier judgment and adopt the judgment of the Supreme Court as our own.

Judgment affirmed in part; reversed in part.

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


author: Deen, Presiding Judge.

text:
    71687.
    FOUNTAIN v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (357 SE2d 164)
    Decided April 6, 1987.

      George P. Dillard, for appellant.

      Barclay T. Macon, John E. Ramsey, for appellee.
   Deen, Presiding Judge.

The decision of the Court of Appeals in the case having been reversed by the Supreme Court, MARTA v. Fountain, 256 Ga. 732 (352 SE2d 781) (1987), our decision in Fountain v. MARTA, 179 Ga. App. 318 (346 SE2d 363) (1986), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Benham and Beasley, JJ., concur.


author: Carley, Judge.

text:
    73698.
    STINSON v. PRATT.
    (356 SE2d 519)
   Carley, Judge.

Appellee initiated this proceeding to establish that appellant is the father of her minor daughter. See OCGA § 19-7-40 et seq. The trial court, sitting without a jury, found that appellant is the father of the child and ordered him to pay child support. Appellant appeals from the denial of his motion for new trial.

1. The trial court’s refusal to afford appellant a trial by jury is enumerated as error. The trial court held that appellant was not entitled to a jury trial because no written demand had been filed prior to the call of the case.

A proceeding to determine paternity is a civil action governed by the rules of civil procedure. OCGA § 19-7-47. “The right of trial by jury as declared by the Constitution of the state or as given by a statute of the state shall be preserved to the parties inviolate.” OCGA § 9-11-38. Our Constitution provides: “The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.” (Emphasis supplied.) Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a). Although appellant made no written demand for a jury trial, he did file an answer raising issuable defenses to the paternity petition. Accordingly, the constitutional exception authorizing a bench trial in this civil action is not applicable here. Compare McElroy v. McElroy, 252 Ga. 553 (1) (314 SE2d 893) (1984).

Moreover, in asserting his right to a jury trial, appellant does not rely upon a statute which purports to condition the exercise of that right upon the filing of a written demand within a specified time. Under Rule 24.1 of the Uniform Rules for the Superior Courts, a paternity proceeding is considered to be a “domestic relations” action. A paternity action is not, however, a cause involving divorce and permanent alimony. Accordingly, OCGA § 19-5-1, which provides for a bench trial as to the issues of divorce and permanent alimony unless an issuable defense is filed and a written demand for jury trial is made on or before the call of the case, is inapplicable here. Likewise, a paternity proceeding is not an action to modify a previous judgment awarding permanent alimony or child support. Accordingly, OCGA § 19-6-19 (a), which provides for a bench trial unless a demand for jury trial is made as to those issues, is likewise inapplicable here. Compare McElroy v. McElroy, supra.

Insofar as the constitutional exception is inapplicable and there is no statutory provision conditioning the right to a jury trial in a paternity action upon the filing of a written demand within a specified time, OCGA § 9-11-39 (a) is the controlling authority in this case. Rather than predicating the right to a jury trial upon a demand, that statute provides that a jury trial shall be afforded unless the parties consent to a bench trial. OCGA § 9-11-39 (a) “provides for a jury trial as a matter of right unless the parties consent to a non-jury trial. This consent must be manifested by express stipulation or by voluntary participation in a non-jury trial. [Cits.] Because [appellant] did not consent to the non-jury trial by either means, the judgment must be reversed.” Raintree Farms v. Stripping Center, 166 Ga. App. 848, 849 (1) (305 SE2d 660) (1983).

2. Reversal of the judgment for the reasons discussed in Division 1 moots all remaining enumerations of error except one. That enumeration raises an issue that is likely to recur at the new trial and, accordingly, we will address it.

The trial court, over appellant’s objection, admitted into evidence the deposition of appellee’s expert witness. Appellant’s objection to the admission of the deposition was to the competency of the witness to testify as an expert. However, at the deposition, appellant’s counsel stated that he had no objection to the witness testifying as an expert. Even assuming that appellant did not thus affirmatively waive the right to raise this objection at the subsequent trial, it is clear that the objection has otherwise been waived pursuant to OCGA § 9-11-32 (d) (3) (A). See Andean Motor Co. v. Mulkey, 251 Ga. 32 (1) (302 SE2d 550) (1983). Accordingly, the deposition will not be inadmissible at the new trial.

Judgment reversed.

Banke, P. J., and Benham, J., concur.

Decided April 6, 1987.

James R. Jester, for appellant.

Stanley M. Baum, for appellee.


text:
    73709.
    MOTORCYCLE STUFF, INC. v. BRYANT.
    (356 SE2d 521)
   Carley, Judge.

Appellant’s original suit against appellee was initiated by the filing of a complaint captioned as “Motorcycle Stuff, Plaintiff v. Tom Bryant, Defendant.” Appellee moved to dismiss on the ground that “Motorcycle Stuff” did not purport to be a corporation, partnership, or other legal entity. Appellee’s motion to dismiss was granted. Within six months, appellant, relying on OCGA § 9-2-61, refiled the suit, captioning its complaint as “Motorcycle Stuff, Inc., Plaintiff v. Thomas Bryant a/k/a Tom Bryant, Defendant.”

Prior to the refiling, the statute of limitations ran as to appellant’s claim. Appellee’s answer in the second action denied liability and raised, among other defenses, the statute of limitations. Appellee also filed a counterclaim. Appellant moved to strike appellee’s statute of limitations defense and appellee moved for summary judgment. The trial court merely “sustained” appellee’s statute of limitations defense and certified its order for immediate review. Appellant’s application to this court for interlocutory appeal from this order was denied. Subsequent to “sustaining” appellee’s statute of limitation defense, the trial court denied various motions filed by appellant. Appellant’s appeal from the trial court’s orders was dismissed as premature since appellee’s counterclaim remained pending. See Motorcycle Stuff, Inc. v. Bryant, 179 Ga. App. 117 (345 SE2d 665) (1986).

The trial court has since entered a final order in the case which dismisses both appellant’s complaint and appellee’s counterclaim. Appellant appeals from that order.

1. Appellant contends that the trial court erred in holding that its suit was barred by the statute of limitations.

OCGA § 9-2-61 (a) provides that “[w]hen any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later. . . .” The renewed action must be “ ‘by the same party or his legal representative, and against a' person from whom relief was prayed in the first suit. . . .’ [Cit.]” (Emphasis in original.) McCoy Enterprises v. Vaughn, 154 Ga. App. 471, 472 (268 SE2d 764) (1980). That the original action was dismissed involuntarily is not a bar to the application of the renewal statute. OCGA § 9-2-61 “applies to involuntary as well as voluntary dismissals, where the merits are not adjudicated. [Cits.]” Bowman v. Ware, 133 Ga. App. 799, 800 (2) (213 SE2d 58) (1975). However, the renewal statute will apply only if the original action was itself a valid suit. Fowler v. Aetna Cas. &c. Co., 159 Ga. App. 190, 192 (3) (283 SE2d 69) (1981). Thus, if the original action was void, OCGA § 9-2-61 is inapplicable. Murray v. Taylor, 131 Ga. App. 697 (2) (206 SE2d 643) (1974). If, however, the original action was merely voidable, the privilege of renewal is available. United States Cas. Co. v. American Oil Co., 104 Ga. App. 209 (1) (121 SE2d 328) (1961); Southern R. Co. v. Pruitt, 121 Ga. App. 530 (174 SE2d 249) (1970).

The basis for the trial court’s dismissal of appellant’s second complaint notwithstanding the renewal statute was that, insofar as the first suit had no real party plaintiff, the parties to this second suit were not the same as those in the first suit. See McCoy Enterprises v. Vaughn, supra. However, the first suit initiated by appellant was not void for lack of a legal party plaintiff. Where, as in the original action here, “the party plaintiff named in a complaint is not a legal entity but is reasonably recognizable as a misnomer for a legal entity which is the real party plaintiff, the misnomer may be corrected by amendment.” Block v. Voyager Life Ins. Co., 251 Ga. 162, 163 (1) (303 SE2d 742) (1983). Such an amendment does not introduce a new party. Cunningham, Tollman, Pennington, Inc. v. Case-Hoyte Color Printers, 174 Ga. App. 488 (330 SE2d 598) (1985). John L. Hutcheson &c. Hosp. v. Oliver, 120 Ga. App. 547 (1) (171 SE2d 649) (1969). The misnomer of “Motorcycle Stuff” as the plaintiff being an amendable defect in the original suit, it follows that suit was not void. Since the dismissal of the original suit was not on the merits and the cause of action and parties here are the same as in the original suit, appellant was entitled to rely on OCGA § 9-2-61 as applicable authority for the renewal of its suit against appellee. Accordingly, the trial court erred in dismissing appellant’s complaint.

2. Appellant enumerates as error the trial court’s denial of its motions for summary judgment, to compel discovery and for sanctions. The record shows that the “denial” of these motions was based solely on the ground that appellant’s complaint had been dismissed as barred by the statute of limitations. Accordingly, the merits of the motions were never considered, the “denial” of these motions being, in effect, no more than a decision by the trial court that the motions were moot by virtue of the dismissal of appellant’s complaint. The effect of our reversal of the dismissal of appellant’s complaint is to reinvest the trial court with jurisdiction to rule upon the merits of appellant’s motions. The trial court is hereby ordered to vacate its “denial” of such of appellant’s motions as were rendered moot by the erroneous dismissal of the complaint and to enter new orders which address the merits of these motions. The losing party as to such new rulings will be free to pursue whatever right of appeal may be available to it or him at that time.

Decided April 6, 1987.

Patricia A. Hoin, for appellant.

William I. Sykes, Jr., for appellee.

Judgment reversed in part and vacated with direction in part.

Banke, P. J., and Benham, J., concur.


author: Birdsong, Chief Judge. Deen, Presiding Judge,

text:
    73732.
    TIMMONS v. THE STATE.
    (356 SE2d 523)
   Birdsong, Chief Judge.

David Brian Timmons appeals his conviction for statutory rape of his stepdaughter, age 14, on grounds the child’s testimony was not corroborated and the trial court erred in denying him a directed verdict of acquittal and new trial. Held:

Three offenses were charged against the appellant but two of these were without any corroboration. As to the act of statutory rape of which appellant was found guilty, the child testified that very early one morning during hunting season, appellant got her out of bed and took her to the “fire room,” an enclosed part of the carport where appellant, a fireman, kept his antique fire hoses and other equipment. Appellant pulled his pants down past his knees and got on top of the victim and had penetrated slightly when he heard the victim’s mother coming. The victim was frightened (appellant had previously told her she would be blamed if they were “caught”); appellant told her to “go hide.” She did, but was quickly found by the mother. Appellant told his wife the victim had been asking questions about sex, or about problems she had or about a friend who was in trouble at school; the mother then took the girl into her bedroom and chastised her for asking appellant such questions.

At trial it was shown that the appellant, after being read his right to remain silent, told the investigating detective he and the child were in the fire room about 3:00 or 4:00 a.m. talking when he heard his wife coming, and that he asked the child to hide because “I knew that my wife would be mad” but could not really say why she would be angry, and that when his wife saw the child was there and asked them what they were doing up at that time of night, he told her they were discussing some sex questions. Appellant also told the investigator he had shown the child some photographs of nude men and women for educational purposes, thus “confirm[ing] what [the child] said about showing her some explicit photographs”; he did not recall where the photographs had come from but he was sure they did not come from a Playboy magazine (of which he had several in the house).

At trial appellant said the child came into the kitchen about 6:00 a.m. when he had gotten up to go deer hunting, and that he knew his wife was coming into the room because she had agreed to get up and have coffee with him. He testified that he told the child to hide and pushed her into the fire room when he heard his wife coming because he did not want the child to get into trouble, since he knew she was upset because her mother had been “getting on to her because she was not getting the dishes clean when she washed them or [swept] the floor.” He also testified he had showed the girl photos of nude men and women for educational purposes. The child’s mother testified these events occurred about 6:00 a.m. and that appellant knew she was going to get up and have coffee with him, and that when she came into the kitchen and saw the child and her husband, both of them looked “scared,” and that she was confused that appellant should look “scared.” However, she testified he told her the child had been asking him about a child at school who was pregnant; the mother evidently believed her husband on this point and admonished the girl for asking him such questions. The mother denied telling the investigator that appellant had looked scared and had said he was hiding to play a joke on her. There was some evidence the mother was mad at the child for making this accusation.

The statutory rape statute provides no conviction shall be had for this offense on the unsupported testimony of the child (OCGA § 16-6-3 (a)), but it is well settled that it is not necessary that the child be corroborated as to every essential element of the crime, or that it establish the defendant’s guilt, but only that the corroborating evidence tend to establish his guilt and be of “ ‘such a character and quality as tends to prove the guilt of the accused by connecting him with the crime.’ ” Chambers v. State, 141 Ga. App. 438, 439 (233 SE2d 818), rev’d on other grounds, 240 Ga. 76 (239 SE2d 324). Moreover, the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, “ ‘but only that amount of independent evidence which tends to prove that the incident occurred as alleged. . . . Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.’ [Cit.]” Hill v. State, 159 Ga. App. 489, 490 (283 SE2d 703).

We are satisfied that the child’s testimony that sexual conduct was committed by appellant in the “fire room” is corroborated by the appellant’s own testimony that he told the girl to hide when he heard his wife approaching, that he did not want his wife to catch them in the room, and by his wife’s testimony that he looked “scared” when she did discover the child with him, all of these facts not being rationally explained except as guilty conduct; and further, by his testimony under the circumstances that he had shown the girl photographs of nude men and women for educational purposes. A reasonable trier of fact could rationally find from all the evidence proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781; 61 LE2d 560); Boyd v. State, 244 Ga. 130, 132 (259 SE2d 71). It follows that the trial court did not err in denying the defendant a directed verdict of acquittal as to this offense (Hill, supra) and denying a new trial.

Decided April 6, 1987.

Glenn Zell, for appellant.

E. Byron Smith, District Attorney, Hugh D. Sosebee, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur. Deen, P. J., also concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, it should be further said that while appellant stepfather concedes that he had shown his stepdaughter pictures of naked men and women from medical books and possibly from Playboy magazine, they were, nevertheless, done so for educational purposes. Appellant contends that his stepdaughter did read Playboy magazine, but that was her own idea. Other testimony indicated that the nude and pornographic pictures were an indication of his personal predilection for permissive preferences, and as a suggested method for stimulation in his modus operandi of expected sexual conduct and encounter that he intended to create. The jury could have believed the latter inferences. Megar v. State, 144 Ga. App. 564, 568 (241 SE2d 447) (1978); Howell v. State, 172 Ga. App. 805 (324 SE2d 754) (1984).


text:
    73851.
    JENKINS v. THE STATE.
    (356 SE2d 525)
   Carley, Judge.

Appellant was indicted for burglary and criminal attempt to commit rape. A jury found appellant guilty of both crimes. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

Appellant does not challenge the sufficiency of the evidence to support his convictions. The only enumeration is that evidence of appellant’s commission of a prior sexual offense was erroneously admitted into evidence in this case. “If evidence is relevant and material to an issue in [a] case, it is not inadmissible because it incidentally puts the defendant’s character in issue. [Cits.] This rule is true with respect to similar independent transactions or crimes of the defendant. While unconnected crimes not tending to prove any element in the case are generally inadmissible and prejudicial as tending to place the defendant’s character into evidence, proof of such crimes or transactions is admissible for purposes of proving issues such as malice, intent and motive. [Cits.]. . . . ‘[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. . . . [Cit.]’. . . . The second condition requires that there be a ‘sufficient similarity’ between the incidents so that proof of the prior transactions or crimes tends to prove an element of the crime for which defendant is on trial. [Cit.]” Davis v. State, 249 Ga. 309, 310-311 (1) (290 SE2d 273) (1982). This recognized “exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses. [Cits.]” Johnson v. State, 242 Ga. 649, 653 (3) (250 SE2d 394) (1978).

Decided April 6, 1987.

Drew Dubrin, for appellant.

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

There is no dispute that appellant committed the prior sexual offense. Both the prior offense and the attempted rape under consideration in this case involved sexual assaults upon women who had no prior personal connection with appellant. Compare Wimberly v. State, 180 Ga. App. 148 (348 SE2d 692) (1986). As to each crime, the sexual assault was frustrated short of rape when the victim screamed and her assailant fled. Compare Wimberly v. State, supra. In neither prosecution was the consent of the victim raised by appellant as a defense. Compare Wimberly v. State, supra. In the case sub judice, appellant’s defense was that he was not the individual who had perpetrated the sexual assault on the victim and then fled when she screamed. Clearly, the evidence of appellant’s commission of the prior sexual assault was admissible and relevant to the issue of his identity as the perpetrator of the instant attempted rape. See generally Fambro v. State, 165 Ga. App. 445, 446-47 (2) (299 SE2d 114) (1983); Green v. State, 177 Ga. App. 591, 592 (1) (340 SE2d 195) (1986).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    73869.
    LEWIS v. SUN MANAGEMENT, INC.
    (356 SE2d 526)
    Decided April 6, 1987.

      Walter L. Fortson, for appellant.

      Craig G. Harley, Edward W. Killorin, for appellee.
   Carley, Judge.

Alleging appellant-lessee’s failure to pay rent when due, appelleelessor instituted dispossessory proceedings pursuant to OCGA § 44-7-50. When appellant failed to answer, the trial court entered default judgment in favor of appellee on April 25,1985. Appellant was evicted from the premises on April 30,1985 and filed a pleading denominated as his motion for new trial on July 10, 1986. Appellant appeals from the trial court’s denial of his motion for new trial.

“There being no verdict and judgment based on testimony of witnesses, a motion for new trial was not in order here. [Cits.]” Bullock v. Grogan, 139 Ga. App. 97 (1) (227 SE2d 894) (1976). Even had a motion for new trial been appropriate, appellant’s motion was not timely filed within 30 days after entry of judgment. Appellant’s only available remedy was to file a motion to set aside the default judgment. See OCGA § 9-11-60 (d). However, even if we were to construe appellant’s untimely motion for a new trial as a motion to set aside, this court would still have no jurisdiction over the appeal. Appeals from the denial of such motions are discretionary and appellant did not follow the applicable procedure to secure appellate review of the denial of his motion. See OCGA § 5-6-35 (a) (8); Folks, Inc. v. Agan, 177 Ga. App. 480 (340 SE2d 26) (1986).

Appeal dismissed.

Banke, P. J., and Benham, J., concur.


author: Banke, Presiding Judge.

text:
    73923.
    In the Interest of L. E. P.
    (356 SE2d 527)
   Banke, Presiding Judge.

The appellant, the natural mother of L. E. P., appeals a juvenile court order declaring the 7-year-old child to be deprived and placing the child in the custody of the county department of family and children services.

The evidence introduced at the hearing revealed that the child had been sexually abused on a number of occasions by her stepfather in the family home. The stepfather subsequently pled guilty to child molestation based on this conduct. There was also evidence that the appellant was aware the child was being molested but failed to protect her. In this appeal, the appellant challenges the court’s finding that her own father is the biological father of L. E. P., as well as the court’s finding that she was aware the child was being molested yet failed to protect her. She contends that the court erred in finding L. E. P. to be deprived and that the court’s order is technically deficient because it does not contain findings of fact and conclusions of law. Held:

Decided April 6, 1987.

William D. Smith, Randie H. Siegel, for appellant.

Robert J. Nesmith, Solicitor, Jonath A. Morrow, Assistant Solicitor, for appellee.

1. There was no dispute that L. E. P. had been sexually abused by her stepfather, and there was clear and convincing evidence to support the court’s determination that the appellant was aware of her husband’s conduct. The issue of whether the appellant’s father is also the father of L. E. P. came into the case only as a collateral matter affecting the appellant’s credibility, and its resolution was unnecessary to the court’s dispositional order. Moreover, the court’s finding on this issue was amply supported by the evidence. We are satisfied that there was “clear and convincing” evidence to support the court’s finding of deprivation and consequently that the transfer of temporary custody to the department of family and children services was fully authorized. See generally OCGA § 15-11-33 (b); In re Suggs, 249 Ga. 365 (2) (291 SE2d 233) (1982).

2. The findings of fact and conclusions of law contained in the trial court’s order are both procedurally adequate and supported by the evidence. See generally Brown v. Fulton County Dept. of Family &c. Svcs., 136 Ga. App. 308 (3) (220 SE2d 790) (1975).

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    74083.
    LUDY v. THE STATE.
    (356 SE2d 528)
   Banke, Presiding Judge.

Ludy appeals his convictions for robbery and burglary.

While the elderly victims, Mr. and Mrs. Peppers, were at home on the evening in question, Mr. Peppers received a telephone call which prompted him to leave the house. As he was entering his vehiele, he was attacked by a man who dragged him along the ground and beat him repeatedly. Although the assailant’s face was concealed at this time by a ski mask, Mr. Peppers was able to observe that the man’s hands were “knotted.” A wallet containing $20 was taken from the victim by the assailant, who then ran inside the Peppers’ residence. Mrs. Peppers testified that a man wearing a ski mask entered the house by breaking a window and unlocking a door, pushed her to the ground, rifled through her jewelry box and demanded money. When she responded that she had none, he left the house and removed his ski mask, giving Mr. Peppers an opportunity to observe his face. Mr. Peppers made an in-court identification of the appellant as the assailant. Held:

Decided April 6, 1987.

Terry W. Haygood, Jr., for appellant.

David L. Lomenick, Jr., District Attorney, David L. Whitman, James D. Franklin, Assistant District Attorneys, for appellee.

1. The appellant submits that the following opening remarks to the jury by the trial court had the effect of impermissibly shifting the burden of proof in the case: “Then counsel for the defendant will make an opening statement to you if he desires, that generally is what they expect to prove to you during the trial of the case, or the lack of proof, or whatever.” Since the statement in question concerned the procedure for making opening statements rather than the burden of proof, and since the trial court gave a correct instruction on the burden of proof in its final charge to the jury, we find this enumeration of error to be without merit.

2. The trial court did not err in denying appellant’s motion for directed verdict of acquittal. The evidence presented at trial, viewed in its entirety, was amply sufficient to enable any rational trier of fact to find the appellant guilty of the offenses charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Rautenberg v. State, 178 Ga. App. 165, 167 (342 SE2d 355) (1986).

Judgment affirmed.

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


author: Benham, Judge.

text:
    71804.
    UNITED STATES FIDELITY & GUARANTY COMPANY v. ROME CONCRETE PIPE COMPANY, INC.
    (357 SE2d 165)
   Benham, Judge.

This court having entered on July 2, 1986, a judgment in the above-styled case (179 Ga. App. 882 (348 SE2d 83) (1986)) affirming the judgment of the trial court; and the judgment of this court having been reversed by the Supreme Court in United States Fidelity & Guaranty Co. v. Rome Concrete Pipe Co., 256 Ga. 661 (353 SE2d 15), the judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Decided April 7, 1987.

J. Alexander Porter, Sidney R. Barrett, Jr., for appellant.

S. David Smith, Jr., Frank W. Scoggins, for appellee.

Judgment reversed.

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


author: Birdsong, Chief Judge.

text:
    74364.
    HAYES v. THE STATE.
    (_SE2d_)
    Decided June 8, 1987.

      Clayton Jones, Jr., for appellant.
   Birdsong, Chief Judge.

Cleveland Hayes was convicted upon his plea of guilty of illegally entering an auto (from which he stole a television set). In view of his plea of guilty, the State nol prossed a charge of simple battery and auto theft. He was sentenced to five years with two to serve and also suffered a revocation of parole. Against the advice of his counsel upon an assessment of frivolousness, Hayes has insisted upon his right to appeal. Held:

Our review of the brief record and transcript discloses the trial judge carefully inquired of Hayes as to whether he fully understood the nature of his acts, and as to whether he freely and voluntarily entered the guilty plea, and as to whether he had had his rights explained to him by his counsel. To all these inquiries by the court Hayes replied in the affirmative. The evidence before the court was amply sufficient to authorize this court to find that Hayes has not been denied any of his rights, and that he fully understood and freely and voluntarily entered his plea of guilty. We find no error in the providency of the plea, the entry of the finding of the court, or the sentence imposed as a result of the verdict of guilty. See Polk v. Holland, 229 Ga. 169 (1) (190 SE2d 35).

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Hobart M. Hind, District Attorney, Melodie B. Swartzbaugh, Assistant District Attorney, for appellee.


author: Sognier, Judge.

text:
    73708.
    SMITH v. COLLINS.
    (356 SE2d 530)
    Decided April 7, 1987.

      Thomas F. Jarriel, for appellant.
   Sognier, Judge.

Marilyn Rochelle Smith brought suit against her landlord, Gloria Collins, to recover damages she suffered when she stepped into a bed of fire ants while mowing the lawn at the leased premises. The trial court granted Collins’ motion for summary judgment and Smith appeals.

We affirm the trial court’s grant of summary judgment to appellee. It is uncontroverted that appellant was aware of the presence of fire ant beds in the yard and indeed had suffered a similar injury while mowing the grass three months prior to the injury precipitating the instant action. Thus, there is no question of fact that appellant possessed equal, if not superior, knowledge of the fire ant hazard. “It has often been held that the true basis for a landlord’s liability to a tenant for injuries resulting from a defective or hazardous condition existing on the premises is the landlord’s superior knowledge of the condition and of the danger resulting from it. [Cits.] This is merely a manifestation of the general rule regarding the liability of proprietors for injuries to invitees occurring on the premises. [Cits.]” Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770) (1984). Appellant’s arguments concerning the dispute over which party was to mow the grass are not relevant here, for even assuming it was appellee’s duty to cut the grass, appellant was not relying on assurances from appellee that the defect would be repaired “any day,” thus distinguishing Richardson, supra, nor was she forced to assume the risk because there was no other means of ingress or egress, thereby distinguishing Hull v. Mass. Mut. &c. Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977). Accordingly, summary judgment was properly granted to appellee. Lindsey v. Housing Auth., 181 Ga. App. 814 (354 SE2d 13) (1987).

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

Cubbedge Snow III, for appellee.


text:
    73714, 73715.
    WEST v. JAMISON; and vice versa.
    (356 SE2d 659)
   Birdsong, Chief Judge.

Arbitration Award. In 1983 McDonough, Ltd. (a partnership) desired to construct a 48-unit apartment complex to be financed by the Farmers Home Administration. The partner charged with construction contacted Jamison, an architect, to develop preliminary drawings for the complex in accordance with other, earlier developments, constructed by McDonough, Ltd. and designed by Jamison. As testified to by Jamison, this involved Jamison’s beginning the drawings and presenting these preliminary drawings to the owners prior to any contract being executed. After the initial drawings had been prepared and tentatively accepted by McDonough, Ltd., Jamison prepared a standard architectural contract, signed it with his terms and forwarded the contract to McDonough, Ltd. for execution. Jamison agreed to do all necessary architectural work for a flat fee of $36,000. After submitting the preliminary drawings and the signed contract to West for approval, the project lay fallow for well over a year.

Jamison became aware that a controversy had developed with the zoning authority, the City of McDonough. As developed at the hearing, it appears that McDonough, Ltd. owned 6 acres of land upon which to develop the complex but apparently wished to use only 4.9 acres. Because of the topography of the land and the amount of acreage presented to Jamison for the design of the 48 units, Jamison had to make changes in the designs and density of the several buildings. These designs when presented to the Farmers Home Administration were accepted and financing was indicated as probable. However, when the design was presented to the City of McDonough, the design was held not to meet the density requirements of the zoning of the city. Ultimately after litigation, the density projected by the designs was held not to violate zoning restrictions. West (the general partner of McDonough, Ltd.) then recontacted Jamison and sought to have Jamison redesign in great part the complex because the apartments would be redistributed on six acres rather than 4.9 acres. Jamison refused to wholly redesign the complex unless West paid as additional services for the redesign. When the parties could not come to an agreement, West fired Jamison as the architect of the project. In accordance with the provisions of the architectural contract, Jamison demanded arbitration and after the required procedures, the contract dispute was settled by an arbitrator.

The principal dispute between the owner and the architect involved the unilateral addition by West in the pre-signed contract submitted to West by Jamison of a payment provision that the payment for architectural services would not become effective until and unless the construction was actually commenced. We note that such an addition was in contradiction of Article 6 of the contract. It is disputed whether the parties ever agreed to this addition to the contract. Jami-son argued before the arbitrator that the contract was generally to be upon the same terms as those which had been used in prior arrangements between the parties and there had never been such a provision for construction to antecede payment for architectural services. Jami-son also contended that this clause had not been placed in the contract until after the dispute had arisen between McDonough, Ltd. and the City of McDonough, placing the commencement of construction in doubt. At a meeting at which the resumption of the work was discussed, Jamison and West confronted each other with the added provision concerning commencement of construction. Although Jamison contended he never agreed to the addition of that clause, immediately below that clause is yet another sequentially numbered clause admittedly agreed to by both parties, that if additional services were rendered without the commencement of construction, West would- pay for such services as out-of-pocket expenses. This added provision, however, is not necessarily in contravention of Article 6. There were certain services rendered and West paid Jamison $4,636.77 for such additional services. West contended before the arbitrator that by agreeing to the last clause for payment for additional services even in the absence of commencement of construction, Jamison likewise agreed to the immediately preceeding clause declaring the contract null and void if no construction was commenced.

Part of the payment schedule in the contract contemplated periodic payments based upon performance and provided for 25 percent to be paid at the completion of the Schematic Design Phase, 20 percent at completion of the Design Development Phase, 35 percent at completion of the Construction Documents phase and 20 percent during the construction phase. It is clear from the contract that all of the design drawings had to be completed and accepted prior to the beginning of construction. The responsibility during construction was to make necessary design revisions and to see that the work proceeded in accordance with the designs. Prior to the delay, Jamison had submitted a bill to West for payment of $27,000 for completion of 75 percent of the work under the contract.

After conducting a hearing at which West was present and was represented by counsel and Jamison represented himself pro se, the arbitrator entered an award in favor of Jamison for the entire amount of the architectural fee. It appears that the award was based upon the total fee of $36,000, plus a termination fee of $1,800, contractually provided interest at .015 percent for eight months in the amount of $3,979.59, and arbitration costs in the amount of $863.26 less the prepayment of $4,636.77 for additional services, such award being calculated by the arbitrator in the amount of $38,006.08. West declined to pay the fee determined to be due by the arbitrator. Jamison then petitioned the superior court for judgment upon the arbitration award pursuant to the provision of OCGA § 9-9-92. The superior court confirmed the award of the arbitrator. West has filed his appeal and Jamison has filed a cross-appeal contending the court erred in not awarding post judgment interest. Held:

West bases his (main) appeal upon four asserted errors. Prior to assessing the validity of these enumerations, we must first examine the predicate for the trial court’s judgment. OCGA § 9-9-92 mandates that the court shall confirm an award upon application unless the award is vacated or modified by the court. The court may vacate an award of an arbitrator if the court determines that a party to the arbitration was prejudiced by: (1) corruption, fraud, or misconduct in the procurement of the award; (2) partiality of an arbitrator; (3) an overstepping by an arbitrator of authority or such imperfect execution of such authority that a final and definite award upon the dispute at issue was not made; and, (4) a failure to follow arbitration procedures, unless such failure is waived by continuance of the arbitration procedures after the failure without objection. OCGA § 9-9-93. See Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236 (4) (335 SE2d 708). The court may modify an award if there has been a clerical miscalculation of figures or a mistake in a description of a person, thing or property, if the award is based upon a matter not submitted for arbitration and the award may be corrected without affecting the merits of the decision, or if the award is imperfect in form not affecting the merits of the controversy. If the award is modified, the court must affirm the modified award; otherwise, the arbitrator’s award must be affirmed. OCGA § 9-9-94.

Our examination of the record and transcript in this case makes it manifestly clear that neither party to this appeal contends the award of the arbitrator is infected with fraud, corruption or misconduct in the procurement of the award. Neither is there any assertion that the arbitrator displayed partiality. While it is not shown of record or the transcript that the arbitrator caused himself to be sworn prior to the commencement of the arbitration hearing as required by OCGA § 9-9-88 (a), subsection (g) of that section provides that a requirement of § 9-9-88 shall be waived by continuing with the arbitration without correcting the deficiency or without objecting to the omission. Likewise, we must conclude that neither party to this appeal seriously is contending the arbitrator made clerical errors such as those contemplated in § 9-9-94 and which may be corrected by modification prior to confirmation.

Thus the only basis for alleged error is that provided in subsection 9-9-93 (3) wherein it may be contended the arbitrator so imperfectly executed his authority that a final and definite award based upon the issue submitted was not made. Within this context, we examine West’s contentions that the arbitrator erred in granting Jami-son’s claim because of the condition precedent that no architectural fees were due until construction was begun, a condition that never came to fruition; that Jamison was estopped from an award because he breached the contract by refusing to revise the designs; that Jami-son was not due a full recovery because Jamison did not fully perform under the contract; and finally that the arbitrator failed to follow necessary procedure by failing to have himself sworn.

In relation to the first two of these allegations of error by West, we are constrained to conclude that these issues were fully developed and presented to the arbitrator at the hearing. By his award the arbitrator concluded that Jamison had completed all the required architectural drawings and these had been accepted by West (McDonough, Ltd.) One issue submitted to the arbitrator was that Jamison relied on past experience with McDonough, Ltd. and based thereon prepared a contract substantially identical to previous ones and signed that contract at the time he submitted it. There was evidence that these earlier contracts did not require construction to commence before payment was due for the architectural drawings. The validity and acceptance or non-acceptance of the condition precedent was hotly disputed at the hearing. The question of the applicability of the statute of frauds was presented. In short, we are satisfied the arbitrator did not overstep his bounds in deciding the issues of the applicability of the condition precedent and the asserted breach of contract by Jamison, and that after considering the evidence and the issues, the arbitrator made a final and definite award upon each of those issues. As to the failure to have himself sworn prior to commencement of the substantive portions of the hearing, it is clear that counsel for West was present and proceeded with the hearing to its conclusion without objecting to the omission. Under the statute, this procedural omission therefore was waived.

We must reach a different conclusion, however, in relation to West’s third enumeration of error. West there complains the arbitrator made a full award for the completion of the entire contract even though Jamison did not fully satisfy his obligation. There is merit to this complaint. The record discloses that after Jamison had completed all the drawings, submitted them to McDonough, Ltd. and these had been accepted and used by McDonough to obtain tentative approval for financing of the apartment complex by the Farmers Home Administration, there still remained the obligation by Jamison to supervise the construction phase, i.e., that the construction conformed to the designs. Jamison himself in September, 1983, submitted a bill for $27,000 for services rendered, with 5 percent for revisions and 20 percent for contract administration. The contract itself in effect provided for 80 percent of the contract price to become due upon completion of the design drawings and 20 percent due after the construction phase. It would appear therefore the arbitrator made an imperfect execution of this part of the award by overstepping his authority when awarding 100 percent of the agreed value of the architectural services when less than 100 percent of those services had been performed. The superior court likewise erred in affirming the erroneous award.

Decided April 7, 1987.

C. George Newbern, for appellant.

In regard to the cross-appeal by Jamison, he contends the judgment of the superior court did not provide for post-judgment interest pending collection of the judgment. It is noted that in his claim to the arbitrator Jamison sought collection costs, costs of arbitration, interest provided by the contract in addition to the contractual fees for services rendered showing the grand total of his claim to be $38,006.08, the exact amount of the arbitrator’s award. In his petition for judgment to the superior court, Jamison in substance repeated these same demands. In its judgment confirming the award, the superior court affirmed in full the award of the arbitrator, who had granted each of Jamison’s prayers for relief. As for post-judgment interest at the rate of 12 percent, such interest is inherent in the judgment whether specifically mentioned in the judgment of the superior court as all judgments bear interest from date of rendition and it is immaterial that the verdict or judgment does not provide for future interest. OCGA § 7-4-12. Lang v. South Ga. Inv. Co., 38 Ga. App. 430 (144 SE 149). However, while a judgment may legally be entered for the principal sum and interest due on the claim on which sued to the date of judgment, that judgment may bear interest from the date of judgment only on the principal sum. The interest found to be due at date of the judgment may not bear interest. Southern Loan Co. v. McDaniel, 50 Ga. App. 285 (177 SE 834). Upon remand, the trial court may cure any deficiency in the wording of its judgment.

Based upon the foregoing, the judgment of the superior court is affirmed in part and reversed in part. The judgment is remanded to the superior court for action not inconsistent with the decision of this court and the provisions of OCGA § 9-9-93 (d).

Judgments affirmed in part, reversed in part and cases remanded.

Deen, P. J., and Pope, J., concur.

Jim Jamison, pro se.


text:
    73726.
    WRIGHT v. THE STATE.
    (356 SE2d 531)
   Sognier, Judge.

Appellant was charged with malice murder and convicted of voluntary manslaughter, and he appeals.

1. Appellant’s first three enumerations of error refer to alleged errors in the trial court’s charge to the jury. However, appellant made no objections and reserved no exceptions to the charge on the grounds now raised in these enumerations. Asserted errors in charges which were not raised when the trial court asked for objections, and which were not reserved, are waived. Awtrey v. State, 175 Ga. App. 148, 152 (5) (332 SE2d 896) (1985).

2. Appellant contends the trial court erred by recharging the jury on aggravated assault with a deadly weápon and voluntary manslaughter. Appellant excepted to the trial court’s initial charge on these lesser offenses on the ground that under the evidence presented, together with appellant’s defense of self-defense, the only verdict authorized was guilty or not guilty of the offense charged. This enumeration of error is without merit.

The evidence disclosed that appellant and the victim, Reuben Wright (no relation to appellant), were in a bar and had a few words. Reuben Wright thought that appellant was seeing Reuben’s girl friend, and told appellant that he (Reuben) was going to teach appellant some respect, which was interpreted to mean that Reuben Wright was going to beat up appellant. Appellant went outside and got a pistol from his car and put the pistol in the waistband of his trousers. Appellant went back inside and sat down with two friends he had been talking to earlier. Reuben Wright walked up and “brushed” appellant’s shoulder; when appellant asked Reuben why he had done that Reuben grabbed appellant, threw him to the floor and started beating him. Appellant’s friends grabbed Reuben and pulled him off appellant and tried to restrain Reuben. Appellant was backing toward the door and Reuben broke loose; according to appellant Reuben “was coming at me with a raged look in his eyes. He done said he would kill me, you know.” Appellant then shot Reuben several times, resulting in his death.

A person commits voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder, if he acts solely as the result of a sudden, violent and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. OCGA § 16-5-2. Applying that definition to the facts of this case, we find the evidence sufficient to warrant a charge on voluntary manslaughter. The victim had thrown appellant on the floor and beaten him, and also said he would kill appellant. When appellant’s friends attempted to restrain the victim he broke loose and was coming after appellant again. Certainly such conduct raises the issue of a killing in the heat of sudden passion after serious provocation. On the trial of a murder case if there is any evidence, however slight, as to whether the offense is murder or voluntary manslaughter, instructions on both offenses should be given. Hutchins v. State, 171 Ga. App. 309, 311 (3(a)) (319 SE2d 130) (1984). Hence, the court did not err by instructing the jury on the lesser offense of voluntary manslaughter.

Decided April 7, 1987.

George R. Jordan, Earl M. McRae, Jr., for appellant.

Glenn Thomas, Jr., District Attorney, Stephen D. Kelley, Assistant District Attorney, for appellee.

In regard to the trial court’s charge on aggravated assault with a deadly weapon, we agree with appellant that such a charge was not warranted by the evidence, since this case involved a homicide, not an assault. However, an erroneous charge touching a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal. Davis v. State, 167 Ga. App. 701, 702 (1) (307 SE2d 272) (1983). We find nothing prejudicial or harmful to appellant resulting from the charge; if anything, the charge was beneficial to appellant since the jury could have found appellant guilty of an offense less serious than homicide.

3. Appellant contends the evidence was not sufficient to support the verdict. We find the evidence summarized in Division 2 sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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


author: Deem, Presiding Judge.

text:
    74335.
    MAXWELL v. THE STATE.
    (356 SE2d 533)
   Deem, Presiding Judge.

Leonard Dennis Maxwell was convicted of three counts of theft by receiving stolen property and appeals following the denial of his motion for a new trial. Appellant enumerates four errors, which are essentially the general grounds and will be so addressed. Held:

The evidence showed that some time between July 11 and August 1, 1985, a 1981 Mazda RX-7 automobile valued at $5,500 was stolen from Import One, Inc.; a 1984 Mazda RX-7, valued at $12,000, was stolen from Curry Honda, Inc.; and a 1985 Toyota Supra, valued at $19,000, was stolen from Marietta Toyota, Inc. The 1981 Mazda and 1985 Toyota were located by the Cartersville police at the residence of appellant and his girl friend. He remained inside the house when the officers called because he “feared that something was wrong with the vehicles.” His girl friend spoke with a police officer and explained that she was purchasing the Mazda from her uncle, who was in the army and stationed in Germany, and that she had had the vehicle for about thirty days. She also stated that the Toyota, which had a New Jersey license plate, was owned by an aunt who lived in that state. The investigating officer left, and when he returned later to recover the two vehicles he discovered that appellant, his girl friend, and the Toyota were missing. The following day, the 1984 Mazda was discovered hidden upon property owned by a relative of the appellant. Appellant and his girl friend were arrested in Michigan in December of 1985 with the Toyota in their possession, and were extradited to Georgia. When he returned to Georgia appellant gave a statement to the investigating officer about the three stolen automobiles and contended that he had purchased them from a former neighbor by the name of Harrison, and that he had paid $1,000 for the 1981 Mazda, $300 for the 1984 Mazda, and $1,000 for the Toyota. He stated that all the paperwork to support his claim of purchase of the vehicles was lost or mislaid when he was arrested in Michigan. At trial, he claimed that he paid $4,000 for the 1981 Mazda, that he had paid $1,000 down and the balance was to be paid in undetermined monthly installments; that the Toyota was purchased for between $11,000 and $12,000, with a down payment of $1,000 and monthly installments to be worked out; and that the 1984 Mazda was in his possession because of an error that Mr. Harrison had made because he inadvertently brought it instead of the Toyota, and that he kept it after Harrison brought the Toyota because Harrison did not bring the paperwork on the latter. Maxwell also stated that his girl friend knew nothing of these transactions and went to Michigan with him in the Toyota only at his insistence.

OCGA § 16-8-7 (a) provides: “A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen. . ."

The evidence showed that appellant bought for $2,300 three vehicles which had a fair market value in excess of $35,000. Knowledge that goods are stolen is an essential element of the crime, and such knowledge may be inferred from circumstances which would excite the suspicion of an ordinary prudent person. Watts v. State, 157 Ga. App. 214 (276 SE2d 884) (1981). “(B)uying at a price grossly less than the real value is a sufficient circumstance to excite suspicion.” Whitehead v. State, 169 Ga. App. 518 (313 SE2d 775) (1984).

Decided April 7, 1987.

William J. Robinson, Jr., for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Other evidence from which guilt may be inferred was appellant’s lack of paperwork for the vehicles, the fact that one vehicle was found parked upon a relative’s property in an area where vehicles are not normally parked, the fact that he remained inside the house when the investigating officer first called because he feared that “something was wrong with the vehicles,” and his subsequent flight to Michigan in the Toyota. We find that there was sufficient evidence for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Crawford v. State, 245 Ga. 89 (263 SE2d 131) (1980).

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    73689.
    ROBERTS v. GARDENS SERVICES, INC. et al.
    (356 SE2d 669)
   Sognier, Judge.

Annie M. Roberts brought suit against Gardens Services, Inc. and the Ida Cason Callaway Foundation d/b/a Callaway Gardens seeking damages for injuries sustained when she fell while descending a stairway in the historic log cabin located at Callaway Gárdens. The trial court granted the defendants’ motion for summary judgment, and Roberts appeals.

Appellant contends the trial court erred by granting judgment to appellees as a matter of law because a genuine issue of material fact exists whether appellee failed to provide adequate lighting to permit safe descent of the stairs. The record reveals that appellant, touring the attractions at Callaway Gardens, visited the first floor of the historic log cabin and successfully negotiated the stairs to the second story. It is uncontroverted that an open window on the second floor shed light on the stairway. Appellees presented an affidavit from an employee who was present when appellant fell, which alleged additional light was provided by an electric light above the stairs. Appellant and her companion, in their affidavits, maintained that if such a light existed, it was not on at the time appellant fell.

“In order for appellant as an invitee to recover for injuries sustained due to an allegedly hazardous condition on appellee [s’] property, she was required to prove: (1) fault on the part of appellee[s] and (2) ignorance of the danger on her part. [Cit.]” Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210, 211 (335 SE2d 451) (1985). In the case sub judice, appellant admitted in her deposition that she did not know what caused her fall. She was thus unable to show the first element necessary to her case, namely, fault on the part of appellee. “ ‘Our Supreme Court has held that “proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.” ’ ” J. C. Penney Co. v. Smith, 173 Ga. App. 612, 613 (327 SE2d 574) (1985).

Decided April 8, 1987.

John R. Gaughen, for appellant.

Leigh M. Wilco, for appellees.

As to the second necessary element, even assuming the lighting was inadequate and it was the cause of appellant’s fall, it is uncontroverted that appellant had climbed the same stairs only moments before her fall. Appellant was thus aware of the lighting conditions and this awareness constituted equal knowledge on her part of any hazard presented by inadequate lighting. See Pound v. Augusta Nat., 158 Ga. App. 166, 167-168 (279 SE2d 342) (1981). Further, contrary to appellant’s argument, appellees were under no duty to warn her of a condition of which she had equal knowledge. “An invitee is under an equal duty with the owner to use her sight to discover any defect or dangers. [Cits.]” Forde v. C & S Ga. Corp., 178 Ga. App. 400, 403 (343 SE2d 164) (1986). Therefore, since appellant was unable to show both fault on the part of appellees and superior knowledge by appellees of the alleged unreasonable risk of harm, Anderson, supra, the trial court did not err by granting summary judgment to appellees.

Judgment affirmed.

McMurray, P. J., concurs, and Beasley, J., concurs in judgment only.


text:
    71877.
    DENNISON v. G & M QUALITY BUILDERS, INC.
    (356 SE2d 678)
   Birdsong, Chief Judge.

On remand following the first appeal of this case (G & M Quality Builders v. Dennison, 173 Ga. App. 578, 579 (327 SE2d 773)) where we held there was no determination as to how many employees the appellant had and the record was “not dispositive” of the issues, the Board of Workers’ Compensation held a de novo proceeding upon the record then existing, and found as additional facts that two officers of the corporation had failed to file notices of exemption pursuant to OCGA § 34-9-2, and were therefore employees; the board further made a detailed factual finding that two other persons were employees. The board concluded the employer had three or more employees and was therefore subject to the Act. OCGA § 34-9-2. On appeal of the trial court’s reversal of these findings (Dennison v. G & M Quality Builders, 178 Ga. App. 548 (343 SE2d 786)), we upheld the board’s interpretation of OCGA § 34-9-2; and, the board having “looked at the record” and found no notices of exemption, we reversed the trial court’s ruling that the board thus based its finding “upon an erroneous legal theory arrived at by use of board records and documents not in evidence in the case.”

The Supreme Court on certiorari reversed our upholding of the board’s finding of fact apparently because the board did not consider any new evidence, and its finding was not based on the record (G & M Quality Builders v. Dennison, 256 Ga. 617 (351 SE2d 622)).

The appellant has not shown or even suggested on appeal that the findings of fact are wrong or not supported, i.e., that there were notices of exemption filed or that the other two employees were not employees; and there is no suggestion or allegation that there was any new evidence to consider. The board in its discretion is not required to consider any new evidence if there is no new evidence to hear. Transport Ins. Co. v. Ferguson, 156 Ga. App. 715 (275 SE2d 354); Insurance Co. of North America v. Nix, 141 Ga. App. 342 (233 SE2d 468); Brown Transport v. Parker, 129 Ga. App. 737, 740 (201 SE2d 17). The board did conduct a de novo proceeding upon the record as it then existed (which was attached by reference in this appeal) and made additional findings; if the board says no notices of exemption were filed, we are bound to accept that fact (S.S. Kresge Co. v. Black, 144 Ga. App. 58, 60 (240 SE2d 554)); and we must presume the board considered the entire record in so concluding. Zurich Ins. Co. v. Robinson, 127 Ga. App. 113, 118 (192 SE2d 533); E.Z. Shop &c. v. Pearce, 100 Ga. App. 785 (2) (112 SE2d 412). Whenever a case is remanded to the board because of insufficient findings of fact, the board may restate its findings based upon the same evidence where facts disclosed by the record are undisputed and the evidence demands a certain finding. McDaniel v. Employers Mut. Liability Ins. Co., 104 Ga. App. 340 (121 SE2d 801). The appellant has not disputed the board’s findings of fact and we held, and the Supreme Court agreed, that the board did not proceed under an erroneous legal theory. Williams v. Morrison Assur. Co., 138 Ga. App. 191, 193 (225 SE2d 778); Turner v. Baggett Transp., 128 Ga. App. 801, 804 (3) (198 SE2d 412). The only objection is that the board considered matters not in evidence and at the same time did not consider any new evidence. We thought looking at the record and determining a document was not in it was the best way to prove such a document was never filed, and could not constitute improper consideration of matters “not in evidence.” However, the judgment of the trial court to the contrary is affirmed.

Decided April 9, 1987.

Fred A. Bishop, Jr., for appellant.

Robert L. Kiser, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    73599.
    STEWART v. THE STATE.
    (356 SE2d 535)
   Pope, Judge.

James Stewart, Jr., brings this appeal from his conviction of voluntary manslaughter. We affirm.

Viewing the evidence in a light most favorable to the State, the record reveals that on August 3, 1985 appellant stood with the victim and at least four other young men on the steps of a local church where a decision was made by some of the group to pool their money in order to buy a six-pack of beer. Although appellant contributed money and the victim did not, the victim received a beer from one of the other young men. An argument then ensued between appellant and the victim and culminated when appellant fatally stabbed the victim in the left upper chest with a small hunting knife.

1. Appellant argues that the trial court erred by failing to sustain his objection to the testimony of a State’s witness who testified on redirect examination that appellant’s father offered him $300 to “lie for his son.” Appellant contends that this testimony impinged on his credibility and impermissibly placed his character in issue.

The record reveals that during cross-examination the State’s witness testified that he did not talk to police officers at the scene of the crime, but rather gave a statement some two days later. On redirect examination, the prosecution asked him if anyone had tried to influence him. Appellant’s counsel then objected as follows: “I’m going to object to that. He can ask him if he’s spoken to anybody, but if he’s trying to create some inference for this jury to prejudice my client, I object.” The trial court overruled the objection, and the State’s witness testified that appellant’s father had offered him a bribe.

The objection made at trial was too general to preserve on appeal the issue of whether or not the testimony about which appellant complains placed his character in issue. See Goldsmith v. State, 148 Ga. App. 786 (9) (252 SE2d 657) (1979). In any event, we find no ground for reversal in admitting this testimony into evidence. See Evans v. State, 95 Ga. 468 (1) (22 SE 298) (1894). Cf. Gordy v. State, 236 Ga. 723 (3) (225 SE2d 287) (1976).

2. Appellant argues that the trial court erred by failing to grant his motions for directed verdict of acquittal made at the close of the State’s evidence and at the close of all of the evidence. He argues that the State failed to establish that he was the assailant to whom the State’s witnesses referred and that the State failed to establish that he did not act in self-defense. Although the prosecution inartfully inquired of two State’s witness whether they saw appellant “in court today,” the record contains other evidence which shows that appellant was the person who became embroiled in a conflict with the victim and who stabbed him.

The denial of a motion for directed verdict of acquittal should be affirmed upon review if any rational trier of fact could have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984); Fobbs v. State, 171 Ga. App. 352 (1) (319 SE2d 522) (1984). Further, “[w]hether or not a provocation, if any, is such a serious provocation as would be sufficient to excite a sudden, violent, and irresistible passion in a reasonable person, reducing the offense from murder to manslaughter, is generally a question for the jury.” Anderson v. State, 248 Ga. 682 (3) (285 SE2d 533) (1982). In applying the above-stated principles to the facts sub judice, we find no error in the trial court’s denial of appellant’s motions.

3. In appellant’s third enumeration of error, he contends that the trial court erred by refusing to give his requested jury charge concerning involuntary manslaughter. This issue has been decided adversely to appellant in Saylors v. State, 251 Ga. 735 (3) (309 SE2d 796) (1983), which held that “a defendant who seeks to justify homicide under the ‘self-defense’ statute, OCGA § 16-3-21 [cit.], is not entitled to an additional instruction on involuntary manslaughter in the course of a lawful act, OCGA § 16-5-3 (b) [cit.] . . . For if he is justified in killing under OCGA § 16-3-21 [cit.], he is guilty of no crime at all. If he is not so justified, the homicide does not fall within the ‘lawful act’ predicate of OCGA § 16-5-3 (b) [cit.], for the jury, in rejecting his claim of justification, has of necessity determined thereby that the act is not lawful.” Id. at 737. Therefore, we find no merit to this argument.

Appellant further argues that the following charge by the trial court impermissibly shifted the burden of proof to him: “I [c]harge you that you may infer that a person of sound mind and discretion intends to accomplish the natural and probable consequences of his intentional acts and if a person of sound mind and discretion intentionally and without justification uses a deadly weapon or an instrumentality in the manner in which such weapon or instrumentality is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill.” However, this charge, couched in terms of inferences rather than mandatory presumptions, is not impermissibly burden shifting. See Shepherd v. State, 173 Ga. App. 499 (4) (326 SE2d 596) (1985). We find no merit in this enumeration.

Decided April 9, 1987.

Michael G. Schiavone, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

4. We find no merit in appellant’s enumeration that “the trial court erred in the charges which it gave to the jury.”

5. Appellant contends that the trial court erred by denying his motion for new trial in that the evidence adduced at trial was insufficient to sustain a verdict of guilty. We find that after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, we find no error in the trial court’s denial of appellant’s motion for new trial.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    73602.
    HUNNICUTT et al. v. HUNNICUTT.
    (356 SE2d 679)
   Beasley, Judge.

The single issue is whether the jury verdict is inconsistent as a matter of law.

Plaintiff brought suit seeking to recover certain personalty from defendants. When the case was tried before a jury the issues were whether plaintiff was entitled to: certain property plus rental, damages plus interest for other property, and expenses of litigation. The jury returned a verdict permitting plaintiff to recover the property but without any rental, $7,500 damages without the imposition of any interest, and $7,772.12 for expenses of litigation.

Motion for directed verdict favoring defendants on litigation expenses had been denied by the court at conclusion of all the evidence, and a judgment notwithstanding the verdict on this issue was also denied, pursuant to OCGA § 9-11-50 (b).

Defendants contend the verdict is inconsistent because if the jury had found defendants had acted in bad faith, or had been stubbornly litigious or had caused plaintiff unnecessary trouble and expense, OCGA § 13-6-11, the plaintiff would have been awarded rental and interest.

The issue is whether the verdict is absolutely inconsistent, based on diametrically conflicting findings or repugnant conclusions as to the evidence. Bagwell v. Sportsman Camping Centers, 130 Ga. App. 888, 891 (204 SE2d 794) (1974). See Hassler v. Cunard, 244 Ga. 193, 196 (2) (259 SE2d 451) (1979). Verdicts are to be reasonably construed and not avoided unless from necessity. OCGA § 9-12-4. The burden is upon the party attacking a verdict to show its invalidity. Calhoun v. Babcock Bros. Lumber Co., 199 Ga. 171, 176 (33 SE2d 430) (1945).

Defendants expressly designated no transcript of the evidence to be filed. See OCGA § 5-6-37. Where appellants choose to omit the transcript, and it is necessary for a review of the claimed error, they have failed to meet their burden of showing error. In such case, this court will assume the evidence is sufficient and affirm. Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981); Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160) (1986). We thus assume there was evidence sufficient to authorize the award of litigation expenses. At least twice the trial court expressly so ruled. This being the posture of the case, defendants cannot complain of being harmed by the failure to impose interest or rental for the property since any “inconsistency” in the verdict could harm only plaintiff.

The absence of a transcript of the court’s charge also leaves us in the position of presuming it was correct as to the award of interest and rent. Since both of these matters are left solely to the discretion of the jury, White v. Dalton, 55 Ga. App. 768 (191 SE 386) (1937), we must conclude that the jury chose not to award them. This is explicit in the special verdict form on which they were given a choice in both instances. Property or no property plus rent or no rent, and money damages or no money damages “with” or “without” interest were the four choices.

Whatever the jury’s reason or motive was for deciding to impose the penalty with respect to litigating this intrafamily dispute and to withhold awards of interest and rental damages is irrelevant. It is not patently inconsistent to assess the expenses of litigation for bad faith, stubborn litigiousness, or unnecessary trouble and expense, while at the same time denying interest on money, or rental on property, to which money and property plaintiff had been entitled earlier.

Judgment affirmed.

McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.

Decided April 9, 1987.

C. Robert Melton, for appellants.

Rudolph Sullivan, for appellee.


text:
    73634.
    WRIGHT v. THE STATE.
    (356 SE2d 681)
   Sognier, Judge.

Appellant was charged with murder and convicted of voluntary manslaughter. In his sole enumeration of error he contends the evidence is not sufficient to support the verdict because there is no evidence that the killing was committed in the heat of sudden passion as a result of serious provocation.

Appellant, his brother David Wright, and several other persons were at the home of Sadie Reaves, appellant’s former wife, drinking. Appellant departed and on his return, got upset with David for telling Reaves where he had gone. When David denied this, appellant pushed David, who was sitting on a couch. The evidence is in conflict as to whether appellant immediately went to the bedroom and got a sawed-off shotgun or whether he went in the bedroom and got the gun about fifteen minutes later. In either event, after getting the gun out of the bedroom appellant walked up to his brother and shot him, resulting in David’s death. Although appellant testified that the gun went off accidentally when he handed it to David to give to a third person, appellant’s daughter and Jasper Mason both testified that appellant just walked up to David and shot him.

Appellant contends that this evidence is not sufficient to support a conviction of voluntary manslaughter because even assuming appellant and his brother argued, words alone cannot provide the necessary provocation to reduce a homicide from murder to voluntary manslaughter. Although this is a correct statement of the law, Paynter v. State, 164 Ga. App. 391 (297 SE2d 327) (1982), that rule has no application here.

The evidence would clearly support a charge of murder, as it is apparent that appellant walked up to his brother and shot him in cold blood. Appellant filed a written request for a charge on voluntary manslaughter, and where the evidence supports a verdict of guilty of the more serious offense, and there is slight evidence of the lesser included offense, a defendant who requests a charge on, and is convicted of, the lesser offense may not successfully urge the general grounds on appeal. State v. Clay, 249 Ga. 250, 251 (290 SE2d 84) (1982). Further, even if the evidence was not sufficient to warrant a charge on voluntary manslaughter, we have held that in a trial for murder, if the evidence does not involve the law of voluntary manslaughter, but the trial judge instructs on voluntary manslaughter and the jury convicts of voluntary manslaughter, it is not cause for a new trial if the evidence demanded a verdict of murder. Thompkins v. State, 180 Ga. App. 473, 474 (1) (349 SE2d 768) (1986). Accordingly, we find no error. The evidence otherwise is more than sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 9, 1987.

Robert H. Green, Robert M. Boulineau, for appellant.

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

Judgment affirmed.

Beasley, J., concurs. McMurray, P. J., concurs in the judgment only.


text:
    73681.
    SANDERS v. THE STATE.
    (356 SE2d 537)
   Sognier, Judge.

Appellant was convicted at a bench trial of child molestation and aggravated sodomy, and he appeals.

1. In his first two enumerations of error appellant contends the trial court erred by admitting his statement to police into evidence, and that even if the first portion of his statement was admissible, it was error to admit the portion of appellant’s statement made after he requested an attorney.

Evidence on this issue disclosed that after appellant was arrested by the Douglas County authorities pursuant to an arrest warrant issued in Gwinnett County, he was jailed overnight in Douglas County. When he was picked up the following morning by Charles Brewer, an investigator with the Gwinnett County Sheriff’s Department, Brewer advised appellant of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) before leaving the jail. On arrival at the Gwinnett Police Department, appellant was taken to an interview room and was again advised of his rights by Brewer. Appellant said that he understood his rights and signed a “Waiver of Rights” form; he then answered questions by Brewer, denying that he molested the victim. Brewer wrote down the questions and answers, and midway through the fourth page of appellant’s statement, appellant said that he wanted to talk to a lawyer; Brewer immediately stopped and said he was not going to ask appellant any more questions. Brewer had appellant read what was written up to that point, and appellant then signed each page of the statement. As soon as appellant signed the statement, he asked Brewer what would happen if he told Brewer the allegations were true. Brewer reminded appellant that he said he wanted to talk to a lawyer, but appellant asked if he would go to jail, then said he wanted to continue his statement without his attorney. Appellant then admitted that he had molested the victim and that he had attempted to commit anal sodomy on her.

Appellant testified that he had consumed a quart of whiskey the day that he was arrested and had had nothing to eat or drink after being arrested and incarcerated overnight at the Douglas County jail. He testified that at the time of his statement he was hung over and in a state of shock, so he really did not know what was going on during the interrogation. However, he acknowledged that the signatures on the waiver form and the statement were his signatures.

We find no error by the trial court in admitting the statement into evidence. Despite appellant’s testimony, Brewer testified that appellant was not under the influence of alcohol or drugs; there was no indication that appellant did not understand Brewer’s questions; no threats or promises were made to induce appellant’s statement; he was given a soft drink and some crackers by another detective; and his statement was made freely and voluntarily. There is no question that appellant was advised properly of his rights and signed the waiver form knowingly, intelligently and voluntarily despite his assertions to the contrary. Factual and credibility determinations as to voluntariness of a confession are normally made by the judge at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. Griswold v. State, 159 Ga. App. 22, 23 (2) (282 SE2d 679) (1981). We find no error here.

As to the latter portion of appellant’s statement after he said he wanted a lawyer, an analysis of whether a suspect who has invoked his right to counsel under Miranda, supra, has later waived that right proceeds in two steps. First, a determination as to whether the defendant initiated further talks with the police, and second, if so, whether his waiver was shown to be voluntary under the totality of the circumstances. Oregon v. Bradshaw, 462 U. S. 1039 (103 SC 2830, 77 LE2d 405). See also Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378). The record makes it clear that after stating he wanted to talk to a lawyer, appellant initiated the conversation leading to his confession by asking what would happen if he told the truth. Even after Brewer’s reminder that appellant had said he did not want to talk without an attorney, appellant continued asking questions and then stated he wanted to continue his statement without an attorney. Thus, the first prong of the test set forth in Brad shaw, supra, was met. As to the second prong of the test, it is also clear that the second waiver was voluntary. Brewer recorded appellant’s questions and Brewer’s responses; when appellant said he wanted to continue without an attorney, Brewer told appellant to read what Brewer had written to see if it was accurate and if so, to sign again as to that portion of the statement. Appellant read the statement, said it was accurate and signed again beneath this portion of the statement, including the statement that “[h]e said he wanted to continue his statement without his attorney.” Under such circumstances, we find appellant made a valid waiver of his right to an attorney after he had earlier invoked that right. Accordingly, it was not error to admit into evidence the entire statement made by appellant.

2. Appellant contends error in denial of his motion for a directed verdict of acquittal on the aggravated sodomy charge (Count 2) because of a failure by the State to prove that venue as to that offense was in Douglas County. As to both counts of which appellant was convicted, he also contends his motion for a directed verdict of acquittal should have been granted because the State failed to prove the offenses occurred on the specific dates alleged in each count.

In regard to venue as to the aggravated sodomy charge, there is nothing in the record to indicate or establish that this offense occurred in Douglas County. The only direct evidence as to venue is found in the statement of appellant, who said the offense occurred at 955 Lake Drive, Lithonia, Georgia; Brewer testified that that address in Lithonia is in Gwinnett County. The victim’s mother, Carol Vines, gave no testimony as to where or when the offense occurred; she testified only that the victim told Vines appellant had been playing with her (the victim’s) “pee pee.” The victim’s mother and grandmother went to Gwinnett County authorities to report the alleged offenses, and Gwinnett County conducted the investigation of the charges and issued the arrest warrant for appellant. Hence, the direct evidence and all circumstantial evidence indicate that the offense of aggravated sodomy occurred in Gwinnett County.

OCGA § 17-2-2 (a) provides: “In general. Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.” OCGA § 17-2-2 (h) provides: “Crime in more than one county. If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.”

Although the State argues that § 17-2-2 (h) is applicable to the facts of this case, there is no evidence of record to show beyond a reasonable doubt that the offense in question might have been committed in Douglas County. On the contrary, both the direct and circumstantial evidence presented by the State shows that the offense occurred in Gwinnett County. Accordingly, it was error to deny appellant’s motion for a directed verdict of acquittal as to Count 2 of the indictment based on the State’s failure to establish venue in Douglas County.

In regard to appellant’s contention that his motion for a directed verdict of acquittal should have been granted as to Count 1 (child molestation) because the State failed to prove the offense occurred on the specific date alleged, that contention is without merit.

Unless time is an essential element of the offense charged the time of the commission of the offense alleged in the indictment is immaterial. To sustain a conviction, there must be proof to establish that the offense occurred prior to return of the indictment and within the statute of limitation. Reynolds v. State, 147 Ga. App. 488, 490 (3(b)) (249 SE2d 305) (1978). See also Carpenter v. State, 167 Ga. App. 634, 742 (9) (307 SE2d 19) (1983). In appellant’s statement he confessed to molesting the victim about three weeks previously in Douglasville, which would have been about February 1, 1986. This was prior to return of the indictment on April 11, 1986, and was within the four-year statute of limitation for child molestation. See OCGA § 17-3-1 (c). Time was not an essential element of the offense charged, and the prosecuting attorney stated immediately after appellant’s opening statement that the State was not relying on the specific date alleged in the indictment, and the date was not made an essential element of the offense charged. Accordingly, it was not error to deny appellant’s motion for a directed verdict of acquittal on the ground stated.

3. Appellant contends error in admitting hearsay testimony, namely, statements made by the four-year-old victim to her mother and grandmother indicating that appellant had molested the victim. This enumeration of error is without merit.

OCGA § 24-3-16 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.” In the instant case the child was available to testify and the trial court found that the circumstances of the statement by the child provided sufficient indicia of reliability. Hence, there was no error in allowing such testimony. See Williams v. State, 180 Ga. App. 562, 564 (1) (349 SE2d 797) (1986).

4. Appellant contends the trial court erred by overruling his objection to the prosecutor “whispering secret information, advice and counsel” to a State witness while she was on the witness stand. During direct examination of the victim’s grandmother, the prosecuting attorney asked the court’s permission to ask the witness something (apparently sotto voce) “to make sure we’re going in the right direction.” Appellant’s objection to this procedure was overruled, the court stating that it could have recessed and allowed the prosecutor to talk to the witness, but thought it more expeditious to allow the prosecutor to spend fifteen seconds for this purpose rather than fifteen minutes trying to get started again. This was a bench trial and we find nothing erroneous in the procedure followed by the court. The judge has discretion in regulating and controlling the business of the court and an appellate court should never interfere with the exercise of this discretion unless it is plainly apparent that wrong has resulted from its abuse. Neesmith v. State, 161 Ga. App. 463, 464 (2) (288 SE2d 718) (1982). We find no wrong or prejudice resulting from the court’s action, particularly where, as here, there is no indication that the prosecuting attorney did anything not permitted by the court. Other than appellant’s bare assertion that the prosecuting attorney was whispering secret information, advice and counsel to the witness, there is nothing to support appellant’s allegation that the prosecuting attorney was coaching the witness. An appellant must show harm as well as error to warrant reversal. Anderson v. State, 165 Ga. App. 885, 887 (3) (303 SE2d 57) (1983). We find no harm resulting from the court’s action and appellant has referred us to none. Accordingly, there was no error.

5. Appellant contends the trial court erred by admitting into evidence the affidavit of Glenda Parker (Sanders). The affidavit was made by Parker, appellant’s common-law wife, in connection with appellant’s application for bond prior to trial. The prosecuting attorney asked Parker, a State witness, if she indicated in her affidavit that appellant had not hurt the child. Appellant’s objection to Parker’s testifying by affidavit was overruled, and he contends this was error.

Contrary to appellant’s assertion Parker did not testify by affidavit. The prosecuting attorney was questioning Parker about her prior out-of-court statement (the affidavit) that appellant did not hurt the victim, and was attempting to ascertain the basis for that statement, i.e., whether it was based on personal knowledge or was based on hospital records Parker had seen. Parker was under oath and subject to cross-examination about her testimony and her affidavit, and thus, the concerns of the rule against hearsay are satisfied. Brannon v. State, 176 Ga. App. 781 (1) (337 SE2d 782) (1985); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985); Edwards v. State, 255 Ga. 149, 151 (2) (335 SE2d 869) (1985). Accordingly, there was no error.

Judgment affirmed as to Count 1 (child molestation). Judgment reversed as to Count 2 (aggravated sodomy).

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

Decided April 9, 1987.

Ray C. Norvell, Sr., for appellant.

Frank C. Winn, District Attorney, J. David McDade, Assistant District Attorney, for appellee.


text:
    73734.
    McCORD v. THE STATE.
    (356 SE2d 689)
    Decided April 9, 1987.

      Lloyd D. Murray, for appellant.

      Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr.,

      Assistant District Attorney, for appellee.
   Sognier, Judge.

Appellant was convicted of mutiny in a penal institution and he appeals.

1. Appellant contends the trial court erred by not directing a verdict of acquittal sua sponte. Appellant made no motion for a directed verdict of acquittal, the trial court did not err by failing to direct a verdict sua sponte. Fletcher v. State, 159 Ga. App. 789, 790 (6) (285 SE2d 762) (1981); Williams v. State, 161 Ga. App. 400 (1) (288 SE2d 338) (1982).

2. Appellant contends the trial court erred by failing to charge the jury that the burden was on the State to prove each and every element of the offense charged. This contention is not supported by the transcript, which discloses that the court charged the jury: “The burden is on the State of Georgia to prove each and every element of the offense beyond a reasonable doubt.” This court cannot consider factual representations in a brief which do not appear in the record. McCutchen v. State, 177 Ga. App. 719, 722 (3) (341 SE2d 260) (1986).

Appellant also contends that when the court recharged the jury on the difference between mutiny and battery, it gave the jury an incorrect statement of the law. Although appellant made no objection to the recharge, the record discloses that the court charged on the elements of the offense of mutiny in a penal institution and simple battery as set forth in OCGA §§ 16-10-54 and 16-5-23. In the absence of a request for a further charge, a charge substantially in the language of the Code is correct. Sullens v. State, 239 Ga. 766, 768 (5) (238 SE2d 864) (1977); Griffin v. State, 168 Ga. App. 696, 698 (3) (310 SE2d 278) (1983).

Judgment affirmed.

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