text:
    A92A0726.
    SANDERS v. THE STATE.
    (419 SE2d 759)
   Sognier, Chief Judge.

Lyle Vincent Sanders was’ convicted of theft by receiving and obstruction of an officer. He appeals from the denial of his motion for new trial.

1. In two enumerations appellant contends the evidence was insufficient to support the verdict. At trial, Marietta Police Officer D. G. Barnes testified that he was on routine patrol at 4:00 a.m. on December 30, 1990 when he became involved in an attempt to apprehend two women and a man who had attempted to steal a car. After the man eluded capture, Officer Barnes returned to his patrol duties and continued to look for this suspect. At about 5:45 a.m. he observed two men drive by in a 1986 Buick and look back at him. Because of their actions, he suspected that one of the men might be the car theft suspect, so he followed the car. The car turned into a motel and began travelling at a high rate of speed through the parking lot. Barnes turned on his blue light and siren, and the men stopped the car and began running away. Barnes was able to apprehend appellant after chasing hini a number of yards and tackling him after he refused to lie down voluntarily. Officer Jones, who had arrived to assist Barnes, frisked appellant and discovered a hand-held video game, several game cartridges, and an adapter in appellant’s possession. After checking the motor vehicle records and determining the car was stolen, the officers charged appellant with theft of the car by receiving.

At trial, Officer Jones testified that State’s exhibits 1-5 appeared to be the video game items he had retrieved from appellant. He specifically noted that the items were covered with mud, which he testified occurred because the area where appellant was apprehended was muddy. Michael Mueller, the owner of the car, testified that it was stolen from the lot of a motel where he and his family had stopped at about 1:00 a.m. They were driving to their Florida home after having spent Christmas with relatives, and the trunk and back seat were packed with clothing, gifts, family photographs, and other personal items. Mueller testified that when he retrieved the car from police, the contents of the car and the glove compartment, including the photographs and items with his name clearly shown, were strewn about the car interior, and the hand-held video game and cartridges his stepson had received for Christmas were missing. He also testified that the steering column had been broken and its plastic shards were scattered on the floorboard. He stated that State’s exhibits 1-5 appeared to be the same video game and related items his stepson had received.

(a) Appellant contends that the State was required to prove that he was in actual possession of the car in order to convict him of theft by receiving. A majority of this court recently rejected this argument in a case involving similar facts. In Hurston v. State, 202 Ga. App. 311 (414 SE2d 303) (1991), the court held that a passenger in a stolen vehicle may be convicted of theft by receiving if other circumstances exist from which guilty knowledge may be inferred. Here, as in Hurston, such additional circumstances were present: appellant was found in the car only a few hours after it was stolen; personal items of the owner, including photographs, were strewn about the car, putting appellant on notice that the driver did not own the car; the steering wheel was damaged and the car was being driven without keys; appellant fled the scene when stopped by a police officer; and property that appeared to have been taken from the car was found in appellant’s possession when he was arrested. This evidence was sufficient to authorize appellant’s conviction for theft by receiving. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hurston, supra at 311-313 (1).

(b) One commits the misdemeanor offense of obstruction of a law enforcement officer when he “knowingly and willfully obstructs or hinders [the officer] in the lawful discharge of his official duties.” OCGA § 16-10-24 (a). Citing Whaley v. State, 175 Ga. App. 493 (333 SE2d 691) (1985), appellant contends his motion for directed verdict on this charge should have been granted because Officer Barnes did not have probable cause to make a warrantless arrest of appellant, and thus appellant could not be guilty of obstructing Barnes in the lawful discharge of his official duties. This enumeration is without merit. When Barnes observed the driver of the car travel at a high rate of speed through the motel parking lot, probable cause existed to stop the driver and make a warrantless arrest of him for driving too fast for conditions (a violation of OCGA § 40-6-180). OCGA § 17-4-20 (a). When Barnes stopped the car, however, both the driver and appellant, the passenger, fled in opposite directions. “Under that evidence, the jury was authorized to infer that [appellant] knew that a police officer was attempting to perform his official duty [of arresting the driver], and to find that [appellant] deliberately took action to delay, hamper or impede the officer in the performance of his duty.” Tankersley v. State, 155 Ga. App. 917, 919-920 (4) (A) (273 SE2d 862) (1980). We do not agree with appellant that a charge of obstruction could be maintained only if Barnes had probable cause to arrest appellant at the time he stopped the car. One may be guilty of obstructing an officer in the performance of his lawful duty of arresting someone else, see Brown v. State, 163 Ga. App. 209-210 (294 SE2d 305) (1982), and the jury was authorized to conclude that appellant’s flight hindered Barnes’ attempt to arrest the driver. See id. at 210 (1).

2. Appellant next contends that because the video game, cartridges, and adapter introduced as State’s exhibits 1-5 had no identifying marks showing them to be the actual items taken from Mueller’s car, the State was required to establish a continuous chain of custody in order to introduce them into evidence. A similar argument was rejected in Harper v. State, 251 Ga. 183, 185 (1) (304 SE2d 693) (1983), in which the court held that the chain of custody requirement that exists for visually indistinguishable evidence such as blood samples is not applicable “to items of evidence which are distinct and recognizable physical objects, such that they can be identified by the sense of observation.” Id. The testimony that the mud-covered exhibits appeared to be the same items taken from appellant at his arrest was sufficient to render the exhibits admissible, and it was for the jury to determine whether the exhibits were in fact the articles stolen from Mueller’s car. Turner v. State, 178 Ga. App. 888, 889 (1) (c) (345 SE2d 99) (1986).

3. Appellant also enumerates as error the trial court’s denial of his motion to exclude exhibits 1-5 on the ground that evidence of this similar but uncharged crime improperly placed his character in evidence. Circumstances forming a part or continuation of the main transaction are admissible as res gestae. Bostic v. State, 183 Ga. App. 430, 431 (1) (359 SE2d 201) (1987). The State is entitled to present evidence of the entire res gestae of the crime even though the conduct may constitute evidence of another crime for which the defendant is not charged, id., and may incidentally place the defendant’s character in issue. Satterfield v. State, 256 Ga. 593, 598 (6) (351 SE2d 625) (1987). Here, the challenged evidence was in appellant’s possession when he was arrested while riding in a car that had been stolen several hours earlier, and at trial the evidence was identified by the car owner as items that had been stolen from his car. Thus, the evidence was admissible both as part of the res gestae and also as circumstantial evidence that appellant participated in the theft of the car by receiving. See Bostic, supra.

4. Appellant next enumerates as error the court’s response to a query from the jurors. The indictment charged that appellant “did unlawfully receive and retain stolen property, to wit: a 1986 Buick Regal, a motor vehicle, the property of Michael L. Mueller.” Shortly after beginning their deliberations, the jurors posed a written question: “Does the [video game] or entire contents constitute part of the ’86 Buick in count one [of the indictment]?” In response, the court informed them that the “allegations of theft by receiving stolen property are set out in count one of the indictment .... [W]hat constitutes the property in count one is a decision to be made by you.” Appellant excepted below and on appeal on the ground that this answer permitted the jury to convict him for theft by receiving the video game or other contents of the car, an offense with which he was not charged and for which the indictment did not give him sufficient notice to prepare a defense.

We agree with appellant that the second sentence of the court’s response was somewhat misleading, for the stolen “property” was defined in the indictment as the “1986 Buick Regal,” and the identity of that property was not left open for debate by the jurors. However, in the initial charge to the jury the court explained the elements of theft by receiving and informed the jury that a guilty verdict required a finding that appellant committed the crime as alleged in the indictment, and on the recharge the court reminded the jury that they should recall and consider the charge as a whole. The court also sent the indictment to the jury room so that they could read the actual language of the charge themselves. Accordingly, we find the charge as a whole properly instructed the jury, and under the circumstances presented we find no reversible error. See Day v. State, 193 Ga. App. 179, 180 (3) (387 SE2d 409) (1989).

5. Over appellant’s objection, the trial court allowed Officer Barnes to testify that the area in which appellant was arrested had been the scene of numerous car thefts and that he had been in pursuit of suspected car thieves earlier in the evening. Appellant contends the court’s decision to permit the introduction of this testimony to explain Barnes’ reason for being on patrol in the area was error. As appellant asserts, evidence explaining a law enforcement officer’s conduct should not routinely be admitted into evidence on the basis recited by the trial court, for the conduct of the officer rarely is in issue in a criminal trial. Teague v. State, 252 Ga. 534-537 (1) (314 SE2d 910) (1984). Here, however, the reason why Officer Barnes followed the car in which appellant was riding was relevant to the validity of the subsequent stop of appellant and the driver because appellant contended at trial that Barnes’ decision to pursue was pretextual. Moreover, although Barnes’ earlier testimony concerning the incidence of car thefts in general was not relevant to any matter to be decided by the jury, “we are unable to see, and the appellant fails to demonstrate, how admission of this extraneous fact alone could have prejudiced [his] right to a fair and impartial trial.” Thomas v. State, 169 Ga. App. 119, 121 (312 SE2d 373) (1983).

6. Given our holding in Division 1 (a), supra, that the State was not required to prove appellant was in actual possession of the stolen vehicle, it follows that the court did not err by charging the jury on constructive possession and parties to a crime and by rejecting appellant’s requested charge on exclusive actual possession.

7. We likewise find no error in the court’s decision to give the State’s requested charge on conspiracy. The existence of a conspiracy may be shown by inference as a deduction from acts and conduct, Tookes v. State, 159 Ga. App. 423, 427 (8) (283 SE2d 642) (1981), and the evidence authorized an inference that appellant and the driver, who were found together in an obviously stolen car and who fled when stopped by a law enforcement officer, had formed a conspiracy to commit the crime of theft by taking. Because the evidence’ tended to show appellant and the driver acted in concert, conspiracy could be proved although not alleged in the indictment, and the charge was not error. Alexander v. State, 186 Ga. App. 787, 789 (3) (368 SE2d 550) (1988).

8. To the extent that appellant’s request to charge no. 6 included an instruction on circumstantial evidence, that topic was substantially covered in the court’s own charge, and thus there is no error in the court’s rejection of appellant’s charge. See Mattarochia v. State, 200 Ga. App. 681, 684 (5) (d) (409 SE2d 546) (1991).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

Decided June 10, 1992.

Wallace & Clayton, Wallace C. Clayton, Joanne E. Elsey, for appellant.

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


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A0021.
    LEE v. CHRYSLER LIFE INSURANCE COMPANY.
    (419 SE2d 727)
   Andrews, Judge.

Mrs. Lee, individually and as executrix of the estate of her husband, appeals the grant of summary judgment to Chrysler Life Insurance Company, issuer of a credit life insurance policy on a vehicle purchased by the Lees in August 1989. We affirm.

Viewed with all inferences in favor of Lee, the opponent of summary judgment, the undisputed evidence was that in October 1988, Mr. Lee was diagnosed with a carcinoma of the esophagus. Because of its location, in the middle third of the esophagus, and Mr. Lee’s pancreatitis and chronic lung disease, the doctors decided to pursue a course of radiation and chemotherapy treatment. He was referred to an oncologist and radiologist for these treatments. The radiation treatment was administered between October 25 and December 2, 1988. He was admitted to the hospital for five to six days once a month for his chemotherapy treatments. These hospitalizations occurred on October 31, 1988, November 28, 1988, January 10, 1989, and February 6, 1989.

Because of the scarring in his esophagus caused by the treatments, Mr. Lee experienced spasms which caused difficulty with swallowing and choking. In February, a nitro disc was applied to his chest wall to control the spasms. He used the disc until March 2, 1989 when, during a follow-up visit, he advised the doctor it did not seem to be effective. On March 20, 1989, he was hospitalized due to meat becoming lodged in his esophagus. He underwent an endoscopy to remove it. He also underwent a barium swallow x-ray examination. The examining physician reported that “There is a mid esophageal stricture in the region of the patient’s previously noted tumor mass. This may be stricture secondary to radiation therapy. However, on the examination, I cannot exclude concurrent tumor in this region.”

A follow-up visit occurred on May 11, 1989. On June 8, 1989, another incident of food impaction occurred. He was seen by the doctor again on July 13, after undergoing an esophagus barium swallow on July 6, 1989.

On August 20, 1989, the Lees signed the application for insurance. It contained the following statement: “Your signature below means that you agree that: ... 2. You have not, during the last 6 months, been ATTENDED by a doctor for any condition of the heart, brain, liver, kidney, lungs, nor for a CONDITION DIAGNOSED AS CANCER.” (Emphasis supplied.)

On September 7, 1989, Mr. Lee was seen by the doctor for his routine evaluation. In December 1989, he began having problems again; the cancer was found to have recurred in February 1990; and Mr. Lee died on May 9, 1990 as a result of the cancer and hemorrhaging caused by it.

Claim was made under the credit life insurance policy and denied based on Chrysler’s contention that Mr. Lee had been attended by a doctor for a condition diagnosed as cancer during the six months prior to signing the application. Mrs. Lee filed suit for the policy proceeds and Chrysler moved for summary judgment on the theory that Lee’s failure to disclose the fact of “attendance by a physician for a condition diagnosed as cancer” upon the application amounted to a material misrepresentation under OCGA § 33-24-7 (b) (2), voiding the policy from its inception.

The sole enumeration is that Chrysler “solicited a construction of its credit life insurance policy contract” and that the court erred in concluding that Mr. Lee had been “attended to” by a doctor for a condition diagnosed as cancer.

OCGA § 33-24-7 (b) provides: “Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless: ... (2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; . . .”

In order to prevail, the insurer need only show that the representation was false and that it was material. Davis v. John Hancock Mut. Life Ins. Co., 202 Ga. App. 3, 5 (413 SE2d 224) (1991). Materiality is not contested here, only the question of whether the statement was objectively false. It is contended that it was not because the cancer was in remission at the time the application was completed and the doctor’s ministrations to Mr. Lee did not qualify as being “attended by a doctor for a condition diagnosed as cancer.”

This argument is hinged on the contention that this phrase is ambiguous in meaning and must be interpreted to mean treatment for an active cancer. “Ambiguity is ‘ “duplicity, indistinctness, an uncertainty of meaning or expression.” ’ [Cit.] A word or phrase is ambiguous when ‘ “ ‘it is of uncertain meaning and may be fairly understood in more ways than one.’ ” ’ [Cit.]” Jefferson Pilot Life Ins. Co. v. Clark, 202 Ga. App. 385, 387 (2) (414 SE2d 521) (1991).

Decided May 20, 1992

Reconsideration denied June 11, 1992

Adams & Brooks, John B. Adams, for appellant.

Dillard, Landers & Bower, Bryant H. Bower, Jr., for appellee.

This case is very similar to and controlled by Bergan v. Time Ins. Co., 196 Ga. App. 78 (395 SE2d 361) (1990). The argument there was that a preexisting condition exclusion did not prevent recovery because the cancer had not been diagnosed before the effective date of the policy and therefore the insured had received no “medical care, treatment, medicine or advice” for cancer. This court found that, upon finding a mass, a doctor’s telling the patient to. see a gynecologist and have an ultrasound examination was “advice.” Likewise, periodic checkups to see if previously diagnosed cancer has recurred is being “attended by a doctor for a condition diagnosed as cancer.”

The fact that a disease is quiescent does not equate to a conclusion that one is not suffering from that disease and being “attended” for it with regular checkups. Cf. Metropolitan Life Ins. Co. v. Johnson, 194 Ga. 138 (20 SE2d 761) (1942) (arrested tuberculosis as basis for disability).

Judgment affirmed.

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

       The subjective belief of the insured is not the issue. Davis, supra.


text:
    A92A0075.
    BYERS v. THE STATE. DUNSMORE v. THE STATE. HESTER v. THE STATE.
    A92A0076.
    A92A0077.
    (420 SE2d 23)
   Andrews, Judge.

Byers, Dunsmore and Hester were jointly indicted and tried by a jury on charges of trafficking in cocaine and possession of marijuana. Hester and Dunsmore were found guilty of trafficking in cocaine. Byers was found guilty of the lesser included offense of possession of cocaine. All three defendants were found guilty of possession of marijuana. Hester was also indicted and found guilty of possession of a firearm by a convicted felon, and was charged and sentenced as a habitual felon.

Viewed in favor of the verdicts, the evidence shows that as a result of a continuing investigation and information obtained from an informant, police believed that cocaine and steroids were being sold from Hester’s residence located at 1312 Liberty Drive in Whitfield County. Based on this information, a warrant was obtained to search the residence. Hester was the only defendant in the residence when the search was conducted. Byers, who lived there with her 12-year-old daughter, was at work during the search. In the search of the residence, police seized triple-beam scales, inositol (identified as a commonly used cutting agent for cocaine), a knife next to the scales coated with a white powdery residue, a package of small plastic sandwich bags, two written lists of persons identified by first names and last initials with adjacent sums of money, Hester’s wallet containing $1,745 in cash, and bottles of liquid labeled as steroids along with syringes. Police testified they recognized some of the names on the lists as persons associated with, or under investigation for, narcotics violations. There was no evidence showing the composition of the white residue on the knife. No cocaine or marijuana was found at Hester’s residence.

Police also seárched a small building located about 30 yards from the residence on property owned by Hester’s sister. Dunsmore and a co-defendant not involved in this appeal were found in the small building. In the search of the small building, police found cocaine and marijuana in two plastic bags both stuffed in a boot. Although Duns-more denied the boot was his, the co-defendant identified the boot as belonging to Dunsmore. In a box located in the small building, police seized more syringes and another plastic bag containing cocaine. Several boxes of vials labeled as steroids were also found in the small building. Evidence showed Hester lifted weights at his residence, and a weight bench was also located in the small building.

After his arrest, Dunsmore contacted the police and said he was not going to take the blame for Hester for the drugs. He also told police where he and Hester had previously obtained cocaine. He did not say that the cocaine or marijuana seized belonged to him or Hester. Hester admitted that he used the syringes found at his residence to administer the steroids found at his residence to himself and his dogs. He claimed the scales were used to weigh food for a special diet he followed as a result of his diabetic condition. Hester admitted he wrote the lists of names and money, but claimed they reflected payments made on used cars purchased from a car sales business he had helped run. Evidence established that the small building had been built on the adjacent property as an office for a used car business which had closed about six months prior to the search. Dunsmore stayed at Hester’s residence occasionally, and had recently used the small building as a place to stay prior to the search. The defendants claimed to have no possessory interest in the small building or any items seized therefrom.

1. Hester and Byers claim the trial court erred in denying their motions to suppress cocaine and marijuana seized in thé search of the building located on property adjacent to the property described in the search warrant. The search warrant under which the cocaine and marijuana was seized authorized the search of Hester’s property located at 1312 Liberty Drive. The cocaine and marijuana were seized in the search of a building located on property adjacent to and outside the boundaries of the property described in the search warrant. Both Hester and Byers argue the search of the adjacent building illegally exceeded the scope of the warrant. They both deny having any right of possession or interest in the searched building or the items seized. Having disclaimed any basis upon which an expectation of privacy could be based, Hester and Byers have demonstrated that they have no standing to challenge the search or seizure. Sims v. State, 251 Ga. 877, 882 (311 SE2d 161) (1984); Boatright v. State, 192 Ga. App. 112, 114 (385 SE2d 298) (1989); Rich v. State, 188 Ga. App. 287, 288-289 (372 SE2d 670) (1988); State v. Scott, 176 Ga. App. 887, 888-889 (339 SE2d 276) (1985). Since these defendants lack standing to object, their enumerations are without merit.

2. Hester and Byers contend the trial court erroneously admitted into evidence, over objection, numerous vials of liquid labeled as steroids, which were seized in the search of the residence at 1312 Liberty Drive and the adjacent building. When the vials were tendered as evidence, Hester and Byers objected that these items were irrelevant to the charges at issue. “[A]rticles found in the control of the defendant at the time or near the time of arrest . . . are admissible as circumstances connected with the arrest of the defendant.” Hale v. State, 159 Ga. App. 563 (284 SE2d 68) (1981); State v. Luke, 232 Ga. 815, 816 (209 SE2d 165) (1974); Fuqua v. State, 183 Ga. App. 414, 419-420 (359 SE2d 165) (1987). We need not decide whether some or all of these items were admissible as circumstances of the arrests. Prior to tendering the vials as evidence, the State presented testimony identifying the vials, describing their contents, labeling, and the circumstances in which they were seized. None of this testimony was objected to by the defendants. Error, if any, in admitting the vials was rendered harmless by the admission, without objection, of the testimony describing the seized items and the circumstances of the seizure. Atlanta Gas Light Co. v. Redding, 189 Ga. App. 190 (375 SE2d 142) (1988).

3. Hester and Dunsmore argue that the trial court should have granted their motions for a directed verdict of acquittal on the trafficking in cocaine charge because the evidence was insufficient. Under OCGA § 16-13-31 (a), “[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . .” is guilty of trafficking in cocaine. The statute defines two methods of committing the crime of trafficking in cocaine, one dealing with pure cocaine, and the other dealing with mixtures containing cocaine. In either case, the crime of trafficking in cocaine is based on proof of the amount of cocaine involved. Bassett v. Lemacks, 258 Ga. 367, 369-371 (370 SE2d 146) (1988). Under the statute, one may be guilty by possessing 28 or more grams of pure cocaine, or by possessing 28 or more grams of a mixture with a purity of 10 percent or more of cocaine.

Hester and Dunsmore were indicted and convicted for knowingly possessing “more than 28 grams of cocaine.” The record shows that two bags of white powder, one with a gross weight of 31.7 grams and the other with a gross weight of 54.6 grams, were seized in the search, and tested at the State Crime Laboratory. The test used revealed that the substances in both bags contained cocaine. No test was conducted to determine what percentage of the substances was pure cocaine. Although the forensic chemist who tested the substances testified that the test used did not indicate the presence of anything other than cocaine, he admitted that the test did not determine if certain commonly used adulterants were present in the substances, and that what percentage of the substances was pure cocaine “would be shear [sic] speculation.” On these facts, there is not sufficient evidence for a rational trier of fact to conclude, beyond a reasonable doubt, that Hester and Dunsmore possessed at least 28 grams of pure cocaine. Even assuming no fatal variance from the indictment would have resulted by proof that the defendants possessed a mixture containing cocaine (see Belcher v. State, 161 Ga. App. 442, 443 (288 SE2d 299) (1982)), the evidence was also insufficient to prove that the substances tested contained at least 10 percent pure cocaine.

Although the evidence was insufficient to sustain the convictions for trafficking in cocaine, there was sufficient evidence to connect Dunsmore and Hester to the cocaine seized in the adjacent building, and support convictions for the lesser included offense of possession of cocaine. One bag containing cocaine was found in Dunsmore’s immediate presence in his boot when he was arrested. The remaining cocaine was found in the building adjacent to Hester’s residence in a box along with syringes and steroids similar to that found in Hester’s residence and admittedly used by him. Although the building was not located on his property and he denied using it, evidence showed that Hester had previously used the building as an office to run a used car business adjacent to his residence. Hester lifted weights, and a weight bench was found in the small building. Dunsmore’s statement to police showed that he and Hester were involved with cocaine. This evidence combined with other evidence seized from Hester’s residence and commonly associated with the type of contraband seized, such as the scales, a substance commonly used as a cutting agent for cocaine, adjacent knife with white residue, large sums of cash in Hester’s wallet, and the lists of names with accompanying dollar amounts, established a connection between Hester and the cocaine seized from the adjacent building. The circumstantial evidence was sufficient to enable a rational trier of fact to conclude, beyond a reasonable doubt, that Hester had constructive possession of the cocaine seized from the adjacent building. Accordingly, both Hester’s and Dunsmore’s convictions for trafficking in cocaine are vacated, and their cases are remanded with direction that a conviction and sentence be entered for both defendants for possession of cocaine. Hogan v. State, 193 Ga. App. 543 (388 SE2d 532) (1989); Choate v. State, 158 Ga. App. 8 (279 SE2d 459) (1981).

Decided June 1, 1992

Reconsideration denied June 11, 1992

Bates, Kelehear & Starr, James E. Poland, Jr., for appellant (case no. A92A0075).

Michael A. Corbin, for appellant (case no. A92A0076).

J. Tracy Ward, for appellant (case no. A92A0077).

Jack O. Partain III, District Attorney, David W. McLeod, Assistant District Attorney, for appellee.

4. Defendant Byers contends the evidence was insufficient to sustain her conviction for possession of cocaine or marijuana. We agree there was insufficient evidence to link Byers to the contraband. “Even a finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Punctuation and citations omitted.) Murrell v. State, 200 Ga. App. 231, 233 (407 SE2d 460) (1991). Since the circumstantial evidence with respect to Byers was not sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused, her convictions must be reversed. OCGA § 24-4-6.

Judgment affirmed in part, and in part vacated and remanded with direction in Case Nos. A92A0076 and A92A0077. Judgment reversed in Case No. A92A0075.

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


text:
    A92A0291.
    WINDSOR INSURANCE COMPANY v. JEFFERY et al.
    (420 SE2d 15)
   Andrews, Judge.

Remiza and Melvin Jeffery brought suit to recover optional no-fault benefits under an automobile liability insurance policy issued by Windsor Insurance Company (Windsor) in 1986. Mr. Jeffery was injured in an automobile collision on June 18, 1989, and Windsor paid minimum no-fault benefits of $5,000 under the policy. The Jefferys demanded payment of maximum no-fault benefits in the amount of $50,000, tendered the additional premium for such coverage, and claimed optional no-fault benefits (which had been rejected in the application for insurance) were payable because the application failed to explain and offer optional coverages in compliance with the requirements of OCGA § 33-34-5 (b). When the demand was rejected, this suit followed which also seeks statutory penalty, attorney fees and punitive damages against Windsor under OCGA § 33-34-6 for bad faith refusal to pay the optional benefits.

Both parties moved for summary judgment. The trial court granted summary judgment in favor of the Jefferys for optional no-fault benefits, and denied Windsor’s motion for summary judgment as to damages sought under OCGA § 33-34-6, finding that the issue of bad faith refusal to pay was a jury question. Windsor appeals.

1. In granting summary judgment in favor of the Jefferys, the trial court ruled that OCGA § 33-34-5 (b) was not satisfied because the required statement that the optional coverages required to be offered had been explained was not in boldface type. OCGA § 33-34-5 (b) provides that: “Each initial application for a new policy of motor vehicle liability insurance sold in this state after November 1, 1982, shall contain a statement in boldface type signed by the applicant indicating that the optional coverages listed in subsection (a) of this Code section have been explained to the applicant.”

The statute “mandates that for there to be an effective rejection of additional coverage, the application must (1) contain a statement that the optional coverage required by the statute to be offered has been explained to the applicant, (2) that the statement be in boldface, and (3) that the statement be signed by the applicant.” Southern Guar. Ins. Co. v. Goddard, 259 Ga. 257, 258 (379 SE2d 778) (1989).

The record contains two pieces of documentary evidence showing the typeface contained on the application for insurance: (1) a copy of the application form signed by Ms. Jeffery, and (2) an original unsigned sample of the insurance application form used by Windsor. The affidavit of Windsor’s operations vice president, reciting personal knowledge, has an original unsigned sample application form attached, and states that the original application for insurance, signed by Ms. Jeffery through Tanner Insurance Agency, was received by Windsor, microfiched, and the original signed document was discarded pursuant to the company’s standard business procedures in dealing with the volume of applications. The affidavit states that the original application signed by Ms. Jeffery was on a form identical to the sample form attached to the affidavit. A copy of the application form signed by Ms. Jeffery is also identified and attached to the affidavit. It is apparent from the affidavit that Windsor is not claiming its vice president of operations had immediate and independent personal knowledge of Ms. Jeffery’s execution of the application at Tanner Insurance Agency, or of the specific receipt, handling and disposal of Ms. Jeffery’s original application form. At most, the affidavit establishes the affiant’s personal knowledge of the appearance of the application form in use by Windsor, and of the procedures used to process the large numbers of applications received, and produces the copy of the signed application form as a record kept in the ordinary course of business.

The only signed application form in the record is a copy of the form signed by Ms. Jeffery through the Tanner Insurance Agency. The record is silent as to whether the form signed by Ms. Jeffery was an original Windsor application or a copy of an original form. To the extent the affidavit purports to establish that Ms. Jeffery signed an original Windsor application form rather than a copy of an original form, the affidavit is hearsay and has no probative value in support of summary judgment. There is no indication as to whether the trial court entered its order based on the typeface in the signed copy or the unsigned original sample form.

This question is critical to determining whether the required statement was in boldface type. The test established in Southern Guar., supra at 258, requires that the typeface of the explanatory statement be in “print which exhibits a face sufficiently heavy in appearance to cause it to be more conspicuous than the print which surrounds it.” In our view, the typeface of the required explanation as it appears on the signed copy of the application, though perhaps slightly thicker than the surrounding print, is not different enough to be conspicuous, and fails the test. The typeface of the explanation on the unsigned, sample original application form appears substantially bolder and thicker than the copy, and is conspicuous enough to pass the test. In the absence of the original signed application, Windsor’s production of the unsigned sample application used by the company creates a question of fact making it necessary to establish whether Ms. Jeffery signed an original form or a copy of an original.

Decided May 28, 1992

Reconsideration denied June 11, 1992

Chambers, Mabry, McClelland & Brooks, Eugene P. Chambers, Jr., Clyde E. Rickard III, for appellant.

Sutton & Slocumb, Berrien L. Sutton, Reinhardt, Whitley & Wilmot, Glenn Whitley, for appellees.

The Jefferys also contend that the application failed to comply with OCGA § 33-34-5 (b) because the required explanatory statement was not signed by the applicant. We find no merit in this contention. Here, the statement that the explanation of optional coverages has been given includes a description of the optional coverages offered followed immediately by the applicant’s signature.

The trial court erred by granting summary judgment in favor of the Jefferys.

2. The trial court’s determination regarding damages sought under OCGA § 33-34-6 must be vacated and reconsidered after resolution of the factual issue discussed in Division 1.

Judgment reversed in part, and vacated in part.

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

       Citations to OCGA §§ 33-34-5 and 33-34-6 refer to the statutes as they existed prior to the amendments and revisions enacted by Ga. Laws 1991, p. 1608.


author: Johnson, Judge.

text:
    A92A0470.
    WALKER v. THE STATE.
    (420 SE2d 17)
   Johnson, Judge.

James A. Walker III was convicted in probate court of the offenses of speeding and driving with an alcohol concentration of .12 grams percent or more, in violation of OCGA § 40-6-391 (a) (4). He appealed to the superior court pursuant to OCGA § 40-13-28. The superior court made a determination, based on a review of the certified record from the probate court, that Walker was guilty of the offenses. Walker appeals his conviction.

1. Walker contends that his due process rights were violated because he was denied a de novo review of his conviction returned by a non-lawyer judge in the probate court. The scope of review of probate court proceedings required by OCGA § 40-13-28 was recently delineated by the Georgia Supreme Court in Walton v. State, 261 Ga. 392 (2) (405 SE2d 29) (1991). The court held: “In enacting OCGA § 40-13-28, the General Assembly provided for a right of appeal ‘on the record’ to the superior court. Thus, the mandate of the superior courts is to review asserted errors of law in the proceedings below under general appellate principles. The appellant may not raise issues not litigated in the court below, but he is entitled to a review of the record which ensures that the evidence has been received in conformity with statutory and constitutional standards. . . .” Id. at 394. This review process provides a method for correcting errors of law which may have occurred in the courts of the non-lawyer judges of the probate court. Walker contends that this procedure violates the holding in North v. Russell, 427 U. S. 328 (96 SC 2709, 49 LE2d 534) (1976) which held that an accused, subject to possible imprisonment, was not denied due process when tried before a non-lawyer inferior court judge provided a later trial de novo was available under Kentucky’s two-tiered system. The U. S. Supreme Court did not hold that a system providing for a trial de novo was the only system which would satisfy due process requirements. The procedure in Georgia provides for a review of the proceedings held before the probate judge. As pointed out in Walton: “A review of the record from a court without a law-trained judge has been held to satisfy due process in Arizona, Palmer v. Superior Court in & For Maricopa County, 560 P2d 797, 799 (Ariz. 1977) and in Wyoming, Canaday v. State, 687 P2d 897, 899 (Wyo. 1984).” Walton, supra at 394, n. 5. Therefore Walker’s argument that he has been denied due process must fail.

2. Walker enumerates as error that the D.U.I. statutory scheme is unconstitutional. He argues that the intoximeter results should have been excluded from evidence because when OCGA § 40-1-1, which defines “Alcohol Concentration” as “grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath,” is read with OCGA § 40-6-391, an evidentiary presumption is created that all people submitted to breath tests to determine alcoholic content have the same lung capacity or blood to air ratio. Thus, he concludes, if a person had an increased or decreased lung capacity, the ratio would be inaccurate. Walker argues that the evidentiary presumption that Walker’s lung capacity was “normal” unconstitutionally shifted the burden of proof to the defendant. Walker points us to opinions in several states which have reached this issue, all in the context of jury charges. Charges regarding the use of the blood to alcohol ratio have been held to be harmless so long as they are given in conjunction with a qualifying instruction regarding the inconclusiveness of the ratio. In this case, no jury was present and the court considered the weight to be given to the intoximeter results, as well as other evidence regarding Walker’s condition at the time of the arrest. In evaluating the totality of the evidence, it found that Walker committed 1) the act of driving; and 2) that he was “under the influence.” Therefore, we find that the state met its burden of proving beyond a reasonable doubt without unconstitutionally shifting the burden to the defendant. See generally Lattarulo v. State, 261 Ga. 124 (401 SE2d 516) (1991).

3. Walker further alleges that the trial court erred in admitting the state’s radar results. He argues that the state failed to show that the radar device was approved by the Department of Public Safety, that the device had been certified by a technician possessing at least a Second Class Radiotelephone License from the Federal Communications Commission, that the device passed accuracy tests before and after the officer’s tour of duty and that test results were recorded and maintained in accordance with Wiggins v. State, 249 Ga. 302, 304 (290 SE2d 427) (1982). At trial, the arresting officer testified that he was certified to use radar and introduced a copy of the certification of the radar device in his patrol car indicating that it had been tested in accordance with the requirements of the Department of Public Safety. He further testified that regularly maintained records of calibrations indicate that the radar was properly calibrated several hours prior to the arrest, but was not asked whether he tested it at the end of his shift. The absence of evidence regarding this element is harmless and we find that the evidence substantially complies with the requirements set forth in Wiggins.

Walker objected to the copy of the certification on best evidence and hearsay grounds. The documents were admissible under OCGA §§ 24-7-20, 24-5-26 and 24-3-14, as well as Wiggins, supra. See also Williamson v. State, 194 Ga. App. 439, 440 (3) (390 SE2d 658) (1990).

Walker also argues that the state failed to show that the radar was not operated within 500 feet of a radar speed device warning sign. He argues that OCGA § 40-14-6 applies to state law enforcement agencies as well as county and municipal law enforcement agencies. In Carver v. State, 199 Ga. App. 842-843 (406 SE2d 236) (1991), this court reviewed OCGA § 40-14-7 regarding the visibility of radar equipped vehicles. “It is also important to note that between the Supreme Court’s decision in Wiggins in 1982 and January 27, 1990, when Carver was issued a citation for speeding, the General Assembly changed the conditions for admissibility for citations issued by state officers by making the requirement that the vehicle be visible to approaching motorists for at least 500 feet applicable only to ‘county, municipal, college, or university law enforcement officers.’ ” Carver at 842. Since the language regarding law enforcement agencies in OCGA § 40-14-7 is identical to that of OCGA § 40-14-6, the same logic must be applied. The state was not required to show that a radar device was not operating within 500 feet of a warning sign. We find that OCGA § 40-14-6 is not applicable to state law enforcement officers and therefore the absence of this evidence would not invalidate the radar evidence.

4. Walker next contends that the trial court erred in admitting the results of the state’s test of Walker’s breath conducted on an Intoximeter 3000 breathalyzer machine. Walker asserts that the foundation laid by the state prior to the introduction of evidence regarding the machine was improper. Specifically he asserts that no evidence was presented that the machine had been calibrated in accordance with rules promulgated by the Georgia Bureau of Investigation. These issues were raised in Harris v. State, 199 Ga. App. 457, 458-459 (4) (405 SE2d 501) (1991), in which it was held “the defendant’s challenge to the reliability of the test results did not affect their admissibility under these circumstances, but went merely to the weight to be placed on them. . . .” (Punctuation and citations omitted.) Id. at 459. We find Harris to be dispositive of this issue.

Decided May 28, 1992

Reconsideration denied June 11, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Walker argues that the state’s evidence failed to establish that Walker was advised of his right to an independent test as required by OCGA § 40-6-392 (a) (4). This is contrary to the evidence presented at trial. The arresting officer testified that he read Walker the Implied Consent Warning card. “Sworn testimony by the officer that such advice was given constitutes a prima facie showing of compliance.” Snelling v. State, 176 Ga. App. 192, 193 (1) (335 SE2d 475) (1985). Walker offered no evidence to rebut the officer’s testimony, and no objection to the evidence was raised. Therefore we find no merit to the errors raised in this division.

5. Finally, Walker asserts that his conviction should be reversed because of insufficiency of the evidence. The evidence showed that Walker was driving at a rate of speed of 70 mph in a 55 mph zone and that the results of the intoximeter test indicated a .16 grams percent blood-alcohol ratio. Considered in the light most favorable to the judgment of the trial court sitting as trier of fact, the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Walker was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0520.
    MILLER v. THE STATE.
    (420 SE2d 12)
   Andrews, Judge.

Miller’s jury trial for aggravated assault ended when, during the state’s case-in-chief, the trial court granted the state’s motion for a mistrial over defense objection. The trial court subsequently denied Miller’s plea in bar to retrial based on double jeopardy grounds, and Miller brings this direct appeal. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982) (direct appeal proper from denial of plea of double jeopardy).

Miller stabbed her brother-in-law with a knife. The state first presented testimony from the victim who said Miller came to the garage where he was working, instigated an argument, and stabbed him without provocation. On cross-examination, defense counsel attempted to show that the victim had previously beaten his wife (Miller’s sister), and that the argument at the garage was a continuation of previous hostilities between Miller and the victim over the beatings. The victim denied he had beaten his wife, and the state objected to this line of questioning on grounds that it was not relevant. In an ensuing bench conference, defense counsel argued that this evidence was relevant because he intended to show that the victim was the aggressor. There having been no evidence introduced at that point to show the victim had threatened Miller or anyone else during the argument, the trial court directed defense counsel not to pursue questions designed to show prior difficulties between Miller and the victim until a foundation was laid to support the relevancy of this evidence. Defense counsel immediately proceeded to ask the victim if he had not previously been to Miller’s house in an attempt to collect money owed to him for a drug sale. The victim denied knowledge of any drug sales.

The state’s second witness was the victim’s wife, who was present at the garage when Miller stabbed the victim. She testified that she came to the garage after the victim telephoned her and informed her of the argument, and asked her to come and speak to Miller. When she arrived, Miller and the victim were arguing, and she told her sister to cease the argument because the marital problems were not Miller’s concern. There was no testimony from the victim’s wife showing that the victim was aggressive in any way toward her or Miller at the garage. In a bench conference prior to cross-examination of the victim’s wife, the trial court again discussed the admissibility of prior difficulties between the victim and Miller. In an offer of proof to the court, defense counsel proffered that evidence of the prior difficulties was relevant to show the argument at the garage was part of a continuing argument between the victim and Miller. The court again ruled that prior difficulties between Miller and the victim were not relevant at this point in the trial, but that if evidence was later presented demonstrating its relevancy, the defense would be allowed to recall any witnesses necessary to fully develop the defense. The trial court placed no restrictions on cross-examination as to what transpired or was said at the garage during the argument.

On cross-examination, the victim’s wife testified that when she arrived at the garage she heard the victim and Miller arguing about the victim having previously beaten the witness. At that point, defense counsel asked for a bench conference and informed the court that he expected the evidence to also show that the victim was angry because of allegations made by Miller during the argument that the victim had given his wife a sexually transmitted disease. The court ruled that defense counsel could ask the witness what was said during the argument. The victim’s wife denied hearing any such allegation as part of the argument. Defense counsel then proceeded to ask the witness if she had previously told Miller that the victim had given her a sexually transmitted disease, to which the witness responded, “Maybe so. I’m open with her.” The state immediately objected on grounds that defense counsel was again attempting to establish a basis for prior difficulties between the victim and Miller. In another bench conference the trial court admonished defense counsel, and considered the possibility of giving the jury cautionary instructions about the prior difficulties evidence. The state moved for a mistrial claiming the state’s case had been prejudiced by repeated injection of evidence designed to show prior difficulties between the victim and Miller, without any foundation for its relevancy. The trial court granted the mistrial over defense objection.

Defense allegations that the victim beat Miller’s sister, came to Miller’s house to collect money on a drug sale, and gave Miller’s sister a sexually transmitted disease, were all calculated to show that the victim and Miller had difficulties prior to the argument at the garage in support of Miller’s justification defense. In theory, Miller is entitled to introduce evidence to show that as a result of prior difficulties she had with the victim he was hostile toward her; that the argument at the garage was a continuation of this hostility, and that she justifiably acted in self-defense to his aggression. Shaw v. State, 241 Ga. 308, 309 (245 SE2d 262) (1978). However, before evidence in support of such a justification defense becomes relevant, there must be a prima facie showing that the victim was the aggressor, assaulted the defendant during the present incident, and the defendant was honestly seeking to defend herself. See Sawyer v. State, 161 Ga. App. 479, 481 (288 SE2d 108) (1982). The trial court correctly ruled that, at the time defense counsel repeatedly sought to introduce evidence to support prior difficulties, such evidence was not relevant since no foundation had been laid to show the victim was the aggressor.

“Once the jury has been impaneled and sworn, jeopardy attaches. However, where a mistrial is thereafter declared over the objection of a criminal defendant, a retrial is not barred where there is manifest necessity for the declaration of a mistrial or the ends of public justice would be defeated by allowing the trial to continue.” (Punctuation and citations omitted.) Phelps v. State, 187 Ga. App. 236 (369 SE2d 506) (1988). “This formulation . . . abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated ... [to demonstrate] the breadth of a trial judge’s discretion, and the reasons therefor, to declare a mistrial. Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.” Abdi v. State, 249 Ga. 827, 828 (294 SE2d 506) (1982).

The mistrial declared in this case is not subject to the strict scrutiny applied to situations where there is reason to believe the state may be using its superior resources to harass the defendant or achieve a tactical advantage. Cobb v. State, 246 Ga. 619, 620 (272 SE2d 296) (1980). Here, despite repeated instruction from the court, the trial judge observed continued injection by defense counsel of irrelevant and prejudicial matters in the trial. The court considered the possibility of cautionary instructions to the jury, but concluded that the conditions created by the defense made an impartial verdict impossible. State v. Abdi, 162 Ga. App. 20, 22 (288 SE2d 772) (1982). Under these circumstances, we cannot conclude the trial judge abused her discretion in declaring a mistrial. Burleson v. State, 259 Ga. 498 (384 SE2d 659) (1989); Jones v. State, 232 Ga. 324 (206 SE2d 481) (1974); Moss v. State, 200 Ga. App. 253 (407 SE2d 477) (1991); McGarvey v. State, 186 Ga. App. 562-564 (368 SE2d 127) (1988). Accordingly, a retrial does not violate the defendant’s double jeopardy rights under state or federal law, and the trial court correctly denied Miller’s plea in bar.

Judgment affirmed.

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

Decided May 20, 1992

Reconsideration dismissed June 11, 1992.

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Stephen G. Scarlett, Assistant District Attorney, for appellee.

       In colloquy with the court, opening statement, and in requests to charge filed prior to trial, the record reflects that defense counsel intended to present the defense that the victim was the aggressor, and that Miller justifiably acted in self-defense.

       To the extent the wife beating allegation also amounted to evidence of the victim’s prior specific act of violence against a third party, there is no evidence in the record that Miller complied with the procedures set out in Chandler v. State, 261 Ga. 402, 407-408 (405 SE2d 669) (1991) requiring advance notice to the state prior to trial that the defense intended to introduce such evidence.


author: Birdsong, Presiding Judge.

text:
    A92A0558.
    RUIZ v. PARDUE et al.
    (420 SE2d 1)
   Birdsong, Presiding Judge.

Appellant Adrian Ruiz fell off a scaffold in the same incident in which Paul Ypolito Paz was injured, as described in Paz v. Marvin M. Black Co., 200 Ga. App. 607 (408 SE2d 807) (cert. den.). Appellant sued Alton Pardue “individually and in his capacity as Safety Officer for Marvin M. Black Company” and also sued Scaffolding & Shoring Systems, Inc., as the negligent lessor and bailor of scaffolding equipment who negligently entrusted the equipment to Marvin M. Black Company.

1. Appellant Ruiz complains of the summary judgments granted to Alton Pardue and to Scaffolding & Shoring Systems. In Paz, supra at 608, we were required by the present language of OCGA § 34-9-11 and by Long v. Marvin M. Black Co., 250 Ga. 621 (300 SE2d 150) to hold that Pardue, the employee of the prime contractor Marvin M. Black Company, was not immune to tort liability because he was not the “ ‘employee of the same employer’ [i.e. subcontractor]” as Paz. We said, however, that since the prime contractor itself, as “statutory employer” liable for workers’ compensation benefits under OCGA § 34-9-8, was immune to tort liability, “[w]e agree that none of the employees of the general contractor Marvin M. Black Company may be sued by virtue of their being an ‘alter ego’ of the company or acting in a representative capacity. [Cits.]” Paz, supra at 608.

In this case, the defendant Alton Pardue relies on this very distinction and contends the record in this case plainly shows that as safety director or inspector he was acting as “alter ego” of the prime contractor Marvin M. Black Company and was “standing in its shoes” to implement its duty to provide a safe work place, and therefore shared his employer’s statutory immunity. However, he asserts this is true because his negligence, if any, was (by virtue of his being alter ego for safety implementation) “passive”; and says that if he had, for example, dropped a hammer on the plaintiff Ruiz, this “affirmative” act of negligence would propel him forward from the status of passive alter ego of his employer, to the status of negligent employee of his employer. We perceive a fatal lack of logic in this argument even though appellee Pardue says it is supported by authority of other states. As we said in Paz, the lack of tort immunity of the employees of the prime contractor to employees of a subcontractor is based not on whether the employee’s negligence was “passive” or “active,” but on the fact that the prime contractor’s employee has no workers’ compensation liability that would justify tort immunity. Paz at 609. Moreover, Pardue has misunderstood the meaning of the term “alter ego.” The term means “second self” (Black’s Law Dictionary, Fifth ed.) and in this context refers to the substituting of the individual for the existence of the corporate or business entity. Since Marvin M. Black Company is clearly immune as Ruiz’ “statutory employer,” obviously Pardue is not being sued as merely representing or being the “second self” of Marvin M. Black Company. He is being sued for something he did or did not do in the course of his employment. If he is liable for failing to inspect and failing to implement his company’s safety program, then he is being sued for his “act” or “failure to act” in his employment. The issue of liability of Alton Pardue as safety investigator rises and falls upon his actions, not his “existence.” As to his actions, he is an employee, not the alter ego of his employer. There exists no real distinction between this suit and the one in Paz, despite Mr. Pardue’s attempt to create one, and we therefore hold that the trial court erred in granting summary judgment to Pardue on the basis of tort immunity.

2. We do not, however, find cause to reverse the summary judgment granted by the trial court to Scaffolding & Shoring Systems, Inc. There appears no genuine issue of material fact remaining that this defendant did not erect the scaffolding in a negligent manner; it assumed no duty and had no duty to inspect the scaffold erected by Marvin M. Black Company using these parts and other materials. This defendant merely leased certain scaffolding equipment parts to Marvin M. Black Company; the parts it leased to Marvin M. Black Company were not themselves defective and were marked with warning decals. Any evidence of negligent use by Marvin M. Black Company which a Scaffolding & Shoring Systems employee saw when he delivered materials two weeks before this accident has not been identified as a matter as to which this defendant had a duty, and has not been identified as a direct and proximate cause of the collapse of this scaffold immediately after heavy rains and/or when it was struck by a bobcat machine. See Paz, supra at 607. When the movant for summary judgment has met his burden to show no material issue of fact remains and he is entitled to judgment, “ ‘ “the burden then shifts to the other party to present any alternative theories, if such exist . . . within which genuine issues of fact remain.” ’ ” Miller v. Trammell, 198 Ga. App. 27, 28 (400 SE2d 387). As against the evidence presented by Scaffolding & Shoring Systems that it provided no defective parts to Marvin M. Black Company, did not erect this scaffold, had no duty to inspect it after it was erected by Marvin M. Black Company, and had no actual or constructive knowledge óf the particular defects which caused this scaffold to collapse or responsibility to discover and correct such defects, appellant Ruiz has not borne his burden in response to prove genuine issues of fact exist, as to any of the theories of liability he has proposed (bailor liability or negligent entrustment). The trial court did not err in granting summary judgment to this defendant.

Decided April 6, 1992

Reconsideration denied June 11, 1992

Clark & Smith, Craig T. Jones, Thomas C. Blaska & Associates, Thomas C. Blaska, for appellant.

Heyman & Sizemore, William B. Brown, William H. Major, Long, Weinberg, Ansley & Wheeler, Robert D. Roll, T. Jeffery Lehman, Darroch & Obenshain, Emory A. Wilkerson, for appellees.

Judgment affirmed in part and reversed in part.

Beasley and Andrews, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A92A0639.
    BRADFORD v. THE STATE.
    (420 SE2d 4)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of burglary, rape, aggravated sodomy (oral), aggravated sodomy (anal) and robbery. Following a jury trial, defendant was convicted of burglary, rape and aggravated sodomy (oral) and he was sentenced to two consecutive life terms and a consecutive 20-year term in confinement. Defendant’s motion for a new trial was denied and he appeals. Pointing out that his sole defense was misidentification, and that a third person could have gained access to the victim’s apartment, defendant contends the trial court erred in refusing to permit him to introduce in evidence a certified copy of the third person’s conviction for aggravated assault with intent to rape.

The victim, a registered nurse, was attacked in the early morning hours by a man who was one of several workmen who had been employed to fix up the victim’s apartment. The workmen had been given a key to the victim’s apartment and it was apparent that whoever attacked the victim entered her apartment with the key.

The victim was repeatedly raped and sodomized for more than two hours. Soon after the attack began, she came to the conclusion that her attacker was the defendant. (She had met defendant and spoken with him when he came to her apartment previously. Thus, she was familiar with defendant’s appearance and voice.) She also concluded that her attacker had raped previously. (She testified that her attacker was “very aware of how to rape a woman.” Before he left, the attacker checked the victim’s vagina and anus for signs of trauma; and he “firmly” swept his hand through her pubic háir as if he was “trying to destroy evidence.”)

The victim was taken to the hospital where she told the police that her attacker was “Eddie the painter.” Thereafter, the police located defendant and brought him to the hospital where the victim identified him as her attacker.

At trial, the victim positively identified defendant once again. Forensic evidence corroborated the victim’s identification. (For example, deoxyribonucleic acid (“DNA”) tests conducted by the Federal Bureau of Investigation established that the odds someone other than defendant attacked the victim were 1 in 49 million.)

Defendant’s sole defense was misidentification. He attempted to demonstrate that the attack was committed by a third party, one Marcus Rhodes. Rhodes was one of the other workmen who fixed up the victim’s apartment. Rhodes had been convicted of aggravated assault with intent to rape in 1986.

Defendant called Rhodes to the witness stand and urged the trial court to permit the introduction of a certified copy of Rhodes’ aggravated assault conviction. The trial court refused. Held:

“Generally, accused may introduce evidence tending to show that another person committed the crime with which he is charged, if a proper foundation is laid, unless the probative value of the evidence is substantially outweighed by actual risk of undue delay, prejudice, or confusion.

“However, the evidence to establish that someone else, and not accused, is the guilty party must be such evidence as is relevant on the trial of accused, and that the evidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence.

“The evidence, to be admissible, must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides accused as the guilty person. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible. ...

“Although the fact that others have committed crimes of the same or similar nature is ordinarily irrelevant and inadmissible, accused may introduce evidence that another person recently committed a similar crime by similar methods, since such evidence tends to show that someone other than accused committed the particular crime.” 22A CJS Criminal Law, § 729.

Decided April 15, 1992

Reconsideration denied June 11, 1992

Richard L. Dickson, J. Michael Mullís, Vicki C. Affleck, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

In the case sub judice, defendant was entitled to introduce relevant and admissible evidence sufficient to raise an inference that someone other than himself committed the crimes. Walker v. State, 260 Ga. 737, 738 (1) (399 SE2d 199); Henderson v. State, 255 Ga. 687, 689 (1) (341 SE2d 439); Butler v. State, 254 Ga. 637 (332 SE2d 654). However, the certified copy of Rhodes’ aggravated assault conviction was not relevant and admissible. Its admission would have had no effect other than to cast a bare suspicion upon Rhodes. Thus, in the absence of testimony demonstrating that Rhodes was convicted for a “similar crime by similar methods,” the trial court properly excluded the certified copy of Rhodes’ conviction. 22A CJS Criminal Law, § 729, supra. See Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Sognier, Chief Judge. McMurray, Presiding Judge,

text:
    A92A0661.
    WILEY v. WINN DIXIE STORES, INC.
    (420 SE2d 20)
   Sognier, Chief Judge.

Robert Wiley brought suit against Winn Dixie Stores, Inc. seeking damages for injuries he allegedly sustained when he slipped and fell on a foreign substance in the aisle of a Winn Dixie grocery store. The trial court granted Winn Dixie Stores’ motion for summary judgment, and Wiley appeals.

In his deposition, appellant stated that he and a friend were walking down an aisle at the grocery store when his left leg went out from under him and he fell, tearing ligaments in his left knee. Appellant deposed that both he and the store manager who came to his assistance saw and commented upon a spot on the floor, somewhat larger than a quarter and grayish-brown in color, which was visible to someone looking down at the floor. Appellant deposed that the spot had a black scuff mark along its edge that spread outward, which had been created by the heel of appellant’s boot when he fell. Appellant stated that the spot seemed to have been a liquid of some kind but that it appeared to have thickened. Appellant opined that the thickness was caused by dirt the liquid had collected. He also opined that the spot had been present on the floor for two hours and testified that his estimate was based on the number of customers present in the store and the dirty condition of the spot. Appellant admitted he did not know the nature of the substance in which he slipped and acknowledged that his estimate of two hours was a “guess.”

In support of its motion for summary judgment, appellee introduced the affidavit of Frank Nobles, who was the assistant manager of the grocery store at the time of appellant’s fall. Nobles averred that he had walked down the aisle where appellant slipped five minutes before the fall and saw no foreign substance or accumulated wax there. He stated that he was looking down the aisle at the time appellant fell, saw the fall, and went immediately to the scene. He averred that the floor was clean, that there was nothing present on which appellant could have slipped, and that in his opinion appellant’s fall was an accident.

We affirm the trial court’s grant of summary judgment to appellee. Although the evidence conflicted whether the spot existed after appellant’s fall, that issue is not material to a determination of appellee’s liability, since the material issue in this case is whether appellee, as the proprietor, had actual or constructive knowledge “that there [was] a foreign substance that could cause patrons to slip and fall,” i.e., knew that the spot was on the floor before appellant’s fall, in order to determine whether appellee exercised ordinary care in keeping its premises safe. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980). Because it is only where the contradiction by other witnesses is as to a matter relevant and material to the issue that it is error to grant a motion for summary judgment, Raven v. Dodd’s Auto Sales & Svc., 117 Ga. App. 416, 422 (4) (160 SE2d 633) (1968), our review of the record must be directed to evidence material to appellant’s claim.

The record reveals that appellant adduced no evidence to controvert Nobles’ averral that he did not see the spot when he traversed the aisle prior to appellant’s fall. Therefore, the evidence is uncontroverted that appellee did not have actual knowledge of the presence of the spot. See generally Filmore v. Fulton-DeKalb Hosp. Auth., 170 Ga. App. 891, 892-893 (318 SE2d 514) (1984). As to constructive knowledge of the spot, such knowledge “ ‘may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. (Cit.) Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)’ (Emphasis [deleted].) [Cit.]” Food Giant v. Cooke, 186 Ga. App. 253, 254 (366 SE2d 781) (1988). Although the evidence of record reflects that Nobles was in the general vicinity at the time of appellant’s fall, there is no evidence that he or any other employee of appellee was in a position to observe the spot prior to the fall in order to discover and remove it. See Kitchens v. Restaurant Mgmt. Svcs., 192 Ga. App. 313, 314 (385 SE2d 11) (1989). Compare Caree v. Revco Discount Drug &c., 175 Ga. App. 487, 488-489 (333 SE2d 387) (1985) (presence of security guard who passed location of fall immediately prior to occurrence raised question of fact regarding constructive knowledge). Given Nobles’' uncontroverted statement that he hád patrolled the aisle five minutes before appellant fell without observing any foreign substance there, we do not agree with appellant that a genuine issue of material fact remains regarding any failure by appellee to exercise reasonable care in inspecting the premises, see Mazur v. Food Giant, 183 Ga. App. 453-454 (1) (359 SE2d 178) (1987), and we do not agree with appellant that his testimony regarding the dirty appearance of the spot constituted circumstantial evidence which would controvert the direct evidence in Nobles’ affidavit that the spot had not been present five minutes before appellant’s fall. Id. at 454 (1). The mere fact that the liquid on the floor appeared to appellant to be dirty provides no indication of the length of time the liquid had been on the floor since the liquid, which could have fallen on the floor after Nobles traversed the aisle, could have been naturally thick and grayish-brown in color or could have been stepped on or run over by a grocery cart by a patron using the aisle after Nobles but before appellant. See Queen v. Kroger Co., 191 Ga. App. 249, 250 (1) (381 SE2d 413) (1989). The existence of multiple alternative reasons for the dirty appearance of the spot, see id., distinguishes this case from those cases where the nature or condition of the foreign substance on the floor raised a reasonable inference that sufficient time had passed since the substance appeared on the floor to charge the owner with constructive knowledge. See Mitchell v. Rainey, 187 Ga. App. 510, 512 (370 SE2d 673) (1988) (melted ice cream); Clemons v. Piggly Wiggly, 193 Ga. App. 309, 310 (387 SE2d 600) (1989) (shampoo seeped out of cut in 16-ounce bottle).

Therefore, because the record establishes that the only contradictory evidence involves an immaterial matter, see Wallace v. ARA Svcs., 185 Ga. App. 639, 641-642 (3) (365 SE2d 461) (1988); that appellant adduced no evidence of actual knowledge by appellee of the hazard’s existence prior to the fall; and that appellee’s evidence pierced appellant’s allegations regarding constructive notice, see Brooks v. Kroger Co., 194 Ga. App. 215 (1) (390 SE2d 280) (1990), we hold that the trial court’s grant of summary judgment to appellee was proper.

Decided May 29, 1992

Reconsideration denied June 11, 1992

Richard Phillips, for appellant.

Lee, Black, Scheer & Hart, Steven E. Scheer, Albert E. Clark, for appellee.

Judgment affirmed.

Cooper, J., concurs. McMurray, P. J., concurs specially.

McMurray, Presiding Judge,

concurring specially.

While I do not entirely agree with the analysis stated in the majority opinion, there can be no doubt that the affirmance of the superior court is correct. Plaintiff testified that the color of the spot on the floor was a different color than the floor and did not blend in with the floor, so that if he had looked down he could have seen it. This evidence clearly shows that, regardless of whether defendant should have been aware of the spot on the floor, plaintiff failed to exercise ordinary care for his own safety by making use of his senses to discover and avoid hazards in his path. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234).


author: Sognier, Chief Judge.

text:
    A92A0145, A92A0146.
    VAN DIVIERE et al. v. DELTA AIRLINES, INC. (two cases).
    (420 SE2d 27)
   Sognier, Chief Judge.

Cheryl Van Diviere and her husband brought an action against Delta Airlines, Inc. seeking damages for injuries alleged to have resulted from the actions of Delta employees while boarding and seating Van Diviere on a Delta flight from Hartford, Connecticut to Atlanta. The original action, filed in superior court, resulted in a mistrial after a jury deadlocked. The Van Divieres then voluntarily dismissed the action and refiled this action in state court, where a jury trial ended in a defense verdict. Following the trial court’s denial of their motion for judgment n.o.v. and for a new trial, the Van Divieres filed a notice of appeal. They subsequently amended the notice of appeal and sought and obtained an extension of the time within which to file the transcript. After holding an evidentiary hearing, the trial court granted Delta’s motion to dismiss the appeal made on the ground that the transcript filing deadline had passed without the transcript having been filed. In Case No. A92A0146, the Van Divieres appeal from the trial court’s order dismissing the appeal. Case No. A92A0145 is the Van Divieres’ original appeal from the trial court’s order denying their motion for j.n.o.v. and for a new trial.

1. We first address appellants’ contention in Case No. A92A0146, since an affirmance of the trial court’s order dismissing the appeal would render unnecessary our consideration of the issues in Case No. A92A0145.

A trial court has authority to dismiss an appeal if, “after notice and opportunity for hearing, [it finds that] there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by [the appealing] party.” OCGA § 5-6-48 (c). In passing upon these issues the trial court must exercise its discretion, Strother v. C & S Nat. Bank, 147 Ga. App. 140, 141 (248 SE2d 204) (1978), but only if the movant has shown: (1) that the delay in filing was unreasonable; (2) that it was inexcusable; and (3) that it was caused by the appealing party. Department of Human Resources v. Pattilo, 196 Ga. App. 778, 779 (397 SE2d 47) (1990). This court must decide, based on the evidence presented, whether the trial court abused its discretion by dismissing the appeal. Gilman Paper Co. v. James, 235 Ga. 348, 349 (219 SE2d 447) (1975).

The evidence at the hearing on the motion showed that following the jury’s verdict and the judgment entered thereon in the spring of 1990, appellants’ attorneys ordered transcripts prepared of several portions of the trial testimony, presumably for the pending motion for j.n.o.v. and new trial. Those portions of the trial testimony were transcribed, paid for, and timely filed with the trial court. After the trial court denied appellants’ post-trial motion, appellants timely filed a notice of appeal on November 2, 1990. Shortly thereafter, the trial court granted their motion to extend the deadline for filing the transcript until February 1, 1991. See OCGA § 5-6-39 (a) (3). No further extensions were sought.

Those portions of the transcript which had already been transcribed for the motion for new trial were timely filed for appeal by the extended deadline. The court reporter testified, however, that appellants did not order additional portions of the trial transcript which they had designated in their notice of appeal until March 13, 1991, 40 days after the extended deadline for filing the transcript had passed. Although the evidence adduced at the hearing was in direct conflict on this point, with appellants’ attorneys stating in their place that they had timely ordered the additional transcript portions pursuant to OCGA § 5-6-42, the trial court was authorized by the evidence to conclude that appellants failed to timely order the additional portions of the transcript from the court reporter. See OCGA § 5-6-48 (c). At the hearing on the motion to dismiss the appeal (held 119 days after the transcript filing deadline had expired), those portions of the transcript still had not been filed. We note that the evidence showed that on November 16, 1990, appellee designated two additional portions of the trial testimony to be included in the record on appeal and those portions of the transcript were timely filed.

Decided June 1, 1992

Reconsideration denied June 12, 1992

Bedford, Kirschner & Venker, T. Jackson Bedford, Jr., Andrew R. Kirschner, for appellants.

Powell, Goldstein, Frazer & Murphy, Jerry B. Blackstock, Ste phen L. Cummings, for appellee.

The trial court granted appellee’s motion to dismiss the appeal, finding that “[t]he failure to timely file a transcript was unreasonable, inexcusable and caused by the acts and inactions of the party responsible for filing the transcript.” Given appellants’ undisputed failure to seek another extension of the deadline and the trial court’s authorization to conclude that they had failed even to order the additional portions of transcript until the deadline had passed, it is clear the trial court did not abuse its discretion in finding that the delay was caused by appellants and was inexcusable. Galletta v. Hillcrest Abbey West, 185 Ga. App. 20, 21 (1) (363 SE2d 265) (1987). “However, the threshold question whether the delay was unreasonable is a separate matter and refers principally to the length and effect of the delay. [Cits.]” Id.

Unlike the delay in Galletta, where the transcript was filed 11 days after the deadline expired and that delay did not affect placement of the appeal on the earliest possible calendar in this court, the record shows in the case sub judice that the transcript had not yet been filed 119 days after the expiration of the deadline, which “obviously . . . delayed the docketing necessarily.” Id. at 22. The trial court appeals clerk averred that preparation and transmission of the record was delayed “partly because the entire transcript has not yet been filed,” and the court reporter testified that she could have completed the additional transcription by the deadline had appellants ordered it. Under these circumstances, we hold that the trial court did not abuse its discretion in finding that the delay was unreasonable as well. Compare Galletta, supra; Sellers v. Nodvin, 262 Ga. 205 (415 SE2d 908) (1992). Accordingly, although it is generally the policy of the law to reach the merits of a case where it is reasonable to do so, Galletta, supra at 22, as all three elements necessary for dismissal had been shown, the trial court did not err by dismissing the appeal. See generally Pattilo, supra.

2. Since the trial court properly dismissed the appeal, we need not consider the issues raised therein.

Judgment affirmed in Case No. A92A0146. Appeal dismissed in Case No. A92A0145.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A0253.
    SMITH v. THE STATE.
    (420 SE2d 29)
   Sognier, Chief Judge.

Bobby G. Smith was convicted in probate court of DUI, OCGA § 40-6:391 (a) (1), and he appealed to the superior court pursuant to OCGA § 40-13-28. The superior court affirmed his conviction and he appeals.

1. Appellant contends the probate court erred by denying his motion to suppress the result of the Intoximeter 3000 test because no articulable suspicion existed sufficient to support stopping his vehicle. We do not agree.

The evidence adduced at trial established that on the evening of October 27, 1990, Department of Natural Resources Ranger Dennis Gore observed the van driven by appellant slide off a highway onto private property. Gore testified that he followed the van in order to ascertain the safety of its occupants because he suspected the van was having mechanical difficulties, but had difficulty getting the van to stop even after turning on his blue light and siren. This evidence constituted a showing of a sufficient “particularized and objective basis for suspecting the particular person stopped of criminal activity,” United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981), and authorized a brief stop under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

Contrary to appellant’s argument, the facts here are distinguishable from those in Brooks v. State, 129 Ga. App. 109 (198 SE2d 892) (1973), where the vehicle at issue merely turned from the main highway onto a public road leading into the woods. The van driven by appellant slid through a sharp curve, left the road, and continued onto private property in a manner which caused a trained officer to believe the driver was experiencing mechanical difficulties and to become concerned for the safety of its occupants. Moreover, contrary to appellant’s assertion, as a conservation ranger Gore was empowered and authorized, in addition to his regularly enumerated duties, “[t]o exercise the full authority of peace officers while in the performance of their duties,” OCGA § 27-1-20 (10), and thus was authorized to stop appellant. Consequently, we hold that the probate court properly denied appellant’s motion to suppress the intoximeter result on this basis.

2. Appellant also maintains the probate court erred by failing to suppress the result of the intoximeter test because he was not properly advised of his implied consent rights under OCGA § 40-6-392 (a) (3), (4).

The evidence at trial showed that when the van did stop, Gore approached appellant, who lowered his window, and noticed “an extremely strong odor of alcohol.” In response to a radio call from Gore, Sergeant Stoney Spier of the Upson County Sheriff’s Department arrived at the scene and administered an Alco-sensor test, which appellant failed. Spier was unable, however, to transport appellant to the sheriff’s office for an intoximeter test because of an emergency call he received, and consequently, Gore handcuffed appellant and transported him to the sheriff’s office. Gore testified that appellant was belligerent and fled twice, requiring Gore to chase him into the woods to catch him, and that appellant was uncooperative and did not follow instructions, both before and during his transportation to the test site. There was a further delay in administering the intoximeter test because Spier had not yet returned when Gore and appellant arrived at the sheriff’s office, whereupon Gore took appellant to the Thomas-ton Police Department to be tested. The intoximeter test was eventually performed by Sergeant Tom Sheppard of the Thomaston Police Department, who testified that both he and Gore had advised appellant of his implied consent rights prior to the test, and that the result of the test showed a blood alcohol concentration of .10 grams.

(a) Appellant argues the test results should have been excluded because neither Gore nor Sheppard specified the exact language used in advising him of his rights, and the card from which he read was not introduced into evidence. Pretermitting the merits of this argument, the transcript reveals that appellant did not object to the introduction of the test results on this basis in the probate court, and it is well established that grounds not raised by objection below may not be raised for the first time on appeal. Thomas v. State, 196 Ga. App. 88, 90-91 (3) (395 SE2d 615) (1990).

(b) Appellant did object below to the admissibility of the test result because of the delay of about an hour in advising him of his implied consent rights. See Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). In order for the result of a chemical test to be admissible at trial, the suspect must be advised of his implied consent rights “at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” Id. at 708. However, the exigencies of police work, see, e.g., Fore v. State, 180 Ga. App. 196 (348 SE2d 579) (1986), as well as the condition of the arrestee, see, e.g., Hadden v. State, 180 Ga. App. 496-497 (1) (349 SE2d 770) (1986), sometimes create exceptions to the rule that the advice of implied consent rights must be given at the time of the arrest.

Appellant contends the delay in this case was not caused by circumstances sufficient to warrant the delay. We do not agree. In this case, Spier’s intervening emergency call required that another certified operator be located to administer the test. Moreover, the fact that Gore’s truck was not suited for carrying uncooperative passengers safely required that Gore concentrate his efforts on placing appellant in custody and safely and effectively transporting him, rather than on advising appellant of his rights. Given these exigencies and the fact that evidence showed that appellant had earlier been belligerent, angry, and uncooperative so that, as in Hadden, supra, advising him of his implied consent rights would have been of no conceivable benefit, we hold that the probate court did not err by admitting the test result despite the delay in advising appellant of his implied consent rights. Id.; Fore, supra.

Decided June 1, 1992

Reconsideration denied June 12, 1992

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, R. Javoyne Hill, Randall K. Coggin, Assistant District Attorneys, for appellee.

3. Given the Alco-sensor and intoximeter test results and Gore’s testimony regarding both appellant’s erratic driving behavior and his strong odor of alcohol, there was evidence that appellant had violated OCGA § 40-6-391, and consequently the probate court did not err by denying appellant’s motion for a directed verdict of acquittal. Moreover, we find that the probate judge, as the finder of fact, was authorized to find appellant guilty of driving while under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1), under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Griner v. State, 192 Ga. App. 283 (1) (384 SE2d 398) (1989).

4. Because the record fails to reflect that the probate judge was not a lawyer, appellant’s due process argument based on the construction of OCGA § 40-13-28 in Walton v. State, 261 Ga. 392 (405 SE2d 29) (1991) is controlled adversely to appellant by our holding in Division 2 of Holloman v. State, 203 Ga. App. 476 (416 SE2d 839) (1992).

5. Similarly, appellant’s fifth enumeration of error, in which he contends the trial court erred by denying his motion to inspect, examine, and test the Intoximeter 3000, is controlled adversely to appellant by Blanos v. State, 192 Ga. App. 835-836 (1) (386 SE2d 714) (1989).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Cooper, Judge

text:
    A92A0197.
    OWENS v. THE STATE.
    (420 SE2d 79)
   Cooper, Judge

Appellant was convicted by a jury of arson and appeals from the judgment and sentence entered on the conviction and from the denial of his motion for new trial.

Juanita Herrington (“Herrington”) testified at trial that she was visiting her friend, Sharon Cooper (“Cooper”), when appellant came to Cooper’s house. Herrington stated that appellant began pushing and shoving Cooper and that Herrington told appellant he should not push Cooper, to which appellant responded to Herrington, “I’m going to kill you and burn your car up, too. You’re going to burn baby, burn.” Herrington stated that on that day appellant was driving a gold Trans Am with a Columbia County license plate; that she had seen him driving that vehicle on previous occasions; that she was familiar with his vehicle; and that she only knew appellant to drive the gold Trans Am. Two days after Herrington saw appellant at Cooper’s house, she again saw appellant at which time he said to her, “I’m going to kill you and you’re going to burn baby, burn. Your car’s going up in smoke tonight, you’re dead.” Herrington returned to her home, and later in the evening, she saw a truck and a gold Trans Am parked in front of her neighbor’s home. She observed both vehicles leave and return, and assumed the occupants of the vehicles were visiting her neighbors. Soon thereafter, she saw her car burning, and as she ran outside, she saw the truck and the gold Trans Am leaving at high speeds. Herrington testified that she was positive the gold Trans Am at her house belonged to appellant. Cooper’s testimony at trial related the pushing episode between her and appellant as well as the angry words that occurred between appellant and Herrington. One of Herrington’s neighbors testified that on the night of the fire, he saw a truck and a brown-goldish Trans Am or Firebird parked in front of his house; that a man exited the car and got into the truck; that the vehicles then left and returned; that the man who had gotten into the truck exited the truck holding a gas can; that this man walked to Herrington’s car, poured gasoline on it, ignited it and the truck left; and that the man he saw ignite the car was not appellant. A second neighbor testified to essentially the same facts, and a third witness corroborated portions of the neighbors’ stories. An arson investigator testified that pour patterns on the car indicated that gasoline had been poured on the car and ignited. The investigator found a can under the car, the contents of which were stipulated to be gasoline.

1. Appellant first enumerates that the trial court erred in denying his motion for a mistrial during Herrington’s testimony. In response to a question regarding Herrington’s visit to Cooper’s house, Herrington said, “Yes, I remember when I came over to Sharon’s house to sit before I go to work at the school, Mr. Owens, known as Larry Fox, came in and pushed her and started shoving her concerning money she owed him for drugs.” The jury was recessed, and after a conference with the lawyers, the trial court denied the motion for a mistrial. Immediately upon the return of the jury, the court gave curative instructions which specified the limited purposes for which Herrington’s statement could be considered. Appellant contends that the testimony improperly placed his character into evidence and the curative instructions of the court were insufficient to correct the error. We need not decide whether the testimony actually placed appellant’s character in issue, because, even assuming the testimony’s prejudicial nature, “where prejudicial matters have been presented to the jury, the trial court, in its discretion, may determine whether a mistrial is required or whether the giving of cautionary instructions to the jury is an adequate remedial device. [Cit.]” Kuchenmeister v. State, 199 Ga. App. 64, 67 (403 SE2d 847) (1991). See Tyler v. State, 198 Ga. App. 685 (1) (402 SE2d 780) (1991). “The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with. [Cits.]” Stanley v. State, 250 Ga. 3 (2) (295 SE2d 315) (1982). We find no abuse of discretion in the trial court’s decision to give cautionary instructions and not grant a mistrial. The enumeration is without merit.

2. In his second and third enumerations of error, appellant contends that the trial court erred in not giving charges to the jury on mere presence at the scene of the crime, parties to a crime and the presumption that all fires are caused by accident or providential cause. The record does not indicate that any of these charges were requested by appellant. “ ‘(T)his court has held that where there has been no written request to charge, failure to give the charge is not error. [Cits.]’ [Cits.]” Lamb v. State, 196 Ga. App. 665 (3) (396 SE2d 497) (1990). In any event, a charge to the effect that mere presence at the scene of a crime alone is not sufficient for a conviction, is not authorized by the evidence in the instant case. The State presented evidence of direct threats made to Herrington by appellant which go beyond mere presence at the scene. See Stoe v. State, 187 Ga. App. 171 (3) (369 SE2d 793) (1988). The court charged the jury on OCGA § 16-7-61, the arson code section, which itself addresses the issue of who is a party to the crime of arson. Further, it is highly probable that the failure to charge on the presumption regarding the origin of fires did not contribute to the verdict in light of the evidence clearly indicating a criminal origin of the fire. See Sultenfuss v. State, 185 Ga. App. 47 (5) (363 SE2d 337) (1987).

3. Appellant concludes with his contention that the court erred in failing to grant his motion for a directed verdict of acquittal. Appellant argues that the circumstantial evidence presented was not sufficient to support a conviction. “ ‘The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the “essential elements of the crime beyond a reasonable doubt.” [Cit.]’ [Cit.]” Williams v. State, 196 Ga. App. 682 (3) (396 SE2d 598) (1990). “ ‘Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ [Cit.] Criminal intent may be found by the jury ‘upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ [Cit.]” Lunz v. State, 174 Ga. App. 893 (1) (332 SE2d 37) (1985). In the instant case, although the evidence was circumstantial, it was sufficient for a rational trier of fact to find appellant guilty as a party to the crime of arson beyond a reasonable doubt. Id.; Stoe, supra at 173. The court did not err in denying appellant’s motion for directed verdict.

Decided June 12, 1992.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Nancy J. Berger, Assistant District Attorneys, for appellee.

Judgment affirmed.

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