author: Birdsong, Presiding Judge.

text:
    A91A1248.
    DEMAREST et al. v. MOORE.
    (410 SE2d 191)
   Birdsong, Presiding Judge.

Appellants Theodore and Basil Demarest, father and son, appeal the order of the trial court granting summary judgment to appellee. Appellants were lawful tenants of Hidden Lakes Apartments of which appellee Kirby Moore was a partner of a partnership owning and controlling the leased premises. On January 10, 1990, appellants’ apartment was forcibly broken into, and certain items of personal property were stolen therefrom. The perpetrator(s) gained entrance by applying force against a back door causing the screws anchoring the locking mechanism to the doorframe to give way. The door was a hollow-steel door with 15 glass window panes, none of which was broken to gain access into the apartment. The locks were installed when the apartment was built in 1989 by a subcontractor. Prior to the robbery the local police had been present at a Neighborhood Crime Watch meeting held on the premises of the apartment complex in the second week of November 1989. At this meeting the police are alleged to have stated that dead-bolt locks were not sufficient to prevent a break-in unless the hardware through which the bolt rides is securely attached to the primary structural member of the doorframe by 3-Vz inch screws. The apartment manager and assistant manager were present at this meeting when the dead-bolt information was presented. Appellant Theodore Demarest never requested that the door lock of his apartment be repaired or requested permission, as required by the terms of the lease, to change or modify the door locks. However, appellant testified in his deposition that at the meeting, a tenant who had inquired about “auxiliary locks or chains” was reminded by someone that tenants were forbidden to modify locks; and appellant had left the meeting “assured management knew of the screw length requirement” and “that the requirement had been met or would be met.” The lease and apartment complex rules would allow tenants to add additional locks, but only with the prior written approval of management. The screws used to anchor the dead-bolt lock system to the door at the time of the burglary were of only % -inch and Vz -inch in length. Appellant Theodore Demarest brought suit against appellee and others asserting defendants failed to exercise reasonable care in adequately installing a doorframe and locking connections between the doorframe and wall in such a manner as to reasonably assure the safety of plaintiff and his personal property; the complaint was further amended to aver inter alia that defendant further generally failed to exercise reasonable care for the safety of its tenants and their property by installing a weak rear door, constructed of multiple panes of glass, to the apartment. The original complaint included an averment that defendants had notice, both actual and constructive, of the deficiently secured door. Held:

1. On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the instant case, movant is the defendant, he has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). Further, at summary judgment, a movant/defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party’s case; instead, the burden on the moving party is discharged by establishing by evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Thus, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Id.

2. OCGA § 44-7-14 provides: “[T]he landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” See generally Thompson v. Crownover, 259 Ga. 126 (377 SE2d 660). Although a landlord is not an insurer of his tenant’s safety, he certainly is not a bystander. Warner v. Arnold, 133 Ga. App. 174, 179 (210 SE2d 350).

At the outset we observe that appellee/defendant had a reasonable time between the neighborhood watch meeting and the burglary to change the locking mechanism screws had it elected to do so.

It is uncontroverted that the loss of appellants’ personal property was the result of an act of burglary, and that the burglar gained entrance to the apartment by applying pressure to the door causing the screws anchoring the locking mechanism to give way. “Generally, an independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury superseding any negligence of the defendant, unless the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent act.” Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67 (2 (d)) (397 SE2d 576); compare Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693); see also Johnston v. Harris, 198 NW2d 409 (SC Mich.). “[T]he purpose for having secure locks on the door to the plaintiffs’ apartment, was to prevent unauthorized entry thereto and the accompanying wrongful criminal acts.” Warner, supra at 179. Unlike Strickland, supra, this is not a plain and indisputable case where issues of negligence and proximate cause can be decided by the court as a matter of law on motion for summary judgment. In view of the posture of the record before us, “the jury should properly pass on the questions of agency, notice, foreseeability, intervening causation, assumption of risk, as well as the suitability of the lock in question.” Warner, supra at 179. Appellee/defendant has failed to negate any element of appellant’s cause of action within the meaning of Lau’s Corp., supra.

Rosinek v. Cox Enterprises, 166 Ga. App. 699 (305 SE2d 393), is distinguishable from the facts of this case, particularly as to the issue of “foreseeability,” which in Rosinek was addressed as between a tenant and a third-party newspaper service, and not as between a tenant and his landlord or the landlord’s agents.

Decided September 3, 1991.

J. O’Quinn Lindsey, for appellants.

Miller & Towson, Wallace Miller III, for appellee.

Even “[a]n evidentiary posture authorizing the grant of a directed verdict may not authorize the grant of summary judgment in a case, such as this, where the ‘party making the motion for summary judgment is not required to carry the burden on the trial of the case. [Cits.]’ ” Winn-Dixie &c. v. Ramey, 186 Ga. App. 257, 258 (1) (366 SE2d 785).

Judgment reversed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A1312.
    CANTRELL v. THE STATE.
    (410 SE2d 193)
   Beasley, Judge.

Following the denial of his motion for new trial, Cantrell appeals his conviction for burglary, OCGA § 16-7-1 (a).

1. Appellant contends that the trial court erred in denying a mistrial on the grounds that a police officer impermissibly placed appellant’s character into evidence by first testifying that he had previous dealings with appellant and then by repeatedly referring to appellant as the person who “committed the crime.”

The objected-to comments were made during the examination of the investigating officer. The first occurred during the State’s questioning of the officer about the cause of the officer’s original suspicion that appellant was the perpetrator of the burglary.

The officer stated that the victim related that even though she confronted the intruder and threw things at him, the intruder did not run but merely walked to the door. The officer thought it odd that the intruder walked rather than ran. The officer listened to the victim’s description of the intruder to the police composite technician, had met with appellant at other times, and knew that appellant had a physical handicap that would have prevented appellant from running.

The officer related that he had made a mental note to discuss his suspicion with another investigating officer and to tell him to check into both appellant and his brother. The officer added, “I’ve had dealings with their family in Buford before.” The State concluded direct examination and the court asked if there was to be any cross-examination. Defense counsel stated that she had a matter to pursue outside the jury’s presence. The jury was removed.

Defense counsel moved for a mistrial on the basis that the officer had placed appellant’s character into evidence by testifying about previous encounters with appellant. The State asked for any curative instructions that the court deemed appropriate. The court questioned the officer about whether by his testimony he meant that he had arrested appellant prior to the subject burglary. The officer responded that he had not previously investigated or arrested appellant, but he had previous problems with appellant’s brothers. The court stated it would instruct the jury that the officer’s testimony did not mean the officer had ever arrested appellant before or that appellant had any prior problems with the police, and then the court would query the jury as to whether or not it could disregard the officer’s testimony. If the jury could disregard it, a mistrial would be denied; if not, a mistrial would be granted.

The jury returned, was instructed accordingly, and was questioned as to its ability to disregard the testimony. No juror indicated a problem in disregarding it, and cross-examination proceeded.

Well into the cross-examination, the officer testified about the victim’s description of the intruder stating, “I don’t know if the Defendant had longer hair at the time he committed the crime or if he had a mustache when he committed the crime.” Defense counsel moved to strike the testimony on the basis that the officer was referring to appellant as having committed the crime. The court sustained the objection and instructed the witness to use the term “perpetrator,” following which the cross-examination continued. No motion for mistrial was made.

After the conclusion of the officer’s cross-examination, the officer’s redirect examination, and testimony from two other State’s witnesses, court recessed for the day. At this time, defense counsel noted her exception to the court’s ruling on the motion for mistrial. The following morning, defense counsel sought to renew her motion for a mistrial, repeating as a ground the officer’s comment about prior dealings with appellant’s family and adding as a new ground the reference to appellant as committing the crime.

As to the latter, appellant failed to move for a mistrial at the time the officer made the “committing the crime” comments. “A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it. Peoples v. State, 184 Ga. App. 439 (361 SE2d 848) (1987).” Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841) (1990); Thomas v. State, 256 Ga. 616, 617 (4) (351 SE2d 453) (1987). Therefore, appellant waived the opportunity to demand a mistrial in regard to the latter comments.

Even if it had been timely made and denied, counsel would have had to renew the motion for mistrial following the court’s curative instruction. See Loaiza v. State, 186 Ga. App. 72, 73 (2) (366 SE2d 404) (1988). See also Marlow v. State, 192 Ga. App. 670 (2) (385 SE2d 759) (1989).

With respect to the “prior dealings” ground, the failure to renew the motion waived it, applying the above-stated principles. In light of the court’s curative instructions and the apparent ability of the jury to disregard the officer’s comment, there was no abuse of discretion in refusing to grant a mistrial on this basis. See Simon v. State, 182 Ga. App. 210, 211 (2) (355 SE2d 120) (1987) (fully concurred in as to Division 2); Simpson v. State, 181 Ga. App. 558 (2) (353 SE2d 55) (1987).

2. Appellant contends that the trial court erred in denying his motion to suppress evidence concerning his identification by the victim in a photographic lineup, the identification procedure being highly suggestive and inherently defective in that it was based on the investigating officer’s preconceived opinion as to the perpetrator’s identity.

“A pre-trial identification procedure may be so tainted as to require exclusion of an in-court identification, if under all the circumstances, the procedure was both impermissibly suggestive and it resulted in a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968); Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972); Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977).” Arnold v. State, 166 Ga. App. 313, 315 (4), 316 (304 SE2d 118) (1983). Neither factor is present in this case.

The evidence at the suppression hearing showed the following. The perpetrator broke into the victim’s house during the early morning hours and used a flashlight which backlighted his activity. There were various night lights on in the house. The victim was in bed and heard the burglar enter the front door, walk through the house and go through drawers. As the intruder went from the living room to the hall, the victim saw his left side. When the intruder exited the bathroom, the victim saw his right side. As the man stood at the children’s bedroom door shining his flashlight around the bedroom, the victim again saw his entire right side. The victim came out of her bed throwing things. The intruder was only three or four feet away. The victim followed the man to the living room and to the front door. The man turned and looked at the victim. For the ten or fifteen seconds the man paused at the door, the victim got a full frontal view of him.

The officer responded to the burglary call and was present during the victim’s description of the perpetrator to the police identification technician. The officer perceived that the victim was having some difficulty conveying her mental picture of the type of forehead to the technician because nothing in the technician’s identification kit showed the particular feature. The officer remembered a photograph on the police bulletin board of a man with such a forehead. The photograph was not of appellant.

Decided September 3, 1991.

Leslie J. Cardin, for appellant.

Thomas C. Lawler III, District Attorney, R. Keith Miles, Debra K. Turner, Assistant District Attorneys, for appellee.

The officer retrieved it from the precinct and showed it to the victim and the technician. The victim believed that the man in the photograph had a similar type of forehead to what she was attempting to describe. The technician adjusted the composite accordingly. There was no evidence that by obtaining the photograph the officer attempted to show the victim a likeness of appellant.

Suspecting that the related description and the victim’s account of the intruder’s failure to run when confronted pointed to appellant, the investigating officer told a fellow officer of his suspicion. He never related his suspicion to the victim. Three days after the burglary, the second officer went to the victim’s house and showed her six photographs simultaneously. Within three minutes, the victim selected appellant’s photograph as that of the perpetrator.

Appellant has not demonstrated anything impermissibly suggestive about the substance or the procedure of the photographic lineup, nor has appellant shown that the police made any improper suggestion concerning appellant to the victim prior to the lineup. Furthermore, the victim had ample opportunity to view the intruder during the commission of the crime so as to make misidentification unlikely.

The trial court correctly denied suppression of the victim’s identification of appellant.

Judgment affirmed.

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


text:
    A91A1342.
    HOWZE v. THE STATE.
    (410 SE2d 323)
   Beasley, Judge.

Appellant, Stanley Howze, and Carlton Lewis Jackson were indicted for armed robbery, OCGA § 16-8-41, and possession of a firearm during commission of a felony, OCGA § 16-11-106. Jackson pled guilty and appellant was convicted of both offenses.

The evidence showed that appellant and Jackson robbed an Arby’s restaurant in DeKalb County. Jackson placed an order at the counter, and appellant stood back of him. Jackson brandished a gun and demanded money from the cash register. Appellant remained in the background and kept looking out of both doors. Jackson became agitated because there was no money in one of the cash registers, and he threatened to kill a restaurant employee if he did not get more money. At that point, another employee opened the drive-through register and pulled out the entire cash drawer. Appellant then approached the employee and instructed him to give appellant the money, which the employee did. Appellant then rejoined Jackson, who told the people in the store to hit the deck, after which he and appellant fled.

Appellant enumerates as error the trial court’s denial of his motion for a directed verdict of acquittal, OCGA § 17-9-1 (a), on the count charging him with possession of a firearm during the commission of a crime. He argues first that he cannot be convicted of a firearm possession charge under OCGA § 16-11-106 when he is also convicted of armed robbery by use oí1 that firearm. The possession charge, he posits, is a lesser included offense.

“ ‘Where a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16-11-106 (e).’ [Cit.]” Kennedy v. State, 195 Ga. App. 795 (1) (395 SE2d 270) (1990). See also Wilson v. Zant, 249 Ga. 373, 380 (290 SE2d 442) (1982). “Such double punishment is not constitutionally prohibited, nor is it violative of our double jeopardy statutes to convict a person of both possession of a firearm during the commission of a felony and the accompanying felony in a single prosecution.” Wiley v. State, 250 Ga. 343, 351 (6) (296 SE2d 714) (1982).

Appellant also argues that the “party” theory of OCGA § 16-2-20 may not be relied on to convict him of the possession charge because he at no time possessed the weapon. He posits that the nature of the crime requires actual possession and seeks an overruling of Wilcox v. State, 177 Ga. App. 596 (340 SE2d 243) (1986). It was held in that case that where a party has committed armed robbery and possession of a firearm during commission of a felony, an accomplice who is concerned in the commission of those crimes under OCGA § 16-2-20 is likewise guilty of both offenses, notwithstanding the fact that the accomplice did not have actual possession of the firearm. The Code does not require actual possession with respect to this offense and we are not authorized to import such a limitation and narrowing of the prohibition. Wilcox has not been shown to be erroneous.

Appellant also asks us to overrule Coleman v. State, 163 Ga. App. 173 (293 SE2d 395) (1982), but that case is inapposite in that it involved a different crime of possession than the one at issue here. Coleman held that armed robbery (OCGA § 16-8-41) and possession of a firearm by a convicted felon (OCGA § 16-11-131) are separate offenses in that they have distinct elements. Moreover, the dicta in Coleman relating to OCGA § 16-11-106 supports rather than disfavors appellant, but it did not take into account the 1976 amendment to the law. Ga. L. 1976, pp. 1591, 1592. See OCGA § 16-11-106 (e). The Georgia Supreme Court referred explicitly to that change in Wiley v. State, supra, and rejected the argument appellant makes here.

Decided September 3, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Thomas S. Clegg, Nelly F. Withers, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A91A1346.
    BROWN v. THE STATE.
    (410 SE2d 196)
   Cooper, Judge.

Appellant was found guilty by a jury of driving while a habitual violator, driving under the influence of alcohol, reckless driving and attempting to elude an officer. He appeals his conviction and sentence.

1. Appellant complains that the trial court erred in failing to seal and include in the record of the case the materials reviewed in considering his motion filed pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Although the trial judge conducted an in camera inspection of the State’s file and concluded there was nothing exculpatory therein, appellant insists that under Wilson v. State, 246 Ga. 62 (1) (268 SE2d 895) (1980), on motion of the defendant, the material examined in camera should either be sealed and filed or an inventory made so as to permit appellate review.

“As a general rule, ‘ “(w)e will not call up the [S]tate’s files for review unless the appellant can show cause, by showing that particular evidence was suppressed which was material.’” [Cit.]” Boatright v. State, 192 Ga. App. 112, 113 (2) (385 SE2d 298) (1989). “ ‘It is well recognized that ‘Brady does not require the prosecution to open its file for general inspection by the defense or for pre-trial discovery.’ [Cits.]” Id. Appellant claims that the State’s file contains a statement made to the arresting officer by a witness that she, rather than appellant, was driving the car. However, the officer testified that he saw appellant driving the car and did not recall the witness telling him she was driving. Also, appellant called this witness at trial and she testified that she did tell the deputy she was driving. Thus, “appellant has failed to carry his burden to show either that any type of Brady violation occurred, [cit.], or, that assuming error had occurred, he was prejudiced thereby. [Cits.] Accordingly, this enumeration of error is without merit.” Boatright, supra at 114.

2. Appellant contends that the trial court erred in permitting the State to introduce a document in evidence purporting to be the official notification of revocation and personal service of habitual violator, which was served on him on March 31, 1988, because the document included in the record on appeal bears as the date of certification May 16, 1991, some five months after the date of the trial. As shown by a supplemental record containing findings of fact made by the trial court pursuant to OCGA § 5-6-41 (f), when the court reporter was unable to make an adequate copy for the record on appeal of the certified copy introduced at trial showing appellant’s driving history, she requested additional copies from the Department of Public Safety and attached those to the transcript of the trial proceedings, keeping the original copy tendered at trial. As ordered by the trial court, the court reporter has transmitted to this court photocopies of the original exhibit introduced at trial, which now are before this court as a supplement to the transcript of record. Therefore, this enumeration is without merit.

3. The trial court correctly denied appellant’s motion for directed verdict of acquittal on the charge of habitual violator. “In prosecutions under [OCGA § 40-5-58 (c)], the [S]tate is required to prove that the defendant was declared an habitual violator; that his license was revoked; that he received notice that his license was revoked because of his status as an habitual violator; and, that he operated a motor vehicle in this state without having obtained a valid driver’s license. [Cit.]” Noles v. State, 164 Ga. App. 191 (2) (296 SE2d 768) (1982). The State submitted evidence of all these material allegations by means of a properly certified document, which was admissible as “evidence in any civil or criminal proceeding as proof of its contents. (Cits.) [Cit.]” Id. at 193.

4. Appellant’s final enumeration asserts that the conviction should be set aside because the jury failed to reach a unanimous verdict of guilty. The record discloses that the trial judge inadvertently polled only 11 jurors. Defense counsel was present during the polling of the jury and failed to notice or object to this oversight. As soon as it was discovered, an affidavit was procured from the twelfth juror in which she swore that she did find the defendant guilty on all counts and that this was still her verdict. By order of the trial court this affidavit has been made a part of the record on appeal. Since such procedure has been approved by this court, no reversible error occurred. Hunter v. State, 177 Ga. App. 326 (2) (339 SE2d 381) (1985).

Decided September 3, 1991.

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

W. Fletcher Sams, District Attorney, R. Javoyne Hill, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A91A1367.
    In the Interest of P. M. et al., children.
    (410 SE2d 201)
   Birdsong, Presiding Judge.

We granted this discretionary appeal to determine whether the trial court erred in extending temporary custody of the minor children P. M., M. M. and T. M. in the Department of Family & Children’s Services (DFCS), without notice to the mother and without opportunity to be heard pursuant to OCGA § 15-11-41 (c) as effective July 7, 1990, when the trial court entered the order extending temporary custody in DFCS. Held:

The order in question was made by the trial court on July 7, 1990, on an emergency basis, it being discovered that the previous order placing custody in DFCS expired on that date. The July 7, 1990, order extended custody in DFCS only “pending a hearing on the petition for deprivation.” The petitions for deprivation were filed August 9 and 14 and were served upon the mother with adjudication scheduled for August 22, 1990. The mother was present on August 22, 1990, the date scheduled for adjudication, but the hearing was continued pending appointment of an attorney for her, and was again continued in September and again in October because appellant’s attorney was unable to contact her. The adjudication took place December 3, 1990. The judgment of the trial court following that hearing continued temporary custody in DFCS. That ruling is supported by the evidence that while in the care of the mother previously the children were severely deprived, and that the mother now has no place to live and no income, is unable to work, and recently married a man serving concurrent prison sentences for two convictions of rape, upon which the judge again concluded the children were deprived and that it is in the best interest of the children, some of whom had been living with other relatives, that they not be returned to the mother at this time. The standard of clear and convincing evidence is met in this case (Mathis v. Nicholson, 244 Ga. 106 (259 SE2d 55)), and we decline to reverse this judgment on account of an improper order extending custody in DFCS pending the adjudication of deprivation, for that order is now moot.

Decided September 3, 1991.

Francisco G. Burgos, for appellant.

Michael J. Bowers, Attorney General, Margot M. Cairnes, Michael D. DeVane, for appellees.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1431.
    MURPHY et al. v. McCARTHY et al.
    (410 SE2d 198)
   Birdsong, Presiding Judge.

We granted John and Jeanette Murphy’s application for an interlocutory appeal to review the trial court’s grant of Austin and Ellen McCarthy’s motion to intervene in the Murphys’ proceedings to adopt the McCarthys’ grandchild.

The record shows the Murphys’ adoption petition was supported by the necessary supporting documentation, including both natural parents’ voluntary surrender of their parental rights to the Murphys. The record also shows the child’s parents are living adults, a married couple, and the mother of the child is the McCarthys’ daughter. The Murphys are not blood relatives of the child.

After the McCarthys’ petition to intervene in the proceedings to raise objections to an adoption by the Murphys was granted, the Murphys brought this appeal contending that the McCarthys were not authorized to intervene. Held:

Although we understand the McCarthys’ need to assure what they believe sincerely to be the best possible life for their grandchild, the laws of this state do not authorize them to intervene in this adoption proceeding. Contrary to the McCarthys’ assertion, OCGA § 19-7-3 only authorizes grandparents to intervene to obtain visitation rights in the proceedings specified in the Code section. Campbell v. Holcomb, 193 Ga. App. 474, 475 (388 SE2d 65). The only adoption proceedings listed are those in which the child is being adopted by a blood relative. Id. Further, an adoption is not the equivalent to a proceeding to terminate parental rights within the meaning of OCGA § 19-7-3. Mitchell v. Erdmier, 253 Ga. 335 (320 SE2d 163); Heard v. Coleman, 181 Ga. App. 899, 900 (354 SE2d 164).

Moreover, it is clear from their pleadings the McCarthys did not intervene to seek visitation rights, but instead intervened to object to the adoption by the Murphys and to seek to adopt the child themselves. Accordingly, OCGA § 19-7-3 is inapplicable, and OCGA § 19-8-15 governs when objections by blood relatives and grandparents are allowed. Any blood relatives may object when the legal parents are not living, and grandparents “with visitation rights to a child granted pursuant to Code Section 19-7-3 shall have the privilege to file objections to the petition of adoption if neither parent has any further rights to the child and if the petition for adoption has been filed by a blood relative of the child.” OCGA § 19-8-15. None of the conditions being relevant, the McCarthys are not authorized to intervene in these adoption proceedings, and the order granting their intervention must be reversed.

Decided September 3, 1991.

Monroe Ferguson, for appellants.

James J. Made, for appellees.

Judgment reversed.

Pope and Cooper, JJ., concur.


text:
    A91A1450.
    JONES v. THE STATE.
    (410 SE2d 199)
   Birdsong, Presiding Judge.

Richard Lee Jones appeals his conviction for burglary. He contends the trial court erred by permitting a witness to testify who previously served as an alternate juror in the case, by denying Jones’ motion for a directed verdict, and by denying Jones’ motion for a new trial. Held:

1. The transcript shows that after the jury was impaneled and evidence presented, an alternate juror recognized an item taken in the burglary as property someone attempted to pawn in his pawnshop. The transcript also shows the State was not aware of this information and the alternate juror had not discussed his knowledge with any of the other jurors. After the alternate juror was excused without objection, the former juror was called as a witness for the State and was allowed to testify over Jones’ sole objection that allowing the juror to testify created “an appearance of impropriety.”

Although Jones acknowledges the controlling precedent in this state is contrary to his argument (see Tumlin v. State, 88 Ga. App. 713 (77 SE2d 555)), he maintains the precedent should be overruled because of precedent from other jurisdictions.

We find no error. The transcript shows that in accordance with the trial court’s instructions the alternate juror did not discuss his knowledge with the other jurors, and that there was no opportunity for him to do so since he stated that he did not realize he had information about this case until in open court he saw the property and shortly thereafter made this known to the trial court.

Moreover, in this state “[i]t is too well settled to admit of discussion that a juror is not incompetent to testify as a witness solely on account of having been impaneled and sworn in the case, if he is otherwise competent.” Savannah, Fla. &c. R. Co. v. Quo, 103 Ga. 125, 127 (29 SE 607). Indeed, “[i]f a juror has any material information or knowledge respecting the facts of a case, of which either of the parties desires to take the benefit, he should be put upon the stand to testify as a witness.” Chattanooga &c. R. Co. v. Owen, 90 Ga. 265, 266 (15 SE 853). See also Paschal v. State, 230 Ga. 859, 860 (199 SE2d 803).

2. Jones next asserts the trial court erred by denying his motion for a directed verdict of acquittal based upon the alleged lack of corroboration of his accomplice’s testimony. The transcript, however, shows the evidence was sufficient to corroborate the accomplice’s testimony. Footprints at the scene of the burglary showed two people were involved and that one wore size 11-V2 to 12 Nike running shoes and the other appeared to wear boots of an even larger size. The evidence also showed that the accomplice wore the Nikes and that Jones’ nickname was “Foots” because of his very large feet. Additionally, the accomplice’s uncle, who was not implicated in the burglary, testified that he heard his nephew and Jones talking about the crime in sufficient detail to reveal his personal participation in the burglary, and also testified that Jones came by his house to see if his nephew had pawned property taken in the burglary.

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.” (Citation and punctuation omitted.) Castell v. State, 250 Ga. 776, 780 (301 SE2d 234). Further, the corroboration may be by circumstantial evidence. Lecounte v. State, 183 Ga. App. 407 (359 SE2d 193). Considering the evidence in this case, we are satisfied that the accomplice’s testimony was sufficiently corroborated.

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

Decided September 3, 1991.

David G. Hammock, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

Review of the evidence in this matter reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Jones was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, the trial court did not err by denying the Jones motion.

3. Jones also contends the trial court erred by denying his motion for a new trial. As this enumeration of error is based upon the contentions rejected in Divisions 1 and 2 above, it is without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1253.
    BARBER v. COLLINS.
    (410 SE2d 444)
   Beasley, Judge.

Barber appeals from the grant of the motion to dismiss his complaint. For previous history in this case see Barber v. Collins, 194 Ga. App. 385 (390 SE2d 633) (1990). After the return of the remittitur to the trial court, Barber’s complaint was filed along with a document he denominated a “motion for summary judgment,” which actually sought a judgment on the pleadings based on the answer being in default. Collins, the revenue commissioner, filed an answer and a motion to dismiss the complaint which primarily focused on the “motion for summary judgment,” treating it as the complaint. The trial court entered an order which denied Barber’s motion and granted the motion by Collins and dismissed the complaint.

The complaint alleged that Barber suffered a loss when a fire destroyed his house; that he was unable to recover from his insurance company and filed for a loss on his Federal and State income tax forms; that a conspiracy prevented him from collecting on his valid claim. It was further alleged that as a result of the conspiracy he developed a serious mental and emotional disorder leading to temporary insanity from September 11 through 13, 1987, during which he committed several crimes. A jury found Barber guilty but mentally ill and he was sentenced to life plus 40 years.

Barber sought a tax refund of $250,000 and damages for the refusal to honor his valid claim which resulted in his mental disorder and incarceration. Barber also sought an injunction and equitable relief but the Supreme Court has transferred the appeal to this court, eliminating those issues.

1. The pro se complaint was served on July 2, 1990. The answer was filed within 30 days thereafter, and defendant Collins was not in default, as Barber contends. OCGA § 9-11-12 (a).

2. What is the posture of the case resulting from the February 1989 order of the trial court pursuant to OCGA § 9-15-2 that “the complaint sets forth a justiciable issue or [sic] fact?” This was the initial order entered pursuant to OCGA § 9-15-2 (d).

Our cases which have construed OCGA § 9-15-2 have scanned the pleadings to determine whether a claim as defined in OCGA § 9-11-8 has been set forth. If so, the trial court must permit the filing of the claim. See Acker v. Veal, 183 Ga. App. 297 (359 SE2d 7) (1987); Evans v. City of Atlanta, 189 Ga. App. 566 (377 SE2d 31) (1988). This does not mean that the test for determining whether to permit the filing of a claim under OCGA § 9-15-2 is the same as the test for deciding whether a claim will withstand attack by a motion to dismiss under OCGA § 9-11-12 (b) (6).

OCGA § 9-11-60 (h) has abolished the law of the case but does not accommodate the view that a standing order can be ignored with regard to subsequent proceedings. See Bradley v. Tattnall Bank, 170 Ga. App. 821, 823 (318 SE2d 657) (1984). If the order has been ratified by an appellate court, it must be treated with due deference. However, if the order is merely interlocutory in character, it remains within the breast of the trial court even after the expiration of the term. Hubbert v. Williams, 175 Ga. App. 393, 395 (333 SE2d 425) (1985).

Our previous decision, reported at 194 Ga. App., supra, did not approve the February 1989 order but merely held that while it remained extant, neither modified nor revoked, the second OCGA § 9-15-2 order, of March 1989, was a nullity. Thus, when the trial court considered Collins’ motion to dismiss, the original order was not conclusive and did not control. The trial court was free to give a fresh appraisal insofar as the merits of the claim were concerned, when it determined whether the complaint failed to state a claim upon which relief could be granted.

3. (a) Thus we reach the viability, or lack thereof, of the claim. We assume but do not decide that official or sovereign immunity is not applicable. See Joyce v. Van Arsdale, 196 Ga. App. 95 (395 SE2d 275) (1990); Peek v. Dobbs, 196 Ga. App. 684 (396 SE2d 600) (1990); Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990).

“ ‘If damages are traceable to an act of negligence, but are not its legal or material consequence, or if other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote and contingent to be the basis of a recovery.’ ” Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 439 (99 SE2d 209) (1957). The denial of Barber’s claim for refund and his alleged mental disorder and subsequent incarceration, even if there was a “conspiracy” involved (Hyman v. Moldovan, 166 Ga. App. 891, 892 (305 SE2d 648) (1983)), are too remote and contingent, as a matter of law, to be the proximate cause of any of the damages claimed to have been suffered by Barber. OCGA § 51-12-9.

Decided September 4, 1991.

Eugene Barber, pro se.

Michael J. Bowers, Attorney General, Daniel M. Formby, Senior Assistant Attorney General, for appellee.

(b) A claim for refund must be brought under the provisions of OCGA § 48-2-35. Henderson v. Carter, 229 Ga. 876, 879 (195 SE2d 4) (1972). Accord State of Ga. v. Private Truck Council &c., 258 Ga. 531, 534 (371 SE2d 378) (1988). The complaint is the wrong avenue for initiating a claim for this redress. It affirmatively reveals the absence of any right by Barber to prosecute a claim under that code section. Poole v. City of Atlanta, 117 Ga. App. 432, 433 (2) (160 SE2d 874) (1968); Pugh v. Frank Jackson Lincoln-Mercury, 151 Ga. App. 320, 322 (259 SE2d 711) (1979).

Judgment affirmed.

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


text:
    A91A1265.
    LUNDA CONSTRUCTION COMPANY v. CLAYTON COUNTY.
    (410 SE2d 446)
   Birdsong, Presiding Judge.

Lunda Construction Company filed suit for refund of ad valorem taxes paid to Clayton County in 1985 and 1986 on account of equipment it utilized in Clayton County for work on a state Department of Transportation project. Lunda contended that OCGA § 50-17-29 (e) exempts contractors from local ad valorem taxes incurred as a result of the contractor’s performance of work on behalf of the state of Georgia. The trial court denied Lunda’s motion for summary judgment and granted summary judgment to Clayton County on its cross-motion. Held:

OCGA § 50-17-29 (e) provides, in the first part: “No city, county, municipality, or other political subdivision of this state shall impose any tax, assessment, levy, license fee, or other fee upon any contractors or subcontractors as a condition to or result of the performance of a contract, work, or services by such contractors or subcontractors in connection with any project being constructed, repaired, remodeled, enlarged, serviced, or destroyed for, or on behalf of, the state or any of its agencies, boards, bureaus, commissions, and authorities. . . .” (Emphasis supplied.)

There is no lack of clarity or ambiguity in this language. It plainly prohibits the imposition of “any tax, assessment, levy, license fee, or other fee” upon contractors “as a . . . result of the performance of a contract, work, or services ... in connection with any project being constructed [etc.] for, or on behalf of, the state or any of its agencies. ...” Where the language of a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430). Confronted with such a plain and unambiguous statute, both the trial court and we are without authority to approve or disapprove, or even speculate upon, the legislature’s purpose, policy or wisdom in enacting it. Appellee county proposes no reason why “ad valorem” tax is excluded by the strong and precise statutory language, particularly the prohibition against imposing (and not merely the exemption of) “any tax.”

Appellee argues that ad valorem tax upon Lunda’s property used in its work on a state construction project is authorized, because of the ambiguity created by the second portion of § 50-17-29 (e), which provides: “nor shall any city, county, municipality, or other political subdivision of this state include the contract price of or value of such contract, work, or services performed on such projects in computing the amount of any tax, assessment, levy, license fee, or other fee authorized to be imposed on any contractors or subcontractors.” Appellee contends this language proves the legislature contemplated that a tax, including ad valorem tax, could be imposed upon such property. If the county’s position were correct, the entire statute would be without meaning, because then any and all manner and means of tax could be imposed on property used in state projects, in clear contradiction to the first part of the statute.

There is no contradiction and no ambiguity created by this second part of the statute. That language means simply that if there is some other tax or fee “authorized to be imposed on any contractor or subcontractor,” i.e., which is not on account of its work on a state project, the county cannot include the contract price of a state project as a basis for that other “authorized” tax.

The two sentences in the statute are therefore in harmony. Both evince the legislature’s intent to prohibit a county or municipality from taxing any property used by a contractor on a state project, or from getting around that prohibition by including the contract price of a state project as a basis for any other kind of authorized tax or fee. For example, if Lunda Construction Company had assets in the county which did not exist purely “as a condition to or the result of the performance” (id.) of a state construction project, a tax might be “authorized” for that interest, and the contract price of any state project could not be included in it.

Decided September 4, 1991.

Griffin, Cochrane, Marshall & Eiger, W. Henry Parkman, Craig A. Courville, for appellant.

Foster & Foster, Larry A. Foster, for appellee.

The trial court erred in denying' summary judgment to Lunda Construction Company, and in granting judgment to appellee.

Judgment reversed.

Pope and Cooper, JJ., concur.


text:
    A91A1283.
    MILLER v. THE STATE.
    (410 SE2d 328)
   Birdsong, Presiding Judge.

Bobby Lewis Miller appeals his conviction for kidnapping with bodily injury and aggravated assault. Held:

1. Appellant contends the trial court erred in denying a directed verdict on the charge of kidnapping with bodily injury, because he testified he did not intend to abduct the victim but intended merely to take her to the hospital after he stabbed her. We find no error in the denial of acquittal.

The evidence showed appellant went to the home of the sister of his estranged girl friend, Josephine Harris. Appellant pulled a knife and pulled Ms. Harris to the porch; they struggled and the sister noticed Ms. Harris was bleeding and had several holes in her blouse. Appellant had stabbed Ms. Harris twice; he said he was going to take her to the hospital and took her away in his vehicle. When he did not take her to the hospital, Ms. Harris grabbed the steering wheel and forced the car to the location where police found them. When police arrived, appellant had his right arm around Ms. Harris’ upper body and had the knife in his left hand. He said he was going to kill Ms. Harris and that he did not want anyone else to have her. He grabbed her genital area and said, “I want some of that!” and attempted to pull down her pants. When Ms. Harris cried for help, two men came and held appellant at bay with a stick until police came.

A directed verdict of acquittal in a criminal case is authorized only “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty.’ ” (Emphasis supplied.) OCGA § 17-9-1 (a). See Summers v. State, 99 Ga. App. 183 (108 SE2d 140). When, as in this case, a conviction is upheld on appeal because the evidence is such that a rational trier of fact could find appellant’s guilt beyond a reasonable doubt, according to the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), it cannot possibly be said the evidence demanded a verdict of acquittal.

Decided September 4, 1991.

Bobby L. Miller, pro se.

Johnny B. Mostiler, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred in denying his motion for mistrial, made on grounds that the actions of courtroom security guards moved “as if to prevent appellant from escaping or attacking bystanders.” Appellant does not describe the guards’ actions in detail, nor does he explain why those actions were so “oppressive” as to prejudice his right to a fair trial; he contends merely that the actions per se were unnecessary and prejudicial to him. Appellant gives us no basis to find the guards’ actions were unnecessary, and we will not hold here that an act of guards to prevent escape or an'attack upon bystanders by a criminal defendant is prejudicial and requires a mistrial. The trial court did not abuse its discretion by denying a mistrial on this issue. See Wells v. State, 186 Ga. App. 62, 63 (366 SE2d 397).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1301.
    SAMS v. THE STATE.
    (410 SE2d 330)
   Birdsong, Presiding Judge.

Melvin D. Sams, Sr., appeals his judgment of conviction of four violations of OCGA § 16-13-30, two counts of selling cocaine and two counts of possessing cocaine, and his sentence. The offenses of which appellant was convicted on January 29, 1991, occurred on July 13 and August 7, 1989. Appellant asserts the trial court erred by admitting evidence of appellant’s prior cocaine sales conviction on April 12, 1990, for offenses committed on September 1, 1989, as being a similar crime to the charges of which he was being tried.

The record establishes that a female GBI agent twice bought cocaine from appellant, on July 13, 1989 and August 7, 1989, respectively. On both occasions she went to appellant’s residence and purchased the drug directly from appellant. At least one of the drug buys was made in the evening. Regarding the drug sale offense of which appellant previously was convicted, the record establishes that: On September 1, 1989, about 50 days after the first sale of drugs to the female GBI agent, a female drug buyer went to appellant’s home on three separate occasions in the evening to obtain cocaine. On the first occasion, the female drug buyer directly purchased cocaine from appellant; on the second occasion, she directly obtained cocaine from appellant on credit; and, on the third occasion, she was apprehended by police in appellant’s residence before she could obtain more cocaine.

The trial court in its concluding charges to the jury gave an instruction limiting the use of similar transaction evidence “only as it might tend to illustrate the defendant’s state of mind . . . and for that purpose alone.” Held:

1. “Evidence of other criminal acts of the defendant may be admitted if it is [as in this case] substantially relevant for some other purpose than to show a probability that the defendant committed the crimes on trial merely because he is a man of bad character.” Brown v. State, 197 Ga. App. 155 (398 SE2d 34). Applying the well-recognized two-prong test for the admissibility of other criminal acts evidence (see, e.g., Roney v. State, 192 Ga. App. 760, 762 (2) (386 SE2d 412)), we find that the evidence in question was admissible. “The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence ‘may be admitted if it “ ‘is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . [Cit.] Thus, the requisite similarity between the two incidents depends on the purpose for which the evidence is being presented. . . . Although the [crimes in the case at bar and those of which appellant previously was convicted] differ in some respects, we find that the similarities are sufficient for the purpose of tending to prove [appellant’s state of mind].” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259).

Appellant asserts the second prong of the two-prong test (sufficient similarity or connection between the independent crimes and a crime charged) has not been established. We disagree. The independent crimes and the crimes charged: (a) were drug offenses which included the criminal act of sale of cocaine; (b) occurred at defendant’s residence; (c) occurred during the evening hours (all or all but one of the sales); (d) occurred within a relatively short period of time (less than 60 days); (e) involved sales made personally by appellant in each instance; and, (f) were made to a female in each instance.

2. The record reflects the independent crime was not a prior criminal incident, rather it was a prior conviction for criminal drug activity occurring after the commission of the offenses of which appellant is charged in the case at bar. This is of no legal consequence. Independent crimes do not have to occur prior to the offense (s) of which appellant is being tried to be admissible as other crimes or similar transactions. See Richie v. State, 258 Ga. 361, 362 (3) (369 SE2d 740); cf. Crosby v. State, 259 Ga. 822 (2) (389 SE2d 207). The fact the independent offense occurred subsequently at most goes to the weight of the evidence and not its admissibility.

Decided September 4, 1991.

W. Dwight Payne, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

3. Appellant asserts the trial court erroneously believed that the independent crimes evidence involved an independent crime which had been committed prior to the offenses in this case, and predicated its admission of the evidence upon this erroneous assumption. Viewing the record in toto, we disagree. Even if this had occurred, this court will not reverse the correct ruling of the trial court regardless of the reason given therefor. Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

Appellant’s sole enumeration of error is without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A91A0669.
    GRIGGS v. ALL-STEEL BUILDINGS, INC. et al.
    (410 SE2d 309)
   Pope, Judge.

The issue presented by this appeal is in which forum may the claimant in a workers’ compensation case bring a motion to set aside the award of compensation now that Georgia law no longer recognizes a complaint in equity to set aside a judgment. Appellant Andy M. Griggs, the claimant, filed a motion with the Board of Workers’ Compensation to set aside the award but the board stayed the proceedings in order for the superior court to determine if it was the forum with jurisdiction to entertain the motion. The claimant filed a separate motion in the superior court, which was denied, and we granted claimant’s application for discretionary appeal.

On November 4, 1987, claimant was struck in the face with a steel beam during the course of his employment with appellee All-Steel Buildings, Inc., and sustained a major head injury. The record shows that upon his release from a rehabilitation center, claimant’s treating physician diagnosed several cognitive and behavioral deficits and strongly recommended that he be placed in a structured cognitive rehabilitative program. In an evaluation for the rehabilitation center, an occupational therapist concluded the claimant was “functionally independent in basic self-care tasks and home management skills . . . but [would] require assistance to perform money management tasks, and should be supervised in managing his finances.”

Although these reports were available to the employer and its workers’ compensation insurer, appellee Aetna Casualty & Surety Company, the insurer began settlement negotiations with the claimant, who was not represented by counsel. An agreement was reached in which in exchange for a release from liability, the claimant agreed to accept from appellees the lump sum of $30,000 and $750 per month for 24 months. Appellees also agreed to pay past medical expenses but limited payment for future medical expenses and the costs associated with vocational rehabilitation to those expenses incurred within 12 months after approval of the settlement.

The settlement agreement was submitted to the board and was approved, pursuant to OCGA § 34-9-15. Almost one year later, the claimant, through his mother acting as next friend, filed a request for a hearing with the board, alleging the appellees had failed to provide vocational rehabilitation as required by the award. Subsequently, the claimant filed a motion to set aside the settlement agreement and award on the ground that he was incompetent to have entered into it. Before the case was heard, however, appellees petitioned the superior court and obtained a judgment on the award pursuant to OCGA § 34-9-106. The ALJ concluded that the board had lost jurisdiction of the case by virtue of the superior court judgment and ordered the proceedings before the board stayed until the superior court could determine if it had jurisdiction in the matter. In the superior court action in which appellees had obtained a judgment on the award, claimant filed a motion to set aside which was denied on the ground that the record before the superior court was insufficient to justify setting the judgment aside.

1. Claimant first argues the superior court erred in granting judgment on the award of the board because appellees failed to make a showing of good cause as required by OCGA § 34-9-106. First, the time for appealing the judgment has long since expired and it is now res judicata. Moreover, we hold that appellees’ petition for judgment, which included a certified copy of the settlement agreement approved by the board, complied with the minimal requirements for obtaining such a judgment. See Taylor v. Woodall, 183 Ga. 122 (187 SE 697) (1936); Simpson v. Travelers Ins. Co., 117 Ga. App. 43 (159 SE2d 294) (1967).

2. The superior court erred, however, in denying claimant’s motion to set aside the award without first permitting the parties to submit evidence relating to the motion and conducting a hearing on the merits of the motion. Pursuant to OCGA § 9-11-60, the superior court is the proper forum for bringing such a motion.

In this case, the claimant’s motion to set aside on the ground of his incompetency is, in essence, a motion to set aside on the ground of fraud in the procurement because he alleges his incompetency was well known to the employer at the time the settlement agreement was executed. The Board of Workers’ Compensation is granted no statutory authority to review a final award or settlement on the ground it was procured by fraud. See Simpson v. Liberty Mut. Ins. Co., 99 Ga. App. 629 (2) (109 SE2d 876) (1959); Sutton v. Macon Gas Co., 46 Ga. App. 299 (2) (167 SE 543) (1932). The courts have long recognized, however, that even a binding award based on an agreement between the parties may be set aside on the ground of fraud, accident or mistake. See, e.g., Cardin v. Riegel Textile Corp., 217 Ga. 797 (1) (125 SE2d 62) (1962); McCord v. Employers Liability Assur. Corp., 96 Ga. App. 35 (99 SE2d 327) (1957); Heath v. Standard Accident Ins. Co., 94 Ga. App. 548 (95 SE2d 726) (1956).

Originally, the proper procedure for setting aside such awards was to bring an action to set aside in equity pursuant to the now-repealed equity statute, Ga. Code § 37-219. Pursuant to that statute, the “judgment” of a court could be set aside for fraud, accident or mistake. Even though a workers’ compensation award is not a “judgment” of a court, an action in equity was considered the proper remedy to set aside an award because, pursuant to the workers’ compensation statute, an award of the board may be made a judgment of the superior court. “Inasmuch as an unreversed award of the board may be enforced as other judgments of the superior courts (Code § 114-711 [now OCGA § 34-9-106]), this fraud, accident, or mistake referred to [in the motion to set aside] is the same as is set forth in Code § 37-219.” Heath v. Standard Accident, supra at 550. Once the former action to set aside in equity was repealed by the Civil Practice Act, Ga. L. 1966, p. 609, § 135 (jj), then the complaint in equity pursuant to OCGA § 9-11-60 (e) became the proper procedure for relief from an award on the ground of fraud, accident or mistake. Russell v. Fast Framers, 164 Ga. App. 771 (298 SE2d 303) (1982); Wills v. St. Paul Fire &c. Ins. Co., 143 Ga. App. 562 (1) (239 SE2d 219) (1977); Cotton States Ins. Co. v. Bates, 140 Ga. App. 428 (231 SE2d 445) (1976). Again, pursuant to said statute, a complaint in equity could be brought to set aside a “judgment.”

Now, OCGA § 9-11-60 has been amended to extinguish the complaint in equity. Ga. L. 1986, p. 294, § 1. Instead, a motion to set aside on the ground of fraud, accident or mistake may be brought only pursuant to OCGA § 9-11-60 (d). As in the previous statutes granting relief from an award on the ground of fraud, the statute authorizing a motion to set aside refers to a “judgment.” OCGA § 9-11-60 (d). It also requires the motion to be brought “only in the court of rendition.” OCGA § 9-11-60 (b). Does this language leave the claimant in this case without a remedy, as appellees argue? No. Even though the motion to set aside statute refers to a judgment, the statute provides a remedy for setting aside a board award for the same reason the original statute which created an action to set aside in equity also provided a remedy: because a board award may be reduced to a superior court judgment, pursuant to OCGA § 34-9-106, the superior court is the proper forum for bringing a motion to set aside such an award. Here, in fact, the appellees have already obtained such a judgment and thus a superior court action already existed in which the motion was filed.

Decided July 31, 1991

Reconsideration denied September 5, 1991

Burdine & Brown, Thomas F. Brown II, Drew, Eckl & Farnham, John G. Blackmon, Jr., for appellant.

Cone & Shivers, Donald M. Shivers, for appellees.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Beasley, Cooper and Andrews, JJ., concur. Carley, J., concurs in judgment only.


author: Sognier, Chief Judge.

text:
    A91A0781.
    DUPREE et al. v. GOODRUM.
    (410 SE2d 332)
   Sognier, Chief Judge.

A. C. Goodrum, in his capacities as father and next friend of Crystal Goodrum, brought suit against Sandra Dupree, the Butts County School District, and John Spillers seeking to recover damages for injuries Crystal incurred after she exited a Butts County school bus driven by Dupree and was involved in an accident with a truck driven by Spillers. The trial court denied the motion for summary judgment filed by Dupree and the school district, and we granted their application for interlocutory appeal.

We reverse. The record reveals that pursuant to the instructions of appellee’s wife, Crystal’s mother, appellant Dupree allowed six-year-old Crystal and her nine-year-old stepbrother to disembark from the school bus at a location across the highway from the home of Crystal’s grandmother. Although the evidence conflicted on whether this was a regular bus stop, it was uncontroverted that appellant school district had received no complaints as to the safety or location of the stop; there had been no accidents or other incidents of pedestrians being struck at or around the stop; that one half mile from the stop was a traffic sign alerting oncoming vehicles to the school bus stop ahead; and that the driver of a properly maintained vehicle would have no difficulty stopping at the point where Crystal disembarked.

It is uncontroverted that Dupree was a licensed and trained school bus driver, that the school bus she was operating was properly maintained, and that all the warning lights and flags on the bus were operating properly at the time of the accident. The record reveals that Crystal’s stepbrother and a cousin got off the bus before Crystal and waited for her at the side of the road in front of a safety flag that swings out from the bumper of the bus to ensure that the bus driver can see children as they pass in front of the bus. At this approximate time, Spillers, driving a truck carrying pulpwood, discovered as he crested the hill on the approach to the bus stop that his brakes were no longer functioning. He also had no operative horn on his truck. Spillers’ truck accelerated as it approached the bus stop.

The record reveals that Crystal got off the bus, walked quickly past her stepbrother and cousin into the space in front of the bus, looked in one direction but never in the direction of Spillers’ oncoming truck, then either stepped into or was struck by the truck, sustaining serious injuries. Although there was some conflict regarding what actions Dupree took as these events were occurring, the evidence is uncontroverted that Crystal did not notice the attempts of Dupree or her own stepbrother and cousin to warn or save her from the danger.

“ ‘To state a cause of action for negligence in Georgia, the following elements are essential: “(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.” (Cit.)’ [Cit.]” Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (396 SE2d 9) (1990).

“Although negligence cases are not frequently susceptible to final adjudication by motion for summary judgment, nevertheless, in cases of plain, palpable and indisputable evidence, summary judgment may be awarded.” (Citations and punctuation omitted.) Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386) (1989). We agree with appellants that the evidence of record fails to present any genuine issue of material fact indicating that appellants breached any duty owed Crystal. As is stated in Gazaway v. Nicholson, 61 Ga. App. 3, 10 (5 SE2d 391) (1939), cited by appellee, “[i]t is, of course, the duty of a bus driver to discharge a passenger at a place of safety; and where a carrier deposits him at a place which it knows will reasonably expose him to unusual and unnecessary peril, it may be held liable for a proximately resulting injury.” (Emphasis supplied.) Here, however, appellants adduced uncontroverted evidence that no events had ever occurred at or around the stop where Crystal disembarked that would have alerted appellants that depositing her there reasonably exposed her to an unusual and unnecessary peril. We do not agree with appellee that the mere possibility that some motorist might not abide by the Uniform Rules of the Road was sufficient to create a genuine issue of material fact for jury determination whether appellants knew that they were not discharging Crystal at a place of safety. Rather, the burden shifted to appellee to set forth specific facts showing that a genuine issue existed for trial, see Robinson v. Starr, 197 Ga. App. 440, 443 (398 SE2d 714) (1990), and appellee having failed to carry that burden, the trial court erred by denying appellants’ motion for summary judgment. See generally id.

Decided September 5, 1991.

Fortson & White, Michael J. Rust, Matthew G. Moffett, Garland & Milam, J. Byrd Garland, for appellants.

Craig N. Cowart, Johnny B. Mostiler, for appellee.

Accordingly, it is unnecessary to address appellants’ argument that there was no evidence that any breach of duty on their part was the proximate cause of Crystal’s injuries.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0934.
    KIRBY v. THE STATE.
    (410 SE2d 333)
   Sognier, Chief Judge.

Following a bench trial in Whitfield County Superior Court, William Kirby was found guilty but mentally ill of 12 felony offenses and 18 misdemeanor offenses. He was sentenced to ten years to serve concurrent on all counts. He appeals from the judgment entered on the verdict.

In his sole enumeration, appellant contends the trial court erred by finding him guilty but mentally ill instead of not guilty by reason of insanity. The evidence adduced at trial revealed that for a period of approximately 18 months beginning in December 1987, appellant defrauded several people of nearly $300,000. The victims included several customers of appellant’s used car lot, as well as investors in the same business. Appellant accepted cars on consignment, but kept the money after the cars were sold. On several occasions investors advanced funds to appellant with the understanding that the money would be used as working capital. One investor testified that soon after he inquired when he would begin to realize a return on his investment, appellant misled him into believing that appellant had been arrested because some of the cars which he had been selling were stolen. The investor further testified that appellant claimed to be participating in a court-sanctioned sting operation, and that appellant told him that his money could not be returned until the sting operation was completed because the court had frozen appellant’s bank accounts. When another investor arrived at the car lot to collect money which appellant had promised to repay, he was told by appellant that “everything’s gone.” Soon after he admitted to his investors that he had defrauded them, appellant became suicidal and was admitted to a psychiatric hospital.

Evidence was also adduced that appellant suffers from a multiple personality disorder. Appellant’s private psychiatrist, Dr. Weatherly, testified that during the period during which the crimes were committed, appellant actually had two personalities. The “bad” personality which committed the crimes was known as Kirby, and the “good” personality, which was largely repressed by Kirby during the period of criminal activity, was known as Bill. Dr. Weatherly further testified that “Bill certainly knows the difference in right and wrong and certainly feels guilty about what happened. Kirby, I think, knew the difference in right and wrong but probably didn’t care.” Dr. Perri, a psychologist appointed by the trial court to assess appellant’s competence to stand trial, confirmed Dr. Weatherly’s diagnosis that appellant suffered from a multiple personality disorder, and stated that he believed that Kirby was the personality that committed the crimes. At trial, Dr. Perri also testified that there was no indication that either personality was suffering from a delusional compulsion, nor was there any indication that either personality could not distinguish right from wrong. Neither Bill nor Kirby has ever offered an explanation as to what happened to the money taken from the victims, and appellant testified at trial that he does not remember what happened to the money.

In his brief, appellant acknowledges that Kirkland v. State, 166 Ga. App. 478 (304 SE2d 561) (1983) is controlling authority for the case sub judice, but argues that Kirkland should be overruled because recent advances in the study of multiple personality disorders have rendered the Kirkland decision obsolete. However, appellant merely points out that multiple personality disorders are more widely recognized as a form of psychosis today than in 1983 when this court decided Kirkland. Appellant fails to put forth any sound argument to support the proposition that a person suffering from a multiple personality disorder should be absolved of criminal responsibility. “The law adjudges criminal liability of the person according to the person’s state of mind at the time of the act; we will not begin to parcel criminal accountability out among the various inhabitants of the mind.” Kirkland, supra at 480. The reasoning behind this policy remains as valid today as it was when the Kirkland decision was handed down. “ ‘There was only one person (committing the criminal act) . . . and only one person accused (of it). It is immaterial whether [he] was in one state of consciousness or another, so long as in the personality then controlling [his] behavior, [he] was conscious and [his] actions were a product of [his] own volition.’1. . . [Cit.]” (Emphasis omitted.) Kirkland, supra at 480. In the case at bar, it is undisputed that appellant was conscious and acting under his own volition. Moreover, appellant was able to recognize right from wrong and was not suffering from delusional compulsions. See OCGA §§ 16-3-2; 16-3-3. Therefore, we must conclude that the trial court did not err by finding appellant guilty but mentally ill.

Decided September 5, 1991.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, David T. Blackburn, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A1014.
    WALTON v. THE STATE.
    (410 SE2d 339)
   Birdsong, Presiding Judge.

Milton Walton was convicted of one count of sale of cocaine and one count of sale of marijuana. On appeal, he contends the trial court erred in failing to give his timely requested charge on the lesser included offense of mere possession as to both charges. Held:

Under the facts in this case, the trial court did not err in failing to charge the jury as to the lesser included offense of mere possession. The evidence shows that appellant was asked to sell cocaine and then marijuana, on two separate occasions on August 16, 1990. In each instance, appellant did not have the drug on his person and had to go nearby to get it; he did so, and on each occasion returned immediately and gave the requested drug to the undercover agent in receipt for money. Appellant, in defense, simply denied ever seeing the undercover agent.

On appeal, appellant complains that the failure to permit the jury to consider the lesser included offense of possession forced the jury to either exonerate him completely or convict him of sale. This is not grounds for complaint. The evidence shows appellant either engaged in the sale of drugs or did nothing at all. The evidence does not reasonably raise an issue that appellant merely possessed drugs without engaging in or aiding and abetting in a sale. See State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550), where it was held: “The correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” There is no evidence in this case that appellant merely possessed marijuana. The trial court did not err in refusing to charge the jury as to that offense.

Decided September 5, 1991.

Collier, Bishop & Hunt, Charles R. Hunt, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1184.
    PURSER TRUCK SALES, INC. v. PATRICK.
    (410 SE2d 335)
   Birdsong, Presiding Judge.

Tawana Patrick filed suit against appellant Purser Truck Sales, Inc., asserting that appellant charged her a usurious rate of interest for a used car, and wrongfully repossessed that vehicle. The jury rendered a verdict for Patrick of $6,500. Purser Truck Sales asserts four errors below. Held:

Appellant Purser Truck Sales submits a misleading statement of the case on appeal, indicating that the issues resolved by the jury were whether the rate of interest charged by appellant was usurious and whether the repossession was wrongful on that account. Appellant contends on appeal that the 28.66 percent interest on the sale price of $5,000 was not usurious according to OCGA §§ 10-1-33 (d) and 7-4-3 (a) (2).

The appeal will be addressed in the posture in which it was litigated. The record and transcript show that the trial court with agreement of counsel removed the issue of usury from the trial, because Patrick would not have been entitled to recover an interest forfeiture inasmuch as she had not paid any interest. The evidence shows that Patrick purchased a Toyota vehicle from appellant, by paying $1,384 down and financing $5,000 at an agreed 28.66 percent interest; appellant required her to procure insurance on the car and she did, supplying Purser with a policy for liability coverage which Purser read before allowing her to take possession of the car. The car was damaged on the passenger side before the first payment was due, and Patrick got an estimate from Sparks Paint and Body Shop in the amount of $940; she then drove the car to appellant’s business so as to make her first payment, but appellant took the car and would not let her have it back. Purser’s reason for taking the car was that he disapproved of Sparks’ estimate and he did not want Sparks to do the repair; he preferred that the local Toyota dealer repair the car. The Toyota dealer made an estimate of $1,600 and repaired the car for Purser. The total amount of all repairs was $1,600. Patrick was first told that she could not get the car back until she obtained collision insurance, but when she complied with this dictate and attempted again to submit a payment and retrieve the car, Purser advised she would have to pay $1,600. Tawana Patrick could not afford to pay $1,600. Purser sold the car, but he did not offer to refund Patrick the $1,384 down payment. Patrick, who was in nursing school, traveled in taxi cabs, for she could not afford a rental car. She gave evidence that a rental price for a substitute vehicle would be $20 per day, at 485 days, for a total claim of $9,700.

The trial court disposed of Patrick’s usury claim on grounds she had never paid any interest and so could not recover a forfeiture of interest. The case was submitted to the jury on the issue of wrongful repossession, recovery if warranted being based on a fair replacement (rental) cost, less the sum spent by Purser on repairs.

The record shows appellant never requested, and the trial court never granted, a directed verdict, and the issue of usury was not submitted to the jury. When the trial court advised the jury that the claim of usury was no longer in the case, thus dismissing one of plaintiff’s claims, the trial court did say to the jury that the interest rate charged by appellant was usurious because the law allowed no more than 15 percent, but appellant did not object to this statement, and agreed moreover that it was a “fair statement.” In fact appellant never objected to the trial court’s statement that 28.66 percent interest was usurious. During closing argument, Patrick’s counsel remarked that Patrick was in court because Purser “was charging . . . 28.66 percent when the law allows 15 percent.” Appellant’s counsel objected to this remark and said: “Of course, our contention was that [the legal rate] was 17 percent.” The trial court said it had ruled the legal rate was 15 percent, and appellant said naught. The court charged the jury on Patrick’s claim for wrongful repossession and appellant’s counterclaim for cost of repairs. After the jury charge, appellant’s counsel registered an exception “as to the directed verdict” on grounds that the interest was not usurious according to OCGA § 7-4-3 (b).

The trial court’s statement that the interest rate was usurious was not germane because the trial court removed the usury claim. The sole objection made by appellant was that the legal rate was not 15 percent but was 17 percent; appellant thus agreed that the interest rate of 28.66 percent was usurious. After the jury was charged as to wrongful repossession and appellant’s counterclaim for cost of repairs, appellant changed its prior position and objected that under OCGA § 7-4-3 the parties could agree to any interest in this case of a motor vehicle sale exceeding $5,000. At this point, there was no usury claim extant.

To answer the enumerations of error posed by appellant: if the trial court erred in (1) determining as a matter of law that the only legal rate of interest that could have been charged under the sales contract for the motor vehicle was 15 percent, and (2) in ruling that the interest rate charged was “clearly usurious,” and (3) in informing the jury of its determination that the interest rate was clearly usurious, resulting in clear harm and prejudice to the defendant, nevertheless appellant made no objection to such errors. Appellant approved the trial court’s ruling as a “fair statement”; and stated its “contention was that [the legal rate] was 17 percent.” We conclude that if any harm or prejudice accrued to appellant on account of the trial court’s gratuitous ruling that the 28.66 percent rate was usurious, it is appellant who induced such error and harm by agreeing that this was “a fair statement,” and by agreeing in court that the sales contract was usurious since the legal rate allowed was 17 percent, not 15 percent. It is well settled that a party who has himself induced what he subsequently assigns as error will not be heard to complain of it on appeal. Annis v. Tomberlin &c. Assoc., 195 Ga. App. 27, 34 (392 SE2d 717). By acquiescing in the ruling that the 28.66 percent interest rate was usurious and failing to make any proper objection that was not misleading, appellant induced any error and any prejudice. Moreover, the error complained of on appeal was not inconsistent with appellant’s own theory, which was that 17 percent was the highest rate allowed by law; appellant cannot complain on appeal. See Horan v. Pirkle, 197 Ga. App. 151, 152 (397 SE2d 734).

In its final enumeration of error, appellant asserts “the court erred in permitting a recovery for the plaintiff on the undisputed proof that the parties entered a written financing agreement for a motor vehicle for $5,000 or more, that the plaintiff breached the contract, by submitting a wrongful repossession issue to the jury in light of the court’s rescission of the contract on the basis of usury, the plaintiff claiming rental car expenses from the repossession through the date of trial.” This confused statement does not present a clear allegation of error. Giving it a reasonable construction, we conclude appellant is contending that plaintiff was not entitled to recover for wrongful repossession because there never was a sale; that is, that the trial court allegedly rescinded the sales contract on the basis of usury. However, the trial court did not rescind the sales contract; it ruled that Patrick had never paid any interest before appellant repossessed the car; but she had made a down payment of $1,384 and attempted to make payments, and if the jury determined the car was wrongfully repossessed, plaintiff might be entitled to recover damages. Appellant did not object to this assessment of the issues by the trial court as it was presented to the jury and cannot complain on appeal. Id. The jury was polled and stated that its verdict of $6,500 against appellant was reached under the evidence of reasonable rental cost offset by the amount claimed by appellant for repairs. The award was within the evidence.

Decided September 5, 1991.

Bennett T. Willis, Jr., for appellant.

Brown, Katz, Flatau & Hasty, S. Phillip Brown, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1231.
    GORSKI v. THE STATE.
    (410 SE2d 338)
   Birdsong, Presiding Judge.

Keith Gorski appeals his conviction for sexually molesting his son. He alleges the evidence is insufficient to sustain the verdict because the guilty verdict is inconsistent with the jury acquitting him of two counts of aggravated child molestation, and that the trial court erred by denying his motion for a psychological examination of the victim. Held:

1. On appeal the evidence must be viewed in the light most favorable to the verdict, Gorski no longer enjoys the presumption of innocence, the appellate court determines the sufficiency of the evidence and does not weigh the evidence or judge the credibility of the witnesses (Grant v. State, 195 Ga. App. 463 (393 SE2d 737)), and we do not speculate which evidence the jury chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498).

Review of the evidence in this manner reveals that the victim in this case spontaneously stated that his father had molested him, and he repeated this statement in his testimony several times without significant variation. Further, the victim also related these complaints to other witnesses who then testified about his statements under the child hearsay act. Therefore, there is ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Gorski was guilty of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided September 5, 1991.

Kenneth L. Gordon, for appellant.

William G. Hamrick, Jr., District Attorney, Monique F. Kirby, Assistant District Attorney, for appellee.

Moreover, the inconsistent verdict rule in criminal cases has been abolished in this state (Milam v. State, 255 Ga. 560 (2) (341 SE2d 216)), and a “jury is entitled to believe a part of the testimony of a witness and disbelieve other parts.” Williamson v. State, 134 Ga. App. 583 (215 SE2d 518). Accordingly, Gorski’s first enumeration of error is without merit.

2. Gorski’s second enumeration of error is supported only by this statement: “A psychological evaluation pursuant to defense counsel’s motion could have established that [the victim] was prone to lying and exaggerating.” No authority is offered in support of this argument and, as no other reason is stated for the request, we assume that Gorski hoped to call the witness to state his expert opinion that the victim’s testimony should not be believed. Such testimony, however, is inadmissible as the opinion of the psychologist on “the truthfulness or credibility of the victim was not beyond the ken of the jurors.” Smith v. State, 259 Ga. 135, 138 (377 SE2d 158); Smith v. State, 247 Ga. 612, 619 (277 SE2d 678). Further, the question of a particular child’s credibility is not properly the subject of expert testimony as it is reserved for the jury. OCGA § 24-9-80; State v. Butler, 256 Ga. 448, 450, n. 4 (349 SE2d 684); Frasier v. State, 143 Ga. 322 (85 SE 124); Jennette v. State, 197 Ga. App. 580, 582 (398 SE2d 734). Accordingly, we find no error in denying the motion.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A90A0468.
    MOORE et al. v. POPE.
    (410 SE2d 829)
   Pope, Judge.

This court having entered a judgment in the above-styled case at 196 Ga. App. 475 (396 SE2d 243) (1990) reversing the judgment of the trial court, and the judgment of this court having been reversed on certiorari by the Supreme Court at 261 Ga. 253 (403 SE2d 205) (1991), judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

Decided September 6, 1991.

Newton & Howell, John T. Newton, Jr., for appellants.

Thomas W. Malone, Middleton & Anderson, Robert H. Benfield, Jr., for appellee.


text:
    A91A0734.
    MILLER v. THE STATE.
    (410 SE2d 355)
    Decided September 6, 1991.

      James P. Brown, Jr., for appellant.

      Tommy K. Floyd, District Attorney, Charles E. Rooks, Assistant

      District Attorney, for appellee.
   Cooper, Judge.

Appellant was charged in one indictment with two counts of burglary and aggravated assault stemming from two separate incidents and appeals the judgment of conviction and sentence entered on the jury verdict. He raises the trial court’s denial of a motion for severance as his sole enumeration of error.

This case involved two attacks on two different women while they were alone in their homes in the early morning hours. In the first incident, the victim discovered a man, whom she identified as appellant, in her living room. The victim testified that a scuffle ensued wherein she was choked and was rendered unconscious. In the second incident, the victim was awakened by appellant, who had positioned himself on her back and was demanding money. The two struggled, and the victim lost consciousness. Appellant contends that the incidents involved two unrelated and distinct sets of circumstances. “ ‘ “The right of severance where the offenses are joined solely on the ground that they are of the same or similar character is ‘because of the great risk of prejudice from a joint disposition of unrelated charges.’ ” (Cit.) However, where, as here, the similarity of the crimes reaches the level of a pattern, severance of the crimes is not required. (Cit.) “(I)n this particular kind of circumstance(, severance) lies within the sound discretion of the trial judge. . . .” (Cit.)’ [Cit.]” Stinson v. State, 197 Ga. App. 687, 688 (1) (399 SE2d 278) (1990). Although the incidents at issue occurred on separate occasions and in different locations, it is readily apparent that they were sufficiently similar to evidence a pattern. See Davis v. State, 159 Ga. App. 356 (283 SE2d 286) (1981). Accordingly, we find no abuse of discretion in the trial court’s denial of the motion for severance.

Judgment affirmed.

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


text:
    A91A0757.
    HOLLAND v. TENNYSON.
    (410 SE2d 447)
   Cooper, Judge.

Appellee was served a complaint in which appellant alleged that he suffered damages on December 1, 1989, while exiting a restaurant owned by appellee. Subsequently, appellant recast the complaint and alleged that he suffered damages on December 1, 1989, while exiting a mobile home owned by appellee. When appellee failed to file an answer to the complaints, the trial court rendered a default judgment against appellee on the issue of liability and ordered a hearing to determine the issue of damages. After all the evidence had been presented at the hearing, the court, without a jury, granted appellee’s motion for a directed verdict on the question of damages because the evidence adduced showed that appellant had sustained injuries on November 30, 1989, rather than December 1, 1989, as stated in appellant’s complaints.

Appellant’s sole enumeration of error is that the court erred in directing a verdict for appellee on the issue of damages inasmuch as the court had previously entered a default judgment in favor of appellant on the issue of liability. We agree with appellant and reverse. “Due to [her] default [appellee] is in a position of having admitted each and every material allegation of [appellant’s] complaint except as to the amount of damages suffered by [appellant]. [Cits.] Defenses which go to the right of recovery are not available to [appellee] in default even though the same defense may also go to the assessment of damages. [Cit.]” Whitby v. Maloy, 150 Ga. App. 575 (1) (258 SE2d 181) (1979). See OCGA § 9-11-55 (a). Evidence which serves to relieve appellee of liability which she has already admitted by virtue of the default judgment is inadmissible. First Union Nat. Bank of Ga. v. Floyd, 198 Ga. App. 99 (3) (400 SE2d 393) (1990). See Lee v. Morrison, 138 Ga. App. 332 (226 SE2d 124) (1976).

Despite the discrepancy in the asserted dates of the accident, the trial court erred in considering evidence which spoke to the liability of the appellee. By the default judgment, appellee’s liability for the accident was admitted, and the only issue to be determined by the court was the amount of the damages. Therefore, we reverse the order of the trial court and remand for a hearing on the amount of damages to be awarded to appellant.

Judgment reversed and remanded.

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

Decided September 6, 1991.

Beauchamp & Associates, Robert M. Beauchamp, for appellant.

Perry, Walters & Lippitt, Nancy G. Grigg, for appellee.


text:
    A91A0782.
    VALDEZ-HARDIN v. THE STATE.
    (410 SE2d 354)
    Decided September 6, 1991.

      William H. Turner, Jr., for appellant.

      Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.
   Cooper, Judge.

Appellant was convicted by a jury of kidnapping and appeals the denial of her motion for new trial, raising as her sole enumeration of error the trial court’s failure to charge the jury on interference with custody as a lesser included offense of kidnapping.

Our review of the record indicates that appellant failed to submit a written request to charge on interference with custody. “ ‘A trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.’ [Cit.]” Robinson v. State, 194 Ga. App. 432, 433 (3) (390 SE2d 652) (1990). We reject appellant’s argument that she preserved her right to object to the trial court’s failure to charge on interference with custody by orally adopting the request to charge of her co-defendant, Teresa Ann Stroud, inasmuch as this court has consistently held that requests to charge must be in writing. Moreover, the transcript indicates that appellant failed to object to the trial court’s refusal to charge the jury as requested by the co-defendant. Thus, appellant waived her right to raise this objection on appeal. Young v. State, 191 Ga. App. 651 (4) (382 SE2d 642) (1989). Finally, we note that this court has recently determined that interference with custody is not a lesser included offense of OCGA § 16-5-40, the present kidnapping statute. See Stroud v. State, 200 Ga. App. 387, 389 (1) (408 SE2d 175) (1991). Accordingly, this enumeration of error is without merit.

Judgment affirmed.

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