text:
    A91A0572.
    PROVOST et al. v. GWINNETT COUNTY et al.
    (405 SE2d 754)
   Carley, Judge.

The facts, insofar as they are relevant to this appeal, are as follows: Appellant-plaintiffs own a five-acre parcel of property which is situated downstream from property that is owned by appellee-defend-ant Pounds, King, Pounds, Inc. (PKP). After securing approval from appellee-defendant Gwinnett County, PKP began development of its property. Alleging that their five-acre parcel had been damaged as the I result of increased water flow, sediment and debris from the construction site, appellants brought suit. The case was tried before a jury and, at the close of appellants’ evidence, the trial court granted a motion for a directed verdict in favor of Gwinnett County and the case [was submitted to the jury only as against PKP. The jury returned a [verdict in favor of PKP and appellants appeal.

1. Relying upon the general grounds, appellants enumerate as error the entry of judgment on the jury’s verdict in favor of PKP.

The evidence was in dispute as to whether PKP’s development of its upstream property had, in fact, resulted in an increased flow of water, sediment, and debris and the jury was authorized to find that there was no causal connection between PKP’s development of its upstream property and the damage to appellants’ downstream property. Accordingly, the general grounds are without merit.

2. The trial court’s failure to sustain a relevancy objection to. a question asked of one of appellants on cross-examination is enumerated as error.

The question related to a contiguous three-acre parcel of property which appellants also owned and which, according to the testimony of one of PKP’s witnesses, drained onto appellants’ five-acre parcel. Obviously, the source of any drainage onto appellants’ five-acre parcel was a relevant topic of inquiry and the trial court did not err in overruling the objection. “Every party has the right to a ‘thorough and sifting’ cross examination, the scope of which rests largely within the discretion of the trial judge. [Cits.]” Howington v. Puckett, 130 Ga. App. 584, 585 (2) (203 SE2d 916) (1974).

3. An enumeration of error relating to PKP’s closing argument was not preserved for appellate review. “[N]o objection or motion for mistrial was made following counsel’s argument. ‘Failure to object amounts to a waiver of the [alleged] misconduct.’ [Cits.]” Macon Chrysler-Plymouth v. Sentell, 179 Ga. App. 754, 756 (4) (347 SE2d 639) (1986).

4. In several enumerations, appellants urge that the trial court made comments which were violative of OCGA § 9-10-7. Again, however, a failure to object results in nothing being presented for appellate review. “The question of whether [OCGA § 9-10-7] has been vio-il lated is not reached unless an objection or motion for mistrial is made.” State v. Griffin, 240 Ga. 470 (241 SE2d 230) (1978).

5. The grant of a directed verdict in favor of Gwinnett County islH enumerated as error.

“The failure of a county adequately to maintain a culvert, resulting in property damage from flooding, can constitute a nuisance [Cit.]” Fulton County v. Wheaton, 252 Ga. 49, 50 (1) (310 SE2d 910) (1984). In the instant case, however, there was no evidence that ap|B pellants’ property had been damaged as the result of Gwinnettffl County’s failure to maintain a culvert. Construing the evidence mosliW favorably for appellants, the most that the evidence showed is that, a|H the result of PKP’s upstream development which had been approved™ by Gwinnett County, there was an increase in water, sediment ancMB debris flowing freely through a culvert onto their property. Compare Fulton County v. Wheaton, supra; City of Lawrenceville v. Heard 194 Ga. App. 580, 582 (1) (391 SE2d 441) (1990). “[Liability of a [county] cannot arise solely from its approval of construction projects which increase surface water runoff. Rather, it is the county’s failure to maintain properly the culvert, resulting in a nuisance, which creates its liability. [Cit.]” (Emphasis in original.) Fulton County v. Wheaton, supra at 50 (1). Since the evidence showed only that Gwin-nett County had approved PKP’s upstream project and did not show a taking or damaging of appellants’ property as the result of Gwinnett County’s maintenance of its downstream culvert, the trial court correctly granted a directed verdict in favor of Gwinnett County. “[CJombined with failure to maintain drainage structures, the approval of upstream development which results in a nuisance arising from increased surface water runoff can give rise to [county] liability. [Cits.]” (Emphasis supplied.) City of Lawrenceville v. Heard, supra at 582 (1).

Decided May 15, 1991.

Alton Provost, pro se.

Evelyn Provost, pro se.

Drew, Eckl & Farnham, Theodore Freeman, Nena K. Puckett, for appellees.

Moreover, as noted in Division 1, the verdict in the instant case represents an authorized finding by the jury that the conditions on appellants’ property had not been caused by PKP’s upstream development. Since Gwinnett County’s liability was premised entirely upon an alleged increase in water flow, sediment and debris attributable to PKP’s upstream project, the most that can be said for the grant of Gwinnett County’s motion for a directed verdict is that it precluded the jury from returning an inconsistent verdict in favor of PKP but against Gwinnett County. Accordingly, even if the grant of Gwinnett County’s motion for a directed verdict had been error, appellants were not harmed. Under the pleadings and evidence, any verdict that had been returned in favor of PKP, but against Gwinnett County would have been inconsistent and unauthorized.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A91A0279.
    SEABOLT v. CINCINNATI INSURANCE COMPANY.
    (405 SE2d 757)
   Banke, Presiding Judge.

The appellant filed suit against the appellee insurance company seeking to recover policy benefits allegedly owed him for the theft of a motor vehicle. The appellee denied liability based on allegations of insurance fraud, whereupon the appellant moved unsuccessfully for summary judgment. The case was thereafter tried before a jury, resulting in a verdict in favor of the appellee. In this appeal from the judgment entered on that verdict, the appellant’s sole contention is that the trial court erred in denying his summary judgment motion. Held:

Decided May 16, 1991.

Donn M. Peevy, G. Wayne Lancaster, for appellant.

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., for appellee.

The denial of a motion for summary judgment is rendered moot by the subsequent entry of a verdict and judgment predicated on evidence introduced during the trial of the case. See Hardaway Constructors v. Browning, 176 Ga. App. 530 (2) (336 SE2d 579) (1985). The appellee’s motion to dismiss the present appeal is accordingly granted.

Appeal dismissed.

Carley and Beasley, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0139.
    SURGERY ASSOCIATES, P.C. et al. v. KEARBY.
    (406 SE2d 723)
   Birdsong, Presiding Judge.

Pursuant to our grant of an interlocutory appeal, Surgery Associates, P.C., Dr. Edward Stringer and Dr. James W. Jackson (collectively “appellants”) challenge the denial of their motion for summary judgment. They assert that Bryan Kearby’s medical malpractice claims against them were barred by the statute of limitation.

The record shows that after a referral from his personal physician in late November 1986, Kearby sought assistance from appellants for treatment of an ulcer on his left ankle. Appellants diagnosed Kearby’s condition as the result of a venous insufficiency, and began a course of treatment based upon that diagnosis. After this treatment, Kearby was discharged from the hospital on December 6, 1986.

On December 19, 1986, Kearby sought treatment from appellants for cellulitis involving most of his left leg. He was hospitalized, treated (with the underlying diagnosis remaining venous insufficiency), and discharged on December 28, 1986. On March 3, 1987, appellants again treated Kearby for an ulcerated area on the top of his left foot. Kearby was hospitalized on March 3, 1987, and, after an arteriogram was performed, he was diagnosed as suffering from an ar terial insufficiency. On March 4, 1987, appellants advised Kearby of this diagnosis and recommended that they perform a surgical procedure to correct it.

By this time, however, Kearby and his family had lost faith in appellants, and he rejected this proposed procedure and sought a transfer to a Veterans’ Administration (“VA”) hospital. His transfer was made on March 17, 1987, and appellants no longer treated Kearby after that date.

According to Kearby, within three hours of checking in to the VA hospital he knew he had gangrene and the next day he learned he would lose his foot. After efforts to control infection in the leg, the VA doctors amputated Kearby’s lower left leg and foot on March 24, 1987. The VA doctors later performed a surgical procedure to correct the arterial insufficiency in Kearby’s leg.

Kearby, his wife, and his daughter testified at their depositions that while he was under appellants’ care in March 1987, he was in constant pain. Further, Kearby’s daughter, who accompanied him to the VA hospital on March 17, 1987, stated that she saw her father’s foot when he was admitted to the VA hospital, and “there was nothing there, everything was eaten away.”

On March 21, 1989, Kearby filed this action against appellants contending they failed to diagnose properly his arterial insufficiency in a timely manner. Held:

The statute of limitation applicable to this case is contained in OCGA § 9-3-71 (a): “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” “In most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. See Edmonds v. Bates, 178 Ga. App. 69 (342 SE2d 476) (1986). The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. See Daughtry v. Cohen, 187 Ga. App. 253 (1) (370 SE2d 18) (1988).” Whitaker v. Zirkle, 188 Ga. App. 706, 707 (374 SE2d 106).

In this appeal, we need not ascertain the exact date of Kearby’s injury because the depositions of Kearby, his wife, his daughter, and his medical experts make clear that the misdiagnosis and the injury had occurred by March 17, 1987, the last day he was under appellant’s care, and the extent of the injury was obvious by March 18, 1987, the day after Kearby’s admission to the VA hospital. Consequently, the statute of limitation would bar any action not filed ¡within two years of March 17, 1987. As the complaint in this case was [not filed until March 21, 1989, it was barred by OCGA § 9-3-71 (a).

Kearby’s argument that his injury did not occur until March 24, 1987, when his lower left leg and foot were amputated, is not well taken. The amputation was part of the course of treatment of the massive infection resulting from the improper diagnosis, and not the injury. Whitaker v. Zirkle, supra; Daughtry v. Cohen, 187 Ga. App. 253 (1) (370 SE2d 18) (1988). Accordingly, the trial court erred by denying appellants’ motion for summary judgment.

Decided April 18, 1991

Rehearing denied May 17, 1991

Beckmann & Pinson, William H. Pinson, Jr., Joseph H. Barrow, for appellants.

Williams & Henry, Benjamin S. Williams, Robert P. Phillips III, for appellee.

Judgment reversed with direction.

Pope and Cooper, JJ., concur.


text:
    A91A0594.
    WRIGHT v. THE STATE.
    (405 SE2d 757)
   Birdsong, Presiding Judge.

George Wright, Jr., appeals his judgment of conviction of possession of cocaine and his sentence.

An officer of the Atlanta Police Department, while conducting surveillance at a “standard known drug location,” observed apparent drug sales activity occurring outside Apartment No. 7, “right at the front door” and approximately 25 feet away. The apartment belonged to appellant’s sister; appellant did not reside there. The police observed Mr. Demado Brown store some drugs in the apartment awning and conduct approximately 15 apparent drug transactions with individuals; the individuals would give Brown money and he would give them a green baggie. Twice appellant exited the apartment “to help another person buy some dope and go in the [apartment] house with him.” Appellant was “about the fourth person [the surveillance officer] saw take another gentlemen up to Mr. Demado Brown and then walk back in the apartment.” The police were called in to arrest Brown who was detained, but other black males ran into the apartment to which appellant twice had exited and returned. The surveillance officer saw appellant first look out the bedroom and then the bathroom windows of the apartment, while the police were knocking on the door. Appellant knew it was the police, and three to five minutes later he came to the door, unlocked it, and consented to the search of the apartment. Four hits of cocaine were found in a toothbrush holder in the only bathroom in the apartment, and 200 baggies, razor blades, marijuana and pipes were found in one of the bedrooms.

Appellant testified he previously had lived at his sister’s house. On the day of the incident, he went to the apartment to retrieve his coat. He had been there less than 20 minutes when the police came. He did not see any drugs on the premises. Although he was in the bathroom most of the time he was in the apartment and when the police knocked, he was merely using those facilities. Appellant’s girl friend testified she took him to the apartment and picked him up about 15 to 20 minutes later; she previously had seen drugs in the sister’s apartment when visiting with appellant. Held:

1. ‘The denial of a motion for directed verdict of acquittal [where, as here, the motion is grounded on insufficiency of the evidence] should be affirmed if any rational trier of fact could have found the “essential elements of the crime beyond a reasonable doubt.” ’ ” Williams v. State, 196 Ga. App. 682, 683 (3) (396 SE2d 598), citing Garmon v. State, 192 Ga. App. 250 (384 SE2d 278); compare Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436). When this appellate standard is found to exist, we are per force finding that the evidence does not demand an acquittal as a matter of law (compare Whatley v. State, 196 Ga. App. 73, 76 (3) (395 SE2d 582)). “Since the evidence was sufficient under the test provided under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) . . . appellant’s motion for directed verdict was properly denied.” Williams, supra; Morris v. State, 196 Ga. App. 811 (397 SE2d 159). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which convicted. Jackson v. Virginia, supra. The trial court did not err in denying the motion for directed verdict.

2. Appellant asserts the trial court erred in instructing the jury repeatedly on constructive possession in light of the evidence presented at trial. Initially, we observe that one of the court’s charges on constructive possession is a verbatim recitation of appellant’s request for instruction number 10. The giving of this charge obviously would contribute to any alleged repetitiveness of instructions regarding constructive possession. On appeal, one cannot complain of a judgment, order, ruling, or charge that his own procedure or conduct aided in causing, nor of a verdict brought about by a charge he requested. Morrison v. State, 147 Ga. App. 410 (4) (249 SE2d 131); see generally Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251); compare Taylor v. State, 195 Ga. App. 314 (4) (393 SE2d 690) (failure to charge caused by own trial tactics, procedure and conduct).

Additionally, contrary to appellant’s assertions the indictment does not aver the cocaine offense was committed only by the accused’s actual possession of that drug. The indictment avers the accused “did unlawfully possess and have under his control cocaine.” “ ‘The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.’” Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574). Count one of the indictment on its face does not aver only “direct physical control” and thus only actual possession. “ ‘A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.’ ” Lockwood, supra 797 at fn. 1. “Control” as used in statutes making it unlawful for any person to possess or control any narcotic drug “also has been defined to relate to authority over what is not in one’s physical possession.” Black’s Law Dictionary (5th ed.), p. 298. Thus, it is clear that the word “control” contained in the averment of count one was being used in its broadest sense to include both the form of control found in actual and in constructive possession. “ ‘The difference between actual and constructive possession ... is most assuredly one of degree.’ ” Alvarado v. State, 194 Ga. App. 781, 782 (391 SE2d 668), affirmed 260 Ga. 563 (397 SE2d 550). Evidence was introduced at trial from which the jury could find appellant to be in constructive possession of the drugs. Based on the posture of the evidence and the crafting of this averment, we do not find that the so-called repetitive instructions on constructive possession, which included one charge verbatim as requested by appellant, gave rise to reversible error.

Appellant’s assertion that the State failed timely to request an instruction on the lesser included offense of possession of cocaine is not reasonably included within the enumeration of errors. “An enumeration of error cannot be enlarged to include other issues not made therein.” Reese v. State, 139 Ga. App. 630, 631-632 (229 SE2d 111).

3. After the jury reported it was deadlocked and could not reach a verdict that evening, appellant requested the jury be instructed that “no juror is required to surrender his or her honest opinion because of the honest different opinion of another juror or other jurors for the purpose of reaching a unanimous verdict.” The trial court denied the request stating it would be covered in any subsequently given Allen charge. The next morning the trial court gave an Allen charge, but did not include a verbatim recitation of the charge requested by appellant. However, the body of the Allen charge does include the following: “Members of the jury ... I deem it proper to advise you further in regard to the desirability of agreement, if possible. ... It is the law that a unanimous verdict is required. And while this verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach a verdict, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with a proper regard for and deference to the opinion of each other. . . . The aim ever to be kept in view is the truth . . . and examine your differences in the spirit of fairness and candor and try to arrive at a verdict.” (Emphasis supplied.) “While the instruction [given] expressed desirability of agreement, in no way did it tend to force agreement.” Ratcliff v. Ratcliff, 219 Ga. 545, 549 (134 SE2d 605). “The language of the charge itself was not coercive.” Black v. State, 255 Ga. 668, 671 (2) (341 SE2d 436). Moreover, the language of the Allen charge adequately apprised each juror of his or her obligation to reach the truth and not merely to acquiesce to the conclusions of other jurors; inherent in such a charge is a requirement that the juror not surrender his or her honest opinion merely for the purpose of reaching a unanimous verdict or to appease other jurors. A trial court does not err in failing to give a charge in the exact language requested where, as here, the charge given substantially and adequately covered the principles in the request. Harrison v. State, 257 Ga. 528 (4) (361 SE2d 149). Examining the trial court’s instructions in their totality (Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177)), we are satisfied that no error occurred when the trial court elected not to give appellant’s request for additional charge.

4. “The need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” Peebles v. State, 260 Ga. 165, 167 (5) (a) (391 SE2d 639). Following the Allen charge, the trial court inquired of the jury foreman whether the “problem” of the jury involved a question of fact or a question of law. After being advised that the problem involved “a question of law,” the trial court informed the jury that if they desired further instructions or a recharge of instructions previously given to advise him and he would try to help “if you want that done” after discussing the matter in the jury room. By making this sua sponte inquiry, the trial court was acting prudently under the circumstances to discharge its duty to determine the jury’s need, if any, for additional instructions. |The inquiry by the trial court was not on its face coercive and did not [interfere, unnecessarily or otherwise, with jury deliberations. Thus, [the trial court did not abuse its discretion.

I Appellant’s other assertions in support of his four enumerations |of error are without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.

Decided May 17, 1991.

James H. Dickey, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Grouer W. Hudgins, Richard E. Hicks, Assistant District Attorneys, for appel-lee.


text:
    A91A0522.
    MILLER v. MERCK & COMPANY.
    (405 SE2d 761)
   Birdsong, Presiding Judge.

Pursuant to a grant of authority for a discretionary appeal under OCGA § 5-6-35 (a) (1), James R. Miller appeals from the judgment of the superior court affirming in part and reversing in part the order of the State Board of Workers’ Compensation. Although Miller has enumerated three errors, only one requires our consideration.

Miller asserts that the superior court’s judgment is a nullity because it was not issued within 20 days of the hearing as required by OCGA § 34-9-105 (b). The record shows that on August 16, 1990, the superior court issued the following order: “On June 6, 1990, the employer/self-insurer, Merck & Company, filed a workers’ compensation appeal. Said appeal came on for hearing on July 27, 1990. After hearing arguments from both parties, the court took said matter under consideration.

“The decision of the full board of May 25, 1990, was partially based on an erroneous theory of law as to the finding of change in condition and award of benefits. Therefore, said award is reversed in| part and affirmed in part.

“A more complete order will be issued by the court for the rec ord.”

Thereafter, on September 14, 1990, the superior trial court issue' an order affirming the decision of the full board on the issue of dis similar concurrent employment, but reversing as clearly erroneoui and contrary to law the full board’s decision reversing a partícula: finding of the administrative law judge.

Miller contends the superior court’s procedure violated OCGA 34-9-105 (b) because the order of August 16, 1990, while timely, wa: not dispositive of the appeal, and the order of September 14, 199 while dispositive of the appeal was untimely. Held:

OCGA § 34-9-105 (b) provides, inter alia, that “[i]f a case i| heard within 60 days from the date the notice of appeal is filed, thj decision of the board shall be considered affirmed by operation of la if no order of the court dispositive of the issues on appeal has beej entered within 20 days of the date of the hearing.” (Emphasis su; plied.) Therefore the central issue in this appeal is whether the order issued on August 16, 1990, was dispositive of the issues within the meaning of the Code section. We find that it was not.

Decided May 20, 1991.

Robert B. Phillips, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Harold W. Whiteman, Jr., Andrew Nelson, for appellee.

The superior court’s order of August 16, 1990, merely announced the court’s intention to issue an order in the future which would be dispositive of the issues. Although providing the award was reversed in part and affirmed in part, the order did not state the parts of the award affirmed or reversed, the prevailing party, or the disposition of the appeal. Moreover, the order specifically provided that a more complete order would issue in the future.

In considering this issue we note that generally a superior court’s final orders either affirm, reverse, or remand rulings appealed to it (see Employers Mut. Liab. Ins. Co. v. Videtto, 124 Ga. App. 458, 462 (184 SE2d 210)); this order did none of these things. Further, the order of August 16, 1990, was not an appealable order because there were issues pending resolution in the superior court. See Stallings v. Chance, 239 Ga. 567, 568 (238 SE2d 327); Lawler v. Ga. Mut. Ins. Co., 156 Ga. App. 265, 266 (276 SE2d 646).

Thus, the order of August 16, 1990, was not dispositive of the issues in the case and, in accordance with the terms of OCGA § 34-9-105 (b), the decision of the full board was affirmed by operation of law. Accordingly, the superior court was without jurisdiction to issue its order of September 14, 1990, and consequently the order was a nullity. Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518).

Therefore, the superior court is directed to withdraw its order of September 14, 1990, and issue an order stating that the decision of the full board was affirmed by operation of law.

Judgment reversed with direction.

Pope and Cooper, JJ., concur.


author: Bikdsong, Presiding Judge.

text:
    A91A0608.
    STILL v. STILL.
    (405 SE2d 762)
   Bikdsong, Presiding Judge.

Franklin B. Still appeals from the judgment of the trial court in a ;ontempt action brought by Carol Walker Still for his alleged viola-ions of a provision in their divorce decree requiring him to pay the college expenses of their then 19-year-old son. The provision in question provided: “The husband’s obligation hereunder as to payments made while a child is attending an accredited two or four year college or university shall continue as long as the child remains continuously enrolled in such an institution and takes a course load equal to one-half of the course load required to complete a two or four year degree in a timely fashion.” After Franklin Still ceased making payments under the decree because he concluded that his son was not making progress toward a degree in a timely fashion, Carol Still filed an action for contempt.

Subsequently the trial court found that although the son was enrolled in college, he did not take a course load equal to one-half the course load required to complete a two-year degree in a timely manner, and as a result Franklin Still was not required to make payments under the decree. The trial court’s judgment, however, also held that if the son remained continuously enrolled in college and resumed his education by taking courses necessary to obtain a degree in a timely fashion, Franklin Still would be required to resume child support payments as provided in the decree if the son met all other conditions specified.

Franklin Still contends that the decree had no provision for resuming his obligations under the decree once his son failed to satisfy the requirements for payment, and thus contends the trial court erred by requiring him to do so. Carol Still has not filed an appellee’s brief in this appeal. Held:

Under Georgia law, except in the case of pauperism (OCGA § 36-12-3) and not here applicable, a parent is not liable for child support or maintenance after a child achieves the age of majority. OCGA § 19-7-2; Coleman v. Coleman, 240 Ga. 417, 422 (240 SE2d 870). Therefore, Franklin Still’s obligation to continue making support payments to his child depends upon the terms of the agreement between the parties as reflected in the divorce decree. Additionally, no requirement to pay for the son’s education beyond the age of majority may be imposed by the court. Coleman v. Coleman, supra at 423. Further, the trial court had no authority to modify the agreement in a contempt action. Eaddy v. Thomas, 190 Ga. App. 15 (378 SE2d 147).

Therefore, we must construe the agreement reflected in the decree to determine whether Franklin Still has an obligation to resume payments. The significant provision of the decree specifies that Franklin Still’s obligation “shall continue as long as” his son met twol conditions. Since the trial court found that the son did not meet one! of those conditions, Franklin Still’s obligations ceased unless some! other provision in the decree provided for resumption of the pay-I ments. Examination of the decree reveals no such provision. There-I fore, once the obligation to make the payments ceased, there was nd authority for requiring the support payments after the son had reached the age of majority. Coleman v. Coleman, supra.

Decided May 20, 1991.

Cofer & Beauchamp, Bryant K. Smith, Charles V. Choyce, Jr., for appellant.

Homer & Kennedy, Speros D. Homer, Jr., for appellee.

Accordingly, while we find that the trial court correctly determined that Franklin Still’s support obligations for his son ceased, the trial court erred by ordering Franklin Still to resume support payments if his son satisfied the decree’s requirements in the future.

Judgment affirmed in part and reversed in part.

Pope and Cooper, JJ., concur.


author: Sognier, Chief Judge.

text:
    A91A0631.
    THOMAS v. THE STATE.
    (405 SE2d 901)
   Sognier, Chief Judge.

Gregory Thomas was charged with aggravated assault and possession of a knife during the commission of a crime. A jury found Thomas guilty of aggravated assault but not guilty of the second charge, and Thomas appeals from the judgment of conviction and sentence entered on the jury’s verdict.

Construed to support the verdict, the evidence adduced at trial showed that after dark on the evening of December 6, 1989, the victim, who was 18 years old, became involved in an altercation with appellant’s 18-year-old brother, Dwayne Thomas, on a public sidewalk in the neighborhood where both the victim and appellant’s family resided. During a lull in the fighting, Dwayne entered the home of another relative who lived on the street, telephoned appellant, his brother, and came out carrying a hammer. The victim was wielding a brick, and the fighting continued. Appellant testified at trial that after being called by Dwayne he walked to the scene of the fight, followed by another brother and a friend, and took his brother Dwayne home. However, the fight had attracted spectators, many of whom were friends of Dwayne and the victim, and five of the onlookers testified at trial that appellant had stabbed the victim with a knife. Nu-nerous other witnesses testified to the stabbing but said they could lot see the weapon or identify appellant as the person who used it.

In his sole enumeration of error, appellant contends the evidence vas insufficient to support the verdict. Although appellant acknowl-¡dges that the “inconsistent verdict rule” has been abolished, see Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986); Hines v. State, 254 Ga. 386, 387-388 (329 SE2d 479) (1985) (Hill, C. J., concurring specially), he argues that his acquittal on the second count demonstrates the jury was unconvinced the assault was committed with a knife, and accordingly the jury should also have acquitted him of the crime of aggravated assault as charged.

Decided May 20, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, James | W. Richter, Michael D. Thorpe, Assistant District Attorneys, for ap-pellee.

We find the verdicts on the two counts neither inconsistent nor erroneous as a matter of law. Count one of the indictment charged appellant with assaulting the victim “with a knife, an instrument which when used offensively against said person, was likely to result in serious bodily injury.” Count two charged that appellant “did have in his possession a knife with a blade of 3 or more inches in length during the commission of the offense alleged in Count One herein.” It is thus apparent that the length of the knife blade was a material element of the second count (but not of the first) and, given that little testimony was elicited describing the knife itself, it follows that appellant was acquitted of the charge of possessing a knife with a specific blade length.

Moreover, although appellant denied it, several eyewitnesses testified positively that appellant stabbed the victim with a knife. “ ‘It is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. This court must view the evidence in a light most favorable to the jury’s verdict. (Cit.) Viewing the evidence in that light, we are satisfied that any rational trier of fact could have found appellant guilty [of count one] beyond a reasonable doubt. (Cit.); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).’ [Cit.]” Ray v. State, 191 Ga. App. 881 (1) (383 SE2d 364) (1989).

Judgment affirmed.

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


text:
    A91A0467.
    INTERSOUTH PROPERTIES, INC. et al. v. CONTRACTOR EXCHANGE, INC.
    (405 SE2d 764)
   Birdsong, Presiding Judge.

Richard S. Blumenfeld and Intersouth Properties, Inc. (collecj tively “Intersouth”) appeal from the grant of summary judgment tq The Contractor Exchange, Inc. (“the Exchange”) in the Exchange’s suit on an open account. Intersouth alleges that the trial court erred by denying its motion to withdraw admissions (see OCGA § 9-11-36 (b)) and by granting summary judgment to the Exchange.

The record shows that the Exchange filed suit against Intersouth Properties, Inc., as the debtor, and Richard S. Blumenfeld, as guarantor, on January 22, 1990, and service of the summons, complaint, and attached interrogatories, requests for production of documents, and requests for admissions directed to both defendants, was perfected on both defendants on February 2, 1990. Although the defendants filed a joint answer on March 1, 1990, denying liability, neither defendant timely filed any response to any of the discovery.

On June 8, 1990, the Exchange filed a motion for summary judgment which was supported by the requests for admission which were admitted by operation of law. On June 21, 1990, without first seeking authority to withdraw its admissions, Intersouth attempted to file a response to the Exchange’s requests for admissions. On July 10, 1990, Intersouth filed a request for oral argument and response to the Exchange’s motion for summary judgment, and on July 18,1990, filed its motion to withdraw admissions. Then, on July 25, 1990, Intersouth filed the affidavit of Richard S. Blumenfeld in opposition to the Exchange’s motion for summary judgment

After a hearing on the motion for summary judgment on July 26, 1990, on September 7, 1990, without specifically ruling on Inter-south’s motion to withdraw admissions, the trial court granted the Exchange’s motion for summary judgment. This appeal followed. Held:

1. Intersouth alleges the .trial court erred by denying its motion to withdraw admissions because the Exchange failed to prove it would be prejudiced if the admissions were allowed to be withdrawn. We disagree. Although the record does not show evidence that the Exchange would be prejudiced if the admissions were withdrawn, under the record of this appeal, that absence is not significant. In Whitemarsh Contractors v. Wells, 249 Ga. 194, 196 (288 SE2d 198), our Supreme Court adopted the analysis in Justice Hill’s concurring opinion in Cielock v. Munn, 244 Ga. 810, 812-814 (262 SE2d 114) as the two-prong test to be employed when considering a motion to withdraw admissions. A court may grant a motion to withdraw (1) when the presentation of the merits will be subserved thereby and (2) the party obtaining the admission fails to satisfy the court that the withdrawal will prejudice maintaining his action or defense on the merits. The burden as to the first prong is on the party moving to withdraw and the burden as to the second prong is on the respondent.

The first prong of the test is not perfunctorily satisfied. The burden on the movant is to show the presentation of the merits will be subserved thereby, and the desire to have a trial, standing alone, is not sufficient to satisfy the test. The first inquiry is who will have the burden of proof at trial on the subject matter of the request for admission. If the burden of proof on subject matter of the request will be on the movant, the movant is required to show that the proffered denial of the request can be proved by admissible evidence having a modicum of credibility, and the denial is not offered solely for purposes of delay.

If the burden of proof on the subject matter of the request for admission is on the requestor, the movant is required to show the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay.

If the movant satisfies the court on the first prong, the burden is on the respondent to satisfy the second prong. Id.

Examination of the record shows that Intersouth failed to satisfy the first prong of the test. Intersouth’s motion to withdraw its admission only gave its explanation for not responding to the request that it was “due to oversight of counsel since the answer was prepared at the last minute.” Proceeding on the erroneous theory that the motion to withdraw must be granted unless the Exchange proved prejudice, Intersouth failed to make the showing required by the first prong of the test. Further, the affidavit of Richard S. Blumenfeld submitted in response to the motion for summary judgment also was not sufficient to satisfy the first prong of the test since the affidavit does not address specifically the items in the request for admissions and does not establish that the “denial of the request can be proved by admissible evidence having a modicum of credibility, and . . . the denial is not offered solely for purpose of delay.” Cielock, supra at 813. Moreover, the statements in Blumenfeld’s affidavit do not address the request for admission directed only to Intersouth. Therefore, the burden on the second prong of the test never arose because Intersouth did not satisfy the first prong of the test. Accordingly, the trial court did not err by denying Intersouth’s motion.

2. Intersouth also argues that the trial court erred by granting |H summary judgment to the Exchange because Blumenfeld’s affidavit IB and the admissions which should have been withdrawn showed there III was a genuine issue of material fact for trial. In view of the disposi-lffl tion in Division 1, any reliance on the withdrawn admissions is mis-lffl placed. Further, we find that the admitted requests for admission offlflfl fact were sufficient to entitle the Exchange to the grant of summaryjffl judgment unless Intersouth met its burden as the respondent to aHH motion for summary judgment. Hfll

We find that the trial court correctly determined that Blumen-IM feld’s affidavit was insufficient for that purpose. Although the affida-lffl vit states that Blumenfeld is an officer of Intersouth Properties, Inc., and Intersouth Development Corp., his affidavit directly, or by inference, does not rebut the matters stated in the admitted requests for admissions. In particular, the affidavit does not show that Intersouth did not contract with the Exchange, did not receive the goods, and did not owe the money on the open account to the Exchange. Further, Blumenfeld’s affidavit admits that he signed the guaranty for the materials provided by the Exchange, but seeks to deny liability because he did not write or authorize anyone to write Intersouth on the guaranty. His affidavit, however, does not deny that Intersouth contracted with the Exchange, does not deny that the materials were delivered, does not deny that the money was owed on the open account to the Exchange, and does not deny that he guaranteed the debt. Under the facts of this case, and, specifically the unwithdrawn admissions of fact, Blumenfeld’s affidavit is insufficient to show that genuine issues of material fact exist for trial.

Decided May 20, 1991.

Jay E. Loeb, for appellants.

Hicks, Marsh, Casey & Young, James C. Busch, for appellee.

Accordingly, the trial court did not err by granting summary judgment to the Exchange.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0029.
    NEE v. DIXON.
    (405 SE2d 766)
   Sognier, Chief Judge.

Mary Lou Fouts Nee brought suit against John Wesley Dixon to recover damages for injuries allegedly incurred in an automobile collision. The trial court granted summary judgment to Dixon on the ground that Nee had not exercised due diligence in effecting service of process before the statute of limitation expired. Nee appeals.

The collision at issue occurred on July 16, 1987. The police report listed appellee’s address as 3979 Majestic Drive, S. W., Atlanta, Georgia 30331. Appellant mailed a letter to appellee at that address sometime in 1988, and he then talked with her by telephone. Appellant filed suit in Fulton County Superior Court on July 14, 1989, listing two addresses for appellee, one of which was the Majestic Drive address shown on the police report. The sheriff’s department returned process forms to appellant the next week stating that neither address [was in Fulton County. On August 14, 1989, appellant obtained appointment of Mark Foster as a special process server. Foster averred that Majestic Drive was not on maps of either the city of Atlanta or Fulton County, and that he consulted with law enforcement officials in several jurisdictions but none was able to locate Majestic Drive. Ultimately, the East Point police pinpointed the address in Fulton County near the DeKalb and Clayton County lines, and Foster served appellee with process on February 4, 1990, 205 days after the statute of limitation expired. Appellee testified by affidavit that he had lived continuously at the Majestic Drive address for nine years prior to the date he was served, and that he was not a transient.

It is well established that the mere filing of a lawsuit does not toll the statute of limitation in that “[w]here service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to [e]nsure that a proper service was made as quickly as possible. . . . The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Punctuation and citations omitted.) Ingram v. Grose, 180 Ga. App. 647 (350 SE2d 289) (1986).

We find no abuse of discretion in the trial court’s decision. The circumstances in this case are virtually identical to those in Walker v. Hoover, 191 Ga. App. 859 (383 SE2d 208) (1989), in which we affirmed the grant of summary judgment to the defendant on statute of limitation grounds where the plaintiff obtained the defendant’s correct address from the accident report, but after the sheriff’s department gave her erroneous information concerning the county in which the defendant resided, she failed to effect service until three months after expiration of the limitation period. Here, as in Walker, appellant was aware of appellee’s correct address at all times, and the burden was upon her to ascertain the county in which appellee resided before filing suit. Id. at 861. The appointment of a special process server and the apparent error of the deputy sheriff did not absolve appellant of the obligation to obtain the necessary information and serve appellee promptly, for she “cannot excuse her lack of diligence by attempting to place responsibility on others.” Id. Further, even if her initial failure to effect service could be excused because of the deputy’s sheriff’s error, the return of service “ ‘should have put (her) on notice and inspired (her), through counsel, to exercise the greatest possible diligence to ensure proper and timely service.’ [Cit.]” Id. Although appellant surely knew that the limitation period expired the day after she filed suit, the record does not disclose that she consulted readily available references such as county property records, postal! authorities, or voting registration officials to ascertain the location ofj Majestic Drive and effect prompt service. See id. Accordingly, we affirm the judgment of the trial court.

Decided May 20, 1991.

Cramer, Weaver & Edwards, Timothy C. Cramer, for appellant.

Carter & Ansley, Elizabeth J. Bondurant, Thomas E. Magill, for appellee.

Judgment affirmed.

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


text:
    A91A0717.
    In the Interest of S. K. L., a child.
    (405 SE2d 903)
   Birdsong, Presiding Judge.

Appellant is the undisputed natural father of S. K. L. A petition was filed on June 21, 1990, seeking to terminate the parental rights of both parents, and the lower court issued an order terminating those rights. Appellant has elected to appeal this order; the natural mother who did not attend the hearing on the petition has not appealed.

S. K. L. who was born on January 8, 1988, was a “fetal alcohol syndrome baby,” which resulted in his developmental delay. The record is replete with evidence of the mother’s alcoholism and emotional problems and of her repeated child neglect. On April 21, 1988, the juvenile court awarded the county Department of Family & Children’s Services (DFCS) temporary custody of the child finding that S. K. L. was deprived. Appellant was not present at this hearing, as he apparently was then incarcerated in Michigan, and his parental rights were not affected thereby. In January of 1989, appellant returned to Savannah area having had his Michigan parole transferred to Georgia for the asserted purpose of being near his son. He immediately expressed a desire to become involved in parenting his child. On June 26, 1989, a motion was filed in the juvenile court to modify the ¡prior court order to include appellant in the case plan. On July 14, 1989, following a hearing which both parents attended with their respective attorneys, the juvenile court issued an order again declaring S. K. L. to be in a state of deprivation. This order was designed ulti-jmately to return S. K. L. to his parents’ physical possession, provided Ithey met the following conditions: each parent to pay $10 per month las child support to the DFCS; to provide a stable home for S. K. L.; [rioi to violate any law or ordinance; provide DFCS with names and ¡addresses of all relatives who might be able to care for S. K. L.; and, jo engage in marital counseling should they reside together. Addition-lly, appellant was ordered to submit to a psychological evaluation to be conducted on August 23, 1989.

Following this hearing the child’s parents separated. On August 20, 1989, appellant was arrested for robbery by sudden snatching and was incarcerated. Following his incarceration in Georgia, he will be returned to Michigan for charges stemming from his parole violation. These charges could require him to remain in prison until March 1993. During this same period, the child’s mother seemed to be making progress. In December 1989, a review hearing was held. Appellant, who was then incarcerated, was given an opportunity to attend this hearing but declined. Following the hearing, S. K. L. was placed with his mother for a period of monitoring. Shortly thereafter the mother’s condition deteriorated; she was arrested for disorderly conduct, being intoxicated in a lounge to which she had gone with her child. In January 1990, S. K. L. was returned to foster care. Subsequently, during a regular visit, the mother fled with the child to Florida; S. K. L. was recovered and returned. Shortly thereafter the petition for termination of parental rights was filed.

A clinical social worker and psychotherapist, whose qualifications include a master’s degree in social work from the University of Georgia, testified regarding S. K. L.’s history and his need for a stable environment, and that if the child did not receive such stability, being a fragile child he might revert to previous “trance-like” behavior and inability to relate to other people or to make any kind of bond.

Appellant has consistently shown a desire to retain his parental rights over S. K. L. He testified inter alia that he had sent S. K. L. drawings from jail, continuously inquired as to the child’s welfare, and secured transfer of his Michigan probation to Georgia to be near the child. Appellant returned to Georgia in January 1989. He appar-IH ently was given immediate custody of S. K. L. every other weekend; however, custody was terminated after the appellant was arrested for|B disorderly conduct, as a result of fighting on. the highway with thelffl child’s mother when both had been drinking.

Appellant is in partial compliance with the provisions of the|ffl| court order of July 14, 1989, however, it is contested whether he paidJIH $10 monthly support payments as required by the order. Appellant’s^ subsequent commission of the crime of robbery by sudden snatchinJM was in contravention of the provisions of the order that he not violatajffl any law or ordinance. Appellant did not complete psychological testJH ing, as he was incarcerated for this offense on the day he was to baH tested; appellant also testified he was “really against” the test becaus|ffl he did not have the time and was so busy. M

Appellant made an admission in open court that he had “takeijjffl . . . many psychological examinations” in prison, and “all [his] psyffl chological reports were hedonistic impulses with time immaturJSI [sic],” and included counseling recommendations. Appellant who i|H now almost 36 years of age has admitted being in prison for 13 or 14 of the last 18 years. Held:

1. Appellant asserts that petitioner failed to establish by clear and convincing evidence that appellant should have his parental rights terminated. We disagree.

The two-pronged step for the termination of parental rights is contained in OCGA § 15-11-81 (a). And at the outset, we note that the juvenile court found by its order of July 14, 1989, following the hearing attended by both parents and their respective attorneys, that S. K. L. “is in a state of deprivation as found by the order of April 21, 1988.” This clearly constitutes a finding of continuing deprivation, and this ruling was not appealed.

“Although imprisonment alone does not always compel a termination of parental rights,” it will support such a ruling when adequate aggravating circumstances are shown to exist. In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666); compare In the Interest of H. L. T., 164 Ga. App. 517 (298 SE2d 33) (where father was a model prisoner). Thus, in determining whether a child is without proper parental care and control, OCGA § 15-11-81 (b) (4) (B) (iii) provides the court shall consider, “without being limited” thereto, the conviction and imprisonment of a parent for a felony offense which has a demonstrable negative effect on the quality of the parent-child relationship. The “demonstrable negative effect,” however, is capable of being shown by circumstantial as well as by direct evidence. And where, as in this case, an incarcerated parent has a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, this constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to j continue. See In the Interest of D. R. C., 198 Ga. App. 348, 351 (4) (401 SE2d 754). As a general rule, “while . . . past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court in [determining whether such conditions of deprivation are likely to continue.” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 1246).

I Further, the trial court found as fact that appellant failed to rcomply with the court order of July 14, 1989, primarily because during a period of intoxication he committed a robbery by sudden fcnatching and was incarcerated. These finding of fact are, as are the fcther pertinent findings of fact of the trial court, supported by clear Imd convincing evidence of record, and thus are sufficient to support a legal determination that appellant’s violation of the court order was a lesult of his own willful and wanton criminal conduct. “Obviously, |hose same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490).

“The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost.” (Citations and punctuation omitted.) In the Interest of J. L. G., 191 Ga. App. 904, 905 (1) (383 SE2d 376). “The reviewing pourt is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Citations and punctuation omitted.) In the Interest of E. P. N., 193 Ga. App. 742, 748 (388 SE2d 903). Applying these standards we find the trial court did not err. Compare In the Interest of D. R. C., supra; In re J. L. W., 170 Ga. App. 886 (318 SE2d 751).

2. Appellant also contends the trial court erred in entering judgment without basing its decision on a finding that jurisdiction was proper “in its court.”

(a) This constitutes only an enumeration of error grounded upon the failure of the trial court to show in its order the existence of subject matter jurisdiction. However, in the appellant’s brief an attempt is made to expand the error beyond the scope of the enumeration to include a claim that the juvenile court’s order is void because it does not show on its face the facts necessary to grant it jurisdiction both over the subject matter and the person and to establish proper venue. “Existing enumerations of error cannot be enlarged to include issues not made therein.” (Citation and punctuation omitted.) Rowe v. Rowe, 195 Ga. App. 493, 495 (3) (393 SE2d 750). “An enumeration o: error cannot be enlarged at the appellate level by statements in the| briefs of counsel to include issues not made in the enumeration. On cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.” (Citatio: and punctuation omitted.) West v. Nodvin, 196 Ga. App. 825, 830 (4 b) (397 SE2d 567).

(b) Additionally, lack of personal jurisdiction and imprope venue are issues that can be waived. See e.g., OCGA § 9-11-12 (b) Whitley v. Hsu, 260 Ga. 539 (397 SE2d 694). As appellant did no timely raise these issues before the juvenile court, we deem the: waived.

(c) As a general rule, “[a] juvenile court is a court of special an limited jurisdiction, and its judgments must show on their face sue facts as are necessary to give it jurisdiction of the person and subjecj matter. If the order of a juvenile court fails to recite the jurisdiction facts, the judgment is void.” (Citations and punctuation omitted

Lockhart v. Stancil, 258 Ga. 634 (373 SE2d 355).

Those cases cited by appellant which interpreted the jurisdiction of a juvenile court based on the Ga. Const. of 1976, Art. VI, Sec. XIV, Pars. I-V, are distinguishable. Compare In the Interest of R. A. S., 249 Ga. 236 (290 SE2d 34) discussing the amendment, effective January 1, 1981, excepting juvenile court cases from the constitutional limitation that certain civil cases must be tried in the county where the defendant resides.

Juvenile court cases may now be tried as provided in the Juvenile Court Code of Georgia. Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. See In the Interest of S. H. and I. W., 163 Ga. App. 419 (294 SE2d 621). Pursuant to OCGA § 15-11-5 (a), juvenile courts shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action, inter alia, concerning any child who is alleged to be deprived, or involving any proceedings for the termination of the legal parent-child relationship, other than in certain cases not here applicable. OCGA § 9-11-4. OCGA § 15-11-15 provides in pertinent part: “A proceeding under this article may be commenced in the county in which the child resides.” See Cain v. Dept. of Human Resources, 166 Ga. App. 801 (305 SE2d 492).

The order of the juvenile court reflects on its face that the case involved the subject matter of termination of parental rights of both appellant and the child’s mother. The order expressly states that “both parents were properly served with process,” and appellant “attended the hearing with his attorney.” (Emphasis supplied.) Although [the child’s mother did not attend the hearing, she was represented by [her attorney who participated fully. The child also was represented [by an attorney at the hearing.

| In addition, the order expressly states that by previous court or-per of April 21, 1988, S. K. L. was placed in the “custody” of the Chatham County Department of Family & Children’s Services. It may be presumed as a matter of law, subject to rebuttal, that upon the effective date of that order the child being in the custody of the Chat-barn County DFCS did in fact obtain a Chatham County residence, blthough the child thereafter experienced eight changes of custodians, nothing in the order or the record establishes that they obtained b legal residence other than Chatham County during this time period. Moreover, in January, 1990, the child’s maternal grandfather physi-lally “placed the child with the Department”; and, the order reflects ■e remained with the Department thereafter, except for a brief period when taken to Florida by his mother without notice to the Department. The child was found by a DFCS caseworker who went to Flor-■la and secured the child’s release. Thus, the order establishes on its Jice, in conjunction with the above-stated presumption of law (see merally OCGA § 24-4-21), that S. K. L. was a Chatham County resident as of the date the Chatham County DFCS was given custody of him on April 21, 1988; and, such residence status not being rebutted in said order or elsewhere is presumed to be continuing (Esco v. Jackson, 185 Ga. App. 901, 906 (366 SE2d 309)). For the above reasons, appellant’s second enumeration of error, as crafted, is without merit.

Decided May 20, 1991.

Hudson, Galloway & Vaughan, J. Scott Vaughan, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Leo G. Beckmann, Jr., Special Assistant Attorney General, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Andrews, Judge.

text:
    A91A0335.
    PARKS v. THE STATE.
    (406 SE2d 229)
   Andrews, Judge.

Defendant appeals his conviction of six counts of armed robbery I and one count of kidnapping resulting from a string of robberies be-1 tween September 23, 1988, and October 13, 1988. Defendant was ac-l quitted of one robbery and the jury was unable to reach a verdict on| two others.

Viewed in favor of the verdict, the evidence on Count 2 was that! on September 23, around 9:00 p.m. a man entered Barry’s Bottle! Shop with an onion bag over his head and what looked like a gun,[ partially wrapped in a plastic bag, and demanded money. The onion| bag was mesh and the clerk could see the man’s features and he identified defendant from a photographic lineup and at trial.

On September 30, the Flash Food Store (Count 3) was robbec around 10:00 p.m. by a man who entered the store with a shiril wrapped around his head, obscuring his features. He had a gun anc was approximately six feet tall, weighing 200 pounds. This robber} was videotaped. Britt, the clerk, also worked the morning shift at an] other convenience store, the Stop and Shop (Count 4). She was therq the next morning around 7:00 a.m. when a man dressed the same anc with the same shirt over his head as the Flash Food robber enterec the store and demanded money. This time, he lifted the shirt reí vealing some facial features. Although Britt was not positive about the photo spread, she identified defendant in court as the robber. Thl robber in the videotape had a scar on his left arm, as did defendant

Counts 5 and 6 were the counts upon which no verdict wall reached. The evidence was that on October 3 between 6:30 and 7:01 a.m., the Corral Food Store was robbed by a man with a bag over his head. The clerk was unable to make an identification. On October 6, a Domino’s Pizza was robbed between 8:00 and 9:00 p.m. by a man who grabbed the manager from the rear, placed a gun in his back, and demanded money. While the manager was unable to see the robber, he heard the crinkle of a plastic bag worn by the robber. The robber was seen by a delivery man before the incident, reclining on the delivery vehicle. A fingerprint matching defendant’s was found on the vehicle. The delivery man said a picture of defendant which appeared in the newspaper after his arrest looked like the robber.

On October 11, between 9:00 and 9:30 p.m., the West End Package Store (Count 7) was entered by a man wearing a red bag, split up the middle, over his face. He carried a .25 caliber pistol over which he had a little rag. The clerk identified defendant as the robber at trial and the owner, also present during the robbery, identified defendant from the photo spread.

On October 13, between 7:00 and 8:00 p.m., Tipplers Package Store (Count 8) was robbed by a man wearing a Payless Shoe Store bag over his head with a white sock over his hand partially concealing what appeared to be a handgun. When he entered the store, he grabbed Sanford, a customer, from behind. He then got money from Sanford (Count 10) and from the store. When he reached over the counter to get the store’s money, the bag nearly slipped off his face and the owner saw him from the front. He identified defendant both from the photo spread and in court. As the robber was leaving the store, he pulled Sanford with him to the door, shoved him back inside, and ran (Count 1, kidnapping).

Also, on October 13, near midnight, a man with a cloth bag over his head and a weapon partially covered with a cloth entered the rear door of the Pizza Hut (Count 9) and robbed it, taking the manager with him to the rear door, where he pushed him back inside and ran. Defendant was acquitted of this count.

All of the robbers appeared to be on foot and ran from the businesses after the incidents.

1. The first enumeration is that the court erred in not granting defendant’s motion to sever Counts 2, 3, 4, 5, 6, & 7 from the indictment for separate trials. The premise for the motion was that the offenses did not establish a pattern, other than the type of offense charged and the accused. In support of lack of similarity, defendant points to the fact that three different types of establishments, i.e., restaurants, liquor stores and convenience stores, were the victims and that in some instances a facsimile was used, in others a real gun. Nonetheless, defendant did not seek to sever the Pizza Hut and Tipplers counts from each other.

“Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. Dingler v. State, 233 Ga. 462 (211 SE2d 752). However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court. . . . ‘(W)here the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice. [Cits.].’ [Davis v. State, 159 Ga. App. 356 (1) (283 SE2d 286) (1981)] at 357.” Mack v. State, 163 Ga. App. 778, 779 (1) (296 SE2d 115) (1982).

Here, the similarities in the robberies, i.e., the robber’s method of obscuring his face and weapon or facsimile, the fact he appeared to arrive and leave on foot, the timing of the robberies (either early morning or in the evening, none during the standard work day), and the fact they all occurred within a two-week period would justify the incidents’ admission in each trial even if severed, taking them out of the category of joinder solely because they are of a same or similar character. Wilson v. State, 188 Ga. App. 779, 780 (1) (374 SE2d 325) (1988). There was no error.

2. Defendant contends that the admission into evidence of the photo identification sheets filled out by three of the victims after viewing the photo spread was error because the sheets constituted a “continuing witness.” The sheets contained a row of six numbers, one of which the victims circled if they made an identification. The sheet signed by the owner of the West End Package Store also contained the comment that “[i]t has to be #2 because the mustache and lips matched the robber. . . .”

“ ‘In Georgia the “continuing witness” objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.’ [Cit.] This ‘continuing witness’ objection usually concerns testimonial documentary evidence, such as [an] affidavit . . ., and depositions of [sic] interrogatories. [Cit.] However, the objection has also been applied to unsworn, written dying declarations and written confessions or statements of criminal defendants, on the grounds that such statements are the equivalent of depositions. [Cits.] The photo lineup document cannot reasonably be categorized as the functional equivalent of a deposition. This court has previously viewed such lineup documents ‘not as statements of the witnesses, but rather as tools to explain the photographic lineup display which was shown to the witnesses before trial. . . .’ Brewton v. State, 174 Ga. App. 109, 111 (329 SE2d 270) (1985).” (Indention omitted.) Kenney v. State, 196 Ga. App. 776, 777 (2) (397 SE2d 131) (1990).

Assuming, without deciding, that the additional written statement added to the one document is “written testimony,” we find any error in allowing it to go to the jury is harmless. Here, the West End owner testified and was cross-examined thoroughly by defendant about the comment which he added to the form. In addition, the clerk in the store that night who handed the robber the money had not previously seen the photo spread, but positively identified defendant at trial. The jurors had the photo spread before them so they could evaluate both its fairness and whether defendant was, in fact, the “#2” referred to on the forms. We find it highly improbable that the one sentence statement contributed to the judgment in light of all the evidence. Brewton, supra at 111 (2).

3. Counts 5 & 6 (Corral Foods and Domino’s), upon which the jury was unable to reach a verdict, involved tennis shoe prints at the scenes, including one removed from the back of the shirt of the Domino’s Pizza manager. He was made to lie on the floor while the robber put his foot on the manager’s back while reaching over him to the cash drawer. The tread from the shoe print was similar to that of a pair of tennis shoes seized from defendant’s residence pursuant to a search warrant obtained after defendant initially consented to the search and then withdrew it. The third enumeration contends it was error to allow into evidence defendant’s withdrawal of the consent, because it allowed evidence of defendant’s exercise of his constitutional rights to be used against him.

During the investigation, the officers went to question defendant at the trailer where he was staying with his sister. Upon arriving, an officer noticed footprints in the driveway similar in tread design to those found at the Corral Food Store and on the Domino’s manager’s shirt. The officers were let in the trailer by defendant. They explained that they were investigating the robberies and asked for permission to search the house. Defendant consented to the search and a consent to search form was completed for his signature. At that point, defendant refused to sign the form and told the officers to obtain a search warrant, which they did, finding the tennis shoes and the pneumatic drill.

Pretermitting the issue of whether evidence of withdrawal of consent to search rises to the level of impermissible comment upon exercise of Fourth Amendment rights, compare Howard v. State, 237 Ga. 471, 473 (228 SE2d 860) (1976) (impermissible to charge jury that silence is a tacit admission when silence is constitutionally protected under the Fifth Amendment) with Benavides v. State, 193 Ga. App. 737, 738 (388 SE2d 886) (1989) (withdrawal of consent to search in evidence to explain obtaining of search warrant and circumstances of arrest), any such error here was harmless. In so deciding, we consider “the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt. [Cit.]” Hill v. State, 250 Ga. 277, 283 (4) (295 SE2d 518) (1982). Here, the jury was unable to reach a verdict on the two counts involving the shoe prints, indicating they did not hold against defendant his request that the officers obtain a search warrant. There was no shoe evidence in the counts upon which defendant was convicted and it is difficult to believe the jury used the search warrant request against defendant on these counts and not the ones to which the search directly related. As set out above, there was videotape of one robbery, and photo and in-person identification of defendant as the robber.

4. During the investigation, the videotape was shown to defendant’s wife and sister. The officers present testified that the sister “stared at the picture . . . dropped her head, and shook it and got up.” The wife “stared at it and then, all of a sudden, her eyes just filled with tears.” Defendant objected during the sister’s testimony that her physical reaction to the videotape was not relevant and that it got to the “question of asking some witness what is their opinion as to whether or not the video shows the defendant. ...” The court ruled that testimony of their physical reactions was admissible for whatever weight the jury wished to give it. During the wife’s testimony, defendant renewed the “same objection.” The sister testified she had no such reaction and said she told the officer when she viewed the tape that the man was not her brother. The wife also testified that she told the officers it was not her husband and that she became upset because of “the welfare of my children, knowing something like this was happening, or being accused of.”

It cannot be disputed that the identity of the man in the videotape was an issue at trial. Any evidence which bore upon that issue directly or indirectly was admissible. OCGA § 24-2-1; Rosenthal v. Hudson, 183 Ga. App. 712, 715 (9) (360 SE2d 15) (1987). Despite defendant’s argument to the contrary, the physical reactions of a person do not amount to an opinion of that person. Here, they were presented to the jury without conclusion, leaving the jurors to draw their own. “Observed emotional state” is appropriately considered by the jury. See Gray v. State, 151 Ga. App. 684, 686 (4) (261 SE2d 402) (1979). Even if the reactions are deemed to be opinions, identity is an appropriate matter for opinion evidence and this objection is without merit. Garrett v. State, 141 Ga. App. 584, 586 (3) (234 SE2d 161) (1977).

5. During the sister’s and wife’s testimony presented during defendant’s case, they were asked to explain their conduct while they watched the videotape. When they testified regarding statements made by the detective during the video, the State’s objections that the question called for hearsay and improper conclusions were sustained.

Defendant’s final enumeration is that the court erred “in refusing to allow appellant’s sister and wife to explain what they said to the police officers who testified about their reactions to the videotape.”

After the objection was voiced, defendant was asked by the court specifically what it was he was seeking to elicit from the wife. In response, the following transpired:

“Mr. Geeter [defense counsel]: She’s going to get upset because she thought that they were trying to make her admit something that she didn’t think was right with one of those . . . The Court: Well, she can say that. I’ll let her say that that’s why she got upset. Mr. Martinez [prosecutor]: Because then if she says that, she’s saying that she viewed the tape and it wasn’t him. The Court: She’s got to have a right, though to explain why she did, if you’ve gotten into the fact that she got upset. Now, I want you to stay away as much as possible without drawing any conclusion on hearsay. I don’t agree at all with your analysis that this explains conduct thing in view of this Momon [v. State, 249 Ga. 865 (294 SE2d 482) (1982)] case, but I think in fairness I’ve got to let her explain the inference that’s been drawn. Mr. Geeter: Okay.”

Both witnesses were allowed to testify to what they said to the detectives. They also repeatedly stated that they told the police that the man was not defendant. Therefore, the enumeration presents nothing for our review. Hall v. State, 189 Ga. App. 267, 268 (2) (375 SE2d 460) (1988). The argument in support of the enumeration contends that the entire conversation between the officers and the witnesses was admissible. An enumeration may not be expanded by argument in the brief and this presents nothing for our review. Martinez-Rodriguez v. State, 195 Ga. App. 491, 492 (393 SE2d 748) (1990).

Judgment affirmed.

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

Decided May 3, 1991

Rehearing denied May 22, 1991

Shane M. Geeter, for appellant.

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

       While defendant here relies upon two provisions of the Georgia Constitution, these were not relied upon below. Only the federal Fourth Amendment was raised and that is all that will be considered here. Iglesias v. State, 191 Ga. App. 403, 404 (381 SE2d 604) (1989).

       The drill was used by defendant on his job and was introduced into evidence. It was the State’s theory that it could have been used, wrapped in a rag, as a facsimile gun. Some of the victims were unable to say a gun was used because the object used was wrapped. A nickel plated .25 caliber pistol was identified in one robbery and such a gun was owned by defendant’s sister and available to him in the trailer.


text:
    A91A0463.
    BARKER v. CTC SALES CORPORATION.
    (406 SE2d 88)
   Sognier, Chief Judge.

Wayne Barker brought suit against his former employer, CTC Sales Corporation d/b/a C.T.C. Corp and Fireside Log Homes, alleging breach of an employment contract. The employer moved to dismiss the complaint for failure to state a claim, and the trial court I granted the motion. Barker appeals.

The record reveals that appellant was hired by appellee in 1987 as vice president in charge of production. In the complaint, appellant alleged that in the years 1987-1989, appellee experienced net losses ranging from $200,000 to $300,000 per year. Despite appellant’s knowledge of that fact, in 1989, after informing Don Mahaffey, appel-lee’s president, that he had been offered a position with another company at a substantial increase in salary, appellant chose to remain I with appellee. In his complaint, appellant alleged that he refused the | other job offer and relocated his family at appellee’s expense in reli- I anee upon Mahaffey’s promise that appellant would remain employed I until appellee became insolvent. Appellant was discharged in Novem- [ I ber 1989. 11

Appellant’s 11 enumerations of error are based on two main con- II tentions: that the trial court erred by finding that Mahaffey’s promise [| of employment was for an indefinite term; and that even if the prom- l| ise was for an indefinite term, appellant is entitled to recover because 11 of his detrimental reliance on the promise. 11

1. OCGA § 34-7-1 provides, inter alia, that “[a]n indefinite hiring may be terminated at will by either party,” and consequently Georgia courts have repeatedly held that a promise of employment for an indefinite term is insufficient to support a cause of action for breach of an employment contract. See, e.g., Land v. Delta Air Lines, 130 Ga. App. 231 (203 SE2d 316) (1973). Relying in part on Milton v. Bank of Newborn, 30 Ga. App. 55 (116 SE 861) (1923), appellant contends the trial court erred by finding that a promise to employ appellant until appellee became insolvent is the offer of employment for an indefinite term. We do not agree.

Appellant’s reliance on Milton, supra, is misplaced because, un-fH like the situation sub judice, Milton involved a contract of employment for a specific and definite term, and thus in Milton the employee’s discharge because of the employer’s insolvency prior to the expiration of that term was actionable. In this case, the question of the meaning of the term “until insolvency” in appellant’s employment contract was a question for the court. Georgia Power Co. v. Busbin, 242 Ga. 612, 613 (1) (250 SE2d 442) (1978).

In Land, supra at 232, this court held that the allegations of an employee that he had been induced by his employer to leave the armed services and had been offered “lifetime” employment, which meant “until death or retirement,” were “insufficient as a matter of law to overcome the statutory presumption that his indefinite hiring was terminable at the will of either party.” Accord Ely v. Stratoflex, Inc., 132 Ga. App. 569, 570 (1) (208 SE2d 583) (1974) (promise to retain employee “for the rest of [his] working life” was indefinite). We agree with the trial court that “[cjertainly ‘until insolvency’ is as indefinite a period of time as ‘until retirement’ [or ‘for the rest of his working life.’ Appellee] might not become insolvent for many years to come or it might become insolvent tomorrow. Since the alleged contract was for an indefinite period of time, then it was terminable at the will of either party.”

2. We find no merit in appellant’s argument that even if the terms of his hiring were indefinite, his detrimental reliance on Mahaf-fey’s promise constitutes consideration in addition to normal employment services, and is thus sufficient to except this situation from the general rule of terminability at the will of either party and prohibits termination until after a “reasonable time.” Contrary to appellant’s assertion, that is not the law in this state. Appellant cites only foreign authority in support of this proposition, and we have found no Georgia cases so holding. Rather, this court has held that while the principle of promissory estoppel, codified in OCGA § 13-3-44 (a), “provides, that, in certain circumstances, the reliance by the promisee or third party upon the promise of another is sufficient consideration, in and of itself, to render the executory promise enforceable against the promisor[, cit., t]his principle has no application in the instant case [where the promise relied on was for employment for an indefinite period].” Loy’s Office Supplies v. Steelcase, Inc., 174 Ga. App. 701, 702 (331 SE2d 75) (1985). Accordingly, as the promise relied on by [appellant was for employment for an indefinite period, the trial court [did not err by refusing to recognize this “exception” to the general [rule, as urged by appellant. See generally Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 511 (1) (376 SE2d 393) (1988).

Judgment affirmed.

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

Decided May 1, 1991

Rehearing denied May 22, 1991

Van C. Wilks, for appellant.

Joe C. Ashworth, Collette R. Jones, for appellees.


text:
    A91A0486.
    HIGHT v. BLANKENSHIP.
    (406 SE2d 241)
   Andrews, Judge.

Hight appeals the trial court’s order granting summary judgment in favor of Blankenship in Hight’s personal injury action.

On February 1, 1990, Hight filed an action in Muscogee County against Blankenship to recover for personal injuries suffered in an automobile accident which occurred on March 15, 1988. As early as February 2, 1990, Muscogee County Superior Court records reflected that service had been attempted, and that Blankenship resided in Harris County. At least twice, on unspecified dates, Hight’s attorney contacted the Muscogee County Sheriff’s office to determine the status of service, and eventually learned that service had not been accomplished because Blankenship resided in adjacent Harris County instead of Muscogee County. By letter dated March 30, 1990, Hight’s attorney forwarded the service papers to the Harris County Sheriff’s office. On April 7,1990, the return of the Harris County sheriff’s office reflected that Blankenship had been served at his most notorious place of abode in Harris County by service upon Philip Young, who was reportedly domiciled at the residence of Blankenship.

On May 2, 1990, Blankenship served Hight’s attorney with an answer, raising and preserving the defenses of insufficient service, lack of personal jurisdiction, improper venue, and the expiration of the statute of limitation. On the same date, Blankenship also filed and served a motion seeking summary judgment on the basis that, because of a lack of diligence in obtaining service, the action was barred by the two-year statute of limitation applicable to actions for personal injury. Blankenship’s motion and accompanying affidavit showed that he has resided in Harris County since the time the action was commenced, and that he had not been personally served with the action, nor had the action been served at his place of residence. In his motion for summary judgment and the supporting brief, Blankenship real leged and preserved his defenses that Muscogee County was not the proper venue for this action, and that the court lacked personal jurisdiction. In her response to the motion for summary judgment, Hight provided no affidavits or other statements under oath in opposition to the motion.

Subsequently, Blankenship was personally served on June 1, 1990, in Harris County. On June 1, 1990, Hight moved for the case to be transferred from Muscogee County to Harris County, but the record reflects no ruling on this motion. The Muscogee County trial court granted the defendant’s motion for summary judgment on August 8, 1990.

The trial court erred in granting summary judgment, where the record reflects the defendant preserved the issues of improper venue and lack of personal jurisdiction by initially pleading them in accordance with OCGA § 9-11-12, and thereafter preserved and reasserted these matters in his motion for summary judgment. See Roberts v. Bienert, 183 Ga. App. 751, 753-755 (360 SE2d 25) (1987). Though Blankenship sought summary judgment on the merits on his statute of limitation defense, his motion also clearly asserts his defenses in abatement that the Muscogee County Superior Court is not the proper venue, and therefore lacks personal jurisdiction. Matters in abatement are raised and resolved under OCGA § 9-11-12, and are not proper subjects for a motion for summary judgment. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974); Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 821 (377 SE2d 901) (1989). The statute of limitation defense is a matter to be considered by a court having proper jurisdiction of the merits. Ennis v. Bradshaw, 197 Ga. App. 744 (399 SE2d 493) (1990) (statute of limitation defense considered after case was transferred to the appropriate court).

Since the venue and jurisdictional issues have not been waived, nor have they been addressed in the lower court, the trial court’s ruling on the merits of the case was premature. Even though the issue has not been raised on appeal, when the record reflects that a judgment was rendered by a court which has failed to address these properly preserved issues, this Court on its own motion will reverse the judgment and remand the case for consideration of the pending venue and jurisdictional issues. See Department of Human Resources v. Carlton, 174 Ga. App. 30, 31 (329 SE2d 181) (1985). Before adjudicating on the merits of the case, the proper procedure would have been to consider the defenses in abatement in a hearing pursuant to OCGA § 9-11-12 (d), or, considering the substance rather than the nomenclature of the defendant’s motion, treat the motion for summary judgment as a motion to dismiss on the venue and jurisdictional issues. Roberts, supra at 754-755. In so doing, we note Uniform Superior Court Rule 19.1 requires that a motion asserting improper venue or lack of jurisdiction be treated as a motion to transfer the action to the proper court.

Accordingly, we reverse the trial court’s order granting summary judgment.

Decided May 22, 1991.

Tony H. Hight, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, for appellee.

Judgment reversed and case remanded for action consistent with this opinion.

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


text:
    A91A0554.
    CHISHOLM v. THE STATE.
    (406 SE2d 112)
   Sognier, Chief Judge.

Hugh Chisholm was convicted of possession of cocaine with intent to distribute, and he appeals.

1. At trial, appellant placed his general good character into issue by calling Jim Hicks, who testified that appellant had a “passable” reputation in the community. On cross-examination, the prosecuting attorney asked Hicks if he “ever heard of [appellant] having been investigated for arson?” Hicks responded in the affirmative, and appellant objected on the basis that the State had failed to introduce a conviction for arson or prove that appellant actually committed the arson.

It is well established that where a defendant voluntarily chooses to place his good character in issue, see OCGA § 24-9-20 (b), the State may not prove the defendant’s general bad character by specific acts of bad conduct; however, the State may explore specific acts of bad conduct on cross-examination of the defendant’s character witnesses for the purpose of testing the witnesses’ knowledge of the defendant’s reputation. Jones v. State, 257 Ga. 753, 758 fn. 8 (363 SE2d 529) (1988). Although in Clark v. State, 186 Ga. App. 106 (366 SE2d 361) (1988), we held that when the State cross-examines a character witness, the prosecutor may not ask questions as to unproved crimes or I acts of violence which are inflammatory, prejudicial, and suggestive of I facts not in evidence, id. at 110, the Supreme Court, in affirming that! opinion, stated that the prosecutor “must be able to show that thel questions posed to the defendant’s character witness were asked ini good faith and based on reliable information that can be supported by admissible evidence.” (Emphasis supplied.) State v. Clark, 258 Ga. 464 (369 SE2d 900) (1988). See generally Daniel, Georgia Handbool on Criminal Evidence, § 2-14 (1986). The transcript in the case sut judice reveals that the trial court incorrectly ruled that the State was not required, upon demand, to show that its question was asked ir good faith and based on reliable information. Nevertheless, the prosecutor properly managed to state for the record that appellant was investigated for arson and that the prosecutor could produce witnesses. Thus, “[t]here is no indication the state did not have a factual basis for [the] question[], which [was] proper to test the witnesses] knowledge of the defendant. [Cits.]” Lopez v. State, 259 Ga. 39, 40 (2) (376 SE2d 673) (1989). Accordingly, we find no reversible error here.

2. Appellant contends the trial court erred by refusing to allow him to play for the jury and admit into evidence the tape made of telephone conversations between appellant and Probate Court Judge Gene Wells, who at the time of the conversations was an investigator with the McDuffie County Sheriff’s Department. The transcript reveals that upon first calling Judge Wells as a defense witness, appellant’s attorney sought to have the tape played for the jury, but when questioned by the court, specifically stated that he was not seeking to impeach the witness with the contents of the tape. The trial court excluded the tape on the basis that it duplicated the witness’s testimony. Judge Wells testified regarding what was said during his telephone conversations with appellant. After the State’s cross-examination, the trial court allowed the jury to hear the specific portion of the tape which appellant asserted impeached Judge Wells’ testimony and supported appellant’s defense that his drug-related activities were all undertaken on behalf of the sheriff’s department. The witness was also allowed to listen to the entire tape out of the jury’s presence to refresh his recollection of its contents. Subsequently, on final redirect, when appellant renewed his request to play the entire tape, the trial court again excluded the tape based on its cumulative nature, but clearly informed appellant’s counsel that his ruling did not prohibit “any part of that tape or anything else which could be used technically to impeach or seek to impeach any witness.” The trial court also instructed the jury on entrapment as requested by appellant.

Contrary to appellant’s contention, the transcript reveals that the trial court accorded appellant every opportunity to present to the jury any and all evidence impeaching Judge Wells’ testimony regarding what he discussed with appellant in the telephone conversations recorded on the tape. The only evidence excluded by the trial court’s ruling was that evidence duplicating what Judge Wells had already stated. Even though duplicative evidence is admissible, see generally Solomon v. State, 247 Ga. 27, 31 (5) (277 SE2d 1) (1981), “[i]t is not error to exclude evidence that is merely cumulative of other evidence actually introduced at trial. [Cits.]” Pilcher v. State, 170 Ga. App. 869, 871 (4) (318 SE2d 640) (1984). Therefore, we find no reversible error in the exclusion of the tape.

Judgment affirmed.

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

Decided May 22, 1991.

Peter D. Johnson, Dallas, Fowler & Wills, John P. Wills, for appellant.

Dennis C. Sanders, District Attorney, for appellee.


text:
    A91A0643.
    JONES v. THE STATE.
    (406 SE2d 114)
   Andrews, Judge.

Jones was convicted of one count of burglary, one count of arson in the first degree, two counts of arson in the third degree and one count of being an habitual felon.

The evidence presented at trial established that an office duplex in Dalton was burglarized and burned on the evening of March 11, 1990. The items stolen from the building before it was set on fire included a radiator-style heater and several telephones.

Around 6:30 on the evening of the crime, a female bypasser noticed a small red hatchback car parked behind the duplex and saw two white males taking items from the building to the car. She drove to the police department, reported the apparent burglary and described the vehicle and the men she had seen. A short time later, the witness passed the building again, saw that it was burning, and reported this fact to the fire department.

The police and fire authorities went to the building and one of the investigating police officers saw a small red hatchback which matched the bypasser’s description drive past the burning office duplex. The officer stopped the vehicle, which was driven by Jones’ nephew and in which Jones was a passenger, and learned the identity and addresses of the four passengers. During the ensuing conversation, the officer spotted a radiator-style heater and a telephone cord sticking out of a box in the back of the car. Because there were more occupants in the vehicle than the bypasser had described, the officer did not detain the vehicle.

After further investigation, the officers concluded that the items which were seen in the red car matched those which were stolen from the office building. After obtaining a warrant, the investigation moved to Jones’ nephew’s home, where the officers were told that the stolen property had been deposited at Jones’ house.

After learning this information, a search warrant was obtained for Jones’ residence, his home was searched, stolen items from the office building were found and Jones was arrested.

1. In his first enumeration of error, Jones contends that the trial court erred in denying his motion to suppress evidence seized at his residence. Jones contends that the search warrant’s omission of the date of the commission of the crime rendered it invalid and that the evidence found in the search should have been excluded.

Although the date of the commission of the crime was not listed on the March 12, 1990 warrant, the affidavit submitted to the magistrate was not devoid of reference to time. In the affidavit, the investigating officer swore that during the traffic stop on March 11 he had seen items in the vehicle in which Jones was riding which appeared to be “stolen items taken from the burglary earlier in the city limits of Dalton, Ga. at Diversied [sic] Specialties. . .

The exact date of the crime is not critical to the instant determination of whether the warrant was legally issued. The question before the magistrate was whether there was probable cause to believe that the items stolen in that burglary were at the residence for which the warrant was sought.

“Time is assuredly an element of the concept of probable cause. [Cits.] However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cits.]” State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984). The warrant’s validity is to be judged by the “totality of the circumstances.” Luck, supra; see also Betha v. State, 192 Ga. App. 789 (386 SE2d 515) (1989); State v. Tedford, 195 Ga. App. 372 (393 SE2d 502) (1990).

Here, the magistrate who issued the warrant was authorized to conclude that there was a reasonable probability that evidence of the crime would be found in Jones’ house. See Tedford, supra at 373. The factual statements within the affidavit were sufficient to create a reasonable belief that the conditions described in the affidavit would prevail at the time of the issuance of the warrant and therefore Jones’ first enumeration of error is without merit.

2. Jones contends that the trial court erred in denying his motion for new trial in that the evidence was insufficient to support his conviction for burglary and arson.

After examining the entire transcript, we find the evidence was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). A rational trier of fact could have found Jones guilty beyond a reasonable doubt and this enumeration is without merit.

Judgment affirmed.

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

Decided May 22, 1991.

J. Tracy Ward, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.