text:
    A92A0735.
    RICKS v. THE STATE.
    (419 SE2d 517)
   Beasley, Judge.

Appellant was convicted of possession of cocaine, OCGA § 16-13-30 (a), possession of marijuana with intent to distribute, OCGA § 16-13-30 (b), and possession of a firearm by a convicted felon, OCGA § 16-11-131 (b). His motion for new trial was denied.

An undercover drug task force officer and a confidential informant met with appellant, the target of a drug investigation, in an attempt to effect an undercover purchase of marijuana. Appellant agreed to sell them one pound of marijuana but stated that a 30-min-ute drive from Soperton to Metter would be necessary to procure it. The officer had been fitted with a body transmitter, enabling other officers to monitor the conversation. Appellant left in his car and, while returning from Metter, he was intercepted by sheriffs of Treutlen and Laurens Counties. He was alone in his car and was arrested when a grocery bag containing 13.8 ounces of marijuana was found on the front floorboard. The officers then executed a search warrant on his residence and confiscated a quantity of cocaine, marijuana and drug paraphernalia.

1. Appellant contends that the trial court erred in denying his motion to dismiss the prosecution based on alleged insufficiencies in the arrest warrants.

After a jury was sworn, appellant moved to dismiss the prosecution. Relying on Garmon v. Lumpkin County, 878 F2d 1406 (11th Cir. 1989), an action under 42 USCA § 1983 for damages for illegal arrest, he claims that the warrants were improperly issued solely on the basis of the supporting affidavits which provide merely that the accused committed the stated offenses. He submits that, “[s]uch a conclusory assertion clearly is insufficient to establish probable cause.” Garmon, supra at 1408 (1).

“Even assuming for purpose of decision (but without deciding that issue) that the arrest warrants were invalid, a new trial is not required. . . . [T]he sanction for an unconstitutional arrest is exclusion of the evidence obtained as a result of that arrest [cits.]. . . . [T]he sanction ... is not suppression of the prosecution. [Cits.]. . . . ‘[Appellant] cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction . . . [Appellant] is not himself a suppressible “fruit,” and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.’ [Cit.]” Lackey v. State, 246 Ga. 331, 333 (2) (271 SE2d 478) (1980). As in Lackey, appellant has not sought to suppress the physical evidence. The distinction is discussed in State v. Brown, 198 Ga. App. 239 (401 SE2d 295) (1990): an unlawful arrest properly resulted in suppression of contraband but did not bar criminal prosecution.

To the extent that appellant challenges the constitutionality of OCGA §§ 17-4-41 and 17-4-45, that issue was neither raised nor ruled on below. It has not been preserved for review. Grice v. State, 199 Ga. App. 829 (1) (406 SE2d 262) (1991).

2. Appellant contends that the trial court erred in denying his motion to dismiss for failure to. bring him to trial within the time limit set by Article III of the Interstate Agreement on Detainers Act, OCGA § 42-6-20 et seq.

OCGA § 42-6-20 (a) provides: “Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, . . . on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, . . . , provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by the certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.”

Appellant was a federal probationer at the time of his arrest on the present charges. As a result, probation was revoked and he was remanded to the custody of federal prison authorities in Minnesota. Beginning in November of 1990, appellant unsuccessfully attempted to comply with the statutory procedure for requesting final disposition of the pending Georgia indictment. A proper request, in compliance with OCGA § 42-6-20 (a), was finally received by Georgia authorities on January 7, 1991. Appellant was delivered to Georgia on June 20; the time for trial under Article III would expire on July 7. On July 2, the State moved to extend the trial date, which was heard on July 3. At that hearing, appellant’s counsel sought dismissal of the indictment for failure to bring him to trial within 180 days of his demand. The court granted the State’s request and trial was held on August 26.

Article III “does not say that the untried indictment shall be dismissed if [a defendant] is not brought to trial within 180 days after he has served his request for final disposition upon the proper Georgia authorities.” Price v. State, 237 Ga. 352 (1) (227 SE2d 368) (1976). “The Interstate Agreement does not contemplate that the 180 day provision is inflexible.” Duchac v. State, 151 Ga. App. 374, 376 (259 SE2d 740) (1979). In Duchac, no continuances were sought and no circumstances were shown to justify tolling the 180 days, so dismissal of the indictment was authorized. In Ricks’ case, the State demonstrated a good faith effort to timely comply with appellant’s request for disposition of the Georgia indictment and sought a continuance on that basis prior to the expiration of the statutory time limit. The court did not abuse its discretion in granting a continuance and denying appellant’s motion to dismiss the indictment.

Decided June 3, 1992.

Tyson Blue, for appellant.

Ralph M. Walke, District Attorney, for appellee.

3. The final inquiry is into the sufficiency of the evidence. Even assuming, as appellant submits, that the evidence against him was entirely circumstantial (the jury was instructed on circumstantial evidence), the facts as proved were sufficient to exclude every reasonable hypothesis save appellant’s guilt and any rational trier of fact could have found him guilty beyond a reasonable doubt of the offenses for which he was convicted. OCGA § 24-4-6; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Castillo v. State, 166 Ga. App. 817, 821 (1) (305 SE2d 629) (1983).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A0093.
    JENKINS v. COMMERCIAL CREDIT PLAN, INC.
    (419 SE2d 484)
   Birdsong, Presiding Judge.

Appellant Rozita L. McKissick Jenkins, a/k/a Lynn M. Jenkins appeals from the order of the state court granting summary judgment to defendant and denying summary judgment to plaintiff in this suit to recover damages for violation of the Georgia Industrial Loan Act (GILA).

Appellant asserts that the loan contract was in violation of GILA because appellee failed to disclose the amount of “vehicle insurance” regardless whether the document containing the note and loan agreement (hereinafter “loan document”) or the document containing the financial disclosure statement is consulted.

The loan document, in addition to disclosing other insurance information not here at issue, contained therein a preprinted block labeled “Vehicle Insurance Premium.” In this block was typed the figures, “168.96.” However, the loan document also lists in a block relating to the “Make. No. Cylinders” of a “Motor vehicle/mobile home,” the word “NONE,” thereby showing that no security interest was taken as to any motor vehicle or motor home. Although the loan document is not shown to make any express reference to property insurance, the document does expressly provide that “this agreement consists of the front and back of this page and of the Disclosure Statement.” Examination of the disclosure statement clarifies that the security interest was given to certain miscellaneous personal property, and not to any real property, motor vehicle or mobile home. Further, the disclosure statement contains no reference to any vehicle insurance premiums. However, it does show inter alia “$168.96 Property insurance premium,” and elsewhere therein states, “Property Insurance: Borrower may obtain property insurance from anyone borrower wants that is acceptable to lender. Coverage may be provided through an existing policy, or a policy independently obtained and paid for by the borrower. If borrower gets the property insurance from lender, borrower will pay a total premium of $168.96; the coverage is for the term of the loan unless a different term is shown here: 36 MO.” Moreover, on the same date, a document captioned “Installment Floater” was executed by appellant, which did reveal the original amount, class of coverage, term of coverage in months, and the $168.96 premium to be paid on the fire, island marine, and extended coverage insurance to be issued to insure the property to which a security interest had been given by appellant. Held:

1. First, we find the reference to a vehicle insurance premium of $168.96 on the loan document was due to clerical error in failing to adjust a pre-printed form. Viewing the agreement in its totality, we find that the $168.96 premium listed on the loan document was mutually intended by the parties to apply to property insurance and not to motor vehicle insurance. OCGA §§ 13-2-1; 13-2-3.

2. Appellant, however, asserts that a Patman violation has occurred because the agreement does not disclose the amount of the insurance whether the note or disclosure statement is consulted. See generally Patman v. Gen. Fin. Corp., 128 Ga. App. 836 (2) (198 SE2d 371).

The pertinent Georgia Industrial Loan Act statute, promulgated at OCGA § 7-3-18 provides: “At the time the loan is made, each licensee under this chapter shall deliver to the borrower ... a copy of the loan contract. . . showing in clear terms the date and amount of the loan . . . the amount of each class of insurance carried and the premiums paid thereon. . . .” In Patman, supra, the loan contract failed to reveal the amount of insurance or the exact type of insurance being purchased; this court held that the loan contract was void, because the contract on its face showed a violation of the Georgia Industrial Loan Act. Thus, it was broadly concluded, “[t]he Act . . . clearly requires disclosure of this information in the contract.” However, Pat-man does not reflect the existence of any other contemporaneous document signed by the borrower, as exists in the case at bar, which would have supplied the missing information.

Although the Patman line of authority was argued vigorously, the trial court found this case to be controlled by Dean v. Avco Fin. Svcs., 128 Ga. App. 256 (196 SE2d 415). In Dean, supra, the evidence of the face amount of insurance coverage was not contained in the loan contract, but was found on a separate document; all relevant documents had been signed, as in this case, by the borrower. The Dean court held that, although a renewal note should be drafted with as much particularity as required for an original note, should list the property pledged and show the insurance coverage being purchased, “it nevertheless affirmatively appears that there was a substantial compliance with the statute and that the defendants had been furnished the relevant information.” (Emphasis supplied.) Id. at 257; see generally OCGA § 1-3-1 (c). The court buttressed its holding on the aged legal maximum,”[d]e minimis non curat lex.” Id.

Although the facts of this case are neither identical to Dean, supra, or to Patman, supra, we find that the legal rationale behind Dean is sound and that the result achieved thereby is fair. Accordingly, we are satisfied that the trial court did not err in relying on the precedent of Dean as controlling.

We hasten to add that this is not a case of alleged “usury,” nor does it involve the repossession or seizure of property belonging to the borrowers. Even the Dean court noted that “[i]f repossession or seizure of property belonging to the borrowers had been attempted by virtue of this instrument, we might well reach a different conclusion.” Id. at 256.

Appellant, however, asserts in essence that the authority of Dean if not tacitly overruled by later cases has been abandoned. We have examined the cases cited by appellant and cannot agree. In particular: In Moore v. American Fin. System, 236 Ga. 610 (225 SE2d 17), there was an express finding that in addition to a nondisclosure of the amount of each class of insurance there had been the charging of a usurious amount of interest; neither was there any evidence of a contemporaneous writing signed by the borrower which would have revealed the missing insurance information. Thus, Moore, supra, is substantially factually distinguishable; moreover, charging a usurious rate of interest can hardly be found to involve an issue that is “[d]e minimis non curat lex.” In Credithrift &c. v. Mason, 143 Ga. App. 793 (240 SE2d 158); Carter v. Credithrift &c., 143 Ga. App. 256 (238 SE2d 257); and Hawkins v. Household Fin. Corp. &c., 139 Ga. App. 525 (229 SE2d 13), progeny of Patman, supra, none of the reported facts reveals the existence, as in this case, of a similar contemporaneous writing signed by the borrower. Accordingly, these cases likewise are substantially factually distinguishable. The significance of the lack of reported facts showing the existence of a contemporaneous writing is best established by the examination of Household Fin. Corp. &c. v. Rogers, 137 Ga. App. 315 (223 SE2d 462) and Dukes v. Household Fin. Corp. &c., 137 Ga. App. 474 (3) (224 SE2d 107), where there was no contention that writings other than the loan contract existed between the parties. In both of these cases, the court while following the Patman precedent, expressly stated that if there were other writings it was incumbent upon the defendant to come forward with them, as was done in this case, or to suffer judgment. The Georgia Supreme Court had an excellent opportunity to overrule the Dean precedent in Georgia Investment Co. v. Norman, 231 Ga. 821, 825 (204 SE2d 740). Georgia Investment Co. is a Georgia Industrial Loan Act case involving the charge of usurious interest wherein the court strictly construed the Industrial Loan Act and opined that if there was a violation of the Act, whatever the usurious amount involved, the statute declares the contract null and void. Notwithstanding this strong language favoring strict construction of the Act, the Supreme Court elected to distinguish rather than overrule the Dean case, holding: “ ‘Counsel for the Loan Company strenuously argue that because of the minimal size of the notary fee here involved, the doctrine of de minimis non curat lex should be applied. They cite in support of their position the case of Dean et al. vs. Avco Financial Services, Inc., [supra]. We do not believe this case is applicable to the instant case. In the Dean case the Court of Appeals applied the doctrine where there was an alleged insufficient disclosure as to the insurance coverage provided by a renewal contract, which referred for description to a previous contract. And even in the Dean case, the Court of Appeals stated they “might well reach a different conclusion” if repossession or seizure of the property had been involved. In the instant case a different and more serious defect is alleged, charging a violation of the law prohibiting usury; the instant case is distinguishable from the Dean case.’ ” (Emphasis supplied.) Georgia Investment Co., supra at 825. Although the scope of Dean, supra, has been greatly limited, it has not been overruled and remains available to achieve a just determination of situations such as is here presented.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

On Motion for Reconsideration.

After stating “it is bad enough that this court has to make a result oriented decision” and that “it is even worse when the court is so disingenuous about its precedent,” appellant asserts inter alia this court has “cavalierly [found] a clerical error” and, that “if the court is simply going to read OCGA § 7-3-29 (d) out of existence, then perhaps the court wishes to do the same to Sellers v. Alco Finance, 130 Ga. App. 769 [204 SE2d 478] and Household Finance Corp. v. Middlebrooks, 139 Ga. App. 224 [228 SE2d 204].” Regarding the tactical propitiousness of such types of assertions, compare Jenkins v. Vaughn, 146 Ga. App. 801, 803 (247 SE2d 485). See generally Standard 50, Rule 4-102, Rules & Regulations for the organization and Government of The State Bar of Georgia; Court of Appeals Rule 10 (a).

Decided April 29, 1992

Reconsideration denied June 4, 1992

Ralph S. Goldberg, for appellant.

William H. Arroyo & Associates, William H. Arroyo, Stephen A. Gura, for appellee.

OCGA § 7-3-29 (d) is not applicable. The statute clearly reflects that it pertains to actions brought under the Code section “for a violation of this chapter” if the lender shows the “violation was not intentional. . . .” In this case, based on Dean v. Avco Fin. Svcs., 128 Ga. App. 256 (196 SE2d 415), we found a substantial compliance with OCGA § 7-3-18; thus, there exists no violation within the meaning of OCGA § 7-3-29 (d). Sellers v. Alco Fin., supra, is distinguishable from this case. In Sellers the alleged typographical error was not de minimis, and a violation of GILA would result unless this court had elected to intervene to make a contract for the parties which would be substantially different from that executed by them. Household Fin. Corp. v. Middlebrooks, supra, also is distinguishable from the case at bar. In Household Fin., supra, the complaint showed on its face that the interest and the finance fee were excessively computed as a result of the mistake. This error too was not de minimis. Further, neither of these cases purport to overrule Dean, supra, which remains controlling.

Motion for reconsideration denied.


author: Sognier, Chief Judge.

text:
    A92A0292.
    ATLANTA RENT-A-CAR, INC. v. JACKSON.
    (419 SE2d 489)
   Sognier, Chief Judge.

Steven Jackson was involved in a collision with Mary Johns while driving a car he rented from Atlanta Rent-A-Car, Inc. (“ARAC”). Johns’s automobile insurance carrier paid her claim and then filed a subrogation action against Jackson. In turn, Jackson brought a third-party complaint for indemnification against ARAC, a self-insurer, and ARAC counterclaimed on the basis of an indemnification clause in the rental contract. Jackson moved for partial summary judgment as to ARAC’s liability, and ARAC appeals from the grant of that motion.

The rental contract executed by appellee includes a box in which appears a handwritten notation that appellee was insured by Southern General Insurance Company, and the notation lists the policy number and expiration date. Inside the same box appellee placed his signature to indicate that he declined “extended protection.” The rental contract also includes a preprinted clause stating that “[appellee] further agrees that [appellant] furnishes no insurance whatsoever to [appellee] and [appellee] expressly agrees and warrants that he has insurance that covers the rented vehicle and the operation thereof and his insurance is primary coverage.” Appellant’s vice president averred that appellant’s standard practice was to ask customers whether they had insurance and to require them to purchase extended protection if they could not provide proof of insurance, and that the notations on appellee’s rental contract show that this procedure was followed for his rental. Conversely, appellee averred that he was not offered “spot insurance” by appellant as required by OCGA § 40-9-102 and that he did not purchase spot insurance to cover the rental car from appellant or any other source.

Resolution of this appeal requires construction and application of OCGA § 40-9-102, which exempts car rental businesses from coverage under the Motor Vehicle Safety Responsibility Act, OCGA § 40-9-1 et seq., provided certain conditions are met. OCGA § 40-9-102 provides that “[a]ny person who rents motor vehicles from a U-drive-it owner is required to provide his own insurance, and insurance companies authorized to issue automobile policies in this state shall be required ... to provide ‘spot’ insurance, which shall be purchased by such person before the U-drive-it owner shall be authorized to turn a motor vehicle over to such person. If a U-drive-it owner turns over any motor vehicle to any person without first ascertaining that such ‘spot’ insurance has been obtained, the U-drive-it owner shall not, as to that particular rental transaction, be exempted from the provisions of [the Motor Vehicle Safety Responsibility Act].”

The parties’ dispute centers on the meaning of the term “spot insurance.” Appellant contends that when the statute is read as a whole, the term “spot insurance” refers to coverage for the rental vehicle either under a policy sold by the rental agency to the renter specifically for the rental vehicle or by a policy already held by the renter that covers rental vehicles driven by the insured. Consequently, appellant asserts, its procedure — as followed in the case sub judice — of inquiring whether prospective renters already have insurance that would cover the rental vehicle and requiring them to purchase extended protection for the rental car if they cannot show proof of insurance meets the requirements of the statute. Appellee, citing Continental Cas. v. Owen, 90 Ga. App. 200, 209 (82 SE2d 742) (1954), which defined the term “spot insurance” as “a specific policy on a particular car [owned] by [a] U-Drive-It rented to a specific renter,” maintains that the statute requires the rental agency to offer the prospective renter a policy that would cover the renter solely for the rental vehicle.

OCGA § 40-9-102 has been construed in only two reported cases: Continental Cas., supra, and Jones v. Wortham, 201 Ga. App. 668 (411 SE2d 716) (1991), which was decided after the trial court entered the judgment at issue in this appeal. Jones involved a dispute between a self-insured U-drive-it owner and the insurance carrier for a driver who had rented a car from the U-drive-it owner as to which entity was required to provide primary liability coverage for the rental vehicle. Noting that OCGA § 40-9-102 requires renters to provide their own insurance, and applying the principle of Georgia law that insurance follows the vehicle, the Jones court held that the renter’s carrier must provide the primary coverage for the rental vehicle.

The Jones decision implicitly recognized that the requirement in OCGA § 40-9-102 that a person who rents from a U-drive-it owner must provide insurance for the vehicle may be satisfied by a vehicle insurance policy the renter already holds for his own vehicle that covers the renter while driving another car. Accordingly, we read OCGA § 40-9-102 to require that a person who rents from a U-drive-it owner must provide insurance for the vehicle either through a vehicle insurance policy the renter already holds for his own vehicle that covers the renter while driving another car or by purchasing at the time of rental an insurance policy that covers the specific rental vehicle. Thus, the “spot insurance” referred to in the final sentence of OCGA § 40-9-102 — i.e., the insurance the U-drive-it owner must ascertain is in place before renting the vehicle — includes not only the type of insurance defined in Continental Cas., supra, but also the type of policy held by the driver in Jones. To hold otherwise would render meaningless the unequivocal statement in the statute that any person who rents a vehicle must provide his own insurance, which would be in derogation of our duty to construe statutes so as to give full force and effect to all provisions and to reconcile any apparent conflicts. See Head v. H. J. Russell Constr. Co., 152 Ga. App. 864, 865 (264 SE2d 313) (1980).

Given this interpretation of OCGA § 40-9-102, we further hold that the statute requires a U-drive-it owner to determine whether a renter has obtained insurance for the rental vehicle under one of these alternatives before furnishing a rental vehicle. Contrary to appellee’s characterization, OCGA § 40-9-102 does not require the U-drive-it owner to offer insurance at the time of rental if the renter already has insurance to cover the rental vehicle. The notations on the face of the rental contract at issue demonstrate that appellant ascertained that appellee had insurance coverage before renting the car to him. Therefore, appellant was not required to offer insurance to appellee or to require appellee to purchase insurance to be eligible for the exemption afforded by OCGA § 40-9-102. Accordingly, appellee’s insurer, not appellant, is primarily liable for injuries to third parties resulting from appellee’s acts, see Jones, supra at 670, and the trial court erred by granting appellee’s motion for partial summary judgment.

Decided May 8, 1992

Reconsideration denied June 4, 1992

Trauner, Cohen & Thomas, Russell S. Thomas, for appellant.

Edward M. Harris & Associates, Edward M. Harris, Jr., Wetzel & Carroll, Michael L. Wetzel, for appellee.

Judgment reversed.

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


text:
    A92A0010.
    GRANDERSON v. THE STATE.
    (419 SE2d 533)
   Birdsong, Presiding Judge.

Eugene Granderson was indicted on December 10, 1990, for the sale of cocaine to an undercover officer on September 26, 1989. He appeals, contending the evidence was insufficient to convict under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Held:

Detective Voltner testified that on September 26, 1989, he and Detective Jenkins had a conversation with a confidential informant and 15-20 minutes later accompanied the informant to a parking lot on Buford Highway in Gwinnett County. A car drove up and the informant stated, “That is Gene’s car.” According to Voltner, the informant knew “Gene” and had arranged to buy three pieces of cocaine for $20 each. The informant did not testify at trial. Voltner testified he wrote down “Gene’s” tag number, CZY463, and that the car was a Chevrolet Celebrity. When Gene drove up, the informant called him to the unmarked police vehicle; Gene came to Voltner’s window and leaned over a little; he made small talk and then handed Voltner a plastic bag containing three pieces of what looked to be crack cocaine; Voltner handed him $60 of county funds. Voltner and Jenkins then returned to the police station. The substance ultimately tested positive for cocaine.

On February 5, 1990, Voltner made out an affidavit for an arrest warrant. In this affidavit he stated that on September 16, 1989, between 6:00-8:00 p.m., Eugene Granderson sold a quantity of cocaine to an undercover officer in exchange for county funds. Appellant turned himself in upon the issuance of this arrest warrant.

Decided June 4, 1992.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

At trial Voltner testified he ran a computer check on the license tag CZY463 and the report came back that such tag number was registered to Eugene Granderson. The State produced no other evidence that appellant ever owned or registered such a vehicle. Appellant’s wife testified she and her husband had never owned a Chevrolet Celebrity but that they did have a Chevrolet Nova, tag number DDW295. The defense produced a certified tag registration “tax receipt” copy, with a statement signed by the Gwinnett tag supervisor, stating: “This is a certified copy of the 1988 registration in the name of Eugene Granderson.” The document shows Granderson registered a 1976 Chevrolet Nova in 1988. The defense introduced another tag registration “original” document which indicates Eugene Granderson was to register a 1976 Chevrolet Nova, tag number DDW295, but which does not indicate whether he in fact registered this vehicle in 1989.

At some point Voltner obtained a photo of Eugene Granderson and from that photo Voltner identified Granderson as the drug seller. At trial Voltner testified that appellant was the “Gene” who had sold him the cocaine in September 1989. Jenkins also identified appellant as the drug seller. Held:

On appeal, we do not weigh the evidence, nor do we assess the quality of the evidence or the credibility of witnesses; these are jury functions and when the jury has rendered its verdict, we look only to determine whether the evidence is sufficient to sustain the verdict, construed in the light most favorable to the jury’s verdict and giving that verdict every presumption and every inference towards upholding its validity. Rigenstrup v. State, 197 Ga. App. 176, 181 (398 SE2d 25); Aikens v. State, 194 Ga. App. 195, 196 (390 SE2d 102).

We find the evidence of Jenkins to be sufficient to persuade the rational trier of fact of appellant’s guilt beyond a reasonable doubt, under the standard of Jackson v. Virginia, supra.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Pope, Judge.

text:
    A92A0422.
    JOHNSON v. THE STATE.
    (419 SE2d 741)
   Pope, Judge.

Defendant David B. Johnson was convicted of driving under the influence of alcohol and driving with a suspended license and appeals. While defendant raised 17 separate enumerations of error, for purposes of argument he grouped the enumerations into certain categories, and we will address them accordingly.

1. We reject defendant’s argument that the trial court erred in considering the written blood alcohol test results as evidence during the hearing on the State’s motion to introduce evidence of similar transactions because the document was not properly authenticated by testimony. While defendant has a right to a hearing on the similarity of other transactions sought to be admitted into evidence, it need not be a full evidentiary hearing and it is sufficient if the prosecutor shows the requisite similarity of the previous transaction by stating in his place the nature of the evidence to be given regarding the similar transaction. McGowan v. State, 198 Ga. App. 575 (1) (402 SE2d 328) (1991). We have considered, but also reject, defendant’s argument that certain other documentary evidence was improperly considered in the hearing on the motion to introduce evidence of similar transactions.

We reject defendant’s argument that the trial court improperly admitted into evidence a copy of the sentence showing one of defendant’s previous convictions for DUI on the ground that it was unfairly prejudicial because it indicated defendant was given credit for time served and therefore showed defendant was incarcerated at the time of the sentence. Defendant argues the sentence fails to show whether the incarceration was for the similar offense at issue in the sentence or some other unrelated, and therefore dissimilar, offense. We disagree that the evidence was unfairly prejudicial; but even if it was, the evidence was competent and material and therefore not subject to exclusion merely because it was prejudicial. See Hale v. State, 188 Ga. App. 524 (2) (373 SE2d 250) (1988). The court did not err in admitting a copy of the uniform traffic citation for another similar transaction. The document was properly authenticated as a certified record of the Marietta Municipal Court and was therefore admissible. See OCGA § 24-7-21. The certified copy of the citation, in conjunction with a copy of the conviction for the citation, contained sufficient information to establish that the offense was committed at approximately the same time of day as the offense at issue in this case and that test results revealed defendant had approximately the same alcohol concentration as in the case at hand. Thus, the evidence showed a sufficient similarity between the two offenses to permit admission of the previous offense as a similar transaction. Cf. Williams v. State, 261 Ga. 640 (2 c & d) (409 SE2d 649) (1991) (in which the Georgia Supreme Court held a certified copy of a previous felony conviction was not, alone, sufficient evidence of the similarity between the previous offense and the offense at issue in the case). We reject defendant’s argument that the certified copy of his driver’s license record was improperly admitted. The record shows that defendant’s license was suspended in October 1989 and shows no reinstatement of the license between that date and the date of the report, several months after the date of the offense in this case.

Decided June 4, 1992.

G. Wayne Lancaster, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Assistant Solicitor, for appellee.

2. We have examined the record and find no error in admitting the testimony of the arresting officer in one of defendant’s previous DUI cases regarding his opinion of whether defendant was a less safe driver in that case. Neither did the trial court err in overruling defendant’s objection to the testimony of the arresting officer in the case at hand concerning the manner in which she determined defendant’s driver’s license number.

3. The trial court did not err in denying defendant’s motion for directed verdict or defendant’s motion for new trial. A review of the record shows the evidence was sufficient to permit a rational trier of fact to find defendant guilty of the offenses beyond a reasonable doubt.

4. Finally, the trial court gave the jury an accurate and adequate charge on the standard of finding guilt based on circumstantial evidence. Thus, the trial court did not err in refusing to give the actual charge requested by defendant on circumstantial evidence. Strickland v. State, 164 Ga. App. 845 (7) (297 SE2d 491) (1982).

Judgment affirmed.

Johnson, J., concurs. Carley, P. J., concurs in Divisions 2, 3, 4 and in the judgment.


text:
    A92A0563.
    ALEXANDER v. SEARCY.
    (419 SE2d 738)
   Sognier, Chief Judge.

Danny Lee Searcy filed suit on December 15, 1989 in Tift County against James Alexander, seeking damages for injuries arising out of an automobile accident that occurred on December 18, 1987. Alexander did not file an answer but instead made a special appearance on November 12, 1990 and moved the trial court to dismiss Searcy’s complaint for insufficiency of service of process. Alexander submitted an affidavit with his motion in which he averred that he resides in Colquitt County and that he has been employed as the minister of a Colquitt County church since the date of the accident. The trial court denied Alexander’s motion to dismiss and certified that its order was subject to immediate review pursuant to OCGA § 5-6-34 (b). We thereafter granted Alexander’s application for interlocutory review. Id.

At the hearing on appellant’s motion to dismiss, counsel for appellant pointed out to the trial court that the sheriff’s entry of service reflected appellant’s work address at his church in Moultrie (Colquitt County), that appellant had not been served as of the date of the hearing (held over two months after the motion to dismiss had been filed), and that appellee had known appellant’s correct address of employment for 353 days without serving him. Counsel for appellee responded that “the facts stated [by appellant’s counsel] are correct,” and acknowledged that “[i]t would have been easy to file [the complaint] in Colquitt County and serve [appellant], I was receiving notice that he’d moved [from Tift County] but I didn’t do it.” The reason proffered by appellee’s counsel was that he was “lulled” by ongoing negotiations with appellant’s automobile insurance carrier into believing appellee’s claim would be settled without going to trial. The record uncontrovertedly shows that no evidence of fraud was adduced by appellee in regard to the representations made by appellant’s insurer. Instead, the specific examples given by appellee’s counsel all involved requests by appellant’s insurer that appellee provide it with certain additional medical documentation of his injuries; none of the conversations related by appellee’s counsel to the court included express representations by appellant’s insurer that appellant had waived service. Appellee’s counsel stated that the last conference he had with appellant’s insurer occurred after the complaint was filed but before appellant filed his motion to dismiss. The record reflects that appellee moved to transfer the case to the county of appellant’s residence, Colquitt County, on December 17, 1990, the date of the hearing.

Appellant contends the trial court abused its discretion by finding that appellee “acted in a reasonable and diligent manner to [e]nsure process as quickly as possible, any delay in service of process by [appellee] upon [appellant] was excusable, and [appellant] was not prejudiced by any delay in service of process.” “Where 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 insure that a proper service was made as quickly as possible. A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. 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 [limitation] is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Punctuation and citations omitted.) Brown v. Bailey, 180 Ga. App. 555, 557 (1) (349 SE2d 792) (1986).

The evidence before the trial court demonstrated that appellee took no steps whatsoever to perfect service on appellant after the running of the statute of limitation even though appellee uncontrovertedly knew where appellant could be personally served. There is no question that appellant personally did not waive service, such as by filing an answer or making a general appearance. See generally Bigley v. Lawrence, 149 Ga. App. 249, 250 (253 SE2d 870) (1979). Thus, we must determine whether the trial court abused its discretion by concluding that appellee’s failure to have process served on appellant was excused by appellee’s reliance on the conduct of appellant’s insurance company in representing to appellee’s counsel or otherwise inducing his counsel into believing that appellee’s claim would be settled without suit. We do not agree with the trial court that this constituted a reasonable excuse as a matter of law.

It is uncontroverted that appellant’s automobile liability insurance carrier was not a party to the personal injury suit filed by appellee. Thus, the case sub judice is not analogous to the situations in cases such as Brown v. Nationwide Ins. Co., 167 Ga. App. 84 (306 SE2d 62) (1983) and Commercial Union Ins. Co. v. F. R. P. Co., 172 Ga. App. 244, 245-246 (1) (322 SE2d 915) (1984), in which we held that the conduct of an insurer in continuing to negotiate claims against it by its own insured could result in a waiver by the insurer of the insured’s obligation to comply with contractual limitation periods in the insurance policy where the insured reasonably relied on that conduct.

The law is well-established that a lawsuit such as the instant action cannot be maintained absent proper service of process on the defendant in one of the modes prescribed by law, unless service was waived. See Trammel v. Nat. Bank of Ga., 159 Ga. App. 850, 852 (285 SE2d 590) (1981). The record clearly reflects that appellant was not properly served and that he took no action either personally or through his attorney that could have led appellee into believing that he had waived proper service of process. See generally Bigley, supra at 250. The record also reflects that appellant’s insurer made no representations to appellee that it had authority to waive service on appellant’s behalf, but indicates instead only that appellant’s insurer in uncontroverted good faith continued to negotiate a settlement of appellee’s claim after the suit was filed. It is obvious that the representations made by appellant’s insurer of the potential for settlement did not induce appellee or his counsel to forego filing his suit before the statute of limitation ran. We note that according to appellee’s counsel, appellant’s insurer did not know that appellant had not been served until appellee’s counsel mentioned it during their last meeting in October 1990, nearly ten months after suit had been filed.

Decided June 4, 1992.

Simpson & Gray, Joseph I. Carter, for appellant.

Hege & Associates, David R. Hege, Sam J. Gardner, Jr., for appellee.

The record thus establishes that the failure to serve appellant properly was attributable. to no one but appellee, who was given no reason by appellant or appellant’s insurer to assume that the legal prerequisites to suit against appellant had been waived by appellant’s insurer’s good faith attempts to negotiate a settlement.

The trial court’s exercise of its discretion in determining due diligence in the service of process will be overturned on appeal where it has been actually abused and cannot be supported as a matter of law. Walker v. Hoover, 191 Ga. App. 859, 860 (383 SE2d 208) (1989). Contrary to appellee’s assumption, situations have arisen in which this court has found it necessary to reverse a trial court’s ruling in service of process cases on the basis of abuse of discretion. E.g., Starr v. Wimbush, 201 Ga. App. 280 (410 SE2d 776) (1991); Bennett v. Matt Gay Chevrolet, 200 Ga. App. 348, 350 (1) (408 SE2d 111) (1991). In the case sub judice we find that neither the facts adduced nor the law of this state support the trial court’s ruling, and accordingly we hold that the trial court abused its discretion by denying appellant’s motion to dismiss.

Judgment reversed.

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

       Even in cases involving waiver of policy limitation provisions, we have held that mere negotiation, without an affirmative promise or other act waiving the limitation or actual or constructive fraud lulling the insured into believing the claim would be paid without suit, is not sufficient to constitute waiver or estoppel of the limitation. Bowers v. Safeco Ins. Co. of Amer., 187 Ga. App. 229, 230 (1) (369 SE2d 547) (1988).


author: Andrews, Judge.

text:
    A92A0630.
    EVANS v. THE STATE.
    (419 SE2d 532)
   Andrews, Judge.

Evans pled guilty to an indictment for burglary charging that on July 6, 1991, “without authority and with intent to commit a theft therein, [he] did enter and remain in the building of Arrow Truck Sales, located at 3223 Moreland Ave.” After a hearing, the trial court ordered that he pay Arrow restitution in the amount of $2,350 for unrecovered merchandise stolen and for damage to the premises. Evans appeals, claiming the evidence was insufficient to prove that he stole the unrecovered merchandise.

The parties stipulate that the following evidence was presented to the trial court at the restitution hearing. On July 6, 1991, Evans was arrested along with a co-defendant in a truck driving from Arrow’s place of business. Six truck wheels and tires valued at $1,250 stolen from Arrow were found in the truck. These were the only stolen items found in the defendant’s possession. Arrow’s business was locked at 2:00 p.m. on July 6. When the business was opened the following morning of July 7 after police called and reported the burglary, the six items found in the defendant’s possession were missing, and additional merchandise had been taken valued at $2,225. Only the merchandise in the defendant’s possession was recovered. The victim stated that the stolen items were so large that it would have required multiple trips by the defendant to take them. A fence surrounding the premises was also discovered to have been cut and damaged in the amount of $125. At the restitution hearing, Evans contended that he stole only the six items found in his possession, and that he should be responsible only for the $125 damage to the fence. The trial court ordered restitution for the unrecovered merchandise found missing on the morning after the burglary ($2,225), plus the damage to the fence ($125) for a total of $2,350.

As a condition of any relief ordered by the court, an adult offender may be ordered to pay restitution for the amount of damages which the victim could have recovered against the offender in a civil action based on the same act or acts for which the defendant is sentenced. OCGA §§ 17-14-3; 17-14-2 (2) (excluding punitive damages, and damages for pain and suffering, mental anguish, and loss of consortium); Hodges v. State, 201 Ga. App. 729 (411 SE2d 775) (1991). “[T]he sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence.” Lawrenz v. State, 194 Ga. App. 724, 725 (391 SE2d 703) (1990); Garrett v. State, 175 Ga. App. 400, 401-404 (333 SE2d 432) (1985). Arrow would be entitled to seek recovery in a civil action against one who burglarized its premises for damages to the premises and the value of the unrecovered items stolen in the burglary. Bot toms v. State, 194 Ga. App. 862, 863 (392 SE2d 59) (1990). The evidence presented at the restitution hearing was sufficient under the preponderance of the evidence standard for the trial court to conclude that Evans stole the unrecovered items in the burglary, and should be responsible for their restitution.

Decided June 4, 1992.

Claudia S. Saari, for appellant.

Robert E. Wilson, District Attorney, Nancy B. Allstrom, J. George Guise, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A92A0751.
    THE STATE v. GRIFFIN.
    (419 SE2d 528)
   Birdsong, Presiding Judge.

The State directly appeals, pursuant to OCGA § 5-7-1 (4), the ruling of the trial court granting appellee Kerry Jackson Griffin’s motion to suppress a breath test result on the grounds appellee was denied the right to an independent test in violation of OCGA § 40-6-392 (a) (3). State v. Strickman, 253 Ga. 287 (319 SE2d 864).

Appellee was stopped by the police. After submitting to a breath test, he was advised of his right to have an independent test and was given the choice of two hospitals, Henry General Hospital or Southern Regional Hospital. The evidence is in conflict whether appellee was advised that Henry General Hospital would only extract and not analyze the blood, but that Southern Regional, which charged more, would both extract and analyze blood. Appellee requested to use and was transported to Henry General where his blood was drawn and the sample handed to him. Appellee was returned to jail; his blood sample was taken from him, but returned the following day when he was released. Appellee makes an admission in judicio in his appellate brief of the fact that the blood sample was subsequently subjected to “a separate, analysis.” Bannister v. State, 202 Ga. App. 762 (415 SE2d 912) and cases cited therein; Dover Realty v. Butts County &c., 202 Ga. App. 787, 788 (3) (415 SE2d 666); Department of Transp. v. Franco’s Pizza &c., 194 Ga. App. 437, 438 (390 SE2d 655); Fuller v. Fuller, 109 Ga. App. 386, 393-394 (3) (136 SE2d 461); see generally Green, Ga. Law of Evid., Admissions, §§ 233 and 238; see, e.g., Kentucky &c. Co. v. Continental Cas. Co., 335 S2d 649 (SC Ala.); Coco v. State, 62 S2d 892, 896 (SC Fla.); Town of Boca Raton v. Raulerson, 146 S. 576, 577 (SC Fla.); State v. Morgan, 319 SE2d 335 (7) (SC S.C.). Appellee makes no assertion and the record does not establish that, after being given his blood sample, he requested and was refused by the police to be taken to Southern Regional or to any other facility where his extracted blood sample could be promptly tested.

The trial court by granting the suppression motion tacitly ruled that the procedure employed by the police in this case did not meet the requirements of OCGA § 40-6-392 (a) (3). Held:

1. Appellee argues police conduct precluded him from preserving chain of custody of his blood sample thereby preventing him from subsequently obtaining a test result that would be admissible in evidence. This police conduct he argues in effect deprived him of his right to an additional test.

A chemical analysis subsequently was performed of blood contained in the sample extracted from appellee. Appellee does not assert that a testing of his blood sample was not accurately performed due to improper handling or tampering by the police, or by any failure to have the sample analyzed the same night the blood was extracted, and the record as reconstructed establishes no such deficiency.

Appellee nevertheless asserts that police conduct prevented him from admitting the test results in evidence, as chain of custody could not be maintained because the sample was not retained in appellee’s control. Suffice it to say the record does not affirmatively establish that chain of custody could not be established and we will not so speculate. We further find nothing in the record which would prevent a subpoena of the hospital and police personnel who handled the sample. Further, appellee is not prevented from testifying as to his own handling of the sample should he voluntarily elect to do so. Moreover, it would appear that the State would be estopped from contesting that the conduct of law enforcement officials was not adequate to establish maintenance of a proper chain of custody over the sample during the time when it was under the exclusive custody and control of law enforcement officials. OCGA § 24-4-27. This holding also is consistent with the well-established rule that a party cannot complain of matters caused by his own procedure or conduct. Littlefield v. State, 197 Ga. App. 343, 344 (2) (398 SE2d 375); Tyson v. State, 184 Ga. App. 309, 310 (1) (361 SE2d 386). (Additionally in the interest of judicial economy, the State might desire to stipulate as to the chain of custody, at least until the sample was placed in appellee’s possession upon his release from custody.) In any event, it is not affirmatively established in the current record that, although appellee had no personal control over the sample during the time he was incarcerated, a chain of custody was not maintained properly by the law enforcement authorities until they returned the sample to appellee. Further, the record does not establish the blood sample either was substituted or tampered with while in the possession of the police, and such bare speculation is insufficient to preclude establishment of chain of custody. Williams v. State, 199 Ga. App. 122 (2) (404 SE2d 296).

2. Appellee argues that a key issue is whether, under the existing circumstances, he was offered a qualified person of his own choosing to administer the additional test.

OCGA § 40-6-392 (a) (3) provides: “The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.”

In State v. Tosar, 180 Ga. App. 885, 887 (350 SE2d 811), we held: “The State did prove that [the officer] read appellee his rights. The State is under no duty to show appellee’s affirmative waiver of an additional chemical test: [Cits.] ‘As we read this statute a duty is placed upon an officer who administers or causes to be administered a chemical test for alcoholic content in bodily fluids to advise the testee that he is entitled to an independent test of his own choosing. Once that duty is fulfilled by the officer, the statutory obligation is satisfied. Sworn testimony by the officer that such advice was given constitutes a prima facie showing of compliance.’ ” (Emphasis supplied.) As in Thompson v. State, 175 Ga. App. 645, 647 (334 SE2d 312), “[t]he facts show that defendant was afforded the opportunity to obtain an independent test of his blood, and that is all that is required.” (Emphasis supplied.) Although the reconstructed record is sparse, it is adequate to establish that appellee was duly advised of his statutory rights within the meaning of OCGA § 40-6-392 (a) (3) and. (4). See generally Fowler v. State, 200 Ga. App. 505 (2) (408 SE2d 449); State v. Tosar, supra at 887. In this regard, the State is not under a duty to show appellee’s affirmative waiver of any or all of his rights. State v. Tosar, supra.

In the absence of an affirmative showing in the record of fraud or deceit by the police calculated to thwart an honest exercise of appellee’s statutory rights, the mere fact appellee was taken to a facility that would not test his drawn blood does not render the advice given him, regarding his right to independent testing, invalid. Once duly advised of his right to an independent test, as was done in this case, appellee would be free, absent unjustified interference by the police, to elect voluntarily to exercise by words or conduct all or any of his rights under the statute. Thus, he could elect to have a blood sample drawn at one facility and tested elsewhere. The reconstructed record reveals that after appellee’s blood was drawn at the facility in question, he made no additional request, reasonable or otherwise, that the police transport him elsewhere (e.g., to the other medical facility of which he was apprised) to have the blood sample tested. The record does not establish that had appellee requested the police to take him to another facility they would have refused to accommodate such a request. The record, as reconstructed, does establish that appellee elected to be taken to a facility which only would draw but not test the blood sample, and he made no request thereafter to be transported to a place where the sample could be tested.

While “it is the duty of a police officer not to prevent a defendant from exercising his right to an independent test, [it is] not his duty to insure the performance of such test.” Grizzle v. State, 153 Ga. App. 364 (2) (265 SE2d 324). As established by the admission in judicio contained in appellee’s brief, appellee’s sample in fact was ultimately tested. The question remains, however, whether, under the attendant circumstances, the police through words or conduct engaged in any acts or omissions which constituted a failure or refusal on their part to allow the appellee to exercise any of the existing statutory rights which he had elected. “ ‘OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right.’ ” (Emphasis supplied.) O’Dell v. State, 200 Ga. App. 655, 656 (409 SE2d 54). As in State v. Blalock, 197 Ga. App 71, 72 (397 SE2d 491), there exists in the record before us “no evidence of police action or inaction which prevented accommodating [appellee],” as to the fulfillment of those rights which he freely and knowingly asserted, let alone evidence that unjustified police action precluded appellant from obtaining additional testing.

In view of the posture of the record before us, we need not determine how promptly a sample must be tested after a valid request for such testing is made. However, assuming arguendo the police had thwarted both an existing and an asserted statutory right of appellee to have the sample tested promptly after it was extracted, “ ‘ [i]t is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified’ ” (id.), because “ ‘justifiable failure or inability to obtain an additional test [or tests] shall not preclude the admissibility of evidence relating to the test or tests taken at the direction of a law enforcement officer’ ” (State v. Buffington, 189 Ga. App. 800, 801-802 (377 SE2d 548)). See generally OCGA § 40-6-392 (a) (3); see Puett v. State, 147 Ga. App. 300 (248 SE2d 560); compare Grizzle v. State, supra, with State v. Laycock, 151 Ga. App. 145 (259 SE2d 150). Apparently no such determination was ever reached in this case.

We conclude the trial court erred in granting the appellee’s suppression motion.

Decided June 4, 1992.

Keith C. Martin, Solicitor, Leigh A. Moore, Assistant Solicitor, for appellant.

Jerry L. Patrick, Jr., for appellee.

Judgment reversed.

Beasley and Andrews, JJ., concur.


text:
    A92A1009.
    MORENO v. THE STATE.
    (419 SE2d 735)
   Pope, Judge.

Appellant/defendant Jorge I. Moreno appeals from his conviction for trafficking in cocaine. Defendant was first convicted in 1988 in a joint trial with his co-defendant Ramirez. After this court reversed the conviction of his co-defendant, Ramirez v. State, 190 Ga. App. 889 (380 SE2d 323) (1989), the trial court granted defendant’s motion for new trial. Defendant and his co-defendant were retried and defendant was again convicted. The pertinent facts surrounding defendant’s arrest and subsequent conviction are recited at Ramirez, supra, and will not be re-stated herein.

1. Defendant contends the evidence was insufficient as a matter of law to authorize his conviction. A review of the record reveals that there was sufficient evidence to authorize the jury to find that defendant, as the owner and passenger of the vehicle in which contraband was found, was in actual joint possession of the contraband with the driver of the vehicle. Ramirez, 190 Ga. App. at 890; Cochran v. State, 190 Ga. App. 884 (1) (380 SE2d 319) (1989).

2. Defendant challenges the trial court’s charge on possession. The trial court properly instructed the jury that they must find beyond a reasonable doubt that defendant actually possessed the cocaine, either solely or jointly, before they would be authorized to convict defendant. In the cases relied upon by defendant, the trial court also charged the jury on constructive possession. See Partridge v. State, 187 Ga. App. 325 (5) (370 SE2d 173) (1988); Raines v. State, 186 Ga. App. 239 (4) (b) (366 SE2d 841) (1988). There is no mention of constructive possession in the charge in this case and there is no reason to infer that the jury would be confused about the type of possession necessary to convict defendant. This enumeration of error is without merit.

3. Defendant argues the trial court erred in admitting into evidence a suitcase and a receipt found in the suitcase. First, defendant argues that the suitcase was not identified by any of the arresting officers and therefore it was improperly admitted. While defendant was testifying he identified the suitcase as the suitcase placed by a Mr. Ocalla in the trunk of defendant’s car to be given to co-defendant Ramirez. Because the defendant properly identified the suitcase, it was not error for the trial court to admit it into evidence.

Defendant also contends that the trial court erred by admitting into evidence a receipt produced from the suitcase. Defendant identified the receipt in question as a receipt from a hotel where he stayed shortly before his arrest. The parties entered into a stipulation that certain evidence including the suitcase had not been tampered with before trial. Accordingly, we will not hold that the trial court committed reversible error by admitting the suitcase and receipt contained therein.

Defendant posits that the receipt should have been produced in response to a pretrial motion before the defendant’s first trial. No objection was made at trial to the introduction of the receipt on that basis. “It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citations and punctuation omitted.) CSX Transp. v. Levant, 200 Ga. App. 856, 861 (6) (410 SE2d 299) (1991).

4. Defendant argues that the trial court erred by admitting into evidence the vehicle registration for the vehicle in which the cocaine was found because the registration improperly placed his character in evidence. The State used the information on the car title to impeach earlier testimony of the defendant concerning when he had purchased the vehicle. “ ‘[I]f evidence is otherwise relevant and material to the issues being tried, it is not rendered inadmissible merely because it may incidentally place the defendant’s character in issue. (Cits.)’ [Cit.]” Calloway v. State, 199 Ga. App. 272, 273 (1) (404 SE2d 811) (1991). This enumeration of error is without merit.

5. Defendant asserts the trial court erred by failing to charge on renunciation. During defendant’s testimony he stated that he saw “something funny” and he requested the officers search his car for that reason. Defendant argues that he was attempting to abandon the crime and that by failing to charge the jury on renunciation the trial court deprived him of that defense. The evidence, however, showed completion of the crime charged. “Where the evidence shows a completed crime, there is no error in refusing to charge on [renunciation]. [Cit.]” Sanders v. State, 251 Ga. 70, 77 (4) (303 SE2d 13) (1983).

6. Defendant urges that the trial court’s charge on parties to the crime was erroneous. Specifically, defendant argues that the trial court erred by charging all of OCGA § 16-2-20 except subparagraph (b) (2). Defendant did not submit a written request to charge on this Code section. It is well-settled that it is not reversible error for a trial court to fail to give a request to charge that is not submitted in writing by the complaining party, unless the charge in question concerns defendant’s sole defense. Bullock v. State, 202 Ga. App. 65 (413 SE2d 219) (1991); Lamb v. State, 196 Ga. App. 665 (3) (396 SE2d 497) (1990). The charge in question did not concern defendant’s sole defense in this case. Moreover, although defendant reserved all objections to the charge, when asked specifically if the trial court omitted anything from the charge, the defendant replied “no.”

Decided June 4, 1992.

Wayne L. Burnaine, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

7. In his final enumeration, defendant challenges his sentence. A review of the record reveals that defendant’s sentence does not comply with the dictates of OCGA § 17-10-9. Defendant’s sentence provides that “execution of this sentence shall not begin until the time for filing an appeal has run or until this conviction is final.” OCGA § 17-10-9 provides in pertinent part: “If a defendant has been convicted and sentenced but, because of his failure or inability to post bond or bail for any reason, he has been incarcerated pending the prosecution of an appeal to any court, the time of the original imposition of his sentence until the time when the remittitur of the appellate court is made the judgment of the court in which the conviction is had shall be counted as time spent under sentence for all purposes.” At the time of defendant’s sentencing he had been incarcerated for more than 37 months. Upon remittitur, defendant’s sentence must be revised to comply with this statute. Defendant’s remaining contentions regarding his sentence should properly be addressed to the sentence review panel.

Judgment affirmed with direction.

Carley, P. J., and Johnson, J., concur.


author: Beasley, Judge.

text:
    A92A0125.
    FREEMAN et al. v. FULTON CONCRETE COMPANY, INC.
    (419 SE2d 536)
   Beasley, Judge.

Freeman appeals from an order and judgment of the trial court in favor of Fulton Concrete Company, Inc., in this action to foreclose a materialman’s lien. The case was decided by the court without a jury, on briefs and stipulated facts.

In December of 1988, appellant Allgood-75 Industrial Properties, Inc., acting on behalf of appellant Freeman, the owner of certain real property, contracted with Cunningham for grading, grubbing, grassing, curbing, gutters, throats, and tops at a subdivision in Cherokee County. Cunningham subcontracted the curbing to Whitworth, who in turn contracted with appellee Fulton Concrete Company, Inc., for the purchase and delivery of concrete for the project. Fulton fulfilled its obligation under, that contract by delivering the concrete for $11,584.52.

Within 90 days of delivery, Fulton filed and recorded a material-man’s lien against the owner for the full amount of the concrete supplied, in compliance with OCGA § 44-14-364. It thereafter received a payment of $1,166.56 from Whitworth which was applied to the debt. It then filed suit on account against Whitworth and obtained a default judgment against him for $11,396.96 ($10,417.96 in principal, $900 in attorney fees, and court costs of $79). Garnishment yielded an additional $4,254.95 towards the amount sought in the lien action.

In August of 1990, Fulton sued to foreclose the lien. Freeman secured a bond to discharge the lien in the amount of $11,600 pursuant to OCGA § 44-14-364. Although the parties stipulated that “appellee remains unpaid for $6,163.01” of the amount originally sought, the trial court entered judgment in favor of Fulton for $11,584.52.

1. Appellants contend the trial court erred in awarding judgment to supplier Fulton where the evidence shows the owner paid the contractor the contract price.

“The ‘contract price of the improvements made or services performed’ establishes the maximum extent to which an owner’s property may be subject to materialmen’s liens. OCGA § 44-14-361.1 (e). However, an owner’s mere payment of the full contract price to the contractor, standing alone, is not and has never been a complete defense to foreclosure of a materialman’s lien. ‘The obvious purpose of the statute is to protect materialmen who comply with its terms. If it is held that mere payments to the contractor in discharge of the contract price would defeat the lien of materialmen, the whole statute which undertakes to authorize liens for materialmen would be avoided.’ [Cit.]” Mayer Elec. Supply v. Fed. Ins. Co., 195 Ga. App. 191, 192 (393 SE2d 270) (1990).

“ ‘(T)he owner of the real estate improved, who has paid the agreed price or any part of same, may set up the payment in any action brought and prove by competent and relevant evidence that the payments were applied as provided by law, and no judgment shall be rendered against the property improved.’ (Emphasis supplied.) OCGA § 44-14-361.1 (a) (4). Thus, an owner must not only show that full payment was actually made to the contractor, he is also ‘required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor’s statutory affidavit concerning such indebtedness had been obtained. [Cits.]’ [Cit.]” Mayer, supra at 192. The owner in the present case has not met the burden of showing that sums paid to Whitworth were properly appropriated to appellee material-supplier so as to defeat the lien. On the contrary, the stipulated evidence reveals that appellee remains unpaid for $6,163.01.

Decided June 5, 1992.

H. Darrell Greene & Associates, H. Darrell Greene, Paul Shimek III, for appellants.

John C. Bach, Robert J. Hulsey, for appellee.

Since the stipulated facts show that the claim of lien was filed approximately four months prior to the filing of the contractor’s affidavit, appellants cannot avail themselves of the lien dissolution provisions of OCGA § 44-14-361.2. That Code section “authorizes an owner, seller, or lender to dissolve a lien upon showing either that (1) the contractor gave a written lien waiver; or (2) the contractor provided a sworn statement that the agreed price or reasonable value was paid or waived in writing, and at the time such a statement was given in connection with any of the transactions listed in (a) (2) (B) (i)-(iii) the contractor had not previously filed a valid preliminary notice or claim of lien.” Balest v. Simmons, 201 Ga. App. 605, 606 (411 SE2d 576) (1991). “[T]he proper construction of paragraph (2) of OCGA § 44-14-361.2 (a) is that a contractor’s affidavit will dissolve a lien only if the conditions in both subparagraphs (A) and (B) are met. . . .” Id. at 607.

2. Alternatively, appellants contend that the amount of the judgment was not authorized by the evidence since appellee sought and is entitled to recover only the balance of the contract price remaining to be paid. Fulton acknowledges that the court “through inadvertent error” awarded the amount of the original claim rather than the amount sought at trial. The judgment is affirmed on condition that it is corrected by the trial court on remittitur to reflect that appellants’ liability to appellee is $6,163.01; otherwise reversed.

Judgment affirmed on condition.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0446.
    WOOD v. THE STATE.
    (419 SE2d 534)
   Beasley, Judge.

Appellant was convicted of possession of cocaine with intent to-distribute in violation of OCGA § 16-13-30. Her sentence is eight years’ imprisonment and a $5,000 fine.

A GBI agent testified that he had been conducting an undercover narcotics investigation with the Jackson County Sheriff’s Department in the winter and spring of 1987. Based on reliable information provided to him by a confidential informant in regard to appellant’s use, possession, and sale of cocaine, he obtained a warrant to search her home. When he arrived, her brother Jeffrey White, who did not live there, was standing in the doorway. As the agent approached White, he heard the commode flushing and believed that evidence was being destroyed.

There was only one bathroom in the house, and the agent went to it immediately, but the commode had already flushed. He then found appellant in her bedroom in the front of the house. She was standing beside the bed in her night clothing, No cocaine was found in her possession or in the residence. At the time of the search, the house was also occupied by appellant’s small baby, her sixteen-year-old son, and her seven-year-old daughter. Appellant’s older son also lived in the house and arrived while the search was in progress.

The GBI agent and another officer went under the house and located a septic tank, in which they found a large plastic bag containing many smaller bags. Three small bags harboring cocaine were recovered. Approximately 50 bags with their corners cut, a common way to package cocaine, were recovered.

The agent testified that White told him that appellant had flushed the commode as law enforcement authorities entered the house. The agent also testified that White could not have flushed the commode, based on his presence in the doorway at the time the commode was flushing. The small child was in the bed asleep, and appellant’s young son was in the very rear bedroom.

A forensic chemist for the State Crime Laboratory testified that the consistency of the cocaine showed that it had not absorbed as much moisture as it would have had it been in the septic tank for a long period of time. The bags had not sunk but were floating on top of the waste water.

Appellant testified that her children did not have anything to do with cocaine being flushed down the commode. Her husband, who had been convicted of violating the Controlled Substances Act and sent to prison, had not been in the house for over three-and-one-half months prior to the search.

1. Appellant challenges the sufficiency of the evidence to support the verdict.

She argues that hearsay statements by her brother and the confidential informant, inculpating her, were without probative value as to her guilt, even though no objection was made to the introduction of these statements. This argument is meritorious. See State v. Speir, 189 Ga. App. 254, 255 (2) (375 SE2d 298) (1988); Rodriguez v. State, 184 Ga. App. 819 (1) (363 SE2d 23) (1987). This evidence, therefore, is not considered in reviewing sufficiency.

Decided June 5, 1992.

Jerry C. Gray, Donna L. Avans, for appellant.

Timothy G. Madison, District Attorney, for appellee.

The probative evidence was sufficient to authorize a rational trier of fact in finding beyond a reasonable doubt that appellant was the individual who disposed of the cocaine, that she had thereby been in possession of it, and that the way in which it was packaged established an intent on her part to distribute it. Compare Myers v. State, 193 Ga. App. 372 (387 SE2d 640) (1989). The evidence is construed in a light most favorable to the verdict. Adams v. State, 255 Ga. 356, 357 (1) (338 SE2d 860) (1986).

2. Appellant next contends that the trial court was without authority to order her to pay a fine since she was not placed on probation.

OCGA § 17-10-8 provides that “[i]n any case where the judge may, by any law so authorizing, place on probation a person convicted of a felony, the judge may in his discretion impose a fine on the person so convicted as a condition to such probation.” Hendrix v. State, 199 Ga. App. 599, 602 (3) (405 SE2d 576) (1991), explains: “This means only that the trial court may impose a fine when the trial court is authorized to and, in fact, does award ‘such probation.’ Where the trial court does not award probation, the imposition of a fine in addition to a prison sentence is outside the trial court’s discretion and not authorized by any law cited to us. [Cit.]”

The conviction and sentence of imprisonment are affirmed but the imposition of the fine, which the State concedes was in error, is reversed.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A92A0072.
    HALL v. THE STATE.
    (419 SE2d 503)
   Cooper, Judge.

Appellant was convicted by a jury of one count of child molestation, two counts of criminal attempt to commit rape and one count of simple battery. He appeals from his sentence and from the trial court’s denial of his motion for new trial.

1. In his first enumeration, appellant contends that the trial court erroneously admitted evidence of a similar transaction. Appellant was convicted for acts perpetrated on his daughter. The daughter testified at trial that over a period of several years, appellant committed many acts of molestation against her, which consisted of fondling her genital area with his fingers and rubbing her genital area and buttocks with his penis. These acts of molestation began when the daughter was 12 years old and continued until she was 15. The acts occurred in the family home and, according to the daughter, were usually initiated by a hug from appellant. The daughter never alleged that penetration occurred but testified that the molestation consisted of fondling and rubbing. At trial, the court allowed appellant’s younger sister to testify that she and appellant had sex when she was about 12 or 13 years old, which was 16 years prior to the trial. The sister testified that at the time of the incident, appellant was about 18 or 19, and it occurred in the family home where the sister was living with her father. Appellant, who was married at the time, was visiting, and no other family member was at home. The sister stated that appellant approached her and hugged her, and then they had sex. She stated that it happened just that once and that she had not told anyone until the trial.

The trial court first held a hearing outside the presence of the jury, at which the prosecution argued that the incident with the sister was admissible to show the lustful disposition of appellant and that the incident was sufficiently similar to the crimes for which appellant was being tried to be admissible. The court agreed and found the incident sufficiently similar and admissible for the purposes advanced by the State. See Williams v. State, 261 Ga. 640 (2) (409 SE2d 649) (1991). After the sister testified at trial regarding the circumstances of the incident, the trial court immediately gave a charge to the jury on the admission of similar transactions and the purposes for which they can be considered.

On appeal, appellant argues that the sister’s testimony was not admissible for any permissible purpose, and it was not sufficiently similar to the crimes on trial to be admitted. Appellant raises the following differences: the sister alleged penetration, whereas the daughter never alleged penetration; the sister stated that the contact occurred only once, whereas the daughter alleged continuing acts; and the age difference between the sister and appellant was much less than the age difference between appellant and his daughter. Appellant also emphasizes the 16-year time span between the alleged transaction and the crimes on trial.

“ ‘The exception to the general rule that evidence of independent [transactions] is inadmissible has been most liberally extended in the area of sexual offenses.’ [Cit.] ‘In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. . . . There need only be evidence that the defendant was the perpetrator of both [acts] and sufficient similarity or connection between the independent [transaction] and the offenses charged.’ [Cit.]” Stine v. State, 199 Ga. App. 898 (2) (406 SE2d 292) (1991). Both victims testified that appellant was the perpetrator, and further “ ‘[w]e also are satisfied that there exists a sufficient similarity or connection between the prior independent [transaction] and the offenses charged.’ [Cit.]” Id. “ ‘The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts (or other conduct) perpetrated upon them, is of sufficient similarity to make the evidence admissible.’ [Cits.]” Boynton v. State, 197 Ga. App. 149 (1) (397 SE2d 615) (1990). As to the 16-year time lapse, “[although lapse of time is one of the more important factors to weigh in considering the admissibility of evidence of similar crimes, it is not wholly determinative. [Cit.]” Cooper v. State, 173 Ga. App. 254 (1) (325 SE2d 877) (1985). In the instant scenario, many years are going to elapse between sexual acts with a younger sister and with a daughter. “Under such circumstances, we do not believe the lapse of time between the independent [transaction] and the offenses charged is a determinative factor which would make such evidence inadmissible. [Cit.] The lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility. [Cits.]” Id. See also Johnson v. State, 199 Ga. App. 144 (1) (404 SE2d 455) (1991). The Georgia Supreme Court has recently acknowledged that lapses of eleven and nineteen years are not reasons alone to preclude admission of similar transactions. See Gilstrap v. State, 261 Ga. 798 (1) (410 SE2d 423) (1991). The trial court did not err in admitting the sister’s testimony as to the similar transaction with appellant.

2. Appellant’s next enumeration of error involves a note written between appellant’s daughter and one of her high school classmates. The note contains statements allegedly written by appellant’s daughter in which she recounts sexual experiences with one of the State’s witnesses, Glen Cunningham (“Cunningham”). At trial, the daughter denied writing parts of the note and did not remember writing other parts of the note. Further, she admitted that the statements in the note regarding her relationship with Cunningham were not true. Appellant attempted to inquire of the daughter and other State witnesses as to the past sexual experiences of the daughter with Cunningham and others in an effort to show that the daughter had previously made false statements regarding sexual contact with certain persons. The trial court allowed appellant to question the witnesses regarding the falsity of the note but restricted questioning as to the daughter’s past sexual history pursuant to the Rape Shield Statute, OCGA § 24-2-3. On appeal, appellant argues that the court erred in restricting the defense’s cross-examination pursuant to Smith v. State, 259 Ga. 135 (1) (377 SE2d 158) (1989). Contrary to appellant’s argument, Smith is not authority for the admission of evidence of the daughter’s past sexual experiences. Smith allows such evidence if the victim has previously made false accusations of sexual misconduct against others. The instant case involves a private correspondence containing allegedly false statements about a sexual relationship and contains no accusations of sexual misconduct by or against anyone. Smith does not apply, and the court did not err in disallowing evidence regarding the daughter’s prior sexual history. In any event, the record indicates that later in the trial the court lifted the restriction in response to other evidence produced, and at that point, appellant could elicit the testimony he desired.

3. Appellant next contends that the court erred in preventing an expert witness, a school counselor, from testifying as to whether the victim exhibited normal behavior when she reported the molestation. The record reveals that the witness was not offered by the State as an expert witness and was not questioned by the State regarding areas of expertise. The witness stated that she had a degree in counseling and she counselled students on career, educational and personal matters. She further stated that she had spoken to students who had been sexually molested on three other occasions. The witness testified as to what she observed when the victim told her about the molestation, but on cross-examination defense counsel further inquired as to whether the victim’s behavior was “normal.” The trial court did not err in disallowing such inquiries to a witness who was not qualified as an expert. “ ‘[T]he trial judge has a discretion in accepting or rejecting the qualifications of the expert, and his judgment in that respect will not be disturbed on appeal unless abused. . . .’ [Cit.]” Taylor v. State, 261 Ga. 287 (1) (404 SE2d 255) (1991).

4. Appellant asserts that the trial court erred in preventing him from testifying about the circumstances surrounding his divorce and separation from his first wife. Appellant argues that his strictness with his daughter was a result of the behavior of his first wife and that his daughter fabricated the allegations of molestation in order to escape the strict household. Trial testimony as to the strictness of appellant and his household was not limited; however, the court ruled that an exploration of appellant’s relationship with his first wife was not relevant and was not necessary to establish appellant’s theory. “The admission of evidence is a matter which rests within the discretion of the trial court. [Cits.]” Elrod v. State, 195 Ga. App. 571 (4) (394 SE2d 548) (1990). We find no abuse of discretion in the trial court’s ruling.

5. In his next enumeration of error, appellant contends that the evidence was insufficient to sustain the verdict. We disagree. The vietim testified in detail about the acts of molestation committed by appellant. The victim was cross-examined by the defense and any issues of credibility were properly resolved by the jury. Several witnesses testified that the victim had related to them the molestation by her father, and appellant’s sister testified as to the similar occurrence with appellant. “On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cits.]” Ross v. State, 195 Ga. App. 624 (1) (394 SE2d 418) (1990). Viewed in the proper light, the record reveals sufficient evidence from which a rational trier of fact could have found appellant guilty of the acts charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

6. The final enumeration raised by appellant alleges that the trial court erred in denying appellant’s motion for new trial on the basis of newly discovered evidence. At the hearing on the motion for new trial, appellant presented several witnesses who testified that, after the trial, the victim recanted her testimony. The witnesses were appellant’s wife, mother-in-law, sister-in-law and a private investigator who had talked to the victim — the victim did not testify or present any statement to the court. It is well established that in order to be granted a new trial on the basis of newly discovered evidence, a defendant must show, among other things, that the evidence is so material that it would probably produce a different verdict, that it is not cumulative only, and that it will have an effect other than to impeach the credit of a witness. Merka v. State, 201 Ga. App. 471 (2) (411 SE2d 357) (1991). See Drake v. State, 248 Ga. 891 (1) (287 SE2d 180) (1982). We agree with the trial court that in this case the new evidence presented by the defense is cumulative of the evidence presented at trial. The defense strenuously attacked the credibility of the victim at trial through witnesses and cross-examination, and presented witnesses who contradicted the victim’s testimony. The defense had ample opportunity to present to the jury its theory that the victim fabricated her story in order to escape her father’s strict household, which is the substance of the new evidence. The new evidence also serves to impeach the credibility of the victim, and we cannot say that the third parties’ testimony is so material that it would probably produce a different verdict. “ ‘Motions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused. [Cit.]’ ” Evans v. State, 177 Ga. App. 820 (4) (341 SE2d 483) (1986). There was no abuse of discretion, and this enumeration is without merit.

Judgment affirmed.

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

Decided May 19, 1992

Reconsideration denied June 8, 1992

Boling, Rice & Bettis, Jeffrey S. Bagley, for appellant.

Garry T. Moss, District Attorney, R. Russell McClelland III, Assistant District Attorney, for appellee.