text:
    74399.
    BURSON v. THE STATE.
    (359 SE2d 731)
   Sognier, Judge.

Appellant was convicted of burglary and appeals pro se.

1. In his first two enumerations appellant asserts error in the trial court’s failure to dismiss the charge on the grounds that the State failed to hold a “statutorily sufficient” preliminary hearing before a superior court judge, and the magistrate failed to grant bail as a result of “the unconstitutional O.C.G.A. 17-6-1.”

OCGA § 17-7-20 provides: “Any judge of a superior or state court, judge of the probate court, magistrate, or officer of a municipality who has the criminal jurisdiction of a magistrate may hold a court of inquiry to examine into an accusation against a person legally arrested and brought before him.” A preliminary hearing in this case was held by a Magistrate of DeKalb County, who had authority to hold such a hearing under the provisions of OCGA § 17-7-20. Since there is no requirement that a superior court judge conduct the preliminary hearing, appellant’s assertion of error in this regard is without merit.

As to the argument that the magistrate could not grant bail, OCGA § 17-6-1 (a) provides that the offense of burglary is bailable by a court of inquiry. However, appellant has a prior conviction for burglary and under the provisions of OCGA § 17-6-1 (b) (1) (A) and 17-6-1 (b) (2), a person charged with committing a felony who has previously been convicted of burglary “shall not be entitled to or released on bail. . . .” Hence, the fact that the magistrate could not grant bail to appellant was a result of appellant’s prior conviction and was not due to a “statutorily” deficient hearing. Further, appellant subsequently petitioned the Superior Court of DeKalb County requesting that he be released on bail, as authorized by OCGA § 17-6-1 (c). That court held a hearing on appellant’s request and denied bail on the ground that there was a substantial likelihood that appellant would commit other crimes if released on bail. Since appellant did not meet the criteria for release set forth in OCGA § 17-6-1 (c), the trial court was not authorized to release appellant on bail.

Our Supreme Court has not ruled on the constitutionality of OCGA § 17-6-1, although it transferred this case to this court on the ground that OCGA § 17-6-1 had been held constitutional in State v. Middlebrooks, 236 Ga. 52 (222 SE2d 343) (1976). Middlebrooks, however, does not deal with the constitutionality of the bail statute; rather, it deals with the necessity of a preliminary hearing. The Court of Appeals has no authority to determine the constitutionality of a State statute, Art. VI, Sec. VI, Par. II (1), Const, of Ga. 1983, so we cannot decide appellant’s assertion that OCGA § 17-6-1, supra, is unconstitutional. Nevertheless, we can take notice that the Supreme Court of the United States has held recently that a similar provision of the Bail Reform Act of 1984 (18 USC § 3142 (e) (1982 ed., Supp. Ill)), which authorizes pretrial detention without bail of certain persons who might commit other crimes if released, does not violate the due process clause of the Constitution of the United States. United States v. Salerno, _ U. S. _ (Case No. 86-87, decided May 26, 1987).

2. Appellant’s assertion that the indictment did not allege venue in DeKalb County is not supported by the record. The indictment was returned by the grand jury of DeKalb County and charged appellant with burglary, “for that said accused, in the County of DeKalb and State of Georgia . . .” unlawfully entered the residence of Charles Lowe with intent to commit a theft therein. (Emphasis supplied.) We cannot consider an enumeration of error which is not supported by the transcript. McCutchen v. State, 177 Ga. App. 719, 722 (3) (341 SE2d 260) (1986).

3. Appellant contends the trial court erred by failing to dismiss the charge because the trial court did not issue an order allowing appellant free access to the law library in the DeKalb County Jail at any and all times he desired such access during regular business hours. At a hearing on pretrial motions appellant stated that he had only spent two hours in the law library, and the trial court directed that appellant be allowed to go to the law library for two hours every day until trial. The trial court also directed appellant to sign a sheet showing the time he entered and departed the law library so the court would know that its order had been complied with. When appellant complained that trial was to commence the following day and he had not had sufficient time to prepare (appellant insisted on representing himself at trial), the court offered to give appellant more time, and also informed appellant that the public defender would assist appellant in his research. Appellant did not accept this offer nor did he request a continuance. Rather, he insisted that the only remedy was dismissal of the charge against him. Under such circumstances there was no error. See Myron v. State, 248 Ga. 120, 121 (3) (281 SE2d 600) (1981); Donnelly v. State, 166 Ga. App. 694 (306 SE2d 15) (1983). If there was any error, it was induced by appellant’s refusal of the court’s offer of additional time to prepare for trial, and induced error is impermissible. Davis v. State, 167 Ga. App. 701, 702 (2) (307 SE2d 272) (1983).

4. Appellant asserts error in the State’s “deliberate and willful” suppression of exculpatory evidence, and argues that the charge should have been dismissed for this reason. The alleged exculpatory evidence was the glass-louvered door through which Charles Lowe’s home was entered unlawfully. Both Lowe and his brother testified that prior to the burglary, only the top louver was missing and the inside of the door was covered with plastic to keep the air-conditioned air from escaping. After the burglary a louver next to the doorknob was missing, and a hole had been poked in the plastic near the doorknob, as though a hand had been stuck through it. Because Lowe’s wife refused to stay in the house until the door was fixed, Lowe had it replaced with a steel door later on in the day of the burglary. When the issue of the State’s alleged unlawful suppression of exculpatory evidence arose, Lowe searched for the louver near the doorknob that was missing and found it in some bushes beside the patio; the louver was broken. It is clear from such evidence that the State did not wilfully and deliberately suppress evidence of the door since it was never in the State’s possession; rather, the missing door had been replaced by Lowe with a new door the same day the burglary occurred.

The State has a duty to turn exculpatory evidence over to a criminal defendant upon request. Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215). When evidence is lost, a conviction must be reversed on a showing of bad faith or connivance on the part of the government, or a showing that the defendant was prejudiced by the loss of the evidence. West v. State, 251 Ga. 458, 460 (3) (306 SE2d 909) (1983). The “loss” of the entire door and the missing louver was not due to any action by the State, and there was no showing that appellant was prejudiced by the “loss.” Further, the door and missing louver were not exculpatory evidence. On the contrary, if the door had been produced it would confirm testimony that entry to Lowe’s house was gained by breaking the louver and poking a hole through the plastic. Such evidence is inculpatory, and the Brady decision deals only with exculpatory evidence. Hence, the court did not err by refusing to dismiss the charge on this ground.

5. Appellant next contends that the evidence was not sufficient to support the verdict. Stated succinctly, the evidence disclosed that Lowe returned home from work and found the side door to his home open. Lowe was carrying a pistol (legally) and as he entered his kitchen, he saw appellant come down a hall from the bedroom area toward the living room. Lowe went through his kitchen, pointed his gun at appellant and told him to “lie down or die.” After Lowe repeated his order appellant laid down on the floor and Lowe called the police. When the police arrived and arrested appellant, Lowe’s camera was in appellant’s pocket. Appellant had no authority to enter Lowe’s home and no authority to take his camera. Such evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

6. Appellant complains of the trial court’s failure to compel discovery. This enumeration of error is not supported by the transcript, which shows that in response to appellant’s discovery motion the court ordered the prosecuting attorney to give appellant anything in the prosecutor’s file he was entitled to under the law. Additionally, the court stated it would make an in camera inspection of the file to make sure appellant received all exculpatory material contained in the file. This court cannot consider factual representations in a brief which do not appear in the record. McCutchen, supra. We have discussed the State’s failure to produce the louvered door in Division 4 of this opinion, and in regard to appellant’s request for the police officer’s rough notes, he is not entitled to such notes under Georgia law. Natson v. State, 242 Ga. 618, 623-624 (6) (250 SE2d 420) (1978); Wilson v. State, 246 Ga. 62, 65 (1) (268 SE2d 895) (1980).

7. In the next three enumerations of error appellant asserts error in the court’s failure to admonish the prosecuting attorney for the use of prejudicial questioning during cross-examination of appellant, prejudicial remarks during closing argument, and use of “double standards” during the trial. Appellant made no objection to the prosecutor’s cross-examination of appellant or to the prosecutor’s closing argument and this court will not consider questions raised for the first time on review. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986).

In regard to appellant’s complaint of the prosecutor’s use of “double standards,” he is referring specifically to the fact that the prosecuting attorney objected to appellant’s statement in closing argument as to what he “thought” normal police procedure was in burglary cases. The court suggested that appellant rephrase his statement; appellant did so and continued his argument as to what the police should have done in investigating the burglary involved in this case.

During presentation of his defense appellant testified that he had gone to Lowe’s home to buy cocaine, as Lowe was a cocaine dealer. Appellant apparently argues that because the State referred in its closing argument to what narcotics officers would have done if Lowe was a cocaine dealer, the prosecutor used a “double standard” by making that statement and later objecting to appellant’s argument as to police procedure in a burglary case.

The prosecutor’s objection was proper, because appellant’s statement as to what he thought proper police procedure should be was not based on the evidence, but on appellant’s personal opinion as to what police procedure should be. A person cannot state his personal belief in closing argument. Woodard v. State, 91 Ga. App. 374 (5) (85 SE2d 723) (1955); Keys v. State, 156 Ga. App. 553, 554 (275 SE2d 128) (1980). Thus, appellant’s claim that the State used double stdn-dards by objecting to appellant’s closing argument is without merit.

Decided July 13, 1987

Robert F. Burson, Jr., pro se.

Robert E. Wilson, District Attorney, J. Michael McDaniel, Assistant District Attorney, for appellee.

8. Lastly, appellant asserts error in the trial court’s failure to instruct the jury “on relevancy of evidence based upon extensive experience as a general guideline.” In his brief appellant argues that the court instructed the jury on impeachment of witnesses, but did not instruct the jury that the impeachment evidence was introduced for a limited purpose. Appellant did not request such an instruction and after completing its charge to the jury the court asked appellant specifically if he had any objection to the charge. Appellant stated that he did not, thereby waiving his right to enumerate any error as to the charge given by the court. Henry v. State, 176 Ga. App. 462, 464 (5) (336 SE2d 588) (1985).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1, 2, 3, 4, 5, 6 and 8 and in the judgment only in Division 7.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    74764.
    DANIELS v. THE STATE.
    (359 SE2d 735)
   Deen, Presiding Judge.

In the case at bar appellant Daniels appeals from the trial court’s denial of his motion to suppress evidence obtained by means of a search warrant issued in response to an affidavit which appellant alleges contains certain material statements which were false and which the police officer who executed the affidavit knew to be untrue at the time it was executed. The affiant had sworn that he had received information from a known and reliable informant that appellant had cocaine and cocaine rock in his apartment. After the appellant’s allegations were made known to the prosecuting attorney prior to trial, the issue was raised in an evidentiary hearing. The affiant acknowledged during the hearing that the allegedly reliable information was actually just “street talk” picked up at various times from more than one person, and that the police officer/affiant, instead of receiving the material information from a single person possessing appropriate credentials as an informant, had pieced together fragments of information obtained from at least three persons and had concocted the fictitious “reliable informant” from three different men — one of whom, incidentally, had died before the time of the hearing. Moreover, affi-ant admitted, no single one of the three actual “informants” could have fully qualified, under the criteria recited in the affidavit (“no known criminal record,” “is a mature person,” “is regularly employed,” “demonstrated a truthful demeanor” when giving the information, “within the past 3 days . . . had been inside the . . . premises and see[n]” the contraband substance), as the sort of reliable informant whose information can ordinarily constitute the basis for probable cause for the issuance of a search warrant. The trial court denied appellant’s motion to suppress the inculpatory evidence seized during the search, and a Turner County jury found appellant guilty of trafficking in cocaine. Held:

This case is controlled adversely to the verdict by Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978) and its progeny, and the judgment must therefore be reversed. In Georgia as in other jurisdictions, courts have excised false statements from affidavits either where there was no intentional misrepresentation or where the false statements were not essential to the establishment of probable cause. See, e.g., Williams v. State, 232 Ga. 213 (205 SE2d 859) (1974).

In Franks, however, as in the instant case, the challenged information both was known by the affiant to be false and was essential to the establishment of probable cause for the warrant to issue. The court held in Franks at 155 et seq.: “[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded [from the evidence presented for the jury’s consideration] to the same extent as if probable cause was lacking on the face of the affidavit.” Our scrutiny of the challenged affidavit in the case sub judice reveals that, “with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause.” Id. See generally Williams v. State, 251 Ga. 749 (312 SE2d 40) (1983); Williams v. State, supra at 214.

We note that the State’s brief characterizes the false statements in the affidavit as “omissions” rather than “misrepresentations” and contends that they are not material to the establishment of probable cause. We cannot agree that such is the case, and that the “omissions” are inadvertent or that the false statements are irrelevant to the purpose of the affidavit. Pretermitting consideration of the time-honored theological concept of “sins of omission,” we point to the wording of the oath in which the affiant undertakes to tell “the truth, the whole truth, and nothing but the truth.” Here the affiant failed or refused to comply with at least two of these three clauses: his statement, made under oath, was not merely an over-simplification or a carelessly incomplete statement, but rather a deliberately contrived fabrication, placed in the mouth of a fictitious persona, consisting of assorted facts and half-truths, with material facts deliberately screened out. We find this characterization of the affidavit and the affiant (although admittedly ingenious) far too charitable. Both law and equity require reversal of the judgment below. Franks v. Delaware, supra.

Decided July 13, 1987.

N. Glenn Perry, for appellant.

David E. Perry, District Attorney, Donald L. Johstono, Jr., Assistant District Attorney, for appellee.

Judgment reversed.

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


text:
    74827.
    BRUCE v. THE STATE.
    (359 SE2d 736)
    Decided July 13, 1987.

      Donald 0. Nelson, for appellant.
   Deen, Presiding Judge.

The appellant, Harry Wayne Bruce, was convicted of commercial gambling. The sole issue in his appeal is whether a City of Atlanta police officer, who is also a deputy sheriff of Fulton County, has the authority to apply for, obtain and execute a search warrant in Clayton County. OCGA §§ 17-5-20 and 17-5-21 provide that any officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws may apply for a search warrant. OCGA § 17-5-24 also provides that “[t]he search warrant. . . shall be directed for execution to all peace officers of this state.” Accordingly, the City of Atlanta police officer/Fulton County deputy sheriff in this case was authorized to apply for and execute the search warrant in Clayton County. See Fowler v. State, 128 Ga. App. 501 (197 SE2d 502) (1973).

Judgment affirmed.

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

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    72179.
    EMMONS v. BURKETT.
    (359 SE2d 691)
    Decided June 22, 1987
    Rehearing denied July 14, 1987

      John M. Comolli, Robert E. Stagg, Jr., for appellant.

      Paul Myers, for appellee.
   Beasley, Judge.

Upon certiorari, the judgment affirming the trial court in Emmons v. Burkett, 179 Ga. App. 838 (1) (348 SE2d 323) (1986) has been reversed and the case remanded by the Supreme Court in Emmons v. Burkett, 256 Ga. 855 (353 SE2d 908) (1987), for further consideration consistent with the new “rebuttable presumption” rule adopted in lieu of the previously governing “absolute bar rule” for collateralized debt recovery. Accordingly, our former judgment is vacated.

1. Upon consideration of the proof submitted on motion for summary judgment there is evidence of the fair and reasonable value of the collateral which was sold and that its value was less than 1 percent of the entire debt. Thus, summary judgment was correctly denied and the issues as to whether the creditor overcame the rebutta-ble presumption that the value of the collateral is equal to the indebtedness, and as to the amount the debtor should receive credit for, are left for jury determination.

2. Because the Supreme Court did not disturb Division 2 of our former opinion, that division is readopted and incorporated herein by reference.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    73675.
    HILL v. THE STATE.
    (360 SE2d 4)
   Beasley, Judge.

Defendant was charged in a seven-count indictment for acts committed on his eleven-year-old daughter on three days within a 9-day period: rape (OCGA § 16-6-1), aggravated sodomy (OCGA § 16-6-2 (a)), and child molestation (OCGA § 16-6-4 (a)) on September 18, 1985; cruelty to children (OCGA § 16-5-70 (b)) on September 25; child molestation, aggravated child molestation (OCGA § 16-6-4 (c)), and statutory rape (OCGA § 16-6-3) on September 26. He was acquitted of rape and convicted of the remaining counts. The appeal is from the denial of the motion for new trial.

1. Defendant first contends that the jury’s verdict of not guilty of rape is repugnant to and inconsistent with the verdicts of guilty for aggravated sodomy and child molestation, involving the September 18 incident. The inconsistent verdict rule has been abolished in Georgia and this ground is without merit. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), decided March 1986 before a ruling on defendant’s motion for new trial; see in this connection Williams v. State, 213 Ga. 221, 222 (1) (98 SE2d 373) (1957); see also Parker v. Mooneyham, 256 Ga. 334 (349 SE2d 182) (1986). Moreover, the elements of each of the three crimes charged are different, and the conduct related to each, as evidenced in this case, is also different, distinct, and separate. Thus there is no inconsistency in the first place.

2. Defendant moved to suppress magazines, including Playgirl and Hustler, found during a search of his business, L. C.’s Bargain Store. The motion, based on the contention that the consent to search was coerced, was denied and the evidence was admitted.

After defendant was arrested on the night of September 27, he was fully advised of his Miranda rights at the Henry County Sheriff’s office. A Butts County officer had taken him there in order to return a Henry County officer who assisted in the arrest and to attempt to question defendant. Defendant indicated he wanted a lawyer and the officer told defendant they could take care of that upon reaching Butts County. No questioning occurred at this time. The officer testified that upon arrival in Butts County, he gave defendant the opportunity to use the telephone, but defendant said he did not want to. It was at this point that the officer asked defendant if he would consent to the search of the store and defendant signed the consent form which is relied upon by the state to justify the warrant-less search of the store. The key was obtained from defendant.

The basis of illegality asserted in the motion to suppress is the fourth amendment to the federal constitution. Defendant argues that since his request for counsel was not honored before the consent to search form was signed, this shows that the consent was coerced rather than voluntary.

In the fourth amendment context, “[w]here the state seeks to justify a warrantless search on grounds of consent, it ‘has the burden of proving that the consent was, in fact, freely and voluntarily given.’ [Cit.] A valid consent eliminates the need for either probable cause or a search warrant. [Cit.] The voluntariness of a consent to search is determined by looking to the ‘totality of the circumstances,’ Schneckloth v. Bustamonte, 412 U. S. 218, 219 (93 SC 2041, 36 LE2d 854) (1973), including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling.” Dean v. State, 250 Ga. 77, 79 (2a) (295 SE2d 306) (1982).

The record of the motion to suppress hearing shows that the trial court evaluated these factors and determined that the consent was voluntarily given to search the store. On appeal, the trial court’s ruling on disputed facts and credibility must be accepted unless clearly erroneous. Muff v. State, 254 Ga. 45, 48 (326 SE2d 454) (1985). Even accepting the fact that the consent was obtained after defendant indicated a desire to have counsel before questioning, that alone would not be enough to mandate a finding of coercion of the consent for the search. For one thing, defendant had declined the invitation to use the phone. For another, he said he had nothing to hide. Considering all the evidence in this regard, there was no error in finding that the circumstances were such that the consent was voluntary. Thompson v. State, 248 Ga. 343, 344 (2) (285 SE2d 685) (1981); Wilson v. State, 179 Ga. App. 780, 781 (1) (347 SE2d 709) (1986); Noland v. State, 178 Ga. App. 486, 488 (2) (343 SE2d 763) (1986). Nor does the fact he was in custody demand a finding of involuntariness. Howard v. State, 144 Ga. App. 208, 210 (2) (240 SE2d 908) (1977); Davis v. United States, 328 U. S. 582 (66 SC 1256, 90 LE 1453) (1945).

3. During the trial, numerous items and photos were introduced over defendant’s objections, including the following: exhibits #4, false glasses with a penis shaped rubber nose; #6, a collection of photos of nude adults and children, otherwise unidentified; #7, The Best of Playgirl Magazine; #8, Hustler Magazine; #9, The Sex Book; #10-12, nude photos of defendant; #13, Harvey Magazine; #14, Bound to Serve Magazine; #15, Cheating Wives Magazine; and #16, two pictures, one depicting an act of sodomy and one an act of bestiality. On appeal, defendant claims that the evidence should not have been admitted on the ground that it was so inflammatory as to deprive him of a fair trial. A review of the trial transcript shows that this objection was made only with regard to exhibits ##7, 8, 9, 13, 14, 15, and 16. Thus, only the objections to these exhibits are before us for consideration. Turner v. State, 181 Ga. App. 531 (353 SE2d 13) (1987).

The victim testified that defendant showed her various magazines depicting sexual acts during his molestation of her and that he kept the pictures and magazines in the house and at his store and had also shown the pictures to her. The trial court instructed the jury that these materials were introduced solely to indicate the state of mind of the defendant with regard to the charged sexual crimes.

Magazines depicting natural and unnatural sex acts and devices and paraphernalia for sexual stimulation can have a tendency to show a bent of mind toward similar sexual activity and are relevant and admissible for that purpose. Tyler v. State, 176 Ga. App. 96, 99 (1) (2) (335 SE2d 691) (1985). This is true even when some of the acts depicted may inflame the jury. See Goss v. State, 255 Ga. 678, 680 (1) (341 SE2d 448) (1986). There was no error committed in admitting this evidence.

4. At the close of the state’s case, defendant made a motion for directed verdict, claiming that the offenses charged in Counts 5 & 6 merged into Count 7. The court refused to so rule at that time and advised counsel to bring the matter up again if defendant was convicted. This was a correct ruling. Few v. State, 179 Ga. App. 166, 167 (3) (345 SE2d 643) (1986); Green v. State, 170 Ga. App. 594 (1) (317 SE2d 609) (1984).

At the sentencing hearing, defendant did renew his arguments concerning Counts 2 & 3. No motion concerning Counts 5, 6, & 7 was made at the sentencing. The motion for new trial contained as a ground the failure of the court to grant the merger motion as to Counts 2 & 3 and a claim that defendant was entitled to have his conviction on Counts 5 & 6 set aside as merged into Count 7. Defendant also contended that he was entitled to a new trial on Counts 2 & 7 due to the merger argument. No motion in arrest of judgment as to Counts 5, 6, & 7 was made. See OCGA §§ 17-9-60 & 17-9-61; Lacey v. State, 253 Ga. 711 (324 SE2d 471) (1985).

“Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. [Cit.] Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review. [Cit.]” Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980); see Pulliam v. State, 236 Ga. 460, 465 (224 SE2d 8) (1976) cert. denied, 428 U. S. 911, reh. denied, 429 U. S. 874. No error having been made by the trial court in denying the motion for directed verdict as to Counts 5, 6, & 7, and no further motion or objection having been made by defendant in this regard, there is nothing for this Court to review as to these counts.

As to Counts 2 & 3, the argument made by defendant at his sentencing was that Counts 2 & 3 should be “stricken” because it would be inconsistent for the court to sentence him on those counts in that the jury returned a not guilty verdict on the rape count (Count 1). To the extent that this is an argument based on inconsistent verdicts, see Division 1.

Defendant argued that the events in Counts 2 & 3 were “one continuous series of acts. ...”

Defendant reiterates this argument in the motion for new trial as being that “Count 3 merged with the aggravated sodomy in Count 2, . . . Count 3 being a crime that is included in the other crime charged in Count 2.” This argument also fails.

Count 3 charged a violation of OCGA § 16-6-4 (a), child molestation, in that defendant on September 18 had his daughter masturbate him with the intent to arouse his sexual desires. The evidence was that the mother witnessed the defendant direct the daughter to take his penis in her hands and told the child to “jack him off.” Count 2 charged that on the same day, defendant placed his penis in the child’s mouth with force and against her will, in violation of OCGA § 16-6-2 (aggravated sodomy). These events occurred sequentially.

OCGA § 16-1-7 (a) provides that “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.”

OCGA § 16-6-4 (a) is not a lesser included offense of OCGA § 16-6-2, as a matter of law, under either OCGA § 16-1-6 (a) (2) or OCGA § 16-1-7 (a). In order to analyze whether it is merged as a matter of fact in this case, the specifics of the indictment must be kept in mind. The defendant was charged with two very specific sexual acts, one of which is prohibited because of the age of the child involved while the other is prohibited because of the nature of the act, regardless of the consent or age of the other participant. While it is possible that an indictment could have been drawn in which the facts supporting the molestation would have included the acts amounting to sodomy, such was not done here. As the charge was drawn, the child molestation was proved without any reference to the act of sodomy and was factually and legally separate and distinct and different from it. Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (1982); State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974).

Decided May 21, 1987

Rehearing denied July 14, 1987.

Alfred D. Fears, William P. Bartles, for appellant.

E. Byron Smith, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

The cases cited by defendant in this regard do not require a different result. In McCranie v. State, 157 Ga. App. 110 (276 SE2d 263) (1981), the same act of sexual intercourse was the basis for charging both statutory rape and incest. The court there found merger as a matter of fact. Likewise, in Coker v. State, 164 Ga. App. 493 (3) (297 SE2d 68) (1982), the accused was charged with child molestation and statutory rape for the same act. Again the court found merger as a matter of fact.

The indictment as drawn supports conviction and sentence for both aggravated sodomy and child molestation. See Copeland v. State, 160 Ga. App. 786, 789 (11) (287 SE2d 120) (1981); McCollum v. State, 177 Ga. App. 40 (338 SE2d 460) (1985).

5. Finally, defendant claims the trial court erred in failing to give, upon request, the much maligned and questioned “two theories” principle. Since the charges here were proven by direct evidence, the victim’s testimony as well as the mother’s eyewitness report, the evidence was not solely circumstantial and the charge was not appropriate. Robinson v. State, 180 Ga. App. 43, 51 (7), rev’d on other grounds 256 Ga. 564 (350 SE2d 464) (1986); Lee v. State, 177 Ga. App. 8 (2) (338 SE2d 445) (1985).

Judgment affirmed.

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

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Note should be made of the questions not involved in this appeal. Nothing said by the defendant during his giving of consent to the search was introduced before the jury. Thus, this is not a situation involving Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981). It should be noted that even in the context of the fifth amendment, the courts of this state and the Supreme Court of the United States have refused to extend the exclusionary rule to the fruits of a tainted Miranda statement. Michigan v. Tucker, 417 U. S. 433 (94 SC 2357, 41 LE2d 182) (1974); see Wilson v. Zant, 249 Ga. 373, 377 (1) (290 SE2d 442) (1982).


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    73757.
    SMITH v. CITY OF EAST POINT et al.
    (359 SE2d 692)
   McMurray, Presiding Judge.

In early 1985, the Police Department of the City of East Point received reports that some of its officers were smoking marijuana in public. The chief of police was unable to find the offending officers through conventional investigative means. Accordingly, it was determined that urinalysis would be employed to ascertain the offending officers. In order to conduct the urinalysis “in a nonselective manner,” the chief of police and the city manager decided to give the tests to all employees of the city having police power.

Appellant Smith was a captain in the city’s fire department. He was employed by the city as a fireman for 21 years. Smith was assigned the duties of fire inspector and, in that capacity, he was given police power. Thus, Smith was required to submit to urinalysis.

On March 3, 1985, with the assistant chief of police observing him, Smith provided a urine specimen. Three tests were performed on Smith’s urine: a radio immunoassay test, an enzyme immunoassay test, and a gas chromatograph mass spectrometer test. The results of the first two tests were inconclusive. (The results were negative but highly suggestive of marijuana use.) The third test came back positive. In short order, Smith was discharged for “conduct unbecoming to his position in that, while employed as a police officer with the City of East Point, he did use a controlled substance identified as THC (marijuana).”

Denying the charges against him, Smith appealed to the city’s personnel board. He asserted, inter alia, that the urinalysis constituted an unreasonable search and seizure and violated his rights under the federal and state constitutions. The personnel board determined that Smith’s constitutional rights were not abridged. It sustained the charges against him and decided he had been discharged properly. Smith sought a writ of certiorari in the superior court. Again Smith asserted the violation of his constitutional rights. The superior court denied Smith’s petition and we granted a discretionary appeal. Held:

1. On appeal, Smith presents argument in support of his state constitutional claim only. Although Smith insists that he is not waiving his Fourth Amendment rights, no argument is made in support of those rights. Inasmuch as Smith no longer addresses his federal constitutional claim, it must be considered abandoned. Taylor v. State, 177 Ga. App. 624, 628 (3) (340 SE2d 263).

As a practical matter, the abandonment of the Fourth Amendment claim is insignificant. After all, “Georgia has long granted more protection to its citizens than has the United States . . .” Creamer v. State, 229 Ga. 511, 515 (192 SE2d 350). And, although Georgia cannot provide less protection for its citizenry, it can provide more. Id. Furthermore, Art. I, Sec. I, Par. XIII of the 1983 Constitution of Georgia is nearly identical to the Fourth Amendment. Smoot v. State, 160 Ga. 744, 747 (128 SE 909). Thus, even though Smith makes no Fourth Amendment argument, Fourth Amendment cases will serve us well as signposts.

2. Art. I, Sec. I, Par. XIII of the 1983 Constitution of Georgia reads: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.” Plainly, this provision of the Georgia Constitution prohibits unreasonable searches and seizures. Was the “taking” of Smith’s urine an unreasonable search and seizure within the meaning of the Georgia Constitution? To answer this question, we must first decide whether a urinalysis constitutes a search and seizure. We think that it does.

“Urine, unlike blood, is routinely discharged from the body, so no governmental intrusion into the body is required to seize [it]. However, urine is discharged and disposed of under circumstances where the person certainly has a reasonable and legitimate expectation of privacy. One does not reasonably expect to discharge urine under circumstances making it available to others to collect and analyze in order to discover the personal physiological secrets it holds, except as part of a medical examination. It is significant that both blood and urine can be analyzed in a medical laboratory to discover numerous physiological facts about the person from whom it came, including but hardly limited to recent ingestion of alcohol or drugs. One clearly has a reasonable and legitimate expectation of privacy in such personal information contained in his body fluids. Therefore, governmental taking of a urine specimen is a seizure within the meaning of the Fourth Amendment. Allen v. City of Marietta, 601 FSupp. 482, 488-89 (N.D.Ga. 1985); Storms v. Coughlin, 600 FSupp. 1214, 1217-18 (S.D.N.Y. 1984); Murray v. Haldeman, 16 M.J. 74, 81 (C.M.A. 1983).” McDonell v. Hunter, 612 FSupp. 1122, 1127 (S.D. Iowa 1985). Accord Capua v. City of Plainfield, 643 FSupp. 1507, 1513 (D.N.J. 1986); Lovvorn v. City of Chattanooga, 647 FSupp. 875, 879 (E.D. Tenn. 1986).

Having decided that the urinalysis was a search and seizure, we must now determine whether it was reasonable. In search and seizure cases, reasonableness cannot be defined with precision. Each case requires the balancing of the public’s interest against the rights of the individual to be free from governmental intrusion.

Undoubtedly, the city has a compelling interest in keeping its police force away from drugs. The integrity and well-being of the department depend upon it. Thus, it is entirely proper for the city to take reasonable efforts to weed drug abusers out of law enforcement agencies. Balanced against this interest, we must weigh Smith’s personal rights. In doing so, we must decide whether Smith reasonably and legitimately had an expectation of privacy in the act of urination.

The courts which have considered this question have determined that most people, including policemen and firefighters, have a reasonable and legitimate expectation of privacy in this regard. See, e.g., Capua v. City of Plainfield, 643 FSupp. 1507, 1514, supra; Lovvorn v. City of Chattanooga, 647 FSupp. 875, 880, supra. We agree with this assessment. True, policemen and firemen have diminished expectations of privacy when compared to the general public. Lovvorn v. City of Chattanooga, supra. (After all, “by the very nature of their job, police should anticipate that their employer would have serious concerns that their ability to discharge their duties be not impaired by drugs and should anticipate that the employer may place reasonable conditions on employment including scrutiny for drug use.” Caruso v. Ward, 506 NYS2d 789, 793 (Sup. 1986).) But this is not to say that police officers and firemen lose their constitutional rights when they put on their uniforms. McDonell v. Hunter, 612 FSupp. 1122, 1128, supra; Caruso v. Ward, supra. Policemen and firefighters do have a substantial right to be free from unreasonable searches and seizures.

Thus, although urine tests for police officers and firemen can be conducted in the absence of probable cause, a standard must be met before random urinalysis is imposed. Invariably, this standard is defined as a reasonable suspicion: “All courts which have ruled upon the validity of urine tests for public employees, including police officers and firemen, have required as a prerequisite some articulable basis for suspecting that the employee was using illegal drugs, usually framed as ‘reasonable suspicion.’ Capua v. City of Plainfield, 643 FSupp. 1507, 1524 (D.N.J. 1986) (fire fighters); City of Palm Bay v. Bauman, 475 S2d 1322 (Fla. App. 5 Dist. 1985) (police officers and fire fighters); Turner v. Fraternal Order of Police, 500 A2d 1005 (D.C. App. 1985) (police officers); McDonell v. Hunter, 612 FSupp. 1122 (S.D. Iowa 1985) (correctional officers); Allen v. City of Marietta, 601 FSupp. 482 (N.D. Ga. 1985) (employees of City Board of Lights and Water working around high voltage electric wires); Patchogue-Medford Congress of Teachers v. Board of Education, 505 NYS2d 888 (N.Y. App. Div. 1986) (teachers); Jones v. McKenzie, 628 FSupp. 1500 (D.C.C. 1986) (school bus drivers); Caruso v. Ward, 506 NYS2d 789 (N.Y. Sup. Ct. 1986) (police officers in special organized crime control bureau).” Lovvorn v. City of Chattanooga, 647 FSupp. 875, 881, supra.

We can find no facts demonstrating that the city had a reasonable suspicion to believe Smith was using controlled substances. To the contrary, the city candidly admits that it tested all policemen and firemen having police power “in a nonselective manner.” Thus, the taking of Smith’s urine was a clear violation of his right to be free from unreasonable searches and seizures.

Inasmuch as Smith’s constitutional rights were violated by the unreasonable search and seizure of his urine, we find that the city discharged Smith without just cause. Capua v. City of Plainfield, 643 FSupp. 1507, 1521-22, supra. Accordingly, the superior court erred in denying the petition for a writ of certiorari.

In passing, we wish to make clear that our ruling is limited to the facts of this case in which a random urinalysis was used without direct or circumstantial evidence that the employee was involved with drugs. We leave for another day questions concerning the constitutionality of urine tests which are used by governments to screen applicants for employment or as part of routine health examinations.

Judgment reversed.

Sognier, J., concurs in the judgment only. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

We cannot reach the issue decided by the majority because of a procedural impediment of fundamental significance. The Personnel Board of Appeals which affirmed the termination of the fire inspector/marshal was improperly constituted.

Appellant raised this question of jurisdiction at the earliest opportunity, by motion to dismiss filed with the board after the employee’s request for review was set for hearing. The motion, which was based on this and a number of other grounds which are still pressed, was denied by the board and it affirmed the termination, the effective date of which had been held in abeyance until that action had been taken. The question was raised again in the superior court and is pursued here, as one of the grounds upon which appellant rests his sole enumeration of error, that the superior court erred in affirming the board’s decision. Even if jurisdiction had not been so diligently challenged, we would have to address it, as the jurisdiction of a body whose acts are challenged may be raised at any time. It is a threshold matter. See Williams v. Kaylor, 218 Ga. 576, 581 (129 SE2d 791) (1963).

The board was composed of the mayor, who presided and ruled on all motions, and the senior councilman from each of the four wards, meaning the councilman who had served more of his current term than had any other councilman from that ward. The appellees have admitted that this differs from what was prescribed in the 1972 charter amendment. It calls for five members appointed by the city council, one to be an attorney who shall preside and make all rulings on legal questions, and four to be qualified electors of the city. All are to serve for one year and be compensated as provided in ordinance by the city council. Ga. L. 1972, pp. 2151, 2208, Secs. 140, 141, 143. The authority of the board is found in Section 139. These provisions of the statute were made a part of the city code, sections 4-217 through 4-221.

The saving factor, argues the appellees, is that the charter was amended by law in 1979 to accommodate a 1977 ordinance setting the composition as actually used in this case, the effective date of which ordinance was expressly delayed until the charter was amended.

The problem with this proposition is that the 1979 charter amendment did not change the 1972-specified composition or other features of the board. The ordinance which envisioned a different board provided: “The repealer (of all other ordinances in conflict) . . . shall not apply to any personnel actions or disciplinary actions that may arise after adoption of this ordinance but before adoption of a home rule charter amendment correcting and clarifying certain portions of the City Charter . . . Any personnel disciplinary action arising between the period of time of adoption of this ordinance and the period of time of adoption of the proposed home rule amendment of the Charter, shall proceed under the provisions and procedures set forth in the City Code as it existed prior to adoption of this ordinance.”

The charter amendment in 1979 did not “correct and clarify” the portions of the charter which dealt with the personnel board of appeals, its authority, its membership, its compensation, its secretary, or the conduct of its hearings. These comprised Sections 139 to 143 of the charter. It is true that the 1979 charter amendment stated that one of its purposes was “to authorize and provide for adoption of ordinances and rules and regulations pertaining to the administration of personnel and employees of the City of East Point; . . .” Ga. L. 1979, p. 4803. That it certainly did, setting up two classifications of employees, a department of administrative services, a non-discriminatory hiring policy, and making other employee-related changes.

But nowhere does it change the personnel board authority, composition, jurisdiction, compensation, record-keeping, or conduct of hearings. The legislative act achieves amendment of the charter “by striking the following sections of the East Point City Charter and inserting in lieu thereof new sections as follows: . . .” Ga. L. 1979, p. 4803, Sec. 1. The only reference with respect to appeals from disciplinary action is the substituted Sections 56 and 57 of the Charter. Section 56 provides for an appeal “following the procedures set forth in the personnel rules, regulations and ordinances pertaining to same by filing a written request for a hearing with the time frames and procedures set forth in said rules and regulations.” The new Section 57 is simply “Reserved.” Ga. L. 1979 at 4808.

These two changes in Sections 56 and 57 of the 1972 act are part of Section 1 of the 1979 act, which starts out by proposing changes in the charter “especially” as amended by acts in 1974, which had amended Sections 56 and 57, and 1965. No mention is made of the 1972 act which provided for the personnel board of appeals. In addition, the title of the 1979 act does not refer to the 1972 act either, even though it expressly identifies other acts it seeks to amend, including the act of 1974 which amended Sections 56 and 57. The point is that nowhere, in either the 1974 act or the 1979 act, were changes made in Sections 139 through 143, nor are they or their subject matter mentioned in the two related sections, that is, Sections 56 and 57. They all simply dovetail.

Decided June 24, 1987

Rehearing denied July 14, 1987

State legislative control over municipal corporations extends to the amendment of charters. Spence v. Rowell, 213 Ga. 145 (97 SE2d 350) (1957). In amending its charter, a municipality must comply with the procedure prescribed by the organic law authorizing such amendment, and construction and validity is tried by the same rules and standards as those applicable to other legislative enactments. Rhyne, Charles S., The Law of Local Government Operations, § 3.6, p. 54. Georgia recognizes that in determining the meaning of ordinances, too, the court must be guided by recognized rules of statutory construction. Underwood v. Atlanta & West Point R. Co., 105 Ga. App. 340, 346 (124 SE2d 758) (1962). That case was modified in Atlanta & West Point R. Co. v. Underwood, 218 Ga. 193 (126 SE 785) (1962), but the principle for which it is cited here was applied and reinforced by the Georgia Supreme Court. Id. at 196. An ordinance has the force of law. Bearden v. City of Madison, 73 Ga. 184 (1) (1884); Maner v. Dykes, 183 Ga. 118, 120 (187 SE 699) (1936). It cannot, of course, supersede an act of the General Assembly. City of Atlanta v. Myers, 240 Ga. 261 (240 SE2d 60) (1977).

It is true that a municipal corporation may amend its charter by ordinances, via certain specified methods. OCGA § 36-35-3. Here it elected to do so by anticipating a legislated charter amendment which would, by the terms of the ordinance, give life to the new ordinance. That has not yet been done. Even if the city intended to substitute new provisions regarding the personnel board of review, it clearly did not do so. Repeals by implication are not favored. Morris v. City Council of Augusta, 201 Ga. 666, 672 (2) (40 SE2d 710) (1946). Nor is there any repugnancy between the 1972 charter amendment, the 1977 ordinance, and the 1979 charter amendment so as to call into play the “later enactment” rule of construction. Evans v. Evans, 242 Ga. 57, 58 (247 SE2d 857) (1978).

Although we must look to the purpose and intent of the legislature and construe the law to implement that intent, Wilson v. Bd. of Regents, 246 Ga. 649, 650 (272 SE2d 496) (1980), the intent urged by appellees cannot be wrested from the 1979 charter amendment. For all we know, the ordinance passed in 1977, which looked to future legislation for effectiveness, lost favor in the city by the time the 1979 charter amendment was proposed.

The judgment of the superior court, consequently, should be reversed because of the lack of the board’s authority to act, which nullified all of the proceedings before it.

Scott Walters, Jr., for appellant.

James A. Eidson, James W. Kytle, for appellees.


author: Pope, Judge.

text:
    73828.
    ADAMS et al. v. GLUCKMAN et al.
    (359 SE2d 710)
   Pope, Judge.

On January 8, 1985 plaintiffs filed a medical malpractice claim against defendant Richard J. Gluckman, M.D., and others, alleging negligence arising out of the death of an infant on January 11, 1983. Plaintiffs voluntarily dismissed their action on March 1, 1985 and refiled the claim on August 28, 1985. Pursuant to OCGA § 9-2-61 (a) (amended 1985), the period of limitation for the renewal action survived for six months after the original claim was dismissed, until September 1, 1985. Even though the complaint and summons recited defendant’s residence address, service was not made upon defendant personally or by leaving the summons at defendant’s dwelling house. Instead, service was made by leaving a copy of the summons and complaint with defendant’s office manager at his place of business. Defendant raised the defense of insufficiency of service in his answer. In response to plaintiffs’ request for production of all documents supporting the defenses raised in the answer, defendant produced a copy of the sheriff’s entry of service. Nevertheless, plaintiffs never took corrective action to serve the defendant personally until February 2, 1986, after defendant had filed his motion for summary judgment and approximately 150 days after the period of limitation had expired. Plaintiffs appeal from the lower court’s grant of summary judgment to defendant.

1. Plaintiffs argue that service upon the office manager complied with the requirements of OCGA § 9-11-4 (d) (7) because the office manager was “an agent authorized by appointment ... to receive service of process.” By affidavit, defendant denied his office manager was authorized to receive legal process on defendant’s behalf. Plaintiffs argue that employees of defendant’s office staff were vested with apparent authority to act as defendant’s agents for accepting service of process by defendant’s previous conduct. The evidence shows defendant did not raise the defense of insufficiency of service to plaintiffs’ original complaint which was also served upon the same employee. However, an action renewed pursuant to OCGA § 9-2-61 (a) is an action de novo. A defendant is not estopped from raising a proper defense in a renewal action simply because that defense was not raised in the original action. Hornsby v. Hancock, 165 Ga. App. 543 (301 SE2d 900) (1983). Plaintiff also presented certified copies of two other complaints filed against this defendant by other claimants. The entries of service in these other actions show service was made upon other individuals at defendant’s place of business and the answers to these complaints show defendant did not raise the defense of insufficiency of service. However, the evidence does not establish the identity of these other individuals or the capacity in which they accepted service. The fact that defendant consented to substituted service upon unidentified individuals on other occasions does not establish that his office manager was authorized to receive legal process. “Under the circumstances, the trial court was warranted in concluding that the [office manager] was not the agent for [defendant].” Headrick v. Fordham, 154 Ga. App. 415, 417 (268 SE2d 753) (1980).

Actual knowledge by the defendant that a complaint has been filed does not cure the defect in service. Hardwick v. Fry, 137 Ga. App. 771 (225 SE2d 88) (1976). Brim v. Pruitt, 178 Ga. App. 321 (342 SE2d 690) (1986), is not dispositive of this case since our holding in Brim was based upon the recognition “that notice can be accomplished by giving the papers to someone else ... so long as it is the usual place of abode.” Id. at 325. In the case at hand, the service papers were not left at defendant’s place of abode but at his place of business while he was not present on the premises. “Service upon the secretary of a physician at his office address is not personal service unless she has been appointed as his agent for such service.” Bible v. Hughes, 146 Ga. App. 769, 771 (247 SE2d 584) (1978); accord Headrick v. Fordham, supra. In this case, service upon the physician’s office manager who was not appointed as his agent was insufficient.

In accordance with the above, we find defendant was not properly served until 150 days after the period of limitation for plaintiffs’ action had expired. “Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff.” Bible v. Hughes, supra at 770. In this case, plaintiff knew defendant’s residence address and had notice that defendant reasserted his defense of insufficiency of service in response to plaintiffs’ discovery request. “The reason for lack of service prior to that time appears to be entirely the fault of the plaintiff[s].” Id. “It is laches, authorizing the court to dismiss the action where the statute of limitation had run before the service was so belatedly perfected.” Hilton v. Maddox &c. Contractors, 125 Ga. App. 423, 426-427 (188 SE2d 167) (1972).

2. Plaintiffs’ second enumeration of error is addressed in Division 1.

Judgment affirmed.

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

Decided June 29, 1987

Rehearing denied July 14, 1987

David C. Farshy, Foy R. Devine, for appellants.

Robert G. Tanner, for appellees.


text:
    74006.
    PEGG v. THE STATE.
    (359 SE2d 678)
   Beasley, Judge.

Defendant appeals his conviction of two counts of child molestation, OCGA § 16-6-4.

1. Considering the general grounds, viewing the evidence in the light most favorable to the verdict, King v. State, 178 Ga. App. 343 (1) (343 SE2d 401) (1986), there was sufficient evidence from which the jury could find beyond a reasonable doubt that the defendant had had intercourse repeatedly with his 11-year-old stepdaughter (Count 1) and had committed an act of sodomy on her (Count 2). Owens v. State, 178 Ga. App. 750, 752 (5) (344 SE2d 722) (1986). This ground is without merit.

2. Defendant complains of the introduction of various acts committed by him, including breaking into the house after he had been asked to leave, raping the child’s mother, who was his estranged wife, and stealing things from the house. No objection was made by defendant to any of this testimony, and some facts relating to them were elicited by him. This Court will not consider objections raised for the first time on appeal, nor will it allow a defendant to complain of self-induced error. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986); Farmer v. State, 180 Ga. App. 720, 722 (5) (350 SE2d 583) (1986).

3. Defendant also complains of the testimony of a doctor who examined the victim and testified as an expert. No objection was made to the doctor’s testimony at trial, but defendant seeks review nonetheless under OCGA § 5-5-24 (c) and Almond v. State, 180 Ga. App. 475 (349 SE2d 482) (1986). The statute allows this court to examine errors in the jury charge absent objection, if there is substantial error which was harmful as a matter of law. That is not, of course, the error claimed here. While it was relied on in Almond as persuasive authority for the court’s actions in reviewing unobjected-to matters, the error complained of in that case amounted to a severe constitutional infringement. Almond, who acted in such a bizarre manner that the trial judge sua sponte initiated a competency hearing, was allowed to represent herself in that hearing after her trial counsel was called as a witness by the state as to his client’s competency. Defendant did object, but not on the ground of her right to counsel. This Court examined that error, without the appropriate objection, and found it harmful as a matter of law.

Decided June 5, 1987

Rehearing denied July 14, 1987.

Clayton Hollingsworth, Jr., for appellant.

Darrell E. Wilson, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Here, on the other hand, it is unclear what the claimed error is. No specific statement of the doctor is pinpointed. It is merely stated in the brief that the doctor “. . . testified that the child had been molested and that she had been raped.” The doctor testified that the physical condition found upon examination of the child’s vagina, including scarring from vaginal tears, was, in his opinion, consistent with either a child becoming sexually active very young, or an older sexually active child who was entered forcefully. He also testified that he had seen similar tearing and scarring in only three situations: childbirth, rape, or forcible penile entry. This type of testimony is within the purview of an expert in this type of case. Russell v. State, 181 Ga. App. 624, 626 (3) (353 SE2d 820) (1987). Even if the doctor had expressed an opinion on the “ultimate issue,” i.e., the molestation of the child, such an opinion has recently been acknowledged as appropriate in child molestation cases. State v. Butler, 256 Ga. 448 (349 SE2d 684) (1987).

We perceive in this realm no constitutional error which is reviewable absent contemporaneous objection under Almond.

Judgment affirmed.

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


text:
    74142.
    ANDERSON v. THE STATE.
    (359 SE2d 688)
   Pope, Judge.

Defendant Billy Lee Anderson appeals from his conviction of armed robbery. Held:

1. Defendant first enumerates as error the admission into evidence of a 1972 conviction for armed robbery. “Evidence of other criminal acts of the defendant may be admitted if it is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Purposes for which other crimes evidence may be offered include motive, intent, bent of mind, course of conduct, absence of mistake or accident (both are aspects of intent), plan or scheme, and identity. To render evidence of extrinsic offenses admissible for any of these purposes, the [S]tate must show that the defendant was the perpetrator of the extrinsic offenses, and that there is a sufficient similarity or connection between the extrinsic offense and the offense charged, such that proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Rich v. State, 254 Ga. 11, 13 (325 SE2d 761) (1985). See also Millwood v. State, 164 Ga. App. 699 (1) (296 SE2d 239) (1982). The record in the case at bar shows that the 1972 conviction was admitted solely to establish motive, intent, bent of mind, course of conduct and identity, and that the trial court properly instructed the jury on the limited purpose for which the prior offense was admitted. Moreover, there is no question that the defendant was the perpetrator of the prior offense, as he pled guilty to that charge. Nevertheless, the defendant challenges the admission of the earlier offense and argues both dissimilarity of the prior and present offense and that the 1972 offense should have been excluded because of lapse of time.

Turning first to the issue of similarity, the record shows the following: The 1972 offense was committed by 4 or 5 individuals armed with both shotguns and a semi-automatic type weapon; it was committed at night at a lake cabin in which a group of men were playing cards; the perpetrators, who wore ski masks, gained entry to the cabin by shooting out a window and knocking out a glass door; the victims were told to lie face down on the floor; one of the perpetrators shouted obscene names at the victims and threatened to kill them; and the perpetrators took jewelry, money and the victims’ car keys.

As to the crime charged, the record shows that the robbery took place at night at the residence of Leotta and Robert Richards; the two perpetrators gained entry to the house by posing as law enforcement officials; that they forced their two elderly victims at gunpoint to lie face down on the floor; one of the perpetrators, later identified as the defendant, called them obscene names and threatened to kill them; the victims were bound and Mr. Richards was blindfolded; and jewelry and cash were taken, as well as the victims’ car and house keys. Under these facts, we find that the two offenses were “sufficiently similar” so as to warrant the admission of the 1972 offense for the limited purpose for which it was offered. Millwood, supra at 701; see Mims v. State, 180 Ga. App. 3 (2) (348 SE2d 498) (1986).

We must also consider, however, whether the 12-year lapse of time between the commission of the two armed robberies renders evidence of the 1972 offense inadmissible. “Although lapse of time is one of the more important factors to weigh in considering the admissibility of the evidence in question it is not wholly determinative.” Campbell v. State, 234 Ga. 130, 132 (214 SE2d 656) (1975). Thus, “lapse of time between the two [offenses does not] automatically require the exclusion of such evidence.” Mims, supra at 5. In this case we find that the 12-year lapse between the prior and present offenses does not render evidence of the prior offense inadmissible. Rich, supra at 14. In so holding, we are persuaded by the fact that defendant was incarcerated for approximately 10 of the intervening years, thus circumscribing his ability to commit similar offenses during much of the 12-year period. Accord Miller v. State, 165 Ga. App. 487 (2) (299 SE2d 174) (1983).

2. Defendant also contends that the trial court erred by denying his motion to disclose and by granting the State’s motion in limine to exclude the identity of the person who telephoned Ms. Richards with information concerning the identity of the accused and others who possibly participated in the robbery. The record shows that the trial court, after a hearing, apparently determined that the unidentified woman was a mere tipster who neither participated in nor witnessed the crime, and thus refused to order the State to disclose her identity. We have examined the transcript of this proceeding and conclude that the trial court did not err in failing to require the State to disclose the identity of the informant. Thornton v. State, 238 Ga. 160 (2) (231 SE2d 729) (1977), cert. den., 434 U. S. 1073 (1978); Grimes v. State, 168 Ga. App. 372 (5) (308 SE2d 863) (1983); Castillo v. State, 166 Ga. App. 817 (3) (305 SE2d 629) (1983), and cits. We note also that defendant’s argument concerning the failure to show the reliability or credibility of the tipster is inapposite in the present case where the information imparted resulted only in the compilation of a photographic line-up containing defendant’s picture, and that the defendant was apprehended only after Mr. Richards, the victim, identified defendant as one of the perpetrators of the crime.

3. In his final enumeration of error, defendant posits a constitutional argument under the 5th and 14th Amendments and argues that he was prevented from offering testimony to explain his conduct in the 1972 armed robbery because to do so would be to “open the door” as to the admissibility of evidence of other prior crimes or other acts relating to the character of the accused. Our review of the record discloses that defendant made a motion in limine prior to trial in which he sought to obtain a ruling from the trial court allowing him to testify as to the 1972 armed robbery and if he so testified, preventing the State from introducing evidence of any other criminal charges against him. The trial court held that it would withhold ruling on the defendant’s motion until the events transpired at trial and defendant agreed that the better course would be to raise this issue at that time. The record further shows that although defendant testified at trial, no mention was made during his testimony concerning the 1972 incident and no ruling was sought from the trial court concerning defendant’s ability to explain the prior offense. However, at the close of trial defendant moved for a mistrial based on his inability to testify concerning the 1972 incident, and argued that to so testify would open the door as to the admissibility of other convictions. The court denied the motion for mistrial, but offered instead to allow the defendant to reopen the evidence, an offer which the defendant declined. “The Supreme Court has held that in a motion in limine the ‘trial court has an absolute right to refuse to decide the admissibility of evidence . . . prior to trial.’ [Cit.]” Holt v. State, 181 Ga. App. 798, 799 (354 SE2d 167) (1987). In such a case, it is then incumbent upon the party seeking the ruling on the admissibility, or nonadmissibility, of evidence to invoke a ruling of the trial court at the appropriate time during the proceedings. Hicks v. State, 175 Ga. App. 243 (1) (333 SE2d 113) (1985). Here the defendant withheld his motion until presentation of the evidence was complete; thus defendant’s motion for mistrial was clearly untimely. “ ‘[A] motion for mistrial not made contemporaneously with the alleged misconduct makes the motion not timely.’ ” Keri v. State, 179 Ga. App. 664, 669 (347 SE2d 236) (1986). Accordingly, this enumeration is without merit.

Decided June 19, 1987

Rehearing denied July 14, 1987

Ivan A. Pearlberg, for appellant.

Thomas J. Charron, District Attorney, W. Thomas Weathers III, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Carley, Judge.

text:
    74274.
    CHESHIRE BRIDGE ENTERPRISES, INC. v. LEXINGTON INSURANCE COMPANY, INC.
    (359 SE2d 702)
   Carley, Judge.

On October 28, 1985, appellant-insured filed this suit against ap-pellee-insurer, seeking to recover on a surplus line policy providing fire insurance coverage. On October 31, appellant merely delivered the complaint to the office of the Commissioner of Insurance (Commissioner) and, at that time, obtained no acknowledgement of service from anyone. On November 4, the Commissioner’s office forwarded the complaint by mailing it to appellee at an incorrect address. The complaint was returned to the Commissioner’s office, marked as “undeliverable — incorrect address.” The Commissioner’s office then obtained appellee’s correct address and remailed the complaint on November 15. On December 13, appellee filed its answer to appellant’s complaint. Insufficiency of service of process was included among the defenses that were raised in appellee’s answer. Appellant subsequently moved that appellee’s answer be stricken and that default judgment be entered against appellee, contending that appellee’s answer had not been filed within 30 days after service of the complaint and that the filing of the answer had not been accompanied by the payment of costs so as to open default. The trial court denied appellant’s motion. Thereafter, cross-motions for summary judgment were filed. In addition to the merits of the case, appellee’s motion raised its insufficiency of service of process defense as a ground for the grant of summary judgment in its favor. After consideration of the cross-motions for summary judgment, the trial court denied appellant’s motion and granted summary judgment in favor of appellee. The trial court based its rulings on the merits rather than upon the insufficiency of service of process defense that had been raised in appellee’s motion. Pursuant to OCGA § 9-11-56 (h), appellant appeals from the grant of summary judgment in favor of appellee.

1. In addition to the grant of appellee’s motion for summary judgment and the denial of its own, appellant enumerates as error the denial of its motion that appellee’s answer be stricken and that default judgment be entered against appellee. See generally Southeast Ceramics v. Klem, 246 Ga. 294 (271 SE2d 199) (1980). Since any error in the denial of this motion would obviate the need to consider the merits of the case that are raised by the cross-motions for summary judgment, we will address this issue first.

Appellee affords surplus line insurance coverage to appellant, but is otherwise unauthorized to do business in this state. OCGA § 33-5-34 (b) provides that “[e]very unauthorized insurer issuing or delivering a surplus line policy through a surplus line broker in this state shall be deemed thereby to have appointed the [Insurance] Commissioner as its attorney for acceptance of service of all legal process issued in this state in any action or proceeding arising out of the policy, and service of process upon the Commissioner shall be lawful personal service upon the insurer.” (Emphasis supplied.) OCGA § 33-5-34 (d) further provides that “[duplicate copies of legal process against the insurers shall be served upon the Commissioner. . . .” (Emphasis supplied.) From its language, it is thus clear that the purpose of OCGA § 33-5-34 “is to specify an alternative recipient of legal process, and not an alternative manner of service. There is nothing whatsoever to suggest that service upon the Commissioner may be ‘informal.’ To the contrary, the language of the statute indicates that service upon the Commissioner must be perfected in a manner which would be proper if service were made upon a designated agent for service of process.” (Emphasis in original.) Wilkerson v. Voyager Cas. Ins. Co., 171 Ga. App. 834, 835 (2) (321 SE2d 346) (1984) (construing OCGA § 33-4-4). Compare Ticor Constr. Co. v. Brown, 255 Ga. 547, 548 (3) (340 SE2d 923) (1986) (construing OCGA § 14-2-62 (b), which specifically provides that service of a complaint “shall be made by delivering [it] to and leaving [it] with the Secretary of State.” (Emphasis supplied.)) Compare also OCGA § 33-5-53 (a), which is rendered inapplicable here by virtue of OCGA § 33-5-59.

Since OCGA § 33-5-34 (a) provides only for an alternative recipient of service and does not include a provision for an alternative manner of service, it follows that appellant must have effected formal service upon the Commissioner in order to subject appellee to the jurisdiction of the trial court. “The rules governing service of process are strictly construed, ‘and rightfully so, since notice is the very bedrock of due process.’ [Cits.] [If] the record reveals neither an acknowl-edgement of service nor a return of service, there is no basis for a finding that process was legally served upon the Insurance Commissioner. [Cit.]” Wilkerson v. Voyager Cas. Ins. Co., supra at 835 (2). The record in this case shows only that, on May 2, 1986, which was more than one month after the trial court had already denied appellant’s motion, the Chief Deputy Commissioner executed a purported “acknowledgement of service.” This document merely states that “according to the records on file in this office, on October 31, 1985, this office received copies of complaint and process for service.” This clearly fails to show that service was perfected on the Commissioner as required by § 33-5-34. The record shows no return of service and no viable acknowledgement of service. It follows that appellant has never obtained the requisite service of process upon appellee and the trial court correctly denied appellant’s motion that appellee’s answer be stricken and that default judgment be entered against appellee. See Wilkerson v. Voyager Cas. Ins. Co., supra; Cook v. Bright, 150 Ga. App. 696 (258 SE2d 326) (1979).

2. Since it is clear that appellant has never obtained formal service of process, it follows that appellee’s defense of insufficiency of service of process is meritorious. Although appellee’s motion for summary judgment did raise the issue of insufficiency of service of process, that defense is a plea in abatement and, as such, it is not properly a basis of a motion for summary judgment. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974); Hemphill v. Con-Chem, Inc., 128 Ga. App. 590 (197 SE2d 457) (1973). Nevertheless, if the defense is raised for resolution in the trial court and it has not otherwise been waived by the defendant, the nomenclature of the pleading which raises that issue should not be a material consideration. See generally Hammer Clinic P.C. v. Crawley, 169 Ga. App. 522 (313 SE2d 778) (1984). The defense of insufficiency of service of process has not been waived by appellee. See OCGA § 9-11-12 (h) (1). Accordingly, had the trial court in this case ignored the nomenclature of appellee’s motion wherein the issue of insufficiency of service of process was raised and made a ruling on that defense, appellant’s complaint would simply have been dismissed and the necessity for any further ruling by the trial court on the merits of the case would have been obviated. Under these circumstances, we find that the proper disposition of this case is for us to vacate the order of the trial court on the cross-motions for summary judgment and to remand the case with direction that appellant’s complaint be dismissed for insufficiency of service of process. Cf. C. W. Matthews Contracting Co. v. Capital Ford Truck Sales, Inc., 149 Ga. App. 354 (254 SE2d 426) (1979).

Decided June 25, 1987

Rehearing denied July 14, 1987

Jack Paller, Ralph G. McCallum, Jr., Carl A. Crowley II, James G. Kilbough, G. Roger Land, for appellant.

C. Michael Johnson, Robert L. Todd, for appellee.

3. The order denying appellant’s motion that appellee’s answer be stricken and that default judgment be entered against appellee is affirmed. The order granting summary judgment to appellee and denying summary judgment to appellant is vacated with direction that a new order which dismisses appellant’s complaint be entered.

Judgment affirmed in part and vacated in part and case remanded with direction.

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


text:
    74258.
    FIRE & CASUALTY INSURANCE COMPANY OF CONNECTICUT v. SPELL et al.
    (359 SE2d 705)
   Carley, Judge.

Appellee-plaintiffs are the parents of Ms. Lynn Spell. Both Ms. Spell, the passenger, and Mr. Kelly Lee Hedgecock, the driver, were killed when Mr. Hedgecock’s car collided with a tractor-trailer rig. At the time of the collision, Mr. Hedgecock was afforded automobile insurance under a policy issued by appellant-defendant. That policy provided $15,000 in liability coverage and $10,000 in uninsured motorist coverage. Mr. James Slevin, the driver of the tractor-trailer, was an uninsured motorist. Although Ms. Spell had no automobile insurance of her own, it is not disputed that she was an insured under the uninsured motorist provisions of Mr. Hedgecock’s policy.

Appellees brought suit, naming numerous defendants and alleging that those defendants were jointly and severally liable for the death of their daughter. Among the defendants named in appellees’ suit were the administratrix of Mr. Hedgecock’s estate and Mr. Sle-vin. Accordingly, appellees’ action resulted in appellant’s potential exposure under both the liability and the uninsured motorist coverages of its policy. In its capacity as the uninsured motorist carrier, appellant elected to respond to appellees’ complaint by filing an answer in its own name. See OCGA § 33-7-11 (d). Included among the defenses of appellant’s answer was the assertion that the full extent of its exposure to appellees under all of the provisions of its policy was $15,000, and that it was willing to settle with appellees for that amount. In support of this defense, appellant relied upon the following provision of the policy: “Any payment under this uninsured motorist coverage will reduce any amount that person is entitled to recover for the same damage under [the provisions of the policy affording liability coverage].” According to appellant’s interpretation of this provision, the $10,000 limit of the uninsured motorist coverage that was afforded to Ms. Spell would serve to “write down” from $15,000 to $5,000 of the limit of the liability coverage that was otherwise afforded to Mr. Hedgecock’s administratrix, for a total exposure to appellees under appellant’s policy of $15,000 rather than $25,000.

Appellees moved to strike from appellant’s answer that defense wherein it sought to establish $15,000 as the full extent of its potential exposure under both the liability and uninsured motorist coverages of its policy. Subsequently, appellees also filed a motion for summary judgment as to that defense. The trial court apparently never ruled on appellees’ motion to strike appellant’s defense. Instead, the trial court conducted a hearing on appellees’ motion for summary judgment as to that defense and granted it. Appellant appeals from the trial court’s order granting appellees’ motion for partial summary judgment as to its “write down” defense.

Pursuant to OCGA § 33-7-11 (d), an uninsured motorist carrier “may elect to plead only in the name of the alleged tortfeasor, thereby obtaining an adjudication of tort liability without the potentially prejudicial injection into the case of the presence of insurance coverage. But, if the insurer takes the position that, regardless of tort liability, there is no liability to the insured under the policy, it may plead in its own name and receive an adjudication on that issue without resorting to an action for declaratory judgment or being put to the expense of defending two lawsuits.” Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 170 (268 SE2d 676) (1980). Although appellant elected in this case to file an answer in its own name, the “defense” that is under consideration did not raise any triable issue with regard to the coverage that appellant afforded to appellees under the uninsured motorist provisions of the policy. In effect, appellant’s “defense” conceded that uninsured motorist coverage would be afforded with regard to appellees’ claim against Mr. Slevin and further conceded that the extent of its exposure to appellees under that coverage would be $10,000. What appellant’s “defense” asserted was that, for each dollar of benefits that it paid pursuant to such uninsured motorist coverage as it admittedly owed to appellees, it would be entitled to claim a dollar “write down” in the limits of the liability coverage that it admittedly owed to Mr. Hedgecock’s administratrix.

We do not construe OCGA § 33-7-11 (d) as establishing a procedure whereby the uninsured motorist carrier is authorized to file an answer in its own name and to raise therein a “defense” which relates to any coverage other than that afforded under the uninsured motorist provisions of the policy. Appellant’s “defense,” in effect, injected into the underlying tort action the issue of the limits of its liability coverage. Neither the existence of the liability coverage that was afforded to Mr. Hedgecock’s administratrix nor the extent to which appellant might ultimately be required to satisfy a judgment that appel-lees obtained against Mr. Hedgecock’s administratrix were relevant issues in the underlying tort action. See generally Schaefer v. Mayor & Council of Athens, 120 Ga. App. 301, 303 (7) (170 SE2d 339) (1969). Assuming that appellees’ tort action may have created an actual justiciable “controversy” with regard to the liability coverage afforded to Mr. Hedgecock’s administratrix, appellant would be free to invoke the provisions of OCGA § 9-4-2 et seq. and to urge that it was entitled to a judicial declaration of its rights and obligations with regard to that coverage. However, appellant’s filing, in its capacity of the uninsured motorist carrier, of an answer pursuant to OCGA § 33-7-11 (d) is not a viable alternative to the filing of a petition for declaratory judgment as to appellant’s rights and obligations with regard to the liability coverage that it afforded to Mr. Hedgecock’s administra-trix, and, even if it were, the State Court of Chatham County would not be a proper forum in which to seek or to obtain such a declaration. See EVI Equip. v. Northern Ins. Co. of N.Y., 178 Ga. App. 197 (342 SE2d 380) (1986).

Under the circumstances which existed in this case, it would have been a proper and sufficient exercise of the trial court’s jurisdiction simply to have granted appellees’ motion to strike appellant’s irrelevant “defense.” “One test as to whether matter in a pleading is irrelevant, immaterial or impertinent is whether evidence in support of it would be admissible. [Cit.] It is well settled in this State that evidence relative to the existence of liability insurance or of negotiations which a company adjuster may have had with the injured party relative to a possible settlement of his claim is not admissible on a trial of the action. [Cits.]” Schaefer v. Mayor &c. of Athens, supra at 304 (7). Had the trial court simply granted appellee’s motion to strike, the necessity of its ruling on the motion for summary judgment and of addressing the merits of appellant’s irrelevant “defense” would have been obviated. Accordingly, without expressing any approval or disapproval of the trial court’s ultimate ruling on the merits of appellant’s “defense,” we vacate the grant of summary judgment in favor of ap-pellees with direction that a new order which grants appellees’ motion to strike appellant’s “defense” be entered. See generally Cheshire Bridge Enterprises v. Lexington Ins. Co., 183 Ga. App. 672 (359 SE2d 702) (1987).

Decided July 10, 1987.

Leesa A. Bohler, Terry R. Drugan, for appellant.

Thomas C. Bordeaux, Jr., Dana Braun, Lamar C. Walter, William F. Braziel, Jr., for appellees.

Judgment vacated and case remanded with direction.

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