author: Pope, Chief Judge.

text:
    A93A0011.
    HESLER v. THE STATE.
    (431 SE2d 138)
   Pope, Chief Judge.

William LeRoy Hesler appeals his conviction of child molestation.

1. Hesler contends the evidence was insufficient to support the jury’s verdict. The State showed that Hesler, who had been married to the six-year-old victim’s great-grandmother, had been invited by the victim’s parents to live with them after his wife died. Hesler was accepted as a member of the family and the victim called him “PawPaw.” The mother worked a night shift, and while she slept during the day Hesler would watch the child. On the afternoon of August 5, 1991, the mother was awakened by the sound of her daughter crying and found her on the living room couch curled up in a fetal position. The child was very upset, and when the mother asked what had happened, she spread her legs out, pointed to her vagina and said, “PawPaw hurt me with his hand.”

The mother went to Hesler’s room to confront him, but was unable to wake him up. Although the mother did not allow Hesler to drink hard liquor in the house, she found an almost empty liquor bottle hidden in his dresser drawer. The mother called authorities, but before they arrived the child’s father returned home and bodily threw Hesler out of the house, where he was arrested. The child was first taken to a local hospital and examined, then questioned by the police. Although the medical examination showed no signs of physical injury, the emergency room physician testified that the fondling described by the child would not leave any bruising or tears on the genitalia, and he found no reason to doubt her statements. During questioning by the police the child revealed that Hesler had previously molested her in the same manner on another occasion when she was staying at her great-grandmother’s home. Both her conversation with the doctor and the videotaped police interrogation were consistent with the child’s statements to her mother.

At trial the child testified that while her mother was asleep she went into Hesler’s room to ask him to get her some lunch. Hesler was drinking something from a bottle that was “kind of yellow” colored and was “bad stuff for your body.” He did not say anything to her, but he put his hand inside her panties on her “bottom private,” which she described as between her legs and below her belly button, and hurt her with his .finger. She started crying and told him to stop, and when he refused she ran from the room. Hesler testified that he drank almost a pint of liquor that day. He claimed that his great-granddaughter came into his room and started making a lot of noise jumping on the bed, which disturbed him; and when he told her to be quiet she got mad at him and ran and told her mother he had molested her, although he had not even touched her.

Reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found the defendant guilty of child molestation beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Minton v. State, 205 Ga. App. 430 (422 SE2d 300) (1992).

2. We reject Hesler’s argument that the trial court erred in ruling that the six-year-old child was competent to testify because it is not clear from her testimony that she understood the obligation of telling the truth or that she comprehended why she was in court. Pursuant to Georgia law, a victim in a child molestation case is competent to testify and the witness’ credibility is a matter for jury determination. OCGA § 24-9-5 (b).

3. Hesler argues the trial court erred in permitting the emergency room physician who examined the child to testify to his conclusion concerning whether the child had been fondled or touched in the vaginal area and in failing to instruct the jury concerning the manner in which expert testimony is to be considered. The record shows defendant stipulated to the witness’ qualifications as an expert in emergency room medicine. Although no objection was raised at trial, on appeal defendant argues the evidence did not show the witness was qualified to testify concerning child molestation. The record shows, however, that the witness testified he was experienced in conducting vaginal examinations of children. The witness was questioned about his examination of the child and whether physical observations he made during his medical examination of the child were consistent with the history supplied to him by the child and the child’s mother that the defendant had touched or fondled her in her vaginal area. After setting forth this foundation, the witness testified he concluded the child had been fondled or touched by the defendant’s hand. Thus, the witness’ opinion was admissible as a medical opinion and was not inadmissible as a legal conclusion. See State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986).

Defendant did not request a charge to the jury concerning the consideration to be given to expert testimony and thus the trial court’s failure to give such a charge does not provide a ground for reversal. We reject defendant’s argument that OCGA § 5-5-24 (c) provides a ground for reversal in this case.

Decided April 19, 1993.

Farless & Newton, Floyd H. Farless, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

4. During voir dire a prospective juror volunteered the information that his niece and daughter “had been involved in” an alleged child molestation case two weeks previously. The trial court asked him if he thought that would impact on his ability to serve as a juror and affect the way he might consider the evidence presented in the case, and he responded that he did not think so. When the court then asked if he could make his decision strictly upon the evidence presented and the judge’s instructions on the law, the venireman answered affirmatively. Hesler contends that the trial court committed reversible error by allowing this discussion to be heard by the rest of the jury panel without any cautionary instructions to preclude their being influenced thereby, as it could only add to the perception that child molesters are everywhere and violated the mandate of OCGA § 17-9-20 that only sworn testimony may be used to support a verdict. No error is shown. Defendant made no objection and requested no curative instructions. Moreover, the trial court gave adequate pre- and post-evidentiary instructions to the jury concerning defendant’s presumption of innocence, the burden of proof and what constitutes evidence in the case.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    A93A0039.
    PARKS v. THE STATE.
    (431 SE2d 141)
   Pope, Chief Judge.

Defendant Parks and co-defendant, Dennis Walker, were found guilty of trafficking in cocaine. Defendant appeals.

At trial Fred Mays, a special agent with the GBI assigned to the Drug Enforcement Section of the Atlanta Regional Drug Enforcement Office, testified he and a confidential informant went to a restaurant on Riverdale Road in Clayton County to make an undercover drug buy of three kilograms of cocaine for $78,000 using GBI funds. Other agents were in the parking lot in unmarked vehicles covering the transaction. When defendant and Walker arrived at the restaurant, the confidential informant brought Walker to Mays’ car and they discussed the purchase. Walker returned to his vehicle and defendant drove that vehicle beside Mays’ car and asked Mays to follow him to Cascade Road to get the three kilograms of cocaine. Mays refused. Defendant and Walker then agreed to go get the cocaine and bring it back to the Riverdale Road area. The informant was later paged and told to meet defendant and Walker at the Exotic Car Cleanup. Shortly thereafter defendant paged Mays and told him to meet them at the Exotic Car Cleanup. When Mays and the surveillance agents arrived Walker, who was standing outside, ran but was quickly apprehended. The agents found Parks upstairs in the building. They also recovered a package containing approximately 3,000 grams of 75.5 percent cocaine, which one agent saw being thrown out of a rear upstairs window of the building as the agents attempted to secure it.

1. Mays was asked on direct examination what he was “supposed to do” at the restaurant where he first met defendant. He replied that he was “supposed to meet a drug dealer there and purchase three kilograms of cocaine for $78,000.” Defendant objected to the answer and requested the “jury be cautioned or given a cautionary instruction” because no one had identified defendant as a drug dealer and that was what the jury was there to decide. The trial court overruled the objection and defendant enumerates this ruling as error.

We hold the trial court did not abuse its discretion by refusing to give a cautionary instruction to the jury after the objected-to testimony. Contrary to defendant’s contention otherwise, Mays’ testimony was not tantamount to stating defendant was the drug dealer he was supposed to meet. His testimony explained his conduct and reason for being at the restaurant where he first met defendant and Walker. Mays’ response was not an opinion as to the guilt or innocence of the defendant or any other legal conclusion. “The jury was thoroughly and definitively instructed that they were [the sole judges of the credibility of the witnesses, of the weight of the evidence, and as to whether the defendants, or either of them, was guilty of the crime charged]. Under these circumstances, we find no basis for reversal.” Nolton v. State, 196 Ga. App. 690, 692 (2) (396 SE2d 605) (1990).

2. After several hours of deliberation, the jury asked the trial court if they could “find one party guilty of constructive possession and one [party] guilty of aiding and abetting, i.e., two degrees of guilt.” In reply, the judge recharged the jury that “every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of a crime only if he, one, directly commits the crime; or two, intentionally aids or abets in the commission of the crime; or three, intentionally advises, encourages, hires, counsels, or procures another to commit the crime. Does that answer your question? Very well. Would you like to continue to deliberate for a little while? Fine, you may return to the jury room.” (Indentations omitted.) The jury then returned to the jury room for further deliberation. When queried by the court if there were any objections to the recharge, both defendants’ attorneys requested time to think about it.

Decided April 19, 1993.

Bruce S. Harvey, Pete C. Whitlock, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Assuming defendant’s attorney’s response was sufficient to reserve his objections to the charge, we do not agree that the court’s failure to instruct the jury again on constructive possession, aiding and abetting, or the burden of proof in response to their question constituted reversible error. The trial court’s recharge sufficiently addressed the question posed by the jury. Furthermore, apparently the trial court’s recharge answered the jury’s question adequately since no juror responded negatively when the trial court asked if the recharge answered their question and the jury did not have further questions for the court.

Judgment affirmed.

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


text:
    A93A0241.
    In the Interest of T. M. R. et al., children.
    (430 SE2d 865)
   Pope, Chief Judge.

Appellant, the natural mother of T. M. R. and J. G. R., appeals the order of the Juvenile Court of Berrien County terminating her parental rights. We affirm.

1. The appellant-mother first challenges the sufficiency of the evidence to support the termination of her parental rights. The record shows that the Berrien County Department of Family & Children Services (DFCS) first became involved with the children in April 1991 after a report was received concerning injuries to appellant’s two-year-old daughter, J. G. R. At that time the mother explained to the DFCS worker who visited the home that J. G. R. had fallen out of bed and bumped her head and that her daughter had also burned herself accidentally on an iron; however, the mother later changed her story and stated instead that the injuries had been inflicted while the child was in the care of her then boyfriend, Randy Sadler.

Approximately two weeks after DFCS first visited the home, J. G. R. received second degree burns to approximately 22 percent of her body. J. G. R.’s treating physician, Dr. Graham Pereira, testified via deposition that the burns were infected, which indicated to him that the burns were not recent because it takes days for burns to become infected. Dr. Pereira also noted multiple abrasions and both old and new bruises on J. G. R., which in his opinion were probably caused by the child having been struck with a belt or similar object.

As to the cause of the burns, both the mother and Sadler stated that the child was burned when she was left alone in the bathtub, the implication being that she turned on the hot water and burned herself. Dr. Pereira testified, however, that based on the nature and location of the burns, it would have been almost impossible for the burns to have been self-inflicted, and that the child had probably been forced to sit while hot liquid was poured over her. The evidence was conflicting as to who was at home with J. G. R. when she was burned, with the mother having stated shortly after the incident that she was at home with the child, and then later stating that she had gone to a neighbor’s house and left her two children in Sadler’s care at the time J. G. R. was burned. At the termination hearing the mother again stated that the child was in Sadler’s care. The mother also testified that she knew that the child needed medical attention, but that Sadler prevented her from seeking help. The record further shows that the child was eventually treated for her injuries when a neighbor called emergency medical services. Both the mother and Sadler were tried and convicted of the offense of cruelty to children because of the burn incident. At their trial for that offense Sadler testified that the child was in his care when she was burned.

The mother testified at the termination hearing that she loved her children and that she had never harmed her children. However, the mother admitted that she married Sadler after J. G. R. was burned and after the juvenile court advised her that she needed to terminate her relationship with him. The mother also admitted that after the children were removed from her custody, she disclosed to a DFCS caseworker that on other occasions Sadler had abused the children by rubbing soiled diapers in their face, pouring cereal on their heads and that J. G. R.’s arm had been broken while in his care. The mother explained that she did not report these incidents earlier because she was scared, but that she had changed while in prison and now planned to divorce Sadler.

“ ‘The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met. When we apply that test here we note the . . . evidence presented to the trial court and con-elude that a rational factfinder could have found by clear and convincing evidence parental misconduct or inability as provided by OCGA § 15-11-81 (b). (Indention omitted.) In re B. D. C., 256 Ga. 511, 512-13 (350 SE2d 444) (1986). See also In the Interest of J. M. K., 189 Ga. App. 140 (375 SE2d 131) (1988); In the Interest of J. A. B., 189 Ga. App. 79 (1) (374 SE2d 839) (1988); In the Interest of S. G., 182 Ga. App. 95 (354 SE2d 640) (1987); In the Interest of J. L. G., 191 Ga. App. 904, 905 (383 SE2d 376) (1989). In a case such as this, a plea of additional time to improve is without force to overcome the proof of unrelieved detriment already suffered by the child where there is no indication but the promise to suggest hope of improvement. In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987). In the Interest of S. L., 189 Ga. App. 361, 362 (375 SE2d 484) (1988). See also In re J. L. W., 170 Ga. App. 886 (318 SE2d 751) (1984).’ (Punctuation omitted.) In the Interest of C. M., 194 Ga. App. 503, 504 (1) (391 SE2d 26) (1990).” In the Interest of B. L., 196 Ga. App. 807, 809-810 (3) (397 SE2d 156) (1990). “The juvenile court did not lack clear and convincing evidence to support the termination of appellant’s parental rights.” In the Interest of K. P. E., 196 Ga. App. 759, 760 (397 SE2d 39) (1990); In the Interest of B. P., 207 Ga. App. 242 (427 SE2d 593) (1993).

Decided April 19, 1993.

J. Reese Franklin, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Teresa E. Lazzaroni, Staff Attorneys, Simpson & Gray, Joseph I. Carter, Griner & Mírate, Galen A. Mírate, for appellees.

2. We have examined the mother’s enumeration challenging the admissibility of evidence concerning her conviction for cruelty to children and find it to be without merit.

Judgment affirmed.

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


text:
    A93A0260.
    MURPHY v. GEORGIA GENERAL INSURANCE COMPANY.
    (431 SE2d 147)
   Pope, Chief Judge.

Plaintiff/appellant Robert Murphy appeals the grant of summary judgment to Georgia General Insurance Company (“Georgia General”), plaintiff’s uninsured motorist carrier. Plaintiff filed suit against a John Doe defendant, the driver of an unknown truck, seeking to recover damages stemming from an accident occurring on April 23, 1991 in which plaintiff contends a pipe fell from the bed of the unknown truck, struck the windshield of his vehicle and caused him to lose control of his vehicle. It is undisputed that plaintiff is the only eyewitness to this accident. Georgia General answered the complaint and filed a motion for summary judgment.

Decided April 19, 1993.

Dozier, Akin, Lee & Graham, Neal B. Graham, for appellant.

Greer, Klosik & Daugherty, Robert J. McCune, for appellee.

The trial court correctly granted Georgia General’s motion for summary judgment. This case is controlled by our decision in Scott v. Allstate Ins. Co., 200 Ga. App. 296 (407 SE2d 492) (1991). In this case, as in Scott, the plaintiff cannot prevail on his uninsured motorist claim against John Doe because there was no physical contact between the plaintiffs vehicle and the John Doe truck and plaintiff’s description of how the accident occurred was not corroborated by another eyewitness to the occurrence. Id. at 297; see OCGA § 33-7-11 (b) (2). Contrary to plaintiff’s contention otherwise, it is now well-settled that the corroboration requirement set forth in OCGA § 33-7-11 (b) (2) can only be met by the testimony of an eyewitness to the occurrence and not by circumstantial evidence, including statements given by the plaintiff to police, testimony of the plaintiff in both affidavits and depositions and/or physical damage to the plaintiff’s automobile. See Universal Security Ins. Co. v. Lowery, 257 Ga. 363 (359 SE2d 898) (1987); Scott, 200 Ga. App. at 297.

Plaintiff’s reliance on our recent decision in State Farm Fire &c. Co. v. Guest, 203 Ga. App. 711 (417 SE2d 419) (1992) is misplaced, both because Guest offers only physical precedent and this case is factually distinguishable from Guest. In Guest, the plaintiffs vehicle struck an “integral part” (a tire assembly) of an unknown vehicle. Id. at 711. In this case, however, plaintiff’s vehicle struck a pipe which he alleges was being transported as cargo and fell off an unknown truck. The pipe clearly is not a component or “integral part” of the unknown truck. Accordingly, plaintiff’s argument that this case is governed by Guest must fail.

Judgment affirmed.

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


text:
    A93A0304.
    FREEMAN v. THE STATE.
    (430 SE2d 867)
   Pope, Chief Judge.

James (“Opie”) Freeman appeals from his conviction of burglary and rape.

1. Freeman contends that the circumstantial evidence presented at trial was insufficient to support the guilty verdict. The State presented testimony of the victim’s daughter Gwen Holmes that the 59-year-old victim had lived with her for about a year since suffering a subdural hematoma which left her partially paralyzed on her right side. Because her mother needed some care and supervision, Holmes would return home from her job at the Claxton Nursing Home during her break to check on her. On the evening of December 20, 1990, Holmes arrived between 8:30 and 9:00 p.m. to find her mother lying next to the defendant on the living room floor beside the sofa, nude from the waist down. There was blood on her mother, the floor and the sofa. She recognized defendant, who was dressed only in pants and socks, and began beating him with a shoe she found on the floor. She asked the defendant what he was doing there and he said the victim “called me here.” When Holmes informed the defendant she was notifying the police, he left immediately, leaving the rest of his clothes at the house.

The victim was taken to the hospital emergency room where she was examined by the physician on duty who testified that he found a fractured bone in her left knee and tears, bleeding and lesions in the vaginal area. The victim testified that she was at home alone when she heard someone knock at the door, who she thought was her grandson Kevin Holmes. When she asked if it was Kevin, the person outside said yes and she opened the door. A man, who she was unable to identify, rushed in and hit her, knocking her to the floor. The perpetrator then got on top of her, told her he would kill her if she yelled and raped her. Her leg was injured during the attack. The victim admitted that before she came to live with her daughter she had a drinking problem, but testified that she no longer drank alcoholic beverages. The doctor testified that he did not “smell any spirits” on the victim’s breath when he examined her and she did not act inebriated.

Officer Napoleon Howard of the Claxton Police Department was the first to respond to Holmes’ call for assistance. After talking to the women he went to defendant’s residence and found him “very drunk. Too drunk to even run on the intox machine that night.” Defendant was taken to jail and fell asleep “a minute” after he was placed in a cell. Howard returned to the scene of the crime to have Holmes identify the clothing found on the floor and secure the physical evidence. Detective Kerry Blocker testified that he responded to the call and also went to the hospital to talk to the victim, but never smelled alcohol on the victim or found any evidence of drinking at Holmes’ residence.

The 25-year-old defendant, who was unemployed, disabled and taking medication for a nervous condition, testified that the victim called to him from the house as he was returning home from a nearby liquor store and asked him to go get her some liquor. He had already been drinking that day and although he did not know her, he offered to share a full pint bottle of gin with the victim. She agreed and they went inside so nobody would see her, where they sat drinking together from the bottle. Defendant testified he was “about drunk” when he started drinking with the victim and that after 20 or 25 minutes he passed out sitting on the couch, and did not know how he ended up on the floor next to the victim or why the blood was there, but he could not have raped her.

Defendant argues that even when construed in the light most favorable to the State, the evidence before the jury was insufficient to exclude the reasonable hypothesis that he was invited into the residence, and that if intercourse did occur it was consensual. We do not agree that the verdict was based entirely on circumstantial evidence since both the victim and her daughter testified as eyewitnesses to the events.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [defendant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.] ‘And, the test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)] “is the proper test for (an appellate court to employ) when the sufficiency of the evidence is challenged. . . .” ’ Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that [defendant] was guilty of the offenses charged. Jackson v. Virginia, [443 U. S. 307,] supra. . . . Moreover, the basic facts to which the victim and police officer [s] testified are recounted above, and the victim’s [and her daughter’s] eyewitness testimony provided direct evidence of [defendant’s] guilt. [This] contention is without merit.” Horne v. State, 204 Ga. App. 81, 82-83 (2) (418 SE2d 441) (1992). Accord Murphy v. State, 203 Ga. App. 152, 155 (4) (416 SE2d 376) (1992); Morris v. State, 202 Ga. App. 673 (415 SE2d 485) (1992).

2. Defendant asserts that his Fifth Amendment rights were violated by the State’s commenting on his exercise of those constitutional rights and on his request for advice of counsel. Defendant does not refer to any page of the trial transcript where the alleged infraction transpired, but apparently it occurred when a detective testified that he had read defendant his Miranda warnings before a verbal statement was volunteered to him by defendant, to show that it was freely and voluntarily made. However, when out of the presence of the jury the State sought to offer this testimony, defense counsel was asked if he desired a Jackson-Denno hearing before it was gone into and replied: “We have no desire for a Jackson-Denno. He can testify to it.” Thus any complaint in this regard has been waived. Henderson v. State, 203 Ga. App. 733 (3) (417 SE2d 413) (1992).

3. It was not improper for the jury to disregard defendant’s testimony that he was invited into the residence by the victim when that testimony was also used to prove that sexual intercourse had occurred, as he claims. The evidence was in direct conflict as to the mode of defendant’s entry and whether there was consensual intercourse or rape. “Even when the defendant is the sole eyewitness, the defendant’s explanation may be rejected by the jury where that explanation is inconsistent with other direct and circumstantial evi-. dence. [Cit.]” Morris, 202 Ga. App. at 674.

4. Defendant complains for the first time on appeal that the requirements of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) were violated “if” the defense was not furnished with a report from the GBI Crime Lab concerning the fact that the test of the blood found on his trousers was inconclusive and that no spermatozoa were found on the rape kit swab or, that the test results were erroneously not introduced through the serologist who authored the report. The State retorts that it complied with defendant’s Brady motion by furnishing him with a copy of the Crime Lab report dealing with all evidence sent to it, and that its decision not to call the technicians who conducted the tests to testify was a tactical one. This document is included in the record and, from the phraseology of defendant’s enumeration, it is not clear that he did not properly receive it upon demand. Thus, since it does not appear that the State failed to fully comply with the Brady motion and these witnesses were known to defendant, who was free to call them to testify if he so chose, we find no error of constitutional magnitude. Moreover, objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. See Henderson v. State, 203 Ga. App. at 735 (3).

5. Merely because the testimony of some witnesses was contradictory of others does not cause that which is prejudicial to defendant to be false. “The credibility of the witnesses and the weight to be given their testimony is a question for the jury. [Cit.]” Ivey v. State, 203 Ga. App. 886, 887 (2) (418 SE2d 71) (1992). We find no grounds for reversal.

Judgment affirmed.

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

Decided April 19, 1993.

William 0. Cox, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.


author: Beasley, Presiding Judge.

text:
    A93A0311.
    ROOS v. THE STATE.
    (430 SE2d 870)
   Beasley, Presiding Judge.

Roos was convicted of homicide by vehicle in the first degree, OCGA § 40-6-393 (a), by reckless driving (OCGA § 40-6-390) or DUI (OCGA § 40-6-391). His motion for new trial was denied.

Roos and his sister had been drinking at a bar on a rainy night. As they drove home, the car spun out of control and struck a utility pole on the passenger side of the vehicle. Roos’s sister was killed. A witness who observed the car lose control and rushed over to assist identified Roos as the driver and testified that Roos was “seated directly behind the steering wheel.” This witness also testified that the “passenger . . . was squeezed in between the seat, the dash and the roof of the car with her head lying down to one side.” A fire department rescue officer testified that the fire station was within earshot of the location of the wreck. He had just returned from the scene of another accident, heard the impact and immediately drove the short distance down the street to the accident. Roos was behind the wheel, and his sister had to be extracted from the passenger side of the wreckage using a special tool. A police officer noted the presence of a woman’s white high heeled shoe on the passenger side and an open beer bottle on the floorboard on the driver’s side. He testified that the large amount of blood on the passenger side air bag was consistent with the head and facial injuries sustained by Roos’s sister. It was stipulated that a test performed at the hospital within an hour of the wreck indicated that Roos’s blood alcohol level was .20. The victim’s blood alcohol level was .14 and cocaine metabolites were also detected in her blood. The State also introduced evidence of two similar transactions as part of its case-in-chief.

Roos’s defense was that he had not been driving, but had allowed his sister to drive while stretched out in the back seat because he was intoxicated.

1. In two enumerations of error, Roos challenges the similar transactions.

(a) Prior DUI conviction: At the USCR 31.3 (B) hearing, in making its showing regarding similarity of the independent offense, the State relied on the almost identical blood alcohol test results (.21 in the independent DUI and .20 in the charged crime). Roos argues that because the witness presenting the test result at trial was not the person who had administered the test, his testimony regarding the result was inadmissible hearsay.

Roos pled guilty to that independent DUI, and the blood test result appears on the face of the accusation to which he acknowledged his guilt. A certified copy of the accusation and plea was entered into evidence. Pursuant to Williams v. State, 261 Ga. 640, 643 (2) (409 SE2d 649) (1991), the officer testified before the jury to the identity of Roos as the person he arrested on that charge. It was not error to admit the evidence.

(b) Pending DUI charge that occurred after the incident for which he was on trial:

He maintains both that the trial court failed to make the “on the record” determination that the State satisfied its burden, required by Williams, supra at (2) (b), and that this subsequent offense was not similar because, since he refused to take a blood alcohol test, no proof of intoxication was shown by the State.

Williams requires a hearing under USCR 31.3 (B) before any evidence of independent offenses or acts may be admitted into evidence. The State must affirmatively show: (i) that it “seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility”; (ii) that there is sufficient evidence establishing that the accused committed the independent act; and (iii) a sufficient connection or similarity between the independent act and the charged crime, so that proof of the former tends to prove the latter. The trial court must determine that each of the three showings has been met as to each independent act, and such determination must be made a part of the record. Id.

The State made the first and second affirmative showings required under Williams. The record does not show clearly that the State met its burden of showing the third affirmative requirement as to the subsequent independent DUI or that the trial court made an explicit determination on the record regarding whether the State met its burden as to this independent DUI. However, even assuming that these requirements were not met, such error is harmless when viewed in light of the other evidence presented. Faison v. State, 199 Ga. App. 447, 449 (1) (405 SE2d 277) (1991).

Given the evidence of Roos’s extreme intoxication, the proper admission of the other independent DUI, and the testimony of eyewitnesses indicating the implausibility of Roos’s defense that he was not driving, which was his sole defense, the record demonstrates overwhelming evidence of his guilt. Accordingly, any erroneous evidentiary ruling regarding the subsequent independent DUI does not mandate reversal, as it is highly probable that such error did not contribute to the guilty verdict. Id.

Decided April 19, 1993.

Megan C. Devorsey, Michael Sard, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

2. In testifying about the subsequent DUI the arresting officer gave a chronological account of the incident, during which he mentioned the other traffic offenses involved in the arrest and that he had learned, when he ran a check, that Roos was a habitual violator whose license had been revoked. Relying on Boyd v. State, 146 Ga. App. 359 (2) (246 SE2d 396) (1978), Roos asserts the trial court erroneously denied his motion for mistrial based on this testimony.

In Sabel v. State, 250 Ga. 640, 643-644 (5) (300 SE2d 663) (1983), overruled on other grounds Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984), the Supreme Court held that Boyd did not establish a per se rule, and that the decision of whether such statements are so prejudicial as to warrant mistrial are within the trial court’s discretion. On review, we must look at the relevant facts and circumstances to determine whether the trial court abused its discretion in denying the motion for mistrial.

The evidence in question related for the most part only to minor traffic offenses. Roos did not ask for curative instructions, and because of the presence of strong evidence that Roos was guilty of vehicular homicide we find that the trial court did not abuse its discretion in denying the mistrial. Sabel, supra at 644 (5).

Judgment affirmed.

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


text:
    A93A0396.
    CALLAWAY v. THE STATE.
    (431 SE2d 143)
   Beasley, Presiding Judge.

Callaway appeals from the judgments of conviction and sentences entered for two counts of child molestation, OCGA § 16-6-4 (a). His motion for new trial was denied.

1. .Appellant, who is indigent, contends the trial court erred in denying his application for funds for an independent psychiatric examination.

In accordance with USCR 31.4 (A), appellant filed a notice of intent to raise the issue of insanity or mental incompetency at the time of the acts charged and at the time of trial. The court, under USCR 31.5, ordered a mental evaluation by the Department of Human Resources to ascertain appellant’s competency in both regards.

In a joint report by a psychologist and a psychiatrist at Georgia Regional Hospital, appellant was found to be “functioning within the borderline range of intellectual capability,” but exhibiting no “major psychiatric and/or psychological dysfunctioning.” His competency to stand trial was addressed as follows: “based upon his cognitive and verbal capabilities, we would judge him to be able to effectively assist his attorney in the preparation of his defense. ... It is therefore our opinion he may be considered competent to stand trial. . . .” The report concluded: “Our examination of Mr. Callaway this date fails to find any evidence indicative of a major psychiatric disorder of either mood or thought which could conceivably influence and/or adversely affect his behaviors. We find no indication, either historically or at this time, that Mr. Callaway suffered from a psychosis such that his contact with reality has been compromised. He demonstrates an ability to differentiate between right and wrong in a general sense, a capability we would surmise to have been in place during the time frame in question. His actions therefore are considered to have been volitional and goal-directed, free from influence of any delusional and/or hallucinatory activity over which he would have no control. It is therefore our opinion Mr. Callaway may be considered psychologically competent and responsible for his behaviors.”

Appellant thereafter filed a “motion for funds for psychiatric assistance” to retain a private psychiatrist to help “ensure the preparation of a proper defense.” He had previously filed a “motion for leave to proceed ex parte, in camera and on a sealed record with regard to applications for expert and investigative assistance,” under the authority of Brooks v. State, 259 Ga. 562 (2) (385 SE2d 81) (1989).

Nothing further appears in the record with respect to the above-stated motions. Although certain other motions were heard prior to trial and the court inquired about the need to address any additional matters, none were mentioned. Appellant did not file a plea of mental incompetency to stand trial, OCGA § 17-7-130, and did not present an incompetency defense at trial, OCGA § 17-7-131. Instead, he testified in his own behalf and denied the charged misconduct.

Appellant asserts first that the court failed to ascertain satisfactorily his competency to stand trial. After the issue was drawn into question by appellant’s notice of intent, the court fulfilled its duty under USCR 31.5 by ordering a psychiatric evaluation. Appellant contends that his competency to stand trial should also have been determined by a special jury under the procedure of OCGA § 17-7-130. However, its requirements are implemented when a plea of mental incompetency to stand trial is filed. No such plea was filed. Other than his notice of intent, which was met with psychiatric evaluation, there was nothing before the court which raised a question of appellant’s competency and required it to constitute a special jury under OCGA § 17-7-130. Christenson v. State, 261 Ga. 80 (2) (b) (402 SE2d 41) (1991). Compare Baker v. State, 250 Ga. 187 (1) (297 SE2d 9) (1982) (where there was evidence that defendant was psychotic and unable to understand the proceedings, it was error to dismiss a special plea of incompetency without a hearing under former OCGA § 17-7-130); Holloway v. State, 257 Ga. 620 (2) (361 SE2d 794) (1987) (when evidence during trial indicated defendant was incompetent, the court was required to hold a hearing on the issue of competence to stand trial).

Second, appellant asserts that the court erred in refusing his request for funds for an independent evaluation. “ ‘Whether to grant the motion (for a second psychiatric examination) was in the discretion of the trial court. . . (cit.).’ [Cit.] That determination ‘will not be overturned unless an abuse of discretion is shown. (Cit.)’ [Cit.]” Tolbert v. State, 260 Ga. 527 (2) (a) (397 SE2d 439) (1990).

Appellant showed no specific need for a second evaluation, other than to “ensure the preparation of a proper defense.” His claim of mental deficiency was addressed in the original evaluation, which resulted in a finding of competency and the absence of any serious mental disorder. It was not abuse of discretion to deny the motion for an independent state-paid psychiatric evaluation. Christenson, supra at (2) (c). See also Roseboro v. State, 258 Ga. 39, 41 (3) (d) (365 SE2d 115) (1988), which describes the showing an indigent defendant must make when requesting public funds to obtain the services of a scientific expert.

Since appellant did not present his application for funds in the presence of the state and was not required to reveal his theory of the case to the prosecution, it follows that there was no violation of Brooks, supra. Moreover, as there was no entitlement to state funds for a second psychiatric evaluation, the failure to conduct an ex parte hearing as described in Brooks was not error.

Appellant also asserts that he was denied due process of law under Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985). Ake held that “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.” 470 U. S. at 74. Appellant has not made a preliminary showing that his “mental condition [at the time of the offense was] seriously in question.” 470 U. S. at 82. In addition, he did receive the assistance of a psychiatrist at the state’s expense. Ake rejected the notion that an “indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.” 470 U. S. at 83.

Appellant was not entitled to public funds for an independent psychiatric evaluation for any of the reasons advanced.

2. During voir dire, a prospective juror asked to be dismissed for the reason that he and appellant had worked together for 15 years, and “I don’t think I could be right for this case. . . .” In response to the court’s inquiry whether he could put aside his acquaintance with appellant and decide the case strictly on the evidence, the juror responded, “Yes, I could but.. . I’ve got so many mixed emotions about it. But I’ll put it like this. From what I thought of [appellant] first and then after what I found out, I just don’t think I could be fair.” The juror was excused for cause.

Appellant’s counsel objected on the basis that the juror’s remarks tainted the entire panel and denied him a fair trial. The state requested curative instructions and the court admonished the jury that they may draw no inference from the remarks and to disregard them entirely. The court then inquired whether any juror could not follow those instructions and decide the case on the evidence. None responded.

During the continuing voir dire, several additional members of the panel were excused for cause, either because they knew appellant or expressed their inability to be impartial, for reasons independent of the juror’s statements. At the conclusion of the questioning, appellant moved for mistrial on the ground previously asserted, noting that “six people . . . walked out that said that they could not be impartial.” Mistrial was denied.

“[S]ince a jury had not yet been impaneled and sworn to try the case, the motion for mistrial was premature. [Cit.] The proper procedural tool for the defense to have used was either a ‘challenge to the poll’ [cits.] or a motion for a postponement to impanel other jurors who had not heard the remark.” Lingerfelt v. State, 147 Ga. App. 371, 373 (1) (249 SE2d 100) (1978). However, as in Lingerfelt, the import of the motion was clear, “i.e., that the prospective jurors had been prejudiced by the remarks and that the appellant was entitled to a new panel from which to choose a jury to hear his case.” Id. at 373. Accordingly, we will consider the merits of appellant’s claim. Accord Hughey v. State, 180 Ga. App. 375, 377 (2) (348 SE2d 901) (1986); Moore v. State, 156 Ga. App. 92 (1) (274 SE2d 107) (1980). Compare Frady v. State, 203 Ga. App. 833 (418 SE2d 114) (1992).

The inquiry is whether the remarks were “inherently prejudicial and deprived the appellant of his right to begin his trial with a jury ‘free from even a suspicion of prejudgment or fixed opinion. . . .’ [Cit.]” Lingerfelt, supra at 373. If so, failure to excuse the entire panel constituted an abuse of the trial court’s discretion. Roberts v. State, 259 Ga. 441 (2) (383 SE2d 872) (1989). Of course, where the facts establish only “gossamer possibilities of prejudice,” Snyder v. Mass., 291 U. S. 97, 122 (54 SC 330, 78 LE2d 674) (1934), prejudice is not inherent.

In Lingerfelt, which included prosecutions for rape and sodomy, a prospective juror stated during voir dire that he heard too much about the defendant to be impartial. When questioned further in the presence of the panel, the juror named several persons who claimed that defendant was a peeping Tom. This court concluded: “Had the juror said nothing more than that he heard too much about the defendant to be impartial, disqualification of the remainder of the panel would not have been necessary. [Cit.] However, the responses subsequently elicited from him went far beyond this and constituted improper testimony which branded the accused as a sex deviate before the trial had even begun. An instruction to the remainder of the panel to disregard these comments could not have been sufficient to erase the potential harm done.” Lingerfelt, supra at 372.

Moore involved an arson prosecution. During voir dire, a prospective juror volunteered: “[Defendant] was a volunteer (fireman). I worked with a guy that said that he was a firebug. He said that he would be the first one on the fire scene; that he would set the fire and then run back to the fire house.” Id. at 92. This court acknowledged: “It cannot seriously be argued that a prospective juror in an arson case could remain neutral after hearing sworn testimony by another prospective juror to the effect that the defendant was reputed to be a firebug.” Id. at 93. Since the knowledge which necessitated disqualification of the panel member was conveyed to the others, their disqualification was also required.

The present case is factually distinguishable. The juror’s remarks most closely resemble that which we found acceptable in Lingerfelt, i.e., “nothing more than that he heard too much about the defendant to be neutral.” Although the comments were clearly directed at appellant, compare Frady, supra, they did not necessarily imply guilt of the offense under consideration, unlike the remarks in Lingerfelt and Moore. Neither did they “link [appellant] to other criminal violations . . . which were complete and separate from the offense for which he was being tried.” Roberts, supra at 443 (2). We do not find “inherent prejudice” in the fact that other members of the panel were subsequently excused for cause. They were disqualified for unrelated reasons. Nor are the juror’s statements, which did not reveal the nature or basis for his own bias, inherently prejudicial.

Taken together with the court’s remedial measures, and the assurances that the remaining jurors could follow the court’s admonition, we find no abuse of discretion in refusing to disqualify the entire panel on the basis of the juror’s comments. Accord Roberts, supra; Frady, supra; Hughey, supra.

Decided April 19, 1993.

Hallman & Stewart, D. Jay Stewart, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A93A0478.
    MACK v. THE STATE.
    (430 SE2d 862)
   Beasley, Presiding Judge.

Mack appeals from his judgment of conviction and sentence for possession of cocaine with intent to distribute, OCGA § 16-13-30 (b). His motion for new trial was denied.

His sole enumeration of error is directed at the denial of a motion for mistrial after the State attempted to impeach his testimony by use of a pre-sentence probation report. We affirm.

Appellant testified in his own defense and the following was elicited on direct examination: “Q. Have you ever been either convicted or charged with a crime dealing with drugs? A. Never been in trouble with any law back home. Never before. Q. Never been in trouble at all? A. Never.”

The State inquired during cross-examination: “Q. One of the questions that [your attorney] asked you was you had never been in any trouble before and never been arrested on any drug charges and you testified no, isn’t that right? A. Yes, sir. Q. Well, explain to the jury then how —,” whereupon appellant objected and a discussion ensued, which began in, but concluded outside of, the presence of the jury.

The State had in its possession a copy of the pre-sentence report which revealed that appellant had been criminally charged on several occasions in Florida, including three drug arrests. The evidence was offered to prove the falsity of appellant’s direct testimony. See Jones v. State, 257 Ga. 753 (1) (a) (363 SE2d 529) (1988). The trial court refused to allow cross-examination concerning these charges in the absence of the proper documentary support.

Appellant moved for mistrial on the basis that the jury was tainted by the attempted questioning. The motion was denied, and the jury was given curative instructions as follows, based on what it had heard: “Ladies and gentlemen of the jury, there was some discussion before you were sent out about the — possible criminal record on behalf of the defendant, and the defendant denies a criminal record. There was some information brought to your attention by the district attorney about certain charges. Well, anybody can be charged with anything, and that is not a conviction. The fact that you’ve been charged with speeding doesn’t mean that you’re guilty of speeding. If they find you guilty and then put it in the record, then you’ve got a finding of guilty and you are guilty of speeding. The same thing with anything else. I will charge you that there is not any evidence before this Court at this time that this man has been convicted of a criminal offense in Dade County, Florida. And I will leave it on that basis.” Following these curative instructions appellant made no further complaint and did not renew his motion for mistrial. He is therefore precluded from raising this issue on appeal. Schirato v. State, 260 Ga. 170 (5) (391 SE2d 116) (1990).

Decided April 19, 1993.

Ellis & Easterlin, Russ F. Barnes, for appellant.

John R. Parks, District Attorney, Henry 0. Jones III, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A93A0963.
    BUCKLEY v. HERCULES BRUNSWICK FEDERAL CREDIT UNION.
    (430 SE2d 863)
   McMurray, Presiding Judge.

Hercules Brunswick Federal Credit Union (“credit union”) filed a petition to resolve opposing claims asserted by Sidney Buckley and William T. Carter (defendants) to a share draft account with a principal balance of $37,169.48. The credit union alleged that the account was opened by a now deceased credit union member, Chester R. Buckley, and that it is in possession of an agreement, dated March 25, 1965, identifying William T. Carter and Chester R. Buckley as joint owners of the account with rights of survivorship. Sidney Buckley answered admitting that a dispute exists over ownership of the account and counterclaimed, alleging the credit union “has been negligent in maintaining the documentation proving that [he] is the owner thereof.” William T. Carter filed a motion for summary judgment and his affidavit, deposing that Chester R. Buckley “mailed to him during the course of his life, a signature card to sign making him joint owner of [the] account . . ., which he executed on March 25, 1965 [and] which now is in the [credit union’s] possession.” Sidney Buckley filed his affidavit, deposing that Chester R. Buckley “had [him] execute a joint share agreement making [him] the joint owner of [the] account [; that after] Chester R. Buckley’s death, [he] went to Hercules Brunswick Federal Credit Union and inquired of Claudia Herrington, an agent and employee of Hercules Brunswick Federal Credit Union, as to the status of [the] account [and that] Claudia Herrington allowed [him] to view the joint share account agreement card [indicating that he is] joint owner of the account, with rights of survivorship after the death of Chester R. Buckley.” Sidney Buckley further deposed that he “went back [to the credit union] on several occasions [and that Claudia Herrington] stated among other things that she could not find the card.”

The trial court denied the motion for summary judgment. However, Sidney Buckley withdrew his claim to the share draft account before trial, pressing only his counterclaim against the credit union for misplacing account records. Specifically, Sidney Buckley’s attorney stipulated at a pretrial hearing “that because of loss of the [share draft agreement] card, in favor of my client, that we are unable to prove that our claim against the funds is superior to Mr. Carter’s claim [and], as a result . . . Hercules Federal Credit Union would be liable to my client for an amount identical to the amount contained in the account.” The following then transpired: “THE COURT: Okay, you do stipulate. Let me make clear, I mean, let me make certain the record is clear. You do stipulate that you do not wish to make a contest or an issue of fact before a jury as to Mr. Carter’s entitlement to the funds under his card, which shows him [as] holding a joint account with right of survivorship? [SIDNEY BUCKLEY’S ATTORNEY]: That is correct, Your Honor. THE COURT: You do not wish to make a jury issue with respect to whether or not Mr. Carter is entitled to the funds as the survivor of that account? [SIDNEY BUCKLEY’S ATTORNEY]: That is correct; and the reason for that, Your Honor, we cannot prevail on that issue is because our evidence was lost [and] our claim is based upon [the credit union’s] negligence in losing that card . .. that would allow us to be able to prevail on the matter.”

The trial court entered judgment for William T. Carter based on the withdrawal of Sidney Buckley’s claim to the share draft account. The trial court also entered judgment for the credit union, finding it inconsistent for William T. Carter to recover as owner of the account and for Sidney Buckley to recover based on a claim that the credit union misplaced records which allegedly prove that he is owner of the account. This appeal followed. Held:

1. Sidney Buckley contends the trial court erred in entering judgment for the credit union, arguing that genuine issues of material fact remain with regard to the credit union’s liability for failing to maintain records evidencing his ownership of the share draft account. We do not agree.

Decided April 19, 1993.

Lissner, Killian, Cunningham & Boyd, Robert P. Killian, for appellant.

Nathan & Nathan, Ivan H. Nathan, for appellee.

Damages cannot be awarded simply because the credit union misplaced records indicating that Sidney Buckley is owner of the share draft account. There must be evidence that the negligent act resulted in the injury inflicted. Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 512 (317 SE2d 853). In the case sub judice, any interest Sidney Buckley may have had in the share draft account was not extinguished when the credit union allegedly misplaced a card bearing his signature and identifying him as joint owner of the account. Sidney Buckley forfeited any claim to the account when he stipulated that he could not defeat proof that William T. Carter and Chester R. Buckley owned the account as joint tenants with rights of survivorship. See Rawlins v. Campbell, 199 Ga. App. 472 (405 SE2d 111), for discussion of statutory procedure required for changing terms of a multi-party account. Consequently, the trial court did not err in entering judgment for the credit union on Sidney Buckley’s counterclaim.

2. The credit union’s motion to dismiss this appeal is denied.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0880.
    BATTLE v. SEAGO.
    (431 SE2d 148)
   McMurray, Presiding Judge.

This is a sexual harassment action filed pro se by a male inmate against a woman employee of the Department of Corrections. An order denying filing pursuant to OCGA § 9-15-2 (d) was entered and plaintiff Battle appeals. Held:

Under the statutory provision, the order denying filing is treated the same as a dismissal. “ ‘ “A pro se complaint is not held to stringent standards of formal pleadings, Haines v. Kerner, 404 U. S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (Vinnedge v. Gibbs, 550 F.2d 926 (1) (4th Cir. 1977)), and the ‘complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Conley v. Gibson, 355 U. S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also J. Moore, 2A Moore’s Federal Practice, ¶ 12.08 at 2265-86 (1972).” Hughes v. Roth, 371 FSupp. 740, 741 (D.C.Pa. 1974).’ Johnson v. Jones, 178 Ga. App. 346, 349 (343 SE2d 403).” Baxley v. Sutter, 203 Ga. App. 579 (417 SE2d 205). See also Johnson v. Jones, supra.

Decided April 20, 1993.

Terry L. Battle, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Terry L. Long, Assistant Attorney General, for appellee.

The complaint in the case sub judice clearly states a claim actionable under 42 USCA § 1983. Plaintiff has not relied on general allegations, but has stated specific allegations of misconduct on the part of defendant Seago within the period of the statute of limitation. Prisoners are entitled to the protection of the Eighth Amendment from sexual harassment at the hands of prison staff. While plaintiff’s allegations are somewhat bizarre, we cannot assume that they did not occur. See McKenzie v. State of Wisconsin, Dept. of Corrections, 138 FRD 554, 555, and Vang v. Toyed, 944 F2d 476 (9th Cir.). The superior court erred in denying the filing of plaintiff’s complaint.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A93A0911.
    REEVE v. THE STATE.
    (430 SE2d 873)
   Blackburn, Judge.

The appellant, Hubert Reeve, was convicted by a jury of driving under the influence and driving with an unlawful alcohol concentration. On appeal, his sole contention is that the trial court erred in admitting the results of an intoximeter test because the state failed to show a proper foundation for admission of such evidence.

Reeve was stopped by a Lawrenceville police officer on July 3, 1991, after the officer witnessed Reeve tossing a beer bottle into the passenger compartment of another vehicle. The police officer detected the odor of alcohol about Reeve, and administered field sobriety tests which Reeve failed. An alcosensor test was also positive. The officer then arrested Reeve, advised him of his rights under the implied consent law, and subsequently administered an intoximeter test which indicated a blood alcohol content of .14 percent.

At the trial on June 9, 1992, the arresting officer testified that he was certified by the Georgia Department of Public Safety to operate the Intoximeter 3000 machine when he administered the test on Reeve, and that he had shown his permit to Reeve at that time. The officer’s current permit, valid for 1992 through 1993, was admitted into evidence. Reeve contends that the state thus failed to show a proper foundation for the admission of the intoximeter results by not producing the officer’s permit that was in effect for 1991.

Decided April 20, 1993.

Fletcher W. Griffin III, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellee.

However, there is no requirement that the state produce the actual permit held by the administering officer at the time of the test, before the results of an intoximeter test may be admitted. Clarke v. State, 170 Ga. App. 852 (319 SE2d 16) (1984). “The officer’s testifying as to his authority to operate the machine in question was sufficient. [Cits.]” Williamson v. State, 194 Ga. App. 439, 441 (5) (390 SE2d 658) (1990). Accordingly, the trial court properly admitted the intoximeter results over Reeve’s objection.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Cooper, Judge. Blackburn, Judge,

text:
    A92A2409.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. NOBLE.
    (430 SE2d 804)
   Cooper, Judge.

Appellee was injured in an automobile accident allegedly caused by the negligence of Vaccaro, an uninsured motorist. Appellee sued Vaccaro and served appellant, her uninsured motorist carrier, with a copy of the action as required by OCGA § 33-7-11 (d). Appellant answered in its own name, but Vaccaro left the state and was never personally served. After filing an affidavit showing her due diligence in attempting personal service on Vaccaro, appellee obtained an order from the court allowing service by publication. See OCGA § 33-7-11 (e). Vaccaro, by special appearance, moved to dismiss the action against him for lack of jurisdiction, alleging that the service by publication was untimely and insufficient to convey jurisdiction. The trial court denied this motion, holding that appellee’s service by publication was timely and sufficient but conceding that it was without jurisdiction to enter an in personam judgment against Vaccaro. Vaccaro then filed the same motion again. This time the trial court reached the same conclusions with respect to timeliness and jurisdiction but dismissed Vaccaro on the ground that appellant was the proper defendant to the action because it answered the complaint in its own name. Appellant then moved for summary judgment on the grounds that- a judgment against Vaccaro is a condition precedent to a judgment against appellant. The trial court denied the motion, and we granted appellant’s application for interlocutory appeal to consider whether summary judgment should have been granted to appellant after Vaccaro was dismissed from the action.

“ ‘This court has interpreted the Uninsured Motorist Act to require, as a condition precedent to a suit against the insurance carrier, that the insured first sue and recover a judgment against the uninsured motorist, whether known, or unknown.’ (Cit.)” Boles v. Hamrick, 194 Ga. App. 595 (391 SE2d 418) (1990). Until 1972, if for any reason a known uninsured motorist could not be personally served, the condition precedent could not be met and the insured could not recover from his uninsured motorist carrier. The Legislature then amended the statute to allow service on the known uninsured motorist by publication upon a showing of due diligence on the part of the insured. See OCGA § 33-7-11 (e). Although service by publication would not provide the court with jurisdiction to enter an in personam judgment against the uninsured motorist, it would allow the court to enter a “nominal judgment” against the uninsured motorist sufficient to satisfy the condition precedent. See Cotton States &c. Ins. Co. v. Bogan, 194 Ga. App. 824, 825 (392 SE2d 33) (1990); Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 703 (377 SE2d 210) (1988) (Sognier, J., concurring specially); Norman v. Daniels, 142 Ga. App. 456 (236 SE2d 121) (1977). It must be noted that the amendment did not eliminate the need to meet the condition precedent of a judgment against the uninsured' motorist; it simply provided the means by which the condition precedent could be met. Moreover, despite appellee’s assertions to the contrary, the uninsured motorist carrier’s filing of pleadings in its own name also does not eliminate the requirement that a judgment be obtained against the uninsured motorist. Boles, supra at 596. See also Bogan, supra at 825; Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66 (1b) (363 SE2d 303) (1987).

In this case, appellee properly exercised due diligence and served the uninsured motorist by publication. However, before, she could recover a judgment against him, the trial court dismissed him. Service by publication, though a necessary first step in cases of this sort, does not itself satisfy the condition precedent of a judgment against the uninsured motorist. We rejected the argument that actually obtaining a nominal judgment against the uninsured motorist after service by publication was unnecessary in Smith v. Phillips, 172 Ga. App. 459 (1) (323 SE2d 669) (1984). In Smith we stated that “[i]nasmuch as the statutory/judicial scheme which has evolved requires a determination of the uninsured motorist’s tort liability before a UMC can be held accountable on its contractual obligation to its insured, we cannot agree . . . that entry of judgment against the tortfeasor/uninsured motorist is a meaningless step.” Id. at 460. As the condition precedent to a judgment against appellant could not be fulfilled once the uninsured motorist in this case was dismissed, it was error to deny appellant’s motion for summary judgment. Boles, supra.

Appellee argues that, unlike the dismissal in Boles, the trial court’s dismissal of the uninsured motorist in this case was explicitly not based on the merits. Citing Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 457 (224 SE2d 167) (1976), appellee contends that she should be allowed to proceed to judgment against her uninsured motorist carrier in this action “as though it were a John Doe action,” without obtaining a judgment against the uninsured motorist, as long as the reason she cannot obtain a judgment ¿gainst the uninsured motorist — the trial court’s dismissal of him as a party — was not based on the merits of her claim against him. We first note that even in a John Doe action the insured cannot proceed against the uninsured motorist carrier directly. See, e.g., Bogan, supra at 825. Like service on the uninsured by publication pursuant to OCGA § 33-7-11 (e), a John Doe action pursuant to OCGA § 33-7-11 (d) is a procedural device designed to allow the insured to fulfill the condition precedent of a judgment against the uninsured motorist, not a means of avoiding or abrogating it. Moreover, if we accept appellee’s suggested rule that an insured be able to proceed directly against the carrier (or even that he be able to bring á John Doe action) whenever he could not proceed to judgment against a known uninsured motorist for reasons unrelated to the merits of the claim, there would be no need for service by publication as provided in OCGA § 33-7-11 (e), and that statutory provision would be rendered meaningless. For whenever a known uninsured motorist could not be located or served, the insured would be unable to obtain a judgment against him for reasons unrelated to the merits of the claim, and the insured could simply proceed against the carrier (or sue John Doe). Rather, the rule exemplified by Wilkinson is that the condition precedent of a judgment against a known uninsured motorist must be met “unless there is some legal bar to liability on the part of the known uninsured motorist unrelated to the facts of the collision. See Wilkinson, supra (discharge in bankruptcy as legal bar to liability of known uninsured motorist under Bankruptcy Code); Watkins v. United States, 462 FSupp. 980, 990-991 (S.D. Ga. 1977) (status as driver for federal government as legal bar to liability of known uninsured motorist under Federal Driver’s Act), aff’d 587 F2d 279 (5th Cir. 1979).” (Emphasis supplied.) State Farm &c. Ins. Co. v. Harris, 207 Ga. App. 8, 10 (427 SE2d 1) (1992). In other words, an insured must obtain at least a nominal judgment against a known uninsured motorist unless even a nominal judgment against him is barred by some immunity from suit such as bankruptcy; and where even a nominal judgment is barred, the insured cannot proceed directly against the carrier but must utilize the procedural device of a John Doe action. We agree with the dissent that the legislature did not intend for insurers to escape liability where a known insured cannot be personally served. However, we cannot ignore that the legislature provided a specific procedure for plaintiffs and courts to follow in order to establish insurer liability under such circumstances; and it is that procedure which must be utilized. In this case, the trial court’s dismissal of the uninsured motorist on the grounds that the uninsured motorist carrier was the proper party, regardless of whether it was a dismissal on the merits, was not based on an immunity or “legal bar to liability” on the part of the uninsured motorist. Furthermore, the dismissal of Vaccaro left not a John Doe action, but an action directly against the carrier as the sole defendant. Accordingly, the trial court erred in relying on Wilkinson to deny appellant’s motion for summary judgment.

If appellee is unable to obtain a judgment against Vaccaro because Vaccaro has been dismissed, a judgment against appellant is precluded and its motion for summary judgment must be granted. However, because the order dismissing Vaccaro adjudicated “the rights and liabilities of fewer than all the parties” and the trial court did not expressly direct the entry of a final judgment in favor of Vaccaro, that dismissal order did not terminate the action as to Vaccaro and is subject to revision by the trial court at any time before final judgment or appeal to this court after final judgment. See OCGA § 9-11-54 (b). Thus, we vacate rather than reverse the judgment below and remand the case in order to allow the trial court, upon appropriate motion of appellee, to reconsider its dismissal of Vaccaro in light of this opinion.

Judgment vacated and case remanded for further proceedings not inconsistent with this opinion.

Birdsong, P. J., Beasley, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., and Blackburn, J., dissent. McMurray, P. J., disqualified.

Blackburn, Judge,

dissenting.

The revised majority opinion holds that the trial court erred in failing to grant summary judgment to State Farm Mutual Automobile Insurance Company (“State Farm”) and then, remands the case to allow the trial court the opportunity to eliminate the basis for State Farm’s entitlement to summary judgment. This result is as flawed as the original result in that it makes the plaintiff’s right to pursue his statutorily mandated uninsured motorist claim discretionary with the trial court.

Where the uninsured motorist carrier has been personally served and the defendant-tortfeasor has been served by publication, the trial court has no authority to dismiss such defendant-tortfeasor solely on the basis that the uninsured motorist carrier has answered in its own name and it alone is the proper defendant, unless the plaintiff thereafter retains his right to prosecute his uninsured motorist claim pursuant to Wilkinson v. Vigilant Ins. Co., 236 Ga. 456 (224 SE2d 167) (1976). If this is not so, then should the trial court elect not to vacate its order dismissing the defendant-tortfeasor, it would have no choice under the majority opinion but to grant summary judgment to State Farm. The majority opinion does not allow plaintiff’s action to proceed as authorized by Wilkinson v. Vigilant Ins. Co., supra. If the trial court elects not to reinstate the dismissed defendant-tortfeasor, and State Farm refiles its motion for summary judgment, which the trial court would have no choice but to grant, plaintiff would then be entitled to a direct appeal based upon the improper dismissal of Vaccaro. by the trial court.

At that time, this court would be forced to address the same issue that can be resolved at this time, that is, was it error for the trial court to dismiss Vaccaro because it held State Farm was the proper defendant, in reliance upon Wilkinson v. Vigilant Ins. Co., supra? This issue is properly before this court, because such dismissal did not harm the plaintiff under the trial court’s ruling, but is made harmful by this court’s holding that the trial court’s reliance upon Wilkinson v. Vigilant Ins. Co. is misplaced. Where this court creates a harm to the plaintiff by the effect of its ruling (that the trial court’s reliance on plaintiff’s right to continue his uninsured motorist claim after dismissal of the defendant-tortfeasor, pursuant to Wilkinson v. Vigilant Ins. Co., supra, was misplaced), it is authorized to do complete justice as the case may require (the reinstatement of Vaccaro).

There would be no basis for the grant of State Farm’s motion for summary judgment, but for the grant by this court of its application for interlocutory appeal and subsequent ruling thereon. If this matter had not been interrupted at the interlocutory stage it would have proceeded to completion and all issues would have been directly appealable at that time. Where this court elects to so intercede, then complete justice must be done. “Piece-meal review is not favored by the courts.” Foley v. Shanahan, 133 Ga. App. 262 (211 SE2d 367) (1974).

The effect of allowing the trial court to dismiss a defendanttortfeasor under these circumstances, with the potential for a resulting summary judgment for the uninsured motorist carrier, is to emasculate the scheme of such coverage and to allow carriers to avoid that obligation for which they have been paid by the insured party.

Since Vaccaro is not personally liable for any judgment that might be rendered against him based upon a failure to obtain personal service, it would appear that the only defendant who benefits from this entire scenario is State Farm. There is an odious smell emanating from this case and one wonders for whose benefit the motion to dismiss Vaccaro was filed. Unfortunately, no proceeding to require proof of the attorney’s authority to represent Vaccaro pursuant to OCGA § 15-19-7, was pursued in this case and is not a part of the record.

In this case, although the identity of the uninsured motorist was known, his whereabouts was not. With regard to uninsured motorists, it is well settled that “whereabouts unknown” is equal to “identity unknown.” Wentworth v. Fireman’s Fund American Ins. Co., 147 Ga. App. 854 (250 SE2d 543) (1978); Norman v. Daniels, 142 Ga. App. 456 (236 SE2d 121) (1977). When an uninsured motorist’s whereabouts is unknown, service by publication may be authorized, and although “[s]uch service does not serve as the foundation for an in personam judgment against the tortfeasor, ... it does serve as a condition precedent for recovery against the uninsured motorist carrier.” Wentworth v. Fireman’s Fund American Ins. Co., supra at 855.

The plaintiff/appellee here unsuccessfully attempted personal service upon Vaccaro in Georgia, Florida, and Texas. Satisfied that the appellee had diligently attempted that personal service, the trial court entered an order allowing service by publication in accordance with OCGA § 33-7-11 (e). The efficacy of service by publication was demonstrated by the fact that, whereas extensive efforts to serve Vaccaro personally in three states had failed to uncover his whereabouts, this service by publication resulted in a special appearance by Vaccaro through counsel to contest personal jurisdiction in the action.

Service on Vaccaro by publication was proper, and the trial court correctly denied Vaccaro’s motion for judgment on the pleadings asserting lack of personal jurisdiction and insufficient service. Subsequently, however, the court dismissed Vaccaro as a party defendant, solely because State Farm answered in its own name and thus became a party in the action under OCGA § 33-7-11 (d). State Farm then moved for summary judgment on the grounds that Vaccaro’s dismissal precluded obtaining a judgment against him, and thus eliminated the condition precedent for State Farm’s liability as uninsured motorist carrier.

In accepting State Farm’s argument, the majority opinion errs in relying upon Boles v. Hamrick, 194 Ga. App. 595 (391 SE2d 418) (1990), and attempting to distinguish Wilkinson v. Vigilant Ins. Co., supra. In Boles, the uninsured motorist was dismissed from the action on the merits, which necessarily relieved the uninsured motorist carrier of any liability. Boles is readily distinguishable from the instant case, inasmuch as the trial court specifically emphasized that the dismissal of Vaccaro was not on the merits.

In Wilkinson, where liability could not attach to the uninsured motorist because of his discharge in bankruptcy unrelated to the merits of the claim, the Supreme Court held that “the action should have been allowed to proceed [against the uninsured motorist carrier] as though it were a John Doe action. . . .” (Emphasis supplied.) Id. at 457. Contrary to the majority opinion, Wilkinson does not require a “legal bar to liability” in order to proceed “as though it were a John Doe action.” Wilkinson states: “Thus, it is seen that the insurance company is the real party in interest and not the uninsured motorist. . . . Since no liability can attach to the known uninsured, the action should have been allowed to proceed as though it were a John Doe action and the insured can establish ‘all sums which he shall be legally entitled to recover as damages,’ caused by the uninsured motorist. The Court of Appeals erred in affirming the grant of summary judgment in favor of the insurance company.” (Emphasis supplied.) Id. at 457. In the subject action, no liability can attach to Vaccaro because he has not been personally served; in Wilkinson, no liability could attach to the defendant-tortfeasor because of his discharge in bankruptcy. Nothing in Wilkinson restricted its application to those instances in which some legal bar to liability existed. Also, in Wilkinson, the uninsured motorist’s avoidance of liability did not result from a determination on the merits in the claim. Cf. State Farm &c. Ins. Co. v. Harris, 207 Ga. App. 8 (427 SE2d 1) (1992). In the instant case, Vaccaro’s dismissal similarly was not on the merits, and the trial court properly followed Wilkinson in denying State Farm’s motion for summary judgment.

The majority opinion remands the matter so that the trial court can reconsider its dismissal of Vaccaro, if requested by the appellee. This fashioning a remedy, albeit more tolerable than granting summary judgment for State Farm, is unnecessary because Wilkinson v. Vigilant Ins. Co., supra, adequately cures the trial court’s erroneous dismissal of the uninsured motorist, if it be such. Also, the majority opinion’s remand with direction does nothing to resolve the issue created by this court’s holding.

In summary, the trial court’s dismissal of Vaccaro was expressly not on the merits, and resulted from its belief that State Farm’s inclusion as a named party defendant rendered Vaccaro’s continued presence in the action unnecessary. However, the appellee had done all that was possible to serve Vaccaro personally, and finally resorted to service by publication which was authorized by the trial court. Under those circumstances, the appellee should not lose the possibility of redress provided by the uninsured motorist law, merely because of the trial court’s erroneous dismissal of Vaccaro, if it be such.

Decided April 2, 1993 —

Reconsideration denied April 21, 1993.

Harper, Waldon & Craig, Russell D. Waldon, Christopher M. Farmer, for appellant.

F. Earl Wiggers, Jr., for appellee.

The majority opinion fashions a remedy which implicitly authorizes the dismissal of defendant-tortfeasors, similarly situated, which is contrary to the intent of the uninsured motorist laws of Georgia, and, for that reason, I must respectfully dissent.

I am authorized to state that Chief Judge Pope joins in this dissent.

       Such a judgment is nominal in the sense that it is not an in personam judgment against the tortfeasor; “the sole purpose of the ‘judgment’ is to fulfill the condition precedent in OCGA § 33-7-11. [Cits.]” Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 703 (377 SE2d 210) (1988) (Sognier, J., concurring specially).


text:
    A93A0945.
    CALVERT ENTERPRISES, INC. et al. v. AMERICAN MEDICAL INTERNATIONAL, INC. et al.
    (431 SE2d 132)
   Blackburn, Judge.

The appellants operated an in-house collection agency at the Griffin-Spalding County Hospital prior to the sale of that hospital to some of the appellees. The appellants subsequently purchased the collection agency from those appellees. This action arose out of a dispute over the right to certain collections received by the appellees.

On February 14, 1992, the trial court entered summary judgment in favor of all the appellees. On March 13, 1992, the appellants filed a motion for new trial and noticed the same for hearing on June 26, 1992. No notice of appeal from the grant of summary judgment was filed.

On April 27, 1992, in response to a motion to dismiss filed by the appellees, the appellants filed a motion requesting the trial court to treat the motion for new trial as a request for extension of time to file a notice of appeal. On May 26, 1992, the appellants filed an amended motion for new trial, and named it a motion to set aside the summary judgment.

On June 26, 1992, the trial court denied the appellant’s motion for new trial and motion to treat it as a motion to extend the time for filing a notice of appeal. The appellants then filed a notice of appeal on the same day as the trial court’s oral pronouncement, and again on August 17, 1992, following the entry of the trial court’s order. The appellees subsequently moved to dismiss the appeal, and on December 1, 1992, the trial court dismissed the appeal for failure to file a notice of appeal timely.

Decided April 12, 1993 —

Reconsideration denied April 21, 1993

Mullins & Whalen, Nancy A. Bradford, for appellants.

Alston & Bird, Robert P. Riordan, W. Scott Mayfield, Ruth H. Gershon, Smalley & Cogburn, Robert H. Smalley, Jr., McGarity Law Offices, R. Nathan Langford, for appellees.

“A motion for new trial is not the proper vehicle to obtain a reexamination of the grant of summary judgment and a motion so filed has no validity and will not extend the filing date of a notice of appeal within the intent and meaning of [OCGA § 5-6-38].” Shine v. Sportservice Corp., 140 Ga. App. 355 (231 SE2d 130) (1976). In the instant case, no notice of appeal was ever filed by the appellants until June 26, 1992, well beyond the 30-day time period required by OCGA § 5-6-38. Accordingly, the trial court properly dismissed the appellants’ appeal.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A0219.
    In the Interest of H. D. H., a child.
    (431 SE2d 155)
   Birdsong, Presiding Judge.

H. D. H. appeals from the judgment of the juvenile court adjudging him a delinquent because he was found to have committed the offense of theft by shoplifting. He alleges the juvenile court erred by denying his motion for a directed verdict of acquittal and by not entering a judgment of not guilty at the conclusion of the State’s evidence. The thrust of his argument is that the evidence was insufficient to support the adjudication because it showed mere innocent possession of the item taken.

The evidence showed H. D. H. entered a convenience store, selected a bottle of soft drink, and proceeded to the cash register to pay for the soft drink. After paying only for the soft drink and while the clerk was ringing up this purchase, H. D. H. took a pack of cigarettes from the counter and was putting them in his pocket without offering to pay for them when the clerk stopped him. Held:

I. Contrary to his allegations, the evidence is sufficient to show H. D. H. took possession of the cigarettes under circumstances in which the juvenile court was authorized to find beyond a reasonable doubt that he had the requisite intent to violate OCGA § 16-8-14. OCGA § 16-2-6; Lee v. State, 102 Ga. 221, 223 (29 SE 264). See also K-Mart Corp. v. Coker, 261 Ga. 745, 746-747 (410 SE2d 425). Therefore, the trial court did not err by denying the motion for a directed verdict of acquittal. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311).

Decided April 21, 1993.

human C. Earle, for appellant.

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

2. Further review of the evidence reveals ample evidence from which any rational trier of fact could find beyond a reasonable doubt that H. D. H. was guilty of the theft by shoplifting. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0532.
    FORTIER v. JORDAN’S JEWELERS, INC.
    (430 SE2d 829)
   McMurray, Presiding Judge.

Robert Fortier (plaintiff) brought an action against Jordan’s Jeweler’s, Inc. (defendant) for malicious prosecution, alleging that defendant spitefully caused a criminal warrant to issue for his arrest (charging plaintiff with theft of services); that he was arrested, jailed and required to post a $600 bond as a result of the unfounded warrant and that the warrant was subsequently dismissed for want of prosecution. Defendant denied the material allegations of the complaint and counterclaimed for $100 and punitive damages, alleging plaintiff stopped payment on a check made out to “Jordan’s Jewelers” for $100 “within twenty-four (24) hours after receiving services.” Defendant filed a motion for summary judgment and evidentiary material showing that it complied with provisions of OCGA § 16-9-20 (h) (1), providing immunity from civil liability for any party initiating a prosecution under OCGA § 16-9-20.

Plaintiff filed his affidavit in opposition and deposed, in pertinent part, as follows: “I visited Jordan’s Jewelers on or about June 29,1991 to have a watch serviced, and prepaid with my Check No. 1080 for $37.50. ... I returned on July 16, 1991 to pick up the watch and was informed there was an additional charge of $100.00.1 had not authorized the additional charge, but gave Jordan’s Jewelers my Check No. 1091 for $100 in order to recover the watch. After leaving the store, I noticed there were dents in the case that were not there when I took the watch in for repairs. I also believed the dial had been replaced, and I had not authorized this. . . . Because of these disputes concerning the extent of the repairs and the amount of the charges, I stopped payment on my Check No. 1091 on July 16, 1991. ... At all times during July 1991, I had sufficient funds in my checking account to cover the check. ...”

Decided April 6, 1993 —

Reconsideration denied April 22, 1993

R. Glen Galbaugh, for appellant.

Fred J. Stokes, for appellee.

The trial court granted defendant’s motion for summary judgment. This appeal followed. Held:

1. OCGA § 16-9-20 (h) (1) provides immunity from prosecution to any person causing a warrant to issue against another for the offense of criminal issuance of a bad check. In the case sub judice, defendant caused a warrant to issue against plaintiff for theft of services, not criminal issuance of a bad check. Although defendant based the accusation that plaintiff committed the offense of theft of services on evidence that plaintiff stopped payment on a check after receiving services from defendant, stopping payment on a check does not constitute the crime of uttering a bad check. Hardeman v. State, 154 Ga. App. 364, 365 (268 SE2d 415). Consequently, the statutory immunity from civil liability provided for in OCGA § 16-9-20 (h) (1) is not available as a defense to the allegation that defendant maliciously prosecuted plaintiff for theft of services.

2. “On summary judgment, movant has the burden of showing the nonexistence of any material fact and that he is entitled to a judgment as a matter of law.” Sunamerica Financial v. 260 Peachtree Street, 202 Ga. App. 790, 793 (2a) (415 SE2d 677). In the case sub judice, defendant failed to rebut plaintiff’s allegation that defendant maliciously caused a warrant to issue for plaintiff’s arrest. Consequently, the trial court erred in granting defendant’s motion for summary judgment.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A0852.
    ROBINSON v. THE STATE.
    (430 SE2d 830)
   McMurray, Presiding Judge.

Via indictment, the State accused appellant Antonio Demetrius Robinson, Roy Cardo Livermore and Makeba Ceylon Robinson of, inter alia, armed robbery (Count 1), aggravated assault (Count 2), and two counts of kidnapping (Counts 3 and 4). In addition, the State charged Livermore in Count 5 and appellant in Count 6 with possession of a firearm during the commission of a crime. In that regard, the State alleged that during the commission of an armed robbery, Livermore had on his person a .38 caliber revolver and appellant had on his person a .22 caliber revolver. Livermore and Makeba Robinson pleaded guilty to armed robbery; appellant pleaded not guilty and was tried by a jury of his peers. The jury found appellant guilty of armed robbery, aggravated assault and possession of a firearm during the commission of a crime; it found appellant not guilty of kidnapping. The trial court sentenced appellant to a total of 25 years confinement (to serve 5 years) and he moved for a new trial. The trial court denied appellant’s motion for a new trial and this appeal followed. Held:

1. Viewing the evidence in a light favorable to the State, as we are bound to do, we find the following: On the night in question, appellant, Livermore and appellant’s cousin, Makeba Robinson talked about pulling off a robbery. Early in the morning, at approximately 2:00 a.m., appellant, Livermore, and appellant’s cousin went to the Golden Gallon convenience store. Livermore and appellant entered the store. Livermore held a gun on the clerk and demanded money while appellant stood “lookout” at the door. The clerk handed the money over and Livermore and appellant ran out of the door. Once outside, the duo encountered a customer and Livermore aimed a gun at his face.

Within minutes of the robbery, a deputy sheriff (who was in the vicinity of the convenience store) was advised to be on the lookout for two black males (one of whom was dressed in a red shirt) who had just robbed the convenience store. Within seconds, the deputy spotted a car with three black males coming from the direction of the convenience store. When the deputy turned his vehicle around, the car started to accelerate. It “eventually” stopped and two black males, one of whom wore a red shirt, emerged. The deputy ordered the driver out of the car and he complied. Other officers arrived in short order. One of them searched the getaway car and found a money bag and a .22 caliber pistol under the seats. A .38 caliber pistol was found the next day in a yard adjoining the scene of the arrest.

In his first enumeration of error, appellant asserts the evidence was insufficient to support his conviction. In this regard, he argues that there was no evidence that he used a gun in the robbery or that he knew a gun would be used by Livermore. This assertion is without merit. The State’s evidence was sufficient to authorize the jury to conclude that appellant aided and abetted in the commission of the armed robbery and was a party to the crime. Robinson v. State, 173 Ga. App. 502 (326 SE2d 599); Stevens v. State, 158 Ga. App. 656 (1) (281 SE2d 629).

2. Appellant contends in his second enumeration of error, the trial court erred in refusing to grant a motion to suppress (1) evidence seized from the getaway car, (2) appellant’s statement and (3) the victims’ identification testimony. We disagree.

A motion to suppress is to be aimed at tangible evidence, not confessions or identification testimony. See OCGA § 17-5-30; Martin v. State, 201 Ga. App. 643, 644 (1) (411 SE2d 788). Thus, it cannot be said that the trial court erred in failing to grant a motion to suppress appellant’s statements and the identification testimony. Jarrell v. State, 234 Ga. 410, 416 (3) (216 SE2d 258). (We note, additionally, that the trial court reserved its ruling with regard to non-tangible evidence until the time of trial and that appellant did not object to the identification evidence when it was offered at trial. Thus, appellant waived his right to raise the admissibility of the identification evidence on appeal. Baxter v. State, 188 Ga. App. 598, 600 (3) (373 SE2d 834).)

With regard to the evidence seized from the getaway car, it is clear that appellant, a mere passenger in the car, does not have standing to challenge the legality of the seizure. Morgan v. State, 195 Ga. App. 732 (394 SE2d 639). It follows that the trial court did not err in refusing to grant appellant’s motion to suppress the tangible evidence seized from the car.

3. In his third enumeration of error, appellant contends the trial court erred in failing to grant a motion for a mistrial when, on redirect, the State elicited the following from a detective who interviewed appellant: “Q. Lieutenant Brumbelow, [appellant’s counsel] asked you ... if you knew that Roy Livermore had the .38 during this robbery and you said yes. How did you know that? A: Because [appellant] told me Roy had the .38.” The basis of appellant’s motion for mistrial was that appellant’s statement regarding who had the .38 was involuntary inasmuch as it was made after appellant requested the services of a public defender. Whether or not the statement was involuntary, we find no error. Appellant had opened the door to the State’s question when defense counsel, on cross-examination, asked the detective if he knew that the .38 was used by Livermore. See Beasley v. State, 202 Ga. App. 349 (1) (414 SE2d 663). Besides, we can see no reasonable possibility that the State’s question and the detective’s answer contributed to appellant’s conviction. If there was any error, it was harmless beyond a reasonable doubt. Vaughn v. State, 248 Ga. 127, 131 (281 SE2d 594).

4. Appellant’s fourth enumeration of error cannot be considered because it raises an argument that differs from the argument raised in the trial court. “[W]here an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court. [Cit.] ‘The . . . rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching, shifting.’ [Cits.]” Clark v. State, 180 Ga. App. 280, 281 (2), 282 (348 SE2d 916).

Decided April 7, 1993 —

Reconsideration denied April 22, 1993

J. M. Raffauf, Alden W. Snead, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

5. The trial court did not err in refusing to charge the jury on robbery as a lesser included offense of armed robbery since the uncontradicted evidence showed completion of the offense of armed robbery. Millis v. State, 196 Ga. App. 799, 800 (3) (397 SE2d 71). The fifth enumeration of error is without merit.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.