text:
    A94A0195.
    NULL v. THE STATE.
    (441 SE2d 82)
   Birdsong, Presiding Judge.

Billy J. Null appeals the order of the superior court transferring this case to Tattnall County Superior Court after concluding that appellant’s “ ‘motion’ is in the nature of a habeas corpus action.” This court subsequently issued an order directing that this case be transferred to the Supreme Court of Georgia. The Supreme Court determined that appellant had filed a pro se “motion to correct sentence” in regard to a life sentence imposed for an armed robbery conviction, and transferred this case back to this court for appellate adjudication.

Appellant asserts that he was indicted for murder, kidnapping and armed robbery; he was convicted of these offenses on May 31, 1990, and sentenced to one concurrent term and two consecutive terms of life imprisonment for the three offenses, respectively. The State does not dispute this claim. Appellant further asserts that, on September 30, 1992, appellant filed a motion to correct sentence with the Gwinnett County Superior Court. In this motion, appellant argued that jurisdiction was conferred by virtue of Ga. Const. 1983, Art. I, Sec. II, Par. V and OCGA §§ 9-12-16; 17-9-4. Appellant’s motion was ordered by the Gwinnett County Superior Court to be transferred to the (Superior Court of Tattnall County to be filed as a habeas corpus action.

Decided February 3, 1994.

Billy J. Null, pro se.

Daniel J. Porter, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Appellant’s sole enumeration is the trial court erred in refusing to rule on his motion to correct sentence on the ground that it was in the nature of a habeas corpus proceeding. Held:

Appellant’s motion cannot be construed as a petition for habeas corpus, as it was filed in the county in which he was convicted, rather than against the warden in the county in which he is incarcerated. Lacey v. State, 253 Ga. 711 (324 SE2d 471). Moreover, a habeas corpus petition is neither the exclusive nor sole remedy for incarceration for a void sentence where a new and valid sentence can be imposed. Jefferson v. State, 205 Ga. App. 687 (1) (423 SE2d 425); McCranie v. State, 157 Ga. App. 110, 111 (2, 3) (276 SE2d 263). Here, “‘“[i]f the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time.” ’ ” Jefferson, supra; Gonzalez v. State, 201 Ga. App. 437 (411 SE2d 345).

Accordingly, the order of the Superior Court of Gwinnett County transferring this matter to the Superior Court of Tattnall County is hereby vacated, and this case is remanded to the Superior Court of Gwinnett County for disposition consistent with this opinion.

Judgment vacated and remanded with direction.

Cooper and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A0257.
    W. R. LEASING, INC. v. AETNA CASUALTY & SURETY.
    (440 SE2d 714)
   Birdsong, Presiding Judge.

We granted this discretionary appeal of a garnishment judgment against W. R. Leasing, Inc. in the amount of $123,573.67 plus post-judgment interest as of November 24, 1992, accruing at $31.50 per day. The garnishment action is based on a judgment obtained by appellee Aetna Casualty & Surety against Walter Preston Rash. W. R. Leasing answered the garnishment petition by saying it had no money or property of the debtor Walter P. Rash and owed him no money. Aetna traversed this answer merely by stating “that same is untrue or legally insufficient.” The trial court found more credible Aetna’s evidence that Rash was employed at W. R. Leasing and was at one time listed as an officer of W. R. Leasing; it concluded that “garnishee has failed to answer properly the summons of garnishment,” and awarded the judgment. Held:

The trial court erred in issuing this garnishment judgment. There is no finding by the trial court that W. R. Leasing, Inc. has any money subject to garnishment for the debt of Walter Preston Rash. OCGA § 18-4-92 provides that “[o]n the trial of the plaintiff’s traverse, if the court finds the garnishee has failed to answer properly the summons of garnishment, the court shall . . . enter a judgment for any . . . money or other property [which] the court finds subject to garnishment.” (Emphasis supplied.) It is insufficient for the trial court merely to grant the plaintiff’s traverse and to award the plaintiff whatever money it swears is owed by a defendant. The trial court must specifically find that the garnishee has money owing to or belonging to the defendant debtor. Stone v. George F. Richardson, Inc., 163 Ga. App. 86 (2) (293 SE2d 746). Although the trial court found that neither the defendant nor the garnishee filed any opposition to Aetna’s affidavit stating how much Mr. Rash owes Aetna, this does not prove the garnishee has any money of Mr. Rash.

The parties create much confusion about whether Mr. Rash ever worked for W. R. Leasing; whether “W. R.” in the garnishee’s name stands for Walter P. Rash, for its president (Alan Walker), or for “we rent”; and whether Mr, Rash was merely a childhood friend of W. R. Leasing’s principal, or was an employee or owner of W. R. Leasing. The garnishee insists that a private detective’s statement that he saw Walter P. Rash hiding and sitting behind a desk at W. R. Leasing’s premises is nothing but hearsay along with all the other evidence asserted by Aetna to show that Walter P. Rash was at least an employee of W. R. Leasing. These gross disputes merely prove the necessity for a proper finding by the trial court. There might be evidence to support a finding that Mr. Rash was an employee of W. R. Leasing, but where so much deception is alleged on the one hand and so much mistake on the other, the trial court should find precisely what facts justify a garnishment. Even if it is not required to state the exact relation between the defendant and the garnishee, the trial court must find the garnishee actually has money of the defendant debtor, i.e., money “subject to garnishment.” (Emphasis supplied.) OCGA § 18-4-92.

Decided February 3, 1994.

Walter M. Henritze, Jr., for appellant.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, L. Katherine Adams, for appellee.

Further, Aetna asserts: “W. R. Leasing’s refusal to produce any records to rebut appellee’s contention that W. R. Leasing was indebted for the entire amount results in the presumption that, in fact, W. R. Leasing owed the entire amount.” This is a misleading statement. The basis of the suit is not that the garnishee owes any money to Aetna; the defendant debtor owes the money, and the garnishee is required to pay it only if it is found to have money belonging to or owed to the defendant debtor. The failure to produce records is a matter of evidentiary proof, but no “presumption” is raised by a garnishee’s mere failure to produce records rebutting a contention that the garnishee owes the whole amount. The burden of showing that the garnishee has money of the debtor is on the creditor who traverses the garnishee’s answer. Fontaine v. Stuhler, 172 Ga. App. 584 (323 SE2d 881). This is not proved by or presumed from the garnishee’s failure to produce records proving the debtor was never employed by the garnishee.

What Aetna is really alleging is not a garnishment matter but is W. R. Leasing’s own debt liability and fraud. If the debt is really that of W. R. Leasing, Aetna must sue W. R. Leasing and bear the burden of proof; it cannot avoid its burden to prove fraud or to pierce the corporate veil merely by filing a garnishment action where it thinks less proof is required. Appellant says it is a one-man business and will be ruined if it has to pay this judgment, and it could work the other way around, with a poor man’s debt being squeezed out of a wealthy corporation where he was once employed or was even once an officer.

If W. R. Leasing has money of Mr. Rash, it is subject to garnishment; otherwise not. The trial court may need to determine Mr. Rash’s relationship to W. R. Leasing before it can determine whether W. R. Leasing has his money. In any case, to award garnishment the trial court must find as fact specifically that W. R. Leasing has a specific amount of money owing to or belonging to the debtor, Walter P. Rash. The judgment is reversed and the case remanded for proper finding of the facts by the trial court as required by law (see Stone, supra), after which an appeal may be taken as provided by law.

Judgment reversed and remanded with direction.

Cooper and Blackburn, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A93A2057.
    INGRAM v. THE STATE.
    (441 SE2d 74)
   McMurray, Presiding Judge.

Defendant was indicted for armed robbery (Count 1), burglary (Count 2) and possession of a knife during the commission of a felony (Count 3). The evidence adduced at a jury trial reveals the following: Defendant entered the victim’s home at about 6:30 p.m. on April 24, 1992, placed a knife to the victim’s throat and ordered the victim to give him money. The victim complied and defendant fled. The victim immediately summoned law enforcement authorities and, within less than 30 minutes after law enforcement officers arrived on the scene, a young girl informed an investigating officer that a man, matching the description of the victim’s assailant, ran into a wooded area near the victim’s home. Law enforcement officers quickly enveloped the area of the suspect’s escape and flushed defendant out of the woods using dogs trained to detect and track humans. Defendant was then returned to the crime scene where the victim identified defendant as his assailant.

Defendant was found guilty of the crimes charged. This appeal followed. Held:

1. Defendant contends the trial court erred in admitting testimony regarding the use of tracking dogs without proof that the dogs were qualified to trace the scent of humans.

“ ‘Evidence as to the conduct of dogs in following tracks should not be admitted until after a preliminary investigation in which it is established that one or more of the dogs in question were of a stock characterized by acuteness of scent and power of discrimination, and had been trained or tested in the exercise of these qualities in the tracking of human beings, and were in the charge of one accustomed to use them. It must also appear that the dogs so trained and tested were laid on a trail, whether visible or not, concerning which testimony has been admitted, and upon a track which the circumstances indicate to have been made by the accused. . . .’ Fite v. State, 16 Ga. App. 22 (4) (84 SE 485).” Johnson v. State, 165 Ga. App. 146 (2) (299 SE2d 740). However, such a foundation is necessary only when “the evidence of the conduct of the dogs [is admitted] as a circumstance in determining the guilt or innocence of the defendant.” Fite v. State, 16 Ga. App. 22 (4), 23, supra. In the case sub judice, testimony regarding use of dogs to flush defendant out of a wooded area near the victim’s home was not germane to the question of whether defendant committed the crimes charged. This testimony was relevant only to prove the manner in which law enforcement officers apprehended a suspect matching the description of the victim’s assailant. Consequently, it was unnecessary to substantiate the specific tracking abilities of the dogs used to flush defendant out of the woods near the victim’s home.

2. Defendant next contends the trial court erred in failing to suppress the victim’s testimony that he committed the crimes charged, arguing that the on-the-scene showup was inherently suggestive and increased the likelihood that he was misidentified as the perpetrator of the crimes charged.

“Although the practice of showing suspects singly to a witness for identification purposes has been widely condemned, Daniel v. State, 150 Ga. App. 798 (1) (258 SE2d 604) (1979), ‘our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. (Cits.)’ Arnold v. State, 155 Ga. App. 782 (1) (272 SE2d 751) (1980).” Baines v. State, 201 Ga. App. 354, 357 (4) (411 SE2d 95). In the case sub judice, defendant was presented to the victim shortly after commission of the crimes charged and the victim then displayed no doubt that defendant was the perpetrator of the crimes charged. Further, the evidence reveals that the victim had ample opportunity to observe his assailant during commission of the crimes charged and that the victim’s pre-arrest description of the assailant matched defendant’s appearance at the time he was taken into police custody. Under these circumstances, we cannot say that the one-on-one showup was unreasonable or unfair. Further, we do not think the on-the-scene showup of defendant gave rise to a likelihood of misidentification. See McCounly v. State, 191 Ga. App. 266, 267 (2) (381 SE2d 552) (1989). Consequently, the trial court did not err in allowing the victim’s testimony that defendant was the perpetrator of the crimes charged.

3. In his third enumeration, defendant contends the trial court erred in allowing evidence of a knife that defendant was carrying at the time of arrest.

“Georgia’s case law is replete with holdings that articles which are similar to ones used in a crime but are not identical are nevertheless admissible. See, e.g., Duvall v. State, 238 Ga. 325 (232 SE2d 918); Jung v. State, 237 Ga. 73 (226 SE2d 599); Davis v. State, 230 Ga. 902 (199 SE2d 779); Kent v. State, 157 Ga. App. 209 (276 SE2d 881); Gunn v. State, 245 Ga. 359 (264 SE2d 862); Moore v. Illinois, 408 U. S. 786 (92 SC 2562, 33 LE2d 706).” Paxton v. State, 160 Ga. App. 19, 22 (6), 23 (285 SE2d 741). In the case sub judice, the victim testified that the knife taken from defendant at the time of arrest was similar to the knife used by the perpetrator of the crimes charged. This testimony formed sufficient foundation for admitting the knife into evidence.

4. Defendant contends the trial court erred in allowing evidence of an inventory of items seized from him at the time of arrest because the State failed to give him a copy of said inventory as required by OCGA § 17-5-2. This contention is without merit. Failure to provide defendant with an inventory as required by OCGA § 17-5-2 provides no basis for suppressing the inventory at trial. Carson v. State, 241 Ga. 622, 623 (1) (247 SE2d 68).

Decided January 25, 1994

Reconsideration denied February 4, 1994

Frank Gonzalez, for appellant.

H. Donnie Dixon, Jr., District Attorney, George E. Barnhill, Assistant District Attorney, for appellee.

5. In his final enumeration, defendant contends the trial court erred in failing to give his written request to charge the language of OCGA § 17-5-2 regarding his right to an inventory of property seized from him at the time of arrest.

“It is an old and sound rule that error to be reversible must be harmful. Dill v. State, 222 Ga. 793 (1) (152 SE2d 741); Burger Chef Systems v. Newton, 126 Ga. App. 636, 639 (191 SE2d 479). Thus when a [party] brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law but it administers practical law, and corrects only such errors as have practically wronged the complaining party.” Best Concrete Prod. Co. v. Medusa Corp., 157 Ga. App. 97, 101 (5) (276 SE2d 147) (1981). In the case sub judice, defendant has not suggested how he was harmed by the trial court’s failure to give his written request to charge the language of OCGA § 17-5-2 and we are unable to perceive how this omission could have been harmful to defendant. Any failure in providing defendant with an inventory of items taken at the time of arrest provides no basis for reversal. See Carson v. State, 241 Ga. 622, 623 (1), supra. This enumeration establishes no ground for reversal.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Andrews, Judge.

text:
    A93A2223, A93A2224.
    KIRSCH v. MEREDITH; and vice versa.
    (440 SE2d 702)
   Andrews, Judge.

Kirsch sued Meredith and others for abusive litigation pursuant to OCGA § 51-7-80 et seq., and in Case No. A93A2223 appeals from the grant of summary judgment in favor of Meredith.

Jones and Eastwood, attorneys at law, initially represented Brown and Exclusive Properties, Inc. in a suit against Talkington and others. After Jones and Eastwood withdrew as counsel pursuant to a court order, Kirsch entered as counsel of record for the plaintiffs, and eventually obtained a judgment for the plaintiffs. Subsequently, Kirsch, as attorney for Brown and Exclusive Properties, filed an action against Jones and Eastwood alleging professional negligence during their representation of Brown and Exclusive Properties in the previous suit against Talkington. Jones and Eastwood countered by filing a third-party complaint against Kirsch, alleging professional negligence for his representation of Brown and Exclusive Properties in the prior suit against Talkington, and attaching an expert affidavit of an attorney at law, Meredith, to comply with the requirement of OCGA § 9-11-9.1. Kirsch sent notice pursuant to OCGA § 51-7-84 that he intended to assert a claim for abusive litigation on account of the third-party malpractice complaint against him. The trial court eventually granted summary judgment in favor of Kirsch on the third-party complaint, rendering a final judgment in his favor pursuant to OCGA § 9-11-54 (b) from which no appeal was taken. Thereafter, Kirsch brought the present abusive litigation claim against Jones and Eastwood for bringing the professional negligence claim against him, and against Meredith for giving the expert affidavit filed with the complaint pursuant to OCGA § 9-11-9.1.

The trial court granted Meredith’s motion for summary judgment ruling that an abusive litigation claim pursuant to OCGA § 51-7-80 et seq. could not be brought against him for giving the expert affidavit under OCGA § 9-11-9.1 used to support the malpractice action. The trial court reasoned that “the public policy of encouraging witnesses to come forward and testify outweighs the policies addressed by the abusive litigation statute.”

Under OCGA § 51-7-81: “Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) With malice; and (2) Without substantial justification.” (Emphasis supplied.) “ ‘Person’ means an individual, corporation, company, association, firm, partnership, society, joint-stock company, or any other entity, including any governmental entity or unincorporated association of persons with capacity to sue or be sued.” OCGA § 51-7-80 (6).

The plain language of these sections demonstrates that a claim for abusive litigation under OCGA § 51-7-80 et seq. is not confined to a party to the prior action, but may be brought against an individual or others defined as “persons” who with malice and without substantial justification, take an active part in the initiation, continuation or procurement of civil proceedings against another. Talbert v. Allstate Ins. Co., 200 Ga. App. 312, 313 (408 SE2d 125) (1991); Watkins v. M & M Clays, 199 Ga. App. 54, 56, n. 3 (404 SE2d 141) (1991). In Talbert, supra, we determined that an abusive litigation claim could be sustained against Allstate Insurance Company, the insurer of the party defendant in the prior action. Acting pursuant to its contractual duty to defend its insured, Allstate actively advised the defendant’s attorney to pursue a defense which the trial court later eliminated as a matter of law on directed verdict. We concluded that by this type of activity engaged in during the pendency of the action, Allstate “took an active part in the continuation of the proceedings and thus could be named as defendant in an abusive litigation claim.” Id. at 313.

Decided January 28, 1994

Reconsideration denied February 4, 1994

Carl V. Kirsch, pro se.

Wood & Meredith, Hugh C. Wood, Dwight A. Meredith, for appellee.

In this case, the record shows that Meredith’s only connection with the prior action was that at the request of the plaintiffs, he reviewed information related to the claim provided to him by the plaintiffs. Based on these facts, he provided the expert affidavit to the plaintiffs, which was then filed by the plaintiffs along with the malpractice complaint in compliance with OCGA § 9-11-9.1. We conclude that this activity was not an active part in the initiation, continuation or procurement of the action, and Meredith was not subject to the abusive litigation claim. Giving the expert affidavit to the plaintiffs may have been indirectly related to initiation or procurement of the action, since obtaining it was a necessary step the plaintiffs had to take in order to file the malpractice complaint. If Meredith’s action can be in any way characterized as taking a part in the initiation or procurement of the civil proceedings by the plaintiffs, it was a passive participation rather than the active participation required under the plain language of OCGA § 51-7-81. The abusive litigation tort set forth in OCGA § 51-7-80 et seq. is in derogation of the common law, and must be strictly limited to the meaning of the language used, and not extended beyond the plain and explicit statutory terms. Paino v. Connell, 207 Ga. App. 553 (428 SE2d 446) (1993). The trial court correctly granted summary judgment in favor of Meredith, not for the public policy reasons stated, but because the plain terms of OCGA § 51-7-81 did not encompass Meredith’s actions in this case. A grant of summary judgment must be affirmed if it is right for any reason. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (405 SE2d 61) (1991).

Meredith’s cross-appeal in Case No. A93A2224 is dismissed as moot in light of our decision in Case No. A93A2223. OCGA § 5-6-48 (b) (3).

Judgment affirmed in Case No. A93A2223. Appeal dismissed in Case No. A93A2224.

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


text:
    A93A2333.
    CAMSLER v. THE STATE.
    (440 SE2d 681)
   Andrews, Judge.

Camsler was indicted for the offenses of armed robbery of a car and theft by receiving the same car. A jury found him guilty of both offenses. The trial court merged the theft by receiving conviction into the armed robbery conviction, and sentenced Camsler to a term of ten years. Camsler’s sole enumeration of error on appeal is that the trial court erred by denying his motion to set aside the convictions and grant a new trial because the two convictions were mutually exclusive.

The evidence in this case authorized Camsler’s conviction on either offense. Nevertheless, a defendant cannot be convicted of robbery of a vehicle and theft by receiving the same vehicle because the convictions are mutually exclusive. Thomas v. State, 261 Ga. 854, 855 (413 SE2d 196) (1992). “ ‘The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief.’ Sosbee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980). An essential element of the crime of theft by receiving is, ‘that the goods had been stolen by some other person than the accused. . . .’ Austin v. State, 89 Ga. App. 866, 868 (81 SE2d 508) (1954).” Thomas v. State, 199 Ga. App. 586 (405 SE2d 512) (1991), rev’d on other grounds, 261 Ga. 854 (413 SE2d 196) (1992). Moreover, in Thomas, supra, our Supreme Court concluded that where mutually exclusive convictions were rendered it was not sufficient to vacate one conviction and allow the other to stand. Rather, the Court ruled that the jury should have been instructed that it could convict of either offense (when the evidence so authorizes) but not both, and since it was impossible to determine which offense a properly instructed jury would have convicted the defendant of, a new trial on both offenses was required. Id. at 855-856.

While agreeing with these general principles, the State argues that the convictions in this case are not mutually exclusive because the indictment on the theft by receiving count against Camsler alleged that he “did unlawfully receive and retain . . .” the stolen car. (Emphasis supplied.) In Thomas, supra, the Supreme Court questioned but rendered no opinion on “whether armed robbery and theft by receiving, where the indictment alleges retaining stolen property, are mutually exclusive.” Id. at 855, n. 1. We need not reach this issue in the present case. Compare Redding v. State, 192 Ga. App. 325, 327-328 (384 SE2d 910) (1989) (Beasley, J., dissenting).

Under OCGA § 16-8-7 (a), “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.” Thus, the actus reus element of the offense may be committed by either receiving, disposing of, or retaining stolen property. See Kurtz, Criminal Offenses & Defenses in Georgia (3rd ed. 1991), p. 591. “When a defendant is charged with the violation of a penal statute containing disjunctively several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively if it charges more than one of them. Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the state to prove all such separate ways or methods alleged in the indictment, but the state makes a prima facie case upon its establishment by proof of any one of them.” (Citations and punctuation omitted.) Minter v. State, 170 Ga. App. 801, 802 (318 SE2d 226) (1984). The indictment in this case charged conjunctively that Camsler did “receive and retain” the stolen car, and the proof was sufficient to show commission of the offense by either method. Since the jury may well have convicted Camsler of theft by receiving stolen property on evidence that he received the stolen car, and the convictions for “receiving” the stolen car and armed robbery of the same car would be mutually exclusive, both convictions must be reversed and a new trial granted. Thomas, supra at 856.

Decided January 21, 1994

Reconsideration denied February 4, 1994

Shandor S. Badaruddin, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Vivian D. Hoard, Herman L. Sloan, Assistant District Attorneys, for appellee.

Judgment reversed.

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


text:
    A93A2568.
    MOORE v. ALLSTATE INSURANCE COMPANY.
    (440 SE2d 682)
   Andrews, Judge.

This case involves the interpretation of an automobile liability insurance exclusion arising from the following facts. On March 26, 1990, Forrest James Gay and appellant Moore were involved in a vehicular accident. At the time of the accident, Gay was in the course and scope of his employment as a garbage collector and was operating a vehicle owned by the City of Atlanta. Gay was privately insured with Allstate Insurance Company. Moore had no insurance and was driving a rental vehicle on the date of the collision.

Moore filed a civil suit against Gay and the City of Atlanta. Although Gay did not notify Allstate of the suit against him, Moore undertook to do so. The City of Atlanta also requested that Allstate provide Gay with a defense.

Allstate filed a declaratory judgment action seeking a determination as to whether its private automobile liability insurance policy provided coverage for the accident. Allstate then filed a motion for summary judgment based on the language of the exclusion and on the fact that Gay did not provide proper notice to Allstate. The superior court granted summary judgment to Allstate on the basis of the business use exclusion. Moore appeals.

In his sole enumeration of error, Moore contends that the trial court erred when it denied his motion for judgment on the pleadings and granted the motion for summary judgment.

The Allstate policy which covered Gay contains within the liability portions an exclusion which provides that “this coverage does not apply to liability for (3) a non-owned auto while being used in any business or occupation of a person insured. However, coverage does apply while you, your chauffeur, or domestic servant are using a private passenger auto or trailer.”

The business exclusion here is valid and establishes that there was no Allstate coverage for Gay for the accident at issue here. See Roey v. Allstate Ins. Co., 177 Ga. App. 434 (339 SE2d 404) (1986). There is a clear and explicit exclusion to the coverage afforded to Gay, within which the accident here fell. Compare Allstate Ins. Co. v. Estell, 171 Ga. App. 773 (320 SE2d 631) (1984).

Nonetheless, citing several cases including Stepho v. Allstate Ins. Co., 259 Ga. 475 (383 SE2d 887) (1989); Dairyland Ins. Co. v. Blaylock, 193 Ga. App. 175 (387 SE2d 405) (1989), Moore argues that the exclusion here is against public policy. He argues that the City of Atlanta has only $1,000 in insurance coverage and that this fact should operate to extend Gay’s liability coverage.

We do not agree. We are aware of the “dual policies of protection for innocent victims of negligent members of the motoring public and protection of the insured against unfair exposure to unanticipated liability.” Dairyland, supra at 176-177. Here, innocent members of the public are not injured by application of this exclusion, and there is no unfair exposure of the insured to liability. See generally Empire Fire &c. Co. v. Dobbins, 205 Ga. App. 700 (423 SE2d 396) (1992); Progressive Preferred Ins. Co. v. Browner, 209 Ga. App. 544 (433 SE2d 401) (1993). We see no reason to find the exclusion unenforceable.

Similarly, Moore’s argument regarding Gay’s compliance with OCGA § 40-9-34 is without merit.

The denial of Moore’s motion for a judgment on the pleadings was proper.

Judgment affirmed.

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

Decided January 21, 1994

Reconsideration denied February 4, 1994

Robert M. Goldberg, for appellant.

Fain, Major & Wiley, Charles A. Wiley, Jr., Brian H. Alligood, Bruce P. Johnson, Joe M. Harris, Jr., Michael V. Coleman, for appellee.


author: Pope, Chief Judge.

text:
    A93A1823.
    NEAL v. THE STATE.
    (440 SE2d 717)
   Pope, Chief Judge.

Defendant was convicted by a jury of armed robbery and possession of a firearm during the commission of a felony.

At approximately 10:30 on a Saturday night, a man walked into a Kroger store and, using a gun, took $1,400 from two employees at the courtesy counter. An initial police search of the woods near the Kroger was unsuccessful. However, about two hours later, a man fitting the employees’ description of the robber was seen running behind a building in a nearby apartment complex. Officer John Hobson, a dog handler for the Gwinnett County police, was there with his dog within ten minutes and was able to track the man to a breezeway. There the man was trapped against the wall by the dog. This man was defendant, and when the officer asked him where his gun was, the defendant said it was in his pocket. The officer retrieved the loaded gun and took defendant into custody. .

Defendant was subsequently transported to the local precinct by Officer Gerard Patterson. Officer Patterson noticed that defendant’s clothes were muddy, as if he had been hiding in the woods. It was not Officer Patterson’s job to question defendant and he did not do so, but defendant initiated a conversation with him. During the drive to the precinct, defendant told Officer Patterson that he had lost his job and was desperate; that he could have shot the officer with the dog but did not do so; and that he had not hurt anyone. Later, while Officer Patterson was driving defendant from the precinct to the jail, defendant told him where he had thrown the money and said that he had injured his leg running through the woods. The following day, police found money where defendant said he had thrown it. The robber had taken fifties, twenties and tens, and these were the same denominations of currency found in that location.

One of the employees, Susan Schoenfeld, was able to identify defendant as the robber from a photographic line-up, but she was not at the trial; Officer Christa K. Spradley was allowed to testify at trial about Schoenfeld’s pre-trial identification of defendant. The other employee, Anne Eagan, identified defendant as the robber at trial, but had been unable to identify him in the photographic line-up. The Thursday before the trial, the prosecutor brought Eagan to the court to see if she was going to be able to identify defendant in person, which she was. (If she were unable to do so, he presumably would have delayed the trial until Schoenfeld was available.) Eagan testified at trial that her identification of defendant was independently based on her memory of the robbery.

1. Defendant first argues that the trial court should have granted his motion to suppress Officer Spradley’s testimony regarding Schoenfeld’s pre-trial identification of him because (a) the photographic lineup was impermissibly suggestive, and (b) the officer’s testimony was impermissible hearsay.

(a) The fact that the background of defendant’s photograph was slightly different from those of the other photos in the line-up did not make the line-up impermissibly suggestive. See Truelove v. State, 198 Ga. App. 14 (1) (400 SE2d 396) (1990).

(b) We find defendant’s argument that the officer’s testimony was impermissible hearsay more troubling, as the testimony certainly appears to be hearsay and the trial court’s decision to allow it deprived defendant of his right to cross-examine Schoenfeld regarding her eyesight, her memory, her motivations, her degree of certainty and other similar matters relating to the weight the jury should give her identification. However, this court has held that: “ ‘A law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.’ [Cit.]” Woodard v. State, 175 Ga. App. 449 (3) (333 SE2d 645) (1985). Moreover, the Georgia Supreme Court has also held that such testimony is not subject to a hearsay objection. See Haralson v. State, 234 Ga. 406 (216 SE2d 304) (1975). This rule of Woodard and Haralson was criticized in Wade v. State, 208 Ga. App. 700 (1) (431 SE2d 398) (1993), and we believe this criticism is valid. Nonetheless, we are constrained to follow the rule in this case, as we were in Wade. It may be time for the Supreme Court to reconsider Haralson or at least limit its application to cases in which the identifying witness is available for cross-examination. See generally 29 ALR4th 104 (1984).

2. Defendant also argues that Eagan’s in-court identification of him should have been suppressed as unreliable due to the improper in-person identification procedure utilized by the prosecutor the Thursday before trial. However, Eagan testified that she was able to positively identify defendant as the robber at trial based on her memory of the night of the robbery; that the courtesy counter where the robbery occurred was well lit; that the robber was only about two feet away from her and directly in front of her; and that the incident lasted about three to four minutes. She also stated she particularly remembered the robber’s eyes, which were an unusual golden color. Under these circumstances, the trial court did not err in finding that any impropriety in the pre-trial in-person identification did not render Eagan’s identification of defendant as the robber at trial unreliable. See Mitchell v. State, 173 Ga. App. 560 (2) (327 SE2d 537) (1985).

Decided February 4, 1994.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, David Keeton, Assistant District Attorney, for appellee.

3. Defendant further contends that his motion to suppress statements made by defendant to Officers Hobson and Patterson should have been granted because defendant had not been given Miranda warnings at the time he made those statements. Defendant’s statement to Officer Hobson that his gun was in his pocket, made in response to Officer Hobson’s query regarding where his gun was, was admissible under Shy v. State, 234 Ga. 816, 823 (1) (218 SE2d 599) (1975) (statements made by defendant in response to threshold inquiry by officer seeking to secure scene rather than seeking incriminating evidence are admissible despite absence of Miranda warnings). And the statements made to Officer Patterson were admissible because they were unsolicited. See McNabb v. State, 180 Ga. App. 723 (2) (350 SE2d 314) (1986). Nor did the statements to Officer Patterson relate to or flow from statements made by defendant to yet another officer, Officer William Jack, which may have been solicited by Officer Jack and thus were properly suppressed.

4. The evidence, viewed in a light favorable to the verdict, was sufficient to enable a rational juror to find defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. We have reviewed defendant’s remaining enumerations of error and find them to be without merit.

Judgment affirmed.

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


author: Beasley, Presiding Judge.

text:
    A93A1951.
    MULLINAX v. THE STATE.
    (440 SE2d 720)
   Beasley, Presiding Judge.

Mullinax, then age 17, was charged with committing aggravated sodomy by an act of anal sex against his four-year-old half brother. OCGA § 16-6-2 (a). DNA testing matched Mullinax’s blood sample to semen found on the child’s underpants. Mullinax entered a non-negotiated plea of guilty to the aggravated sodomy charge and was sentenced following a pre-sentence investigation.

He contends that acceptance of the plea was a fundamental denial of due process because the report of an examining psychologist was “so equivocal and contradictory as to raise the issue of [his] competency to stand trial and raised a reasonable doubt as to his criminal culpability.” He seeks a trial or hearing on his sanity, competency to stand trial, and ability to aid in his defense.

Mullinax had a juvenile history of criminal and sexually deviant behavior directed toward his siblings. When arrested, he was enrolled in a psycho-educational center which deals with pupils with severe behavior disorders and emotional problems. In the year before the incident, he had been in a youth center for nine months and was making behavioral progress. Regrettably, he was released prematurely due to the lack of funding. During the pre-sentence investigation he stated to the probation officer that he hated “little kids, and little girls especially.”

The court-ordered evaluation followed defense counsel’s filing of a “Notice of Intent of Defense to Possibly Raise Issue of Insanity or Mental Incompetence” pursuant to USCR 31.4. The evaluation, which was introduced at the sentencing hearing, was not contradictory or equivocal in its findings in regard either to Mullinax’s competency to stand trial or his criminal responsibility.

1. As to competency to stand trial, the report stated that “Mullinax has a rudimentary but adequate understanding of the nature of criminal proceedings, is aware of and understands the nature of the charge against him (although his initial tendency was to deny comprehending the meaning of ‘aggravated sodomy’) and the seriousness and possible consequences to him (although here, too, he would seem to minimize the court’s possible response if he is found guilty) . . . but even in spite of the limits he demonstrates with regard to this information, is still seen to be fit for trial.” In taking the guilty plea earlier, the court had made an independent examination of defendant to ascertain the validity of the plea and was satisfied that it met the requisites.

“The question on review is ‘Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about defendant’s competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense?’ [Cit.]” Baker v. State, 250 Ga. 187, 190 (1) (297 SE2d 9) (1982). With these three capacity questions in mind, “[c]ourts focus on three factors in determining whether the trial court violated the defendant’s procedural due process rights by failing to hold sua sponte a competency hearing: (1) evidence of the defendant’s irrational behavior; (2) the defendant’s demeanor at trial; and (3) prior medical opinion regarding the defendant’s competence to stand trial. [Cit.] Such an analysis focuses on what the trial court did in light of what it knew at the time of the trial or plea hearing. [Cits.]” White v. State, 202 Ga. App. 424, 425 (414 SE2d 328) (1992).

Decided February 4, 1994.

Charles M. Taylor II, Robert S. Devins, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Consideration of the three potential sources of evidence of incompetency in this case leads to the conclusion that the trial court was not alerted to any information or indication which should have left unresolved a doubt about Mullinax’s competency to stand trial. There was no evidence of irrational behavior on Mullinax’s part during the proceedings involving his plea and his subsequent sentencing. Mullinax’s responses were coherent and his behavior appropriate during all recorded phases. He and his counsel also signed the guilty plea statement in which he assured the court that, among other things, he is mentally competent to petition for acceptance of the plea, told his attorney all the facts and circumstances known to him about the charges, was counseled and advised by his attorney, and offered to plead guilty freely, voluntarily, and with full understanding of the charge and of his rights.

2. Nor is there evidence that his legal sanity at the time of the offense would be a significant factor at a trial. See Jones v. State, 189 Ga. App. 232, 234 (2) (374 SE2d 110) (1988). As to criminal responsibility, the psychologist report stated that Mullinax “was able to distinguish between right and wrong regarding his behavior at the time of the alleged offense,” although it cautioned that he was a “very disturbed young man” likely raised in a troubled family which affects the choices he makes. The psychiatric findings supported the court’s findings.

In addition, his counsel did not pursue the defense he initially noticed as having possible validity.

Appellant has not established a denial of due process of law.

Judgment affirmed.

Cooper and Smith, JJ., concur.


author: Cooper, Judge.

text:
    A93A1985.
    DEPARTMENT OF HUMAN RESOURCES v. CHAPPELL.
    (440 SE2d 722)
   Cooper, Judge.

The trial court declined to enter an income deduction order in this child support recovery action, and we granted this application for discretionary appeal brought by the Georgia Department of Human Resources (DHR).

Appellee and his wife divorced in 1991. The final decree required appellee to pay $53 a week in child support. Appellee fell behind in payments and was in substantial arrears. The DHR brought this petition for contempt seeking to enforce appellee’s obligation to pay support and requesting the trial court to enter an income deduction order pursuant to OCGA § 19-6-32 (a) (1). The trial court found appellee in wilful contempt for failing to pay child support and ordered him to pay $53 a week to the minor child’s day-care center and $100 every other week to the Child Support Receiver’s Office until the arrears were liquidated. However, the court declined to enter an income deduction order.

The DHR contends the trial court’s refusal to enter an income deduction order was error. Specifically, the DHR contends that the trial court was required to enter such an order but has discretion to determine when and if such an order shall become effective. OCGA § 19-6-32 (a) (1) provides that after July 1, 1989, upon a child support agency’s obtaining “a judgment establishing, enforcing, or modifying a child support obligation . . . the court, referee of the court, or administrative hearing officer shall enter a separate order for income deduction if one has not been entered.” (Emphasis supplied.) The Georgia Supreme Court has held that the language of OCGA § 19-6-32 “plainly mandates income-deduction orders” and that such orders are mandatory. Ga. Dept. of Human Resources v. Pernice, 260 Ga. 732, 733 (399 SE2d 65) (1991). OCGA § 19-6-32 (c) provides that: “The income deduction order under [OCGA § 19-6-32 (a)] is effective immediately unless the court upon good cause shown finds that the income deduction shall be effective upon a delinquency in an amount equal to one month’s support or a written agreement is reached between both parties which provides for an alternative arrangement.”

Because the DHR obtained a judgment after July 1, 1989, enforcing appellee’s obligation to pay child support, the trial court should have entered a separate income deduction order pursuant to OCGA § 19-6-32 (a) (1). (But see OCGA § 19-6-32 (a.l) (1) concerning child support orders initially issued after January 1, 1994, and not enforced under § 19-6-32 (a) at the time of issuance.) We note that the trial court may determine the effective date of the income deduction order as outlined in OCGA § 19-6-32 (c). Accordingly, that portion of the trial court’s order denying an income deduction order is reversed and the case is remanded for further proceedings consistent with this opinion.

Decided February 4, 1994.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Cynthia H. Frank, Staff Attorney, for appellant.

Robert 0. Chappell, pro se.

Judgment affirmed in part and reversed and remanded with direction in part.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2178.
    CANNON v. THE STATE.
    (440 SE2d 723)
   Pope, Chief Judge.

James Henry Cannon and two female companions were jointly indicted and tried for possession of cocaine with intent to distribute. The two companions were acquitted of all charges. Defendant Cannon was found guilty of the lesser included offense of possession of cocaine. He appeals from his conviction.

At trial, the evidence revealed that in the afternoon of Saturday, February 29, 1992, defendant received a warning for not having his seatbelt fastened as he drove a 1976 yellow Cadillac through a Pulaski County roadblock. The roadblock was set up to locate persons driving under the influence or transporting illegal drugs. In the early morning hours of March 1, defendant and two female passengers encountered another Pulaski County roadblock. When asked to produce his license and proof of insurance, defendant complied but explained that he had already driven through the roadblock once and received a ticket. The investigating officer walked to the back of the car and then requested permission to search it. Defendant consented to the search, replying “Ain’t supposed to be nothing in it, sure you can search it.” A matchbox containing three small packets of rock cocaine was found on the floorboard just under the right edge of the driver’s seat. The officer testified the matchbox was visible from the driver’s seat. A GBI agent who questioned defendant and the two passengers at the scene testified that all three denied any knowledge of the presence of the cocaine; however, the two passengers seemed nervous and fidgety when questioned about the cocaine.

Although the car driven by defendant was owned by his daughter, defendant was the primary user of the car. Defendant’s daughter, girl friend, and nephew occasionally drove the car; however, his daughter was out of town at the time of his arrest. His girl friend only drove the car if defendant did not need it. Defendant testified that his girl friend drove the car during the day on February 29 and that she must have placed the cocaine in the car in order to set him up because she was angry with him. Defendant’s girl friend did not testify. There was no other testimony that anyone else had driven the car around the time of defendant’s arrest.

Defendant argues the trial court erred in denying his motion for directed verdict because the State failed to establish he was in actual or constructive possession of the cocaine since other individuals had equal access to the car in which the cocaine was found. “The driver and owner of an automobile, in the absence of any circumstances to the contrary, is presumed to have possession and control of contraband found in the automobile, but this presumption is rebuttable by evidence of equal access.” (Citation omitted.) Hendrix v. State, 199 Ga. App. 599, 600 (1) (405 SE2d 576) (1991). In this connection, “[t]he equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver.” (Citations and punctuation omitted.) Pitts v. State, 206 Ga. App. 635 (1) (426 SE2d 257) (1992). The trial court properly charged the jury on the equal access rule. “Whether the evidence of equal access is sufficient to rebut any inference of possession ... is a question properly left to the jury.” (Citation and punctuation omitted.) Davis v. State, 194 Ga. App. 482, 486 (4) (391 SE2d 124) (1990); see also Chambers v. State, 162 Ga. App. 722 (1) (293 SE2d 20) (1982); Moore v. State, 155 Ga. App. 149 (1) (270 SE2d 339) (1980).

The jury weighed the evidence and decided this question adversely to defendant. At the time the contraband was found, during the early morning hours of March 1, defendant had been the sole driver of the car since the afternoon of February 29. The matchbox was visible from and within reach of the driver’s seat. The jury was authorized to determine it was not reasonable to believe defendant’s girl friend, who drove the car the day before the arrest, had put a matchbox containing three packets of rock cocaine in defendant’s car in order to set the defendant up in case he happened to be stopped by the police. See Moon v. State, 194 Ga. App. 777 (2) (392 SE2d 19) (1990); Davis, supra at 486 (4). Moreover, the conviction was not based solely on the presumption of possession, but upon all the evidence including defendant’s apparent attempt to prevent the officers from detaining him at the second roadblock by virtue of explaining he had already been through the roadblock and his statement to the investigating officer that there was not supposed to be anything in the car. See Moon, supra at 779 (2). We find a rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of possession of cocaine under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Phelps v. State, 194 Ga. App. 493 (390 SE2d 899) (1990); Doe v. State, 189 Ga. App. 793 (377 SE2d 546) (1989). Accordingly, the trial court did not err in denying defendant’s motion for directed verdict.

Decided February 4, 1994.

Straughan & Straughan, William T. Straughan, for appellant.

James L. Wiggins, District Attorney, for appellee.

We further note that defendant’s reliance on this court’s decision in Whipple v. State, 207 Ga. App. 131 (427 SE2d 101) (1993), is misplaced. In Whipple, the defendant was only using his girl friend’s mother’s car to pick up his girl friend at school and there was clear evidence that several other people had access to the car equal to that of the defendant. Moreover, the contraband was found in the headrest of the passenger seat in which a passenger had been sitting.

Judgment affirmed.

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


text:
    A93A2181.
    THE STATE v. STAMEY et al.
    (440 SE2d 725)
   Beasley, Presiding Judge.

An indictment was returned against Alan and Donna Stamey charging them with theft by taking based on allegations that “between January 2, 1991, and January 10, 1992” they “did unlawfully being in lawful possession of property, to-wit: lawful U. S. Currency, the property of Dr. Jack Winner, appropriate said property, with the intention of depriving said owner of said property, the value of said property exceeding $500.00.”

Defendants filed a motion to quash the indictment on grounds that it is defective because of vague and uncertain allegations and an insufficient description of the offense.

The court quashed the indictment for its failure to specifically identify the form of currency taken, the amount taken, when it was taken, and whether the alleged offense arises out of a series of thefts or a single occurrence. The court directed the State, upon re-indicting defendants, to provide as much specificity as possible in stating dates and amounts allegedly taken in order to enable defendants to prepare a defense.

1. The court did not err in finding the indictment defective for failing to specifically identify the date of the alleged offense (if it arises out of a single occurrence) or the dates (if it arises out of a series of thefts).

In Lyles v. State, 215 Ga. 229, 231 (1) (109 SE2d 785) (1959), the court stated that “it is well settled by the decisions of this court that an indictment or accusation which fails to allege some specific date on which the offense was committed is defective as to form and therefore subject to a timely interposed special demurrer pointing out such defect. [Cits.]” “An indictment which charges the commission of an offense in a certain year, without naming either the day or month upon which it was committed, is defective, and upon special demurrer thereto before arraignment, should be quashed.” Braddy v. State, 102 Ga. 568 (27 SE 670) (1897).

In Hutton v. State, 192 Ga. App. 239, 241 (4) (384 SE2d 446) (1989), this court in effect recognized an exception to the above rule, where in a child molestation case it was alleged in the indictment that the offenses charged occurred between two specified dates, “ ‘the exact dates being unknown to the Grand Jurors.’ ” The reason is that “[t]he state cannot be more specific than the evidence permits.” Keri v. State, 179 Ga. App. 664, 668 (4) (347 SE2d 236) (1986).

The indictment in this case does not allege, and the State does not argue, that the exact date or dates were unknown to the grand jurors. The State argues that the indictment need not be date-specific, in that where the exact date of the commission of the offense is not stated as a material allegation, it may be proved as of any time within the statute of limitation (although defendant is entitled to sufficient time to prepare his defense if he is surprised and prejudiced by a newly alleged date). Hutton, supra; see also Pittman v. State, 179 Ga. App. 760 (1) (348 SE2d 107) (1986) (holding that where the date alleged is not an essential averment, the indictment covers any offense of the nature charged within the period of limitation, and the State is not confined to proof of a single transaction, although defendant may be only convicted and punished for one offense). Nonetheless, “ ‘[o]ne accused of crime has a right, if he demands it by timely demurrer, to have an [indictment] perfect in form and substance. [Cit.]’ ” Dotson v. State, 160 Ga. App. 898, 899 (2) (288 SE2d 608) (1982).

On the ground that the indictment in this case states the offense in the language of the theft-by-taking statute (OCGA § 16-8-2), the State also relies upon OCGA § 17-7-54 (a): “Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct.” However, this section also states, with respect to the form of the indictment, that it shall state the offense and the time of committing the same with “sufficient certainty.” The part relied upon by the State “ ‘was not intended to dispense with the substance of good pleading, nor to deny to one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial. . . .’ [Cits.]” Pharr v. State, 44 Ga. App. 363, 364 (161 SE2d 643) (1931).

2. The court did not err in finding the indictment defective for failing to more specifically identify the amount taken.

The State argues that the indictment alleges “in excess of $500.00” and need not have alleged even that, because value is not an element of the crime of theft by taking under OCGA § 16-8-2 but rather is relevant only for the purposes of distinguishing between misdemeanor and felony. Stancell v. State, 146 Ga. App. 773 (2) (247 SE2d 587) (1978). However, the indictment must inform the accused whether he or she is being charged with a felony or misdemeanor. Kyler v. State, 94 Ga. App. 321, 328 (3) (94 SE2d 429) (1956). “A person convicted of [theft by taking] shall be punished as for a misdemeanor except: If the property which was the subject of the theft exceeded $500.00 in value, by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor.” OCGA § 16-8-12 (a) (1). Consequently, it was necessary for the indictment to allege whether the value of the currency taken was over $500 in order to apprise defendants of whether the offense charged is a misdemeanor or felony.

Under Frisbie v. United States, 157 U. S. 160 (15 SC 586, 39 LE 657) (1895), it is not necessary for the indictment to allege the specific amount taken if such amount is unknown to the grand jury and that fact is alleged in the indictment. The Stanleys’ indictment does not allege, and the State does not argue, that the specific amount alleged to have been taken is unknown.

3. It was not necessary for the indictment to specifically identify the form of the currency taken.

Currency is defined as, “paper and metallic money in circulation.” Webster’s Third New Intl. Dictionary, p. 557. “Money” is defined as “coinage or negotiable paper issued as legal tender by a recognized authority (as a government).” Id. at 1458. Thus, contrary to defendants’ argument, the term currency does not include checks and the identification of the property taken as lawful U. S. currency was sufficient. Compare Kyler, supra (where the offense was a misdemeanor if the money was in coin and a felony if in currency).

4. The foregoing holdings cover the State’s first and third enumerations. It is unnecessary to address the second.

Judgment affirmed.

Cooper and Smith, JJ., concur.

Decided February 4, 1994.

Lydia District Attorney, Lee Darragh, Assistant District Attorney, for appellant.

Troy R. Millikan, for appellees.


text:
    A93A2253.
    BURTTS v. THE STATE.
    (440 SE2d 727)
   Beasley, Presiding Judge.

Appellant was charged by accusation of driving under the influence of alcohol and failure to use a seat belt. The court denied a motion to suppress/motion in limine which alleged illegality of his arrest. Pursuant to Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991), the court permitted a plea of guilty with a preservation of his right to appeal the ruling on the motion.

The trial court found that in March 1993 a trooper stopped appellant’s 1979 vehicle because it had a drive-out license plate rather than a regular license plate. His policy is to stop all used vehicles with drive-out license plates to see if they have proper registration and whether they have properly applied to purchase a license plate. Appellant produced the required paperwork to show that he had just purchased the vehicle. He was arrested for driving under the influence of alcohol based on Lloyd’s observations of him after he was stopped. The court held that the investigatory stop was lawful and denied the motion, having concluded that a drive-out license plate is only an advertisement for a car dealership and has no more legal authority than no license plate at all.

Appellant argues that OCGA § 40-2-20 (a) gives the purchaser of a motor vehicle which does not have a current and valid Georgia registration 21 days from the date of purchase within which to register and obtain a license to operate it. Although true, it does not mean that if a person operates a motor vehicle within the 21-day grace period without a valid license plate, he is exempt from an investigative stop.

OCGA § 40-2-8 (b) provides, “It shall be a misdemeanor to operate any vehicle required to be registered in the State of Georgia without a valid numbered license plate properly validated; provided, however, that the purchaser of a new vehicle or a vehicle which does not have a current and valid registration or a used vehicle may operate such vehicle on the public highways and streets of this state without a current valid license plate during the 21 day period within which the purchaser is required by Code Section 40-2-20 to register or transfer the registration of such vehicle and provided, further, that the purchaser and operator of a vehicle shall not be subject to the penalties set forth in this Code section during the period allowed for the registration or transfer of registration. If the owner of such vehicle presents evidence that sdch owner has properly applied for the registration of such vehicle, but that the license plate or revalidation decal has not been delivered to such owner, then the owner shall not be subject to the above penalties.” This contemplates that the driver of a newly purchased vehicle may be stopped by police because the vehicle does not exhibit, a valid numbered license plate, although the driver may have a defense because the grace period allowed for registration has not expired. About the only way to determine whether the period has expired is to stop the vehicle and inquire; the proof is documentary, not visible without a stop. There is no display of authorization visible externally as there is with dated state-issued plates and decals. In the latter instance, there is no need for a stop.

In Wilder v. State, 192 Ga. App. 891 (386 SE2d 685) (1989), a vehicle was stopped because it had no visible valid license plate but only a rental agency paper drive-out tag. The stop was deemed authorized under OCGA § 40-2-8 for operation without a license tag.

Investigative stops of vehicles are analogous to Terry-stops and are invalid if based upon only an unparticularized suspicion or hunch, or mere caprice or inclination. Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993). The stop in Jorgensen was unlawful even though appellant was driving a car with a dealer’s drive-out tag, because he was stopped for other reasons which did not give rise to articulable suspicion. On the other hand, in Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989), a police officer stopped an automobile with a dealer drive-out tag because the police had experienced high theft rates among cars with dealer drive-out tags. The suspicion engendered by the drive-out tag was more than an unparticularized suspicion or hunch; it was an objective manifestation that the person stopped might be engaged in criminal activity.

Burtts was driving a vehicle which was stopped because it appeared to be a used car without a valid license plate and only a dealer’s drive-out tag. The stop was based upon articulable suspicion of illegal operation, there being no visible manifestation that the 21-day period had not expired; it was thus lawful. “ ‘ “We have repeatedly held that an authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has ‘reasonable grounds’ for such action — ‘a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.’ (Cit.)” (Cit.)’ [Cit.]” Coley v. State, 177 Ga. App. 669, 670 (1) (341 SE2d 9) (1986).

Judgment affirmed.

Cooper and Smith, JJ., concur.

Decided February 4, 1994.

Manning & Leipold, Calvin A. Leipold, Jr., for appellant.

Cheryl F. Custer, District Attorney, Alan S. Clarke, Assistant District Attorney, for appellee.


text:
    A93A2314.
    HILLIARD v. THE STATE.
    (440 SE2d 729)
   Pope, Chief Judge.

Defendant was convicted by a jury of selling cocaine. He appeals following the denial of his motion for a new trial.

Detective Florence Glover was working undercover when she saw four or five males standing on a street corner. As she approached them in her vehicle, one of the males stepped away from the others and asked what she was looking for. Detective Glover said she wanted $20 worth of crack cocaine, and he told her to stay there. He then went to a nearby brown vehicle, retrieved something, returned to Glover’s vehicle and handed her a substance which was subsequently identified as cocaine. Glover gave him a $20 bill, having noted the bill’s serial number. After she drove off, she radioed the back-up team with the location of the sale and a description of what the seller was wearing. The back-up team went to that location and detained defendant and another man who was dressed in a similar manner. Detective Glover then arrived and identified defendant as the one who sold her the cocaine. At the time of his arrest, defendant did not have any drugs on him, but did have more than $200, including the $20 bill with the serial number noted by Glover.

At trial, defendant testified that he was not the one who sold Glover the cocaine and that, although he was hanging out on the corner with the person who did, he had no intention of selling cocaine.

1. Defendant argues that the trial court erred in admitting evidence of two prior similar transactions. Prior to the trial, the State said it would present evidence of two prior incidents in which defendant sold cocaine to an undercover agent in the same general area. In the prior offenses (to which defendant pled guilty), as in the charged offense, the defendant spoke with the agent/officer to find out what they needed and then went to a nearby vehicle to get it. In all three, the defendant was with a group of about four or five others rather than alone. The State said this evidence would be submitted to show identity, state of mind and course of conduct, and the trial court allowed the evidence for these purposes.

The trial court did not err in finding that the prior offenses were substantially similar to the charged offense and were offered for proper purposes. The fact that the prior offenses occurred eight years prior to the charged offense does not negate the similarity, particularly in light of the fact that defendant was in prison for some of those eight years. See Johnson v. State, 199 Ga. App. 144 (1) (404 SE2d 455) (1991). Defendant suggests that even if the prior offenses were similar, evidence of them was more prejudicial than probative in this case because the State’s case against him was so strong without it. However, defendant cites no authority for the proposition that the admissibility of similar transaction evidence depends on how much the State needs the evidence to prove its case, and we do not think such a practice would be either sensible or desirable.

Decided February 4, 1994.

Stephen H. Harris, for appellant.

Spencer Lawton, Jr., District Attorney, Elise 0. Gray, Assistant District Attorney, for appellee.

Citing the special concurrence in Johnson, 199 Ga. App. at 145-146, defendant contends that the trial court erred in its jury instruction on similar transaction evidence by reciting the entire litany of possible purposes for which such evidence may be offered. Our review of the jury charge shows that although the trial court did say similar transaction evidence may be admissible for a variety of purposes, it then immediately stated that defendant was on trial only for the charged offense and that the evidence of prior offenses could be considered only with respect to identity and state of mind. This charge, combined with the limiting instruction given the jury at the time the evidence of the similar transaction was admitted, properly and adequately instructed the jury concerning the applicable law. Moreover, to the extent defendant relies on the special concurrence in Johnson for the proposition that the evidence could not be admissible for more than one purpose, we note that in this case, both identity and state of mind were placed in issue by the defense, whereas in Johnson only identity was placed in issue by the defense.

2. Defendant’s argument that the trial court’s use of the pattern jury instruction on reasonable doubt containing the words “ ‘to a moral and reasonable certainty’ ” constitutes reversible error is also without merit. Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992); see also McDonald v. State, 210 Ga. App. 689, 691 (5) (436 SE2d 811) (1993).

Judgment affirmed.

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


text:
    A93A2322.
    COMMERCIAL UNION INSURANCE COMPANY v. MARCO TRANSPORTATION COMPANY.
    (440 SE2d 730)
   Pope, Chief Judge.

Commercial Union Insurance Company (“plaintiff”) brought an action on a contract against Marco Transportation Company (“defendant”). Defendant answered that an earlier action on this contract was brought and settled for $30,000, and that defendant stood ready to abide by that settlement. Defendant then moved the trial court to enforce the settlement and enter judgment for plaintiff in the amount of $30,000, as agreed. Defendant’s motion was granted, plaintiff’s counter-motion for summary judgment was denied, and plaintiff appeals from both decisions.

At the evidentiary hearing on the motion to enforce the settlement agreement, Rick Brown, defendant’s counsel in the earlier proceeding, testified that on the morning the earlier action was to go to trial, he and R. Craig Henderson, plaintiff’s counsel in that action, engaged in settlement negotiations; that on that morning Henderson called plaintiff several times from the judge’s office; that Henderson came back from one of those calls and said plaintiff had agreed to settle for $30,000 to be paid in installments; that Brown accepted this offer on behalf of defendant; and that they announced the settlement to the court. Brown testified that Henderson was to prepare a consent judgment, and defendant was to provide plaintiff with financial information so that if defendant defaulted on any of its installment payments, plaintiff would have what it needed to enforce its judgment. The agreement to settle was further supported by an affidavit from the judge in the earlier case, and Brown’s description of the settlement and its terms were confirmed by the affidavit of Henderson, plaintiff’s attorney. In opposition, plaintiff presented the affidavit of Gloria Leachman, an employee of plaintiff, who was not present at the time of the purported settlement and who simply states that there was no settlement and could not have been because it was not authorized.

1. Plaintiff contends that the trial court erred in enforcing the purported oral settlement agreement because plaintiff disputes the very existence of the agreement as well as its counsel’s authority to enter into it. See LeCroy v. Massey, 185 Ga. App. 828 (366 SE2d 215) (1988). In LeCroy we held that although an oral settlement agreement will be enforced despite the attorney’s lack of actual authority to settle if the existence of the agreement is established beyond dispute, a writing is required for enforcement if the existence of the agreement (rather than merely the attorney’s authority to enter into it) is contested. Id. at 829; see also Reichard v. Reichard, 262 Ga. 561 (2) (423 SE2d 241) (1992). Plaintiff’s reliance on LeCroy is misplaced, however, because in this case, unlike LeCroy, there is no dispute among those present at the time the purported settlement was reached regarding whether a settlement was reached or what the terms of that settlement were. In light of this evidence, the statement of an employee who was not present that there was no settlement and could not have been because it was not authorized is not sufficient to dispute the existence of the agreement. Nor did the parties’ failure to follow through with the agreement negate the existence of the agreement or render it unenforceable. Accordingly, the trial court did not err in enforcing the settlement agreement and entering judgment for plaintiff in the amount of $30,000. See Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983).

Decided February 4, 1994.

Lamb & Associates, William L. Henderson, for appellant.

Minor, Bell & Neal, Michael J. Tuck, Rickie L. Brown, for appellee.

2. In light of our conclusion that the trial court did not err in granting defendant’s motion to enforce the settlement agreement, we need not address plaintiff’s contention that its motion for summary judgment should have been granted. *

Judgment affirmed.

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

       Plaintiff’s counsel and defendant’s counsel and his associate all testified that a settlement for $30,000 was reached. Plaintiff’s counsel’s associate did not recall whether or not a settlement was reached.


author: Blackburn, Judge.

text:
    A93A2427.
    A93A2429.
    A93A2430.
    A93A2431.
    A93A2434.
    A93A2435.
    A93A2436.
    OGLETREE v. THE STATE. DUNCAN v. THE STATE. ALLEN v. THE STATE. HIGHTOWER v. THE STATE. HARDEMAN v. THE STATE. HARDEMAN v. THE STATE. RUTH v. THE STATE.
    (440 SE2d 732)
   Blackburn, Judge.

Appellants were tried together by a jury in DeKalb County State Court. Charles Ogletree and David Duncan were convicted of two counts of battery and Charlie Ruth, Willie Hardeman, Emanual Hardeman, and Arthur Allen, Jr., were convicted of two counts of battery and one count of being a party to a crime.

The convictions arose from an incident which occurred during a meeting of a church in which appellants and the victim were members. After the victim argued with Allen, the church pastor, Allen ordered W. Hardeman, Ruth, Duncan, and E. Hardeman to whip the victim. E. Hardeman and Duncan held the victim by her arms while W. Hardeman and Ruth beat the victim with belts. Allen then directed Hightower and Ogletree to continue beating the victim. Allen testified that the beating lasted from 20 to 30 minutes until the victim was “beaten into submission.” He further testified that the appellants continued to beat the victim after she had fallen to the floor. Two days after the beating, the victim showed her severely bruised and cut legs to her aunt. The victim’s aunt called the police.

At the trial of the case, Allen refused indigent counsel and elected to represent himself. The remaining appellants also refused indigent counsel and elected to have Allen represent them at trial. No transcript or other recording of the trial was taken; therefore, pursuant to OCGA § 5-6-41 (g) a stipulation of trial testimony was prepared and entered on the record as the evidence and arguments presented at trial. On appeal, appellants are represented by counsel and assert several enumerations of error.

1. In their first enumeration of error, appellants assert that “because the U. S. and Georgia Constitutions protect an individual’s right to participate in corporal punishment as a religious practice and because the physical harm in this case was not substantial, the trial court erred by failing to grant [their] motion for new trial on the general grounds that the evidence was insufficient to support the verdicts.”

We are unable to reach the merits of this enumeration, to the extent that it raises First Amendment issues not raised below. “ ‘Constitutional issues not raised below are not preserved for appeal. (Cits.)’ [Cits.]” Cox v. State, 205 Ga. App. 375, 376 (422 SE2d 68) (1992).

This enumeration also raises a question as to the sufficiency of the evidence for appellants’ convictions. “A person commits the offense of battery when he intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). Appellants contend that the victim consented to the beating; however, her consent would make no difference to our analysis. “It is the act and intent and results of the defendant’s act which constitute the crimes as charged; the attitude of the victim is not called into issue by these elements.” Ramey v. State, 203 Ga. App. 650, 652 (417 SE2d 699) (1992). Furthermore, Allen admitted that the victim’s hands were held during the beating, indicating lack of consent.

“ ‘On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. (Cit.)’ [Cit.]” Cox, 205 Ga. App. at 375. The evidence included pictures, taken several days after the beating, depicting bruises and cuts on the victim’s legs. Testimony indicated that the bruises and cuts were more substantial than shown in the photographs. Thus, the evidence demonstrated visible bodily harm to the victim. Danzis v. State, 198 Ga. App. 136 (4) (400 SE2d 671) (1990). The evidence introduced at trial was sufficient to allow a rational trier of fact to find appellants guilty beyond a reasonable doubt of inflicting substantial physical harm, as well as visible bodily harm to the victim. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In their second enumeration of error, the appellants contend that the trial court erred in failing to individually question those members of the jury panel who were challenged for cause due to their belief in not “whipping their children.” The record discloses that Allen objected to the entire venire panel because they stated that they did not believe in whipping their children and because they were white. When the trial court failed to remove the panel, Allen refused to make any strikes. Thereafter, the trial court opened the jury selection to a 17-person jury panel which was presented to appellants. The selection process then began anew. The record does not reflect any further objections to the panel or individual jurors. Appellants have failed to affirmatively show error by the record after the trial court opened up the venire panel and started the selection process again. Karvonen v. State, 205 Ga. App. 852, 854 (424 SE2d 47) (1992).

3. Appellants’ enumerations of error nos. 3 and 4 both assert error concerning evidentiary rulings made by the trial court. On appeal, appellants contend that the evidence sought to be introduced was admissible for impeachment purposes. However, appellants failed to make any response or proffer to the State’s relevancy objection to the evidence at trial. Therefore, this enumeration is without merit. See Anderson v. Jarriel, 224 Ga. 495 (3) (162 SE2d 322) (1968).

4. In their last enumeration of error, appellants assert that the trial court erred in failing to allow them to present evidence of specific acts of good conduct of Allen to restore his good character after the State’s presentation of evidence that Allen was violent. The State presented no evidence which put Allen’s character into evidence beyond the facts proving the charges against Allen. By Allen’s own testimony, he agreed that he ordered the beating and that the victim was “beat into submission.” Appellants were allowed character witnesses; nine character witnesses testified on behalf of appellants as to their general reputation in the community. Cunningham v. State, 182 Ga. App. 591 (356 SE2d 542) (1987). Specific instances of conduct are not allowed on direct examination of a character witness. Id. This enumeration is without merit.

Decided February 4, 1994.

Morris, Webster & Corliss, Steven R. Webster, for appellants.

Ralph T. Bowden, Jr., Solicitor, Debbie M. Sullivan, Cliff Howard, Assistant Solicitors, for appellee.

While the law permits a party to represent himself at trial, one choosing to do so is entitled to no special treatment because he is not qualified for the task.

Judgments affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A93A2475.
    McCABE v. GARRETT.
    (440 SE2d 734)
   Pope, Chief Judge.

Plaintiff James Timothy McCabe appeals from the trial court’s grant of partial summary judgment in favor of defendant Glen A. Garrett. McCabe contends the trial court erred in ruling that his unsuccessful appeal to this court in McCabe v. Lundell, 199 Ga. App. 639 (405 SE2d 693) (1991) from the denial of his motion to add Garrett as a party defendant to his counterclaim in that case did not toll the running of the applicable statute of limitation for claims he seeks to assert in this case against Garrett.

We agree with the trial court that this case is controlled by our decision in Worrill v. Pitney-Bowes, Inc., 128 Ga. App. 741 (197 SE2d 848) (1973). As in this case, the plaintiff in Worrill was defendant in an earlier action and sought to add a third-party defendant. The putative third-party defendant filed a motion to dismiss the complaint, which was granted by the trial court. An appeal to this court followed and we affirmed the trial court’s ruling. After termination of that suit, the defendant in the original action filed a separate suit against the company he had sought to add as a third-party defendant in the original suit. That party filed a motion for summary judgment on the basis that the applicable statute of limitation for the claim against it had-expired. The trial court granted that motion and an appeal followed. On appeal, the plaintiff argued the statute of limitation was tolled during the pendency of the first case against him because he “could not know how he stood until after disposition of his third-party action by the Court of Appeals.” Id. at 744 (3). We held that “ ‘[t]he rule that “[t]he statute of limitations begins to run from the time when a complete cause of action accrues” is not affected by the fact that the result of a pending lawsuit may largely affect a party’s rights.” ’ ” Id. (Quoting Mobley v. Murray County, 178 Ga. 388, hn. 1 (173 SE 680) (1934).) See also Baldwin v. Happy Herman’s, Inc., 122 Ga. App. 520 (177 SE2d 814) (1970).

Decided February 4, 1994.

Donald A. Weissman, Marc P. Lubatkin, for appellant.

Richard L. Moore, for appellee.

McCabe’s reliance on our decisions in Butler v. Glen Oak’s Turf, 196 Ga. App. 98 (395 SE2d 277) (1990) and Yield, Inc. v. City of Atlanta, 152 Ga. App. 171 (262 SE2d 481) (1979) is misplaced as those cases involved the question of whether the statute of limitation was tolled during a pending action involving the same parties as the later suit. Butler is further distinguished because the plaintiff was pursuing a workers’ compensation claim and could not simultaneously pursue a personal injury claim. Yield involved a petition for renewal which was not timely filed and cannot control here. In this case no valid action was ever commenced against Garrett by McCabe; therefore, he cannot be considered a party to the McCabe v. Lundell, supra, litigation. It is well-settled that the mere filing of a claim does not in itself toll the running of a statute of limitation, but the named defendant must be timely served and duly brought into court. See, e.g., Staggs v. Wang, 185 Ga. App. 310, 311 (1) (363 SE2d 808) (1987). As Garrett was never brought into court in McCabe v. Lundell, supra, the applicable statute of limitation was not tolled as to any claim McCabe now seeks to assert against Garrett in this case.

Judgment affirmed.

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

       Although McCabe asserts seven separate enumerations of error concerning that ruling, all enumerations are interrelated and will be discussed together.


author: Johnson, Judge.

text:
    A93A2538.
    MARTIN v. THE STATE.
    (440 SE2d 736)
   Johnson, Judge.

Raymond Martin was indicted for the offenses of possession of cocaine with intent to distribute, possession of cocaine with intent to distribute near a public school, and possession of marijuana. Martin filed a motion to suppress which the trial court denied. We granted Martin’s application for interlocutory appeal.

1. Martin contends that the trial court erred in failing to suppress evidence derived from the search of his person and his truck. We disagree. The undisputed facts are as follows: Law enforcement officers obtained a warrant to search Martin, his truck, his residence and the surrounding curtilage for drugs and drug-related items. The residence was under surveillance and just before the officers who were to execute the warrant arrived, Martin left the premises in his truck. Uniformed officers were notified and Martin was stopped less than one mile from his home. Martin was handcuffed, placed in the police car, and he and the truck were driven back to the house, though Martin had violated no traffic laws and the officers had no arrest warrant. Upon return to the premises, Martin was advised that the search warrant was for the residence, his person and his truck. Martin then told the officers “[t] here’s no need to tear up my mother’s house. The dope is in my truck.” When the police dog then indicated that there were drugs in the truck, the truck was searched and cocaine found. Marijuana was also found in the residence, an outbuilding and another vehicle within the curtilage. Apparently, no physical evidence was found on Martin.

Martin claims that the evidence derived from the search of his truck and his person should be suppressed because the evidence was the product of an illegal arrest. Both parties stipulate that the warrant contains facts sufficient to establish probable cause to search Martin’s residence, but not facts sufficient to justify a search of Martin or his truck. The parties also agree that the question of whether the evidence should be suppressed turns on the issue of whether the officers were justified in seizing Martin and his truck and returning them to the residence for the execution of the warrant. We find that the return of Martin to his residence was lawful.

This case is controlled by Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981). In Summers, as police officers arrived at a residence to execute a search warrant, they noticed the defendant exit the front door, walk across the porch and descend the steps. They stopped him and took him back inside while they executed the warrant. After finding narcotics on the premises and ascertaining that the defendant owned the house, the police arrested and searched him and found heroin on his person. The Supreme Court held that it was lawful to require the defendant to re-enter and remain in the house and that the search incident to his subsequent arrest was lawful. The Court reasoned that “[a] neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself. Indeed, we may safely assume that most citizens — unless they intend flight to avoid arrest — would elect to remain in order to observe the search of their possessions.” Id. at 701 (III).

Martin argues that Summers is inapplicable because the defendant in that case was only detained and was not returned to his residence by officers. Although Martin had gone further away from his residence than Summers had before officers could stop him, the circumstances in both cases were otherwise quite similar. In both cases, officers were on their way to the residences to execute search warrants when officers observed the residents leaving. In both cases, the suspects were stopped and returned to the homes they were just leaving. We do not believe that the fact that Martin got further away before he was stopped is of any legal consequence.

We have also recently decided a similar issue adversely to Martin. In Claffey v. State, 209 Ga. App. 455 (433 SE2d 441) (1993), we considered whether officers were authorized to stop a car and briefly detain its occupants when it stopped in front of a house which was being searched pursuant to a warrant. We held that “[s]ince the lessee of the premises on which the search warrant was being executed could lawfully be detained to aid the execution of the warrant, the officers could validly approach and briefly detain the occupants of a car that had just come to a stop at the residence to determine whether any of them lived there.” (Citation omitted.) Id. at 456 (1). We hold that the officers were justified in stopping Martin and returning him to the premises. The officers were also justified in searching his truck since he consented to the search following a permissible detention.

2. Martin contends that the search warrant was invalid because (a) it authorized the search of three separate premises, i.e., the house, his person and his truck, on a single warrant and (b) the description of the person and the truck lacked sufficient particularity. These claims are without merit. First, Martin has cited and we have found no authority for his argument that one warrant- cannot describe more than one item to be searched. Secondly, since the search of the truck was lawful even without a warrant, as discussed in Division 1 above, the issue of whether the truck was described with enough specificity is moot. Thirdly, since no physical evidence was found on his person, any search of his person was harmless. Nonetheless, we find that the warrant does describe the person and the truck with sufficient particularity. A search warrant is valid if the description sufficiently permits an officer to locate the premises, person or property with reasonable certainty. Minter v. State, 206 Ga. App. 692 (426 SE2d 169) (1992). Here, the affidavit for the warrant gives Martin’s full name, race, sex, date of birth, social security number and address. It also states the color, make, model and tag number of his truck. These descriptions were sufficiently particular.

Decided February 4, 1994.

Strauss & Walker, John T. Strauss, for appellant.

Alan A. Cook, District Attorney, for appellee.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) State v. Foster, 209 Ga. App. 143, 144 (433 SE2d 109) (1993). We find no error in the ruling of the trial court.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Martin also argues that Summers would have been decided differently in Georgia because of OCGA § 17-5-28. We disagree. Suppose we assume, without deciding, that this Code section applies to this case. If anything, the section tends to strengthen the State’s argument that officers had the right to detain and search Martin while executing the search warrant for the residence. It is therefore unlikely that Summers would have been decided differently.


text:
    A94A0315.
    HAMES CONTRACTING, INC. v. GEORGIA INSURANCE COMPANY.
    (440 SE2d 738)
   Birdsong, Presiding Judge.

Hames Contracting, Inc. (Hames) appeals the grant of Georgia Insurance Company’s (GIC) motion for summary judgment and denial of Hames’ cross-motion for summary judgment in a declaratory judgment suit brought by GIC against Hames.

GIC issued a workers’ compensation and employers liability insurance policy to Hames, the insured. Subsequently, a number of Hames’ employees or former employees brought suit against Hames in federal court; one other employee brought suit against Hames in the Superior Court of Floyd County. Both suits are civil actions for damages; the 13 counts averred in the complaint in federal court are virtually identical to the corresponding 13 counts averred in the complaint in superior court. Plaintiffs in the two suits asserted claims of breach of contract, fraud, infliction of emotional distress, wilful misconduct, specific intent to harm, fraud in the inducement of a contract and conspiracy to harm. Plaintiffs did not aver any claims for workers’ compensation benefits in their suits. See generally Allen v. Bergman, 201 Ga. App. 781, 783 (3b) (412 SE2d 549). For a brief discussion of the facts giving rise to these claims, see generally Johnson v. Hames Contracting, 208 Ga. App. 664 (431 SE2d 455).

After the suits were commenced, Hames forwarded the lawsuits to GIC seeking defense of the claims and coverage therefor under the terms of the policy. GIC gave Hames notice of its reservation and non-waiver of rights pending claims investigation and, pursuant to its continued reservation, filed answers on behalf of Hames in both cases. GIC sought declaratory judgment asserting that it had no duty under the policy either to defend or to indemnify Hames with respect to the claims averred in the federal and Floyd County suits. Held:

1. The rights and duties of the parties to an insurance contract, including the duty of an insurer to defend its insured, are determined by the terms thereof; we must consider the averments in the complaint to determine whether a claim asserted is within the coverage of the policy or whether a duty to defend such claim exists as to the litigation. See Presidential Hotel v. Canal Ins. Co., 188 Ga. App. 609, 610 (373 SE2d 671).

2. Appellee GIC contends and appellant Hames concedes that Count 7 of the underlying complaints, which seeks damages on breach of contract arising from the wrongful termination of plaintiffs’ employment with Hames, are not covered by any provision contained in the insurance contract at issue. Accordingly, any contrary contentions regarding this issue have not been raised on appeal. Moreover, examination of the insurance contract and the averments in Count 7 confirm the accuracy of the parties’ assessment of this question; Count 7 does not aver claims covered by this insurance policy.

Likewise, the parties agree there is no duty to defend the remaining claims in the underlying complaints pursuant to Part Two, the employers liability section of the policy, because no recovery is permitted at law for these claims. See, e.g., Johnson, supra. Part Two expressly limits coverage to those damages “where recovery is permitted by law” and provides that insured has “no duty to defend a claim, proceeding or suit that is not covered by this insurance.”

Hames concedes that the “underlying claims [at issue on appeal] are barred by the exclusive remedy provision [of the Georgia Workers’ Compensation Act], as did this court in Johnson, supra”; however, it argues that a duty to defend nevertheless arises pursuant to Part One, the workers’ compensation insurance section of the policy, as it contains no provision which would limit coverage and/or duty to defend to those claims where recovery is permitted by law. GIC counters that Part One “only deals with claims for benefits pursuant to the workers’ compensation law [of Georgia],” and the employees’ suits against Hames do not aver claims for such benefits. The trial court granted GIC’s motion for summary judgment and denied Hames’ cross-motion after concluding, inter alia, in view of Johnson, supra, that the complaints against Hames do not set forth tort damages for which recovery is permitted by law in the circumstances of the underlying cases.

Decided February 4, 1994.

Barry A. Karp, Harold Karp, for appellant.

Drew, Eckl & Farnham, G. Randall Moody, for appellee.

After examining the unambiguous language of the policy in its entirety and attributing to its words their usual and common signification and customary meaning (see Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35, 37 (2) (416 SE2d 105)), in the process of ascertaining the intent of the parties (OCGA § 13-2-3), we agree with the contentions of appellee GIC regarding the construction to be given to the terms of the insurance policy. We find that Part One, the workers’ compensation insurance section of the policy, was intended by the parties to provide coverage only for benefits due and required to be paid by the insured under the Georgia Workers’ Compensation Act. In this regard, Part One, Section B provides, inter alia, the insurer “will pay promptly when due the benefits required of you [the insured] by the workers’ compensation law.” The term “workers’ compensation law” is clearly defined in the general section of the policy, and in this instance is the Georgia Workers’ Compensation Act. Moreover, Part One, Section H 5 provides that “this insurance [workers’ compensation insurance] conforms to the parts of the workers’ compensation law that apply to: a. benefits payable by this insurance.” (Emphasis supplied.) Thus, the coverage provided in Part One is limited to claims for benefits required of an insured employer under the applicable workers’ compensation law as defined in the general section of the policy. The civil suits for damages against Hames did not aver such claims. Thus, these suits did not aver any claims “covered” by the workers’ compensation insurance of Part One of the policy. And the insurance contract expressly provides, at Part One, C, that GIC has “no duty to defend a claim, proceeding or suit that is not covered by this [Part One] insurance.” “[A] grant of summary judgment must be affirmed if it is right for any reason.” American Honda &c. Co. v. Williams & Assoc., 208 Ga. App. 636, 642 (2) (431 SE2d 437).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.