text:
    74867.
    74868.
    CHALKER v. THE STATE. LOWE v. THE STATE.
    (362 SE2d 152)
   Sognier, Judge.

Appellants were tried jointly and convicted of burglary. They appeal, both enumerating the same errors.

1. In their first two enumerations of error, appellants assert that two State witnesses, Debbie Beckworth and Sheriff James English, perjured themselves, and thus, appellants’ convictions must be reversed. Appellants argue that Beckworth’s testimony at trial on November 17, 1986, differed from her testimony at a probation revocation hearing on December 3, 1985, thereby showing that she perjured herself. As to the testimony of English, appellants merely assert that they do not believe the sheriff because he has a grudge against them. Neither of these issues were raised at trial, and this court will not consider questions raised for the first time on appeal. Tolbert v. State, 180 Ga. App. 703, 704 (3) (350 SE2d 51) (1986). Further, credibility of witnesses is a question for determination by the jury, not this court, which deals with the sufficiency of the evidence, not its weight. Miller v. State, 163 Ga. App. 889, 890 (1) (296 SE2d 182) (1982).

2. Appellants allege error in allowing David Rush, a GBI agent, to testify about evidence that was obtained illegally. Rush obtained permission from Beckworth, appellant Lowe’s former girl friend, to place a body bug on her while she talked to Lowe, who was confined in the Jefferson County jail. Although Rush was outside in a car, he could not hear the conversation; rather, it was recorded. Rush was allowed to testify, over objection, as to what was said during the conversation, based on hearing the tape recording. Appellants objected to this testimony on the ground that no proper foundation was laid for Rush’s testimony, and appellant Lowe had not been advised of his Miranda rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) before his conversation with Beckworth was recorded. Pretermitting the question of whether a proper foundation was laid for admissibility of Rush’s testimony, the testimony was inadmissible because Lowe was not advised of his Miranda rights or his right to counsel. Although the State refers to Beckworth as an informant, she was in fact an agent of the State when she secretly taped her conversation with Lowe while he was in custody. We have held that such action amounts to an illegal interrogation when such interrogation proceeds without warnings when the defendant is in custody of the law, as Lowe was here. Overby v. State, 160 Ga. App. 537, 538 (1) (287 SE2d 568) (1981); State v. Rogers, 173 Ga. App. 653, 654 (327 SE2d 782) (1985). However, we do not find the erroneous admission of Rush’s testimony reversible error under the facts of this case. In the taped conversation Lowe told Beckworth that he and appellant Chalker had entered the victim’s home, and that appellants had converted pennies to cash through Douglas Randall. Testimony to this same effect had been given earlier by Beckworth and David Wynn without objection. Proof of the same facts by legally admissible evidence renders harmless the admission of inadmissible evidence. Robinson v. State, 229 Ga. 14, 16 (1) (189 SE2d 53) (1972); Crawford v. State, 178 Ga. App. 739-740 (1) (344 SE2d 533) (1986).

The only other possible damaging statement made by appellant Lowe during the recorded conversation was his statement to Beckworth that she should lie if she was questioned by Rush or the sheriff. Under the circumstances here, we do not find that statement of sufficient harm as to require reversal. There is no indication that Beckworth was questioned by the sheriff or Rush after her conversation with Lowe, and Beckworth had already testified that Lowe admitted to her that he and Chalker had burglarized the victim’s home and taken pennies therefrom. Under the test laid down in Moore v. State, 254 Ga. 674, 677 (333 SE2d 605) (1985), we do not find that Lowe’s statement to Beckworth influenced the jury verdict, nor do we find that testimony as to the conversation otherwise influenced the jury’s verdict. Hence, we find the error harmless.

3. Appellants contend there was, or could be, a conflict of interest between appellants and their attorney because he had done legal work for the victim previously. Although the question of a possible conflict of interest by representing both defendants was raised at trial (and waived on the record by them), no question of a conflict of interest for the reason now enumerated as error was raised, even after appellant’s counsel placed this fact on the record. As stated in Division 1, this court will not consider questions raised for the first time on appeal. Tolbert, supra.

4. Appellants allege error in the fact that they did not testify at trial. There is nothing in the record to indicate that appellants desired to testify and were prevented from doing so by the court or by their counsel. Enumerations of error pertaining to matters not appearing of record cannot be considered. Rasberry v. State, 139 Ga. App. 189 (228 SE2d 186) (1976).

5. Lastly, appellants contend that Beckworth’s testimony was influenced by the fact that she had something to gain by testifying for the State. Appellants argue that her “gain” would be keeping her children, not being charged as an accessory after the fact, and getting revenge against her former “lover,” appellant Lowe. Beckworth was questioned about all of these matters on cross-examination by appellants. She stated that the sheriff informed her she could possibly be charged as an accessory after the fact, and if she went to jail she would lose her children. Beckworth denied holding a grudge against Lowe. These are all matters affecting the weight of Beckworth’s testimony and her credibility as a witness, which are questions for determination by the jury. Miller, supra. This court deals with the sufficiency of the evidence, not its weight, id., and we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided October 20, 1987.

Robert H. Cofer II, for appellants.

Dennis C. Sanders, District Attorney, Harold W. Wallace III, Assistant District Attorney, for appellee.

Judgments affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1, 3, 4, and 5, and in the judgment.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    75574.
    SOULE v. THE STATE.
    (362 SE2d 155)
   Deen, Presiding Judge.

On March 6, 1987, the appellant was arrested for driving under the influence, improper lane change, driving without a license, and having no vehicle insurance. At the time of the arrest, the appellant gave his name as Robert Lee Soule. A subsequent records check on March 10, 1987, revealed that his real name was Pierre Lee Soule and that his driver’s license had been revoked because of habitual violator status. The arresting officer filed additional charges against Soule for giving a false name and driving as a habitual violator.

On March 11, 1987, counsel was appointed for Soule to represent him on the false name and habitual violator charges, which, on March 18, 1987, were bound over to the superior court. On March 12, 1987, before the State Court of Clayton County, Soule pleaded nolo contendere to the DUI charge and guilty on the other traffic offenses, and was sentenced. The actual accusation prepared by the solicitor charging Soule with DUI was in Soule’s correct name of Pierre Lee Soule, as was the court’s sentence entered on that charge. Before the trial on the false name and habitual violator charges, Soule filed a plea in bar, contending that prosecution of those two charges was barred under OCGA §§ 16-1-6; 16-1-7; and 16-1-8. The trial court denied the plea in bar, and Soule brings this appeal following his conviction on both charges. Held:

OCGA § 16-1-7 (b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be presented in a single prosecution except [where the court orders separate trials in the interest of justice].” In the instant case, all six crimes charged in the two prosecutions obviously arose from the same conduct. The crucial issue is whether the “proper prosecuting officer” knew of all the charges against Soule prior to the prosecution of the first four charges in the state court.

Decided October 20, 1987.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Deborah Benefield, Assistant District Attorney, for appellee.

The fact that the arresting officer knew of all the charges before the disposition of the four misdemeanor offenses in the state court on March 12, 1987, is inconsequential, since the proper prosecuting officer is the prosecuting attorney, not the arresting officer. Webb v. State, 176 Ga. App. 576 (336 SE2d 838) (1985). There was no testimony that the state court solicitor actually had been apprised of the additional charges filed against Soule before the state court proceeding. However, although the four citations completed by the arresting officer indicate the offender’s name as Robert Lee Soule, both the official accusation on the DUI charge prepared by the solicitor and the sentence entered by the state court identify Pierre Lee Soule as the offender. It thus appears that the solicitor was aware of the additional charges against Soule, or else would not have known to prepare the accusation under Soule’s correct name. Under these circumstances, the decision to proceed with the prosecution of the first four misdemeanor offenses in the state court barred subsequent prosecution in the superior court of the habitual violator felony charge and the other misdemeanor charge, both of which arose from the same conduct as the first four charges. State v. McCrary, 253 Ga. 747 (325 SE2d 151) (1985); compare Powe v. State, 181 Ga. App. 429 (352 SE2d 783) (1986) .

Judgment reversed.

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


text:
    75602.
    CEASER v. THE STATE.
    (362 SE2d 156)
   Deen, Presiding Judge.

The appellant, Greg Ceaser, and a co-defendant were jointly tried and convicted of rape. On appeal, he contends that the evidence does not support the conviction because he did not have sexual intercourse with the victim.

On July 22, 1986, while at the Dew Drop Inn, Ceaser and three companions offered to give the victim a ride to her boyfriend’s house. They did not take her there as promised, but instead drove around for several hours drinking and doing drugs. At some point, they stopped on a dirt road, where two of the companions raped the victim. According to the victim, although Ceaser and his co-defendant did not have sexual intercourse with her, they held her down for the other two. Held:

Decided October 20, 1987.

Robert H. Gofer, for appellant.

Dennis C. Sanders, District Attorney, Harold W. Wallace III, Assistant District Attorney, for appellee.

Under OCGA § 16-2-20, a person who aids or abets in the commission of a crime is a party thereto and may be charged and convicted of the crime. Ceaser’s appointed counsel states that this culpability was explained to Ceaser by both the trial court and by counsel, but that Ceaser still maintains that his conviction is illegal since it was undisputed that he did not actually have sexual intercourse with the victim.

When viewed in the light most favorable to the verdict, the evidence certainly authorized a rational trier of fact to find Ceaser guilty beyond a reasonable doubt of rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As for Ceaser’s inability to accept the applicability of OCGA § 16-2-20, we will not attempt another explanation for his edification, but will merely note that his conviction is right and he is wrong.

“Courts can in no case administer a higher justice than that of the law. The law is master, and judges are only its ministers and servants. No servant may presume to be greater than his master.” Harris v. Visscher, 57 Ga. 229, 232 (1877).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    74739.
    LEONARD v. BLESER et al.
    (362 SE2d 68)
   Banke, Presiding Judge.

This is an appeal by the defendant from an order granting partial summary judgment to the plaintiffs in a personal injury action. On April 19, 1985, while driving along Chamblee-Dunwoody Road, the defendant, Leonard, struck Bleser while Bleser was jogging. Bleser and his wife brought this personal injury action against Leonard and moved for partial summary judgment on the issue of liability. In granting the motion, the trial court concluded from the evidence of record that this was one of those “rare instances” in which the issue of negligence could be determined as a matter of law. Held:

In ruling on a summary judgment motion, the trial court must give the respondent the benefit of all favorable inferences which may reasonably be drawn from the evidence. Myers v. Barnard, 180 Ga. App. 192 (348 SE2d 733) (1986). Although negligence cases are rarely subject to final adjudication by motion for summary judgment, nevertheless, in cases where the existence or non-existence of liability is plain, palpable, and indisputable, summary judgment may be awarded. Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336) (1976).

It is undisputed that Leonard ran her vehicle off the road and struck Bleser while she (Leonard) and a passenger in her vehicle were fumbling for a pack of cigarettes and consequently had their eyes diverted from the road. An eyewitness to the accident observed the car veer off the road, strike Bleser, and come to rest in a thicket. Contrary to Leonard’s assertion, there is no evidence of record which suggests that the accident was the proximate result of anything other than her negligence.

Since no issues of fact remain as to the defendant’s liability, it necessarily follows that the trial court did not err in granting the plaintiffs’ motion for partial summary judgment.

Judgment affirmed.

Carley and Benham, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, the appellants continue to argue that a material factual dispute is created by the existence of circumstantial evidence from which it could be inferred that the plaintiff was in the road when Leonard hit him. The circumstantial evidence referred to consists of testimony that there were branches protruding at least to the edge of, if not into, the roadway, combined with the defendant’s own recollection that she felt a “thump” immediately before the scraping of branches against the side of her car. The defendant further contends that the testimony of the eyewitness to the effect that the plaintiff was not on the roadway when he was hit is inherently unreliable due to “apparent bias and sympathy” which the witness demonstrated towards the plaintiff by rendering first aid to him at the scene and by subsequently calling the hospital to ask about his condition.

“In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.” Backus v. Ray Jones, Inc., 150 Ga. App. 753, 756 (258 SE2d 693) (1979). The fact that the eyewitness had demonstrated concern for the injured plaintiff’s condition quite obviously establishes no basis upon which his testimony could be disregarded.

Decided September 10, 1987

Rehearing denied October 21, 1987

E. J. Van Gerpen, Sonja K. Payne, Kenneth L. Shigley, for appellant.

F. Carlton King, Jr., for appellees.


author: Sognier, Judge.

text:
    74823.
    PROCTOR v. THE STATE.
    (362 SE2d 108)
   Sognier, Judge.

Proctor was convicted of possession of a firearm by a convicted felon, and he appeals.

1. In his first two enumerations of error appellant contends the trial court erred by failing to limit the jury’s consideration of appellant’s prior felony conviction to proof that appellant was a convicted felon, and thereafter charging the jury that a witness’ testimony can be impeached by proof of a felony conviction. He also contends the trial court erred by placing appellant’s character in issue by instructing the jury that the prior felony conviction, admitted solely to show that appellant was a convicted felon, could also be used to impeach appellant’s testimony. As to appellant’s latter contention, the court did not instruct the jury that evidence of appellant’s prior conviction could be used to impeach his testimony. Rather, the trial court gave a general charge on impeachment, applicable to all witnesses. This court cannot consider factual representations in a brief which are not supported by the record. McCutchen v. State, 177 Ga. App. 719, 722 (3) (341 SE2d 260) (1986).

In regard to appellant’s contention that the trial court erred by failing to limit the jury’s consideration of appellant’s prior felony conviction to proof that appellant was a convicted felon, without stating what the underlying felony had been, OCGA § 24-9-20 (b) provides, in pertinent part: “Evidence of prior felony convictions may be admitted in those cases where the prior felony convictions are alleged in the indictment, as provided by law. . . .” The indictment in this case alleged that appellant had been convicted previously of burglary and entering an automobile; thus, it was not error to admit evidence of prior convictions for those two offenses. OCGA § 24-9-20 (b), supra; Prather v. State, 247 Ga. 789, 790 (2) (279 SE2d 697) (1981).

Decided October 6, 1987

Rehearing denied October 21, 1987

Drew R. Dubrin, Chandelle Turner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Chris Jensen, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

As to appellant’s argument that it was error to charge that a witness may be impeached by proof of a prior felony conviction, that argument has been decided adversely to appellant. Grant v. State, 163 Ga. App. 775 (296 SE2d 110) (1982).

2. Appellant asserts error in the court’s failure to charge on circumstantial evidence when there was no direct evidence of appellant’s guilt. However, appellant made no objection and reserved no exception to the charge on the ground stated in this enumeration. “Asserted errors in charges which were not raised when the trial court asked for [exceptions], and which were not reserved, are waived.” Wright v. State, 182 Ga. App. 570 (1) (356 SE2d 531) (1987).

3. Lastly, appellant alleges error by the trial court in denying his motion for a directed verdict of acquittal, based on the equal access rule. However, we have searched the transcript and find no motion for a directed verdict of acquittal by appellant. Accordingly, there is nothing for us to review. See Hudson v. State, 175 Ga. App. 692 (1) (334 SE2d 20) (1985).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Birdsong, Chief Judge.

text:
    74923.
    SAPP et al. v. JOHNSON et al.
    (362 SE2d 82)
   Birdsong, Chief Judge.

Personal Injury and Property Damage — Liability. The facts of this case pertinent to our decision show that on the morning of January 10, 1983, in Clarke County, it had been raining and at the time of the accident involved, it was still drizzling. Johnson, while using Mrs. Adams’ pick-up truck, was taking a load of cinders to place part of the load upon his (Johnson’s) driveway and then on to Mrs. Adams’ drive. While en route to his home, Johnson pulled into a service station to purchase gasoline. After purchasing gas, Johnson pulled the truck to the edge of the service station lot to enter the adjacent highway. Johnson claimed he looked both ways and observed only the top of an approaching vehicle which was in a dip in the highway approximately 17 seconds from the station at the speed of 50 mph (facts established by Sapp). Johnson pulled into the highway, turned right, and proceeded up the highway. Johnson testified he passed through first, second and third gears and was proceeding at a rate of approximately 35 mph when he first noticed a car passing his truck on the left side. Johnson testified there was no approaching traffic in the left lane but because of a nearby intersection, there was a double solid yellow line barring passing at that point. Johnson stated further that after the car passed him on the left side, the driver made a rather sharp return to the right lane in front of Johnson and the car commenced a skid. He watched the car skid off the roadway and slide into a tree on the side of the road. Johnson stopped his truck and went to the site of the accident. He observed a person (proved to be Jonathan Sapp) in the car. Johnson saw a small amount of blood at Sapp’s ear but Sapp did not appear to be otherwise injured. At about that moment, two other cars stopped (one of which was operated by Sapp’s brother). Jonathan Sapp was taken from the car, and Johnson concluded Sapp was in good hands. Not feeling a part of .the accident except as an observer, Johnson went on his way to complete his mission of spreading cinders.

In contradiction to this version, Jonathan Sapp testified that he was driving his father’s Camaro on his father’s business. As he (Sapp) crested the hill leading to the service station, Sapp saw a heavily loaded pick-up truck enter the highway in front of him without stopping. Sapp tried to brake the Camaro but because of the wet pavement the car obviously was not going to slow sufficiently to avoid a rear-end collision. Sapp saw a car approaching on the left but had sufficient time to pass the truck on the left and pull back into the right lane. However because of the short time, when Sapp pulled back into the right lane in front of the pick-up truck, the Camaro commenced to skid and Sapp slid off the road into a tree. Sapp’s brother testified that when he arrived at the scene of the accident he saw the pick-up truck parked on the side of the road and Johnson at the side of the Camaro. He then observed Johnson starting to leave. He called out to Johnson to stay but Johnson ignored him and drove away.

Sapp does not contest the facts are sufficient to support the verdict in favor of Johnson if Johnson’s version was accepted by the jury. However, Sapp does urge error by the trial court in refusing a charge on “flight” by Johnson from the scene of the accident and in affirmatively charging on principles of driving to the left of a double solid yellow line and in the left lane within 100 yards of an intersection; in allowing evidence that Jonathan was not wearing a seat belt at the time of the accident and refusing a charge that the jury must disregard any evidentiary reference to the failure to wear a seat belt. Held:

1. There is no merit to the first enumeration of error based upon the failure to charge on “flight.” The jury was not asked to determine under appropriate instructions whether when Johnson left he had a conscious awareness that he was involved in an accident and had caused one and “fled” the scene. Sapp’s request sought to have the trial court characterize the leaving of the scene by Johnson as “flight” thus requiring the court to assume the position argued by Sapp and in disregard of the innocence claimed by Johnson.

A requested charge need be given only when it embraces a correct and complete principle of law and is pertinent and adjusted to the facts of the case. Roberson v. Hart, 148 Ga. App. 343, 345 (251 SE2d 173). Where a requested charge is argumentative in that it assumes the truth of the facts favorable to the appellant but which are disputed at the trial, it is not error to refuse to give such a charge. Intl. Images v. Smith, 171 Ga. App. 172, 175 (2) (318 SE2d 711).

2. In enumerations 2 and 3, Sapp contends the trial court erred in charging on the issue of negligence per se by passing on the left of a double solid yellow line and within 100 feet of an intersection.

In this case, the primary responsibility of the jury was to determine the issue of liability as between Johnson and Sapp as that liability might be affected by degrees of comparative negligence, if any, sudden emergency, last clear chance, and such related questions. All evidence shedding light upon those questions was relevant and admissible. The trial court gave relevant and proper charges on those subjects, giving the jury appropriate guidelines in making its decision. For instance, the jury was informed that it was negligence per se to pull into the path of an approaching auto. Likewise, evidence that the passing of the pick-up truck by the Camaro possibly occurred within 100 feet of an intersection or over a solid yellow line also introduced potential evidence of negligence that could have contributed to or caused the accident. Any evidence is relevant which basically tends to prove or to disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. Allen v. State, 137 Ga. App. 755, 756 (224 SE2d 834). It is well established that an instruction is not abstract nor inapplicable where there is some evidence, however slight, on which to predicate it. Camp v. Phillips, 42 Ga. 289. To justify a charge on a given subject, it is not necessary there should be overwhelming evidence going to that point, it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. East Side Auto Parts v. Wilson, 146 Ga. App. 753 (2) (247 SE2d 571). We find no error in the charge of the trial court on these issues.

3. In enumerations 4 and 5, Sapp complains the trial court erred in allowing evidence that at the time of the accident Jonathan Sapp was not wearing a seatbelt and thereafter in refusing to charge the jury that they should disregard such evidence.

Decided September 29, 1987

Rehearing denied October 21, 1987

Kenneth Kalivoda, David R. Montgomery, James E. Hudson, for appellants.

E. Davison Burch, Lane Fitzpatrick, Frederick A. Bading, for appellees.

While this court has not reached a positive position as to the point of wearing a seatbelt, we have observed that “much can be said for a legal proposition that the failure to use an available seatbelt, in view of its potential to reduce serious injuries, could be considered by a jury as a matter . . . affecting the amount of damages to be recovered” subject to a showing that injuries could have been reduced by the use of a seatbelt. Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155 (1) (342 SE2d 352). However, as in the Wendlandt case, supra, we again conclude we need not decide the appropriateness of the seatbelt evidence or the failure to charge thereon, for it is clear from the transcript that the evidence was offered as relating to damages. Where a verdict is returned in favor of the defendant, any issue as to damages becomes moot. See Fulton Nat. Bank of Atlanta v. Marshall, 245 Ga. 745, 747 (267 SE2d 225); Gee v. Chattahoochee Tractor Sales, 172 Ga. App. 351, 353 (323 SE2d 176). These enumerations lack merit.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    75136.
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. O’BERRY et al.
    (362 SE2d 157)
   Banke, Presiding Judge.

We granted a discretionary appeal in this workers’ compensation case to review the insurer’s contention that, while the board may inquire into and enforce compliance with its own rules governing cancellation of coverage, it does not have the authority to enforce compliance with statutory provisions such as OCGA § 33-24-44 (b), governing cancellation of insurance policies generally. In the present case, the insurer sent a timely notice to the board, in compliance with board Rule 126 (d), declaring its intention to cancel the employer’s coverage; however, it failed to send the employer a timely notice of its intention in this regard, in compliance with OCGA § 33-24-44 (b). Held:

Decided October 21, 1987.

Elton L. Wall, Leland M. Malchow, for appellant.

Vernon L. Chambless, Rudolph J. Chambless, Jack J. Helms, for appellees.

The issue raised by the appellant has previously been resolved adversely to it in such cases as Holcomb v. Southern Guarantee Ins. Co., 143 Ga. App. 788 (240 SE2d 128) (1977), and Bituminous Cas. Co. v. Renfroe, 130 Ga. App. 621 (204 SE2d 317) (1974). Accord Hanover Ins. Co. v. Sharpe, 148 Ga. App. 195, 199 (250 SE2d 815) (1978) (holding that the board “has authority to determine which insurance carrier has the coverage and therefore is responsible to pay the compensation which it directs to be paid to the claimant.”)

The appellant’s reliance on Patterson v. Curtis Pub. Co., 58 Ga. App. 211 (198 SE 102) (1938), for the proposition that “the Board does not have the power to delve into the contractual relationship . . . between the employer and the insured” is misplaced, as Patterson contains no such language or holding. “[0]ne of the goals of the [Workers’ Compensation Act] is to provide insurance coverage or its financial equivalent by self-insurers for protection in the event an employer became insolvent.” Bituminous Cas. Co. v. Renfroe, supra, 130 Ga. App. at 626. Achievement of this goal is quite obviously advanced by the board’s enforcement of statutory requirements designed to prevent cancellation of coverage without advance notice to the employer.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Pope, Judge.

text:
    74700.
    McKINNEY v. THE STATE.
    (362 SE2d 65)
   Pope, Judge.

Defendant appeals from a conviction for possession of cocaine with intent to distribute. The evidence shows on August 30, 1985 an officer with .the Macon Police Department received a tip from a confidential informant that a cocaine deal was to take place that evening in middle Georgia, possibly around Macon. The deal was to involve Jerry Rutledge, a Macon resident known to the officer, and someone traveling from Florida on the interstate highway in a white Ford automobile rented out of Cincinnati, Ohio. According to the informant, the individuals were to meet, possibly at a motel, where the one traveling from Florida would drop off a sizable amount of cocaine and would continue north carrying more cocaine to Cincinnati. The officer also received information from law enforcement officials in Cincinnati.

In response to these tips, a surveillance team was assigned to follow Rutledge. At around 8:00 p.m. Rutledge left his residence in a pick-up truck and traveled to a motel in Forsyth where he took a room. According to the officers following Rutledge, the circuitous route he took and the maneuvers he made en route to the motel were consistent with one attempting to “clean himself” to discover if he was being followed. The officers learned from the motel clerk that Rutledge had given an Ohio address and tag number when he registered for a room, even though the vehicle he was driving bore a Georgia license plate. At the motel Rutledge walked around the premises and made several trips to the parking lot to look around.

At approximately 1:00 a.m. defendant McKinney pulled into the parking lot of the motel in front of Rutledge’s room. He was driving a white Ford registered to an automobile rental agency in Cincinnati. Defendant carried a dark suitcase into Rutledge’s room, stayed approximately twenty minutes, returned to the Ford with the suitcase and left the motel traveling north on Interstate 75. Rutledge left the motel traveling south.

One group of officers followed Rutledge while another group followed defendant. The officers stopped defendant about one mile north of the motel. As they pulled him over they received word over the radio that Rutledge was pouring a powdery white substance out the window of his truck as officers attempted to stop him. Once defendant was removed from the automobile, the officers opened the trunk and found several pieces of luggage and a briefcase. The officers opened one of the suitcases and found a grey fiberboard box containing balance scales, bottles and vials. Based upon considerable training and experience, the officers believed this box to be a cocaine test kit. An officer then opened the briefcase and found several plastic bags of a white powdery substance later confirmed to be cocaine. The search was conducted without a warrant.

1. We reject defendant’s argument that the search of his automobile was made without probable cause. The confidential informant had supplied information to the officers on between five and ten previous occasions. All previous information was reliable and had resulted in seizure of contraband or arrest. Therefore, the information met the test of reliability. Defendant argues the information was insufficient to support a warrantless search because the source of the informant’s information was undisclosed. The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the “totality of the circumstances” surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). “[A] deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. at 233. Here, any deficiency in the basis of the informant’s knowledge was adequately compensated by the informant’s previous record of reliability. Moreover, the details of the tip were corroborated by the personal observation of the investigating officers. When coupled with corroboration by the personal observation of a police officer, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search. See Draper v. United States, 358 U. S. 307 (79 SC 329, 3 LE2d 327) (1959).

2. We also reject defendant’s claim that the circumstances did not support a warrantless search of the automobile. It is well settled by Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925), and its progeny that an “automobile exception” to the warrant requirement of the Fourth Amendment applies to the search of a vehicle as to which there is probable cause to believe it contains contraband.

Defendant argues that the automobile exception to the warrant requirement is not applicable under the facts of this case because there existed no exigent circumstances requiring an immediate search. Citing several earlier opinions of this court, defendant argues any exigent circumstances which might otherwise arise in a case involving the search of an automobile were dispelled by the fact he was placed under arrest and handcuffed and the keys to the automobile were taken from him before the automobile was searched. See McKinney v. State, 155 Ga. App. 930 (1) (273 SE2d 888) (1980); Buday v. State, 150 Ga. App. 686 (3) (258 SE2d 318) (1979); Hardwick v. State, 149 Ga. App. 291 (5) (254 SE2d 384) (1979); Love v. State, 144 Ga. App. 728 (242 SE2d 278) (1978). In these earlier opinions this court did not address the holding of the United States Supreme Court in Chambers v. Maroney, 399 U. S. 42 (90 SC 1975, 26 LE2d 419) (1970), which states: “For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 399 U. S. at 52, supra. Moreover, since the dates these earlier cases were decided, the United States Supreme Court has upheld a warrantless search of an automobile where there was probable cause to suspect it contained contraband even though, as in the case at hand, the driver was arrested and handcuffed and the keys were taken from him before the car was searched. United States v. Ross, 456 U. S. 798 (102 SC 2157, 72 LE2d 572) (1982); accord United States v. Johns, 469 U. S. 478 (105 SC 881, 83 LE2d 890) (1985); Michigan v. Thomas, 458 U. S. 259 (102 SC 3079, 73 LE2d 750) (1982). To the extent the opinions in McKinney, Buday, Hardwick and Love, supra, require “exigent circumstances” to justify a warrantless search for contraband where police officers have probable cause to believe there is contraband inside an automobile which has been stopped on the road, they are overruled.

3. Finally, defendant argues the trial court erred in refusing to suppress evidence discovered during the warrantless search of luggage found in the automobile. “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” United States v. Ross, 456 U. S. at 825, supra. Defendant’s reliance upon Arkansas v. Sanders, 442 U. S. 753 (99 SC 2586, 61 LE2d 235) (1979), is misplaced. In Sanders “it was the luggage . . . not the automobile in which it was being carried, that was the suspected locus of the contraband.” Id. at 767 (Burger, C. J., and Stevens, J., concurring). Sanders was not truly an “automobile exception” case simply because a container (luggage) suspected of containing contraband had been placed in a vehicle (a taxi) not otherwise believed to be containing contraband. By the same token, the case at hand is not removed from the scope of the automobile exception simply because, among several containers found in an automobile, there was particular reason to suspect one of the containers contained contraband. The circumstances surrounding this case establish probable cause for suspecting the automobile, not just a particular piece of luggage, contained contraband. As the United States Supreme Court noted in Ross, 456 U. S. at 821 n. 28, supra: “ [Prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests. Moreover, until the container itself was opened the police could never be certain that the contraband was not secreted in a yet undiscovered portion of the vehicle. . . .” Instead, the Supreme Court held that where there exists probable cause for believing an automobile contains contraband, a search of the entire vehicle and its contents, including luggage and other containers, is justified. Ross, supra at (IV). See also Medlin v. State, 168 Ga. App. 551 (2) (309 SE2d 639) (1983); State v. Key, 164 Ga. App. 411 (296 SE2d 60) (1982).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Benham, and Beasley, JJ., concur.

Decided September 8, 1987

Rehearing denied October 22, 1987.

William C. Randall, for appellant.

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


text:
    74822.
    HILDE v. UNITED STATES FIRE INSURANCE COMPANY.
    (362 SE2d 69)
   Birdsong, Chief Judge.

Dismissal for Failure to State Action — Denial of Summary Judgment. Richard Hilde is the insured of United States Fire Insurance Company. Hilde operates an aircraft to spray chemical insecticides for agricultural purposes. The policy of insurance provided that necessary certification of financial responsibility required by the Georgia Pesticide Use and Application Act had been established by Hilde through the insurance coverage provided by U. S. Fire to cover damages to agricultural crops, plants, or land caused by the use of chemicals, dusting powders, and the like except as to land being worked upon, i.e., coverage for adjoining crops, plants or land caused by drifting pesticides. An exception to the coverage was included where the aircraft was used for aerial application where the insured (Hilde) had failed to comply with federal, state or local laws or regulations which were applicable to the aerial dusting or spraying of chemicals.

It is undisputed that on or about June 8-9, 1982, Hilde applied a chemical compound, paraquat, to a crop of wheat of approximately 40 acres. Some of this paraquat drifted onto adjacent lands. It likewise is undisputed that the type of aerial spraying of paraquat employed constituted a violation of the laws of Georgia and federal regulations, as a result of which Hilde received administrative punishment.

Adjoining landowners filed complaints against Hilde seeking compensation for the damage to their crops, plants and land. Hilde referred the complaints to U. S. Fire for defense. Because Hilde had violated a state law and federal regulations in spraying paraquat, U. S. Fire concluded that the exclusion voiding coverage for aerial spraying in violation of law and/or regulation warranted the filing of a declaratory judgment action seeking a clarification of its ultimate liability or responsibility to file defenses on behalf of Hilde. U. S. Fire obtained a temporary restraining order to the prosecution of the claims pending the determination of the declaratory judgment action, filed a reservation of rights with Hilde and proceeded with the declaratory judgment action. The trial court found that the asserted exclusion ran afoul of OCGA § 33-24-30 which states as a matter of public policy that violations of law involving the operation of an aircraft will not void otherwise valid coverages. It declared the exclusion void. U. S. Fire sought an appeal to this court of the adverse ruling in its declaratory judgment action. Upon review, this court held that OCGA § 33-24-30 (a) prohibits policy provisions which are based upon the general operation of an aircraft in violation of civil air regulations. We determined the policy exclusion involved in this case did not fall within that broad statutory proscription, for the policy exclusion in this coverage constituted a specific limitation on the use of the aircraft, not its general operation. We held that as a limitation on the use of the aircraft, the exclusion was permitted as an exclusion under OCGA § 33-24-30 (b) (4). We held therefore the trial court erred in ruling the exclusion was prohibited and void. United States Fire Ins. Co. v. Hilde, 172 Ga. App. 161, 162 (322 SE2d 285). Nevertheless, we construed the two conflicting provisions as to coverage and non-coverage and applied a “common sense” interpretation. We held that one generally is not legally required to pay for injury or damage unless there is a violation of some principle of law applicable to the occurrence. This court then construed “some principle of law” as not being necessarily restricted to a written law or regulation but that it could be interpreted to include the general principles of the law of negligence. Thus we concluded that because Hilde desired insurance coverage for the unintentional damage to crops, plants or land caused by his spraying operations, a clause that precluded such coverage because of a “violation of law” (including the law of negligence) would render his desired coverage nugatory and meaningless. Inasmuch as the clauses were inconsistent and repugnant, we construed the repugnancy in the light most favorable to the insured. Thus we concluded the policy did provide coverage. U. S. Fire Ins. Co., supra at p. 164. Upon remand following the first decision of this court, U. S. Fire entered an answer to each complaint and reached a final settlement with each claimant.

Hilde then filed the present complaint seeking attorney fees and cost of the previous litigation, contending that U. S. Fire had no reasonable grounds for filing the declaratory judgment action and unnecessarily compelled Hilde to defend the declaratory judgment. U. S. Fire filed a motion to dismiss the action for failure to state an action and concurrently for summary judgment as well. Hilde likewise filed a motion for summary judgment. The trial court granted the motion to dismiss and denied Hilde’s motion for grant of summary judgment. Hilde brings this appeal seeking review of the orders of the trial court. Held:

We are not dealing in this case with an action to recover penalties and attorney fees based upon the refusal of an insurer to pay a claim within 60 days. OCGA § 33-4-6. The facts show that as soon as no further question existed as to U. S. Fire’s liability to defend the claims for damage, U. S. Fire promptly satisfied those claims with no additional liability to Hilde. Compare Key Life Ins. Co. v. Mitchell, 129 Ga. App. 192, 194 (4) (198 SE2d 919). As we view it, U. S. Fire’s reluctance to undertake the defense of Hilde’s wrongful use of paraquat was based upon a reasonable (though erroneous) reading of an exclusionary provision in the contract providing no coverage in those situations where the damage was caused by an act in violation of a written law or regulation. There was no dispute that Hilde had violated a law when he sprayed with paraquat, the direct proximate cause of the damage. Certainly it is within the contemplation of the use of the judicial system that every person, natural or artificial, has a right to have his rights under a contract adjudicated, subject to the rule that the testing of liability must not be infected with bad faith, fraudulent intent or be the result of stubborn litigiousness. See Maryland Cas. Co. v. Sammons, 63 Ga. App. 323, 327 (11 SE2d 89). It follows that in determining whether the bringing of a declaratory judgment action to test its potential liability, the trial court had to decide whether U. S. Fire acted reasonably or acted solely in bad faith, with fraudulent intent or with stubborn litigiousness. The burden was on Hilde to show that U. S. Fire acted in bad faith. Bad faith means any frivolous and unfounded purpose in law or in fact in refusing to undertake a contractually promised defense assistance. Provisions for damages in the form of court costs and attorney fees should flow only from a determination that the company had in bad faith denied its contractual obligation. The right to a recovery must be shown clearly. See Progressive Cas. Ins. Co. v. Avery, 165 Ga. App. 703, 704 (302 SE2d 605).

We as a court have held previously that if an insurer discovers a state of facts possibly constituting noncoverage, the insurance company may seek to enter into a reservation of rights with the insured or give the insured a timely unilateral notice of its reservation and non-waiver of rights, including notice of an intention to seek immediate declaratory relief. Thereafter the insured should take necessary steps to prevent the main case from going into default or prevent the insured from otherwise being prejudiced and seek immediate declaratory clarification while keeping a stay in the main case pending resolution of the declaratory judgment action. Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 219 (231 SE2d 245). It is manifest that U. S. Fire followed the suggested procedure without deviation. In short, we can find no fault with the trial court’s conclusion that U. S. Fire’s actions sought an answer to a legitimate question of law and reflects utmost good faith. This court previously has concluded as a matter of law the contested exclusionary clause was a permissible exclusion insofar as the use of the aircraft was concerned. So far as we can ascertain, the first appearance of the Hilde case introduced into the dispute for the first time the concept that a “violation of law” (where concededly a written law had been violated) included negligent action within its definition. We believe it would be straining at the proverbial gnat to conclude that prior to that conclusion by this court any reasonable person would automatically perceive a negligent act is the same as a violation of a written statute or regulation in a contract designed to limit the use of an aircraft in dangerous activities to uses tightly controlled by law.

We might be more inclined to agree readily with the position taken by Hilde if this case involved an intractable and wrongful refusal to undertake a defense or a refusal to pay any claim at all. However, this case involves only the expenses incurred in the defense of what obviously appears to be a legitimate request for a declaration of rights through the use of a declaratory judgment action. Because we have concluded the right to seek declaratory judgment was an inherent right in one of the contracting parties and was not based on bad faith, we will not punish the exercise of a right or chill its exercise by making the seeking of a declaratory judgment a potentially expensive gamble.

While the trial court denominated this case as a dismissal for failure to state a claim, it is clear the trial court considered substantial facts outside the pleadings. In such a case the motion was necessarily and as a matter of law converted into a summary judgment. Pooler v. Taylor, 173 Ga. App. 859, 860 (1) (328 SE2d 749); Jaynes v. Douglas, 147 Ga. App. 678 (250 SE2d 14). Hilde had filed his motion for summary judgment on January 23, 1987. The motion to dismiss (including an alternative motion for summary judgment) was filed by U. S. Fire on February 6, 1987, along with the response to Hilde’s motion for summary judgment. The final order was entered as to Hilde’s summary judgment as well as to the motion to dismiss on February 12, 1987. Though the 30-day notice between the filing and order was not fully satisfied, Hilde did not then and does not now raise the question of notice; thus the timeliness issue has been waived. Pooler v. Taylor, supra; Sibley v. City of Atlanta, 152 Ga. App. 723, 724 (4) (263 SE2d 698). Indeed as to notice, we observe that in its reply brief to Hilde’s motion for summary judgment, U. S. Fire makes reference to its motion for summary judgment. Considering the record in its entirety, we are satisfied the summary judgment hearing held under the authority of OCGA § 9-11-12 discloses there is no genuine issue of any material fact and thus no error in the denial of summary judgment to Hilde nor grant to U. S. Fire in the guise of a dismissal. Myers v. McLarty, 150 Ga. App. 432 (258 SE2d 56).

Decided September 23, 1987

Rehearing denied October 22, 1987.

Phillips D. Hamilton, Michael L. Wetzel, for appellant.

S. Hayward Altman, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    74741.
    STROBHERT v. THE STATE.
    (362 SE2d 99)
   Sognier, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act by possessing phenyl-propanone, and he appeals.

1. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal. The basis of his argument is that he was entrapped into the offense charged, and the conduct of the government agents was so outrageous that the indictment should have been dismissed.

The evidence disclosed that Michael Wright had been a paid informant for the Federal Drug Enforcement Agency in Atlanta and had given information to DEA agents Bill Marsh and Stephen Peterson which resulted in several convictions of persons engaged in illegal drug activities. On December 6, 1985 Wright initiated a meeting between himself, Marsh, Peterson, Robert Smith and William Threatt, appellant’s co-defendant, to discuss the possibility of setting up a drug lab to manufacture amphetamines. Nothing was resolved at the meeting, and shortly thereafter Marsh and Peterson learned that Wright was probably “dirty,” i.e., he was acting as an informant while continuing to deal in drugs himself. Although Wright continued to contact the agents regularly, they had decided not to work with Wright; each time he would contact the agents, they would give some excuse as to why they could not meet with him. However, about 4:30 p.m., December 31, 1985, Wright came to the DEA office and told Marsh and Peterson that some individuals had set up a drug lab in Wright’s apartment and were in the process of manufacturing drugs. The three men then went to the Alpharetta Police Department, which had jurisdiction over the case, and after a meeting between the agents, Wright, and several police officers, Wright consented to a search of his apartment. Wright went to his apartment and called back to the police to verify that the lab was still in operation. The agents and several police officers then went to Wright’s apartment and after entering, Wright called Threatt, who came downstairs and was arrested. The agents then ran upstairs and went into a bedroom where they arrested appellant. As the agents entered the bedroom appellant, who was sitting in a chair facing the door, started to reach for something on the floor and was told to freeze. A loaded .38 calibre revolver was seized from the floor beside appellant’s chair, and the agents discovered a drug lab in operation in an adjoining bathroom; the lab was manufacturing phenyl-propanone.

Threatt, who pled guilty to the offense charged, testified as a defense witness that Wright had forced Threatt and appellant at gunpoint to come to Wright’s apartment and set up the lab with chemicals and equipment Wright brought to the apartment. Threatt also testified that Wright told him and appellant that if they attempted to leave the apartment, either Wright or his friends outside would kill Threatt and appellant. Wright was arrested at the scene and a short time after being jailed, committed suicide by hanging himself in his cell, and thus, was not available to testify.

Appellant argues that this evidence shows clearly that he was entrapped by the agents, and their conduct was so outrageous it constituted a violation of his due process rights warranting dismissal of the indictment. He also argues that the State failed to rebut his prima facie showing of entrapment as required by OCGA § 16-3-25, and thus, the court erred by denying his motion for a directed verdict of acquittal. These arguments are without merit.

OCGA § 16-3-25 provides, in pertinent part: “Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” In order to raise the defense of entrapment a defendant must admit the commission of the crime, but present evidence that he did so because of the unlawful solicitation or inducement of a law enforcement officer. Gregoroff v. State, 248 Ga. 667, 669-670 (285 SE2d 537) (1982); Lawrence v. State, 174 Ga. App. 788, 791 (1) (331 SE2d 600) (1985).

Aside from the fact that appellant did not admit he had committed the offense and was not entitled to the defense of entrapment, there is no evidence that Marsh or Peterson solicited or induced appellant to commit the offense charged. On the contrary, they were not even aware that a drug lab existed at Wright’s apartment until he came to the DEA office on December 31 and informed the agents that “some individuals” were operating a drug lab in Wright’s apartment. Further, there is no evidence that the agents even knew appellant prior to the time he was arrested. Thus, they could not have induced appellant to commit the crime. Although Wright might have been considered a government agent prior to the offense here, since he had been paid as an informer on previous occasions when his information resulted in convictions, at the time of the offense charged the agents had stopped using Wright as an informer because they believed he was “dirty.” Thus, there was no evidence of entrapment.

In regard to Wright’s alleged “outrageous conduct” in forcing Threatt and appellant to set up and operate the drug lab, Wright was acting as a private citizen and not as an agent of Marsh and Peterson, since they were unaware of Wright’s actions. Thus, even accepting Threatt’s testimony at face value, such testimony would raise a defense of coercion (OCGA § 16-3-26), and would not constitute outrageous conduct by a government agent.

For the foregoing reasons we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, it was not error to deny appellant’s motion for a directed verdict of acquittal. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984); Branch v. State, 182 Ga. App. 818, 819 (1) (357 SE2d 136) (1987).

2. Appellant alleges error by the trial court in admitting evidence of other criminal acts by appellant. In this regard Stephen Starling, a DEA agent, testified, over objection, that in early February 1982, the DEA was running the Georgia Laboratory Supply, an undercover operation to advertise and sell chemicals and chemical glassware to people in the business of illegally manufacturing controlled substances. A person named Charles Calloway bought some chemicals and other equipment used to manufacture methamphetamines. He was followed by DEA agents to a motel, where Calloway met another individual and transferred the chemicals and equipment to a car that drove to appellant’s home. Three days later Calloway bought a five-gallon container of a chemical used to make amphetamines. A beeper had been placed in the container and this container was also traced to appellant’s home. A search warrant was then obtained and executed, resulting in the seizure of books containing formulas for making controlled substances, as well as various chemicals and chemical glassware used in making amphetamines and phenyl-propanone. Some “small-scale chemistry” was taking place in appellant’s bedroom at the time of the search. As a result of the search and seizure of the books and other items, appellant was indicted for, and pled guilty to, conspiracy to manufacture and attempt to manufacture controlled substances in violation of the United States Code. Appellant contends this evidence was not admissible as evidence of a similar offense.

Before evidence of independent crimes is admissible, it must be shown that the defendant was the perpetrator of the independent crime, and there must be sufficient similarity or connection between the independent crime and the offense charged so proof of the former tends to prove the latter. Davis v. State, 249 Ga. 309, 311 (1) (290 SE2d 273) (1982). Once the identity of the perpetrator is shown, testimony concerning the independent crime is admissible for the purpose of showing identity, motive, plan, scheme, bent of mind and course of conduct. Id. There is no question in the instant case as to a showing that appellant was the perpetrator of the independent crime, and the prior offense was sufficiently similar to meet the second requirement for admissibility. In the prior offense appellant had brought chemicals and chemical glassware into the bedroom of his home and set up a lab for the manufacture of controlled substances; the lab was in operation at the time of the search, as was the lab in the instant case. Thus, almost identical circumstances were present in both cases, and evidence of the independent crime would certainly show a bent of mind on the part of appellant to manufacture controlled substances. Therefore, the conditions of identity and sufficient similarity were met, and the evidence was admitted properly. Davis, supra at 312.

Decided October 2, 1987

Rehearing denied October 22, 1987

Ralph J. Hunstein, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Russell J. Parker, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    74994.
    MYERS v. THE STATE.
    (362 SE2d 92)
   Birdsong, Chief Judge.

Allen Duane Myers was convicted of homicide with a motor vehicle and driving under the influence of alcohol. He was sentenced to eight years with five to serve. He brings this appeal enumerating eleven asserted errors. Held:

1. The first four enumerations deal with the sufficiency of the evidence to support the convictions and to withstand a motion of a directed verdict of acquittal. Viewing the evidence in the light most favorable to the verdicts of guilty found by the jury, we conclude the jury was authorized to believe the following sequence of events. Myers and his co-workers participated in a fish fry at their place of work on the day of the incident leading to this homicide. It is uncontested that Myers drank some undetermined quantity of beer. A blood alcohol test performed approximately two hours after the collision revealed a blood alcohol level of .20. Myers’ brother, who was a passenger in Myers’ truck, testified Allen Myers was the operator of the vehicle at the time of the collision. Myers himself made an admission at the scene that he was the operator, that he must have missed a stop sign and that he had been drinking. There is no evidence that speed was a contributing cause to the collision.

The collision as reconstructed by expert testimony showed that the decedent’s vehicle (in which he was a passenger) was proceeding in an easterly direction with the right-of-way. Myers was proceeding north approaching the intersection crossing the road upon which the decedent’s vehicle was driving east. Myers’ path had a stop sign regulating his entry into the intersection. Myers and his brother both testified that he stopped at the stop sign and was slowly accelerating into the intersection when he was struck broadside by the decedent’s vehicle. An expert offered by the defense corroborated this version of the incident. Myers stated also he never saw any light of an oncoming vehicle. Contradictory evidence offered by the State established that even after the accident and both cars had stopped, the lights were still burning on the vehicle occupied by the decedent. Evidence offered by traffic and collision experts for the State gave credible proof that, based upon the distance traveled by Myers’ truck after the collision and the position of the two colliding vehicles in their final resting places, the physical facts were consistent with one vehicle not stopping for the stop sign, driving into the intersection and being struck in the side by the easterly proceeding vehicle. The force of the collision threw the decedent out the right hand door (passenger door where he was seated) and caused him massive head injuries, the proximate cause of death. The arresting officer at a preliminary accident inquiry while seeking to ascertain if either Myers or his brother were injured but without asking inculpatory questions observed Myers and his brother, apparently acting under the influence of intoxicants, overheard voluntary statements that Myers assumed he had missed the stop sign and admitted he had been drinking. There were skid marks from the eastbound car but none apparently attributable to the northbound car prior to the collision.

It is clear that the facts were in diametric contradiction, and the issue necessarily had to be reconciled by the jury. We will not speculate as to what evidence the jury chose to believe or disbelieve. On appeal this court is bound to construe the evidence with every inference being in favor of upholding the jury’s verdict. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). Where the testimony of the State and that of the defendant is in conflict, the jury is the final arbiter. Sims v. State, 137 Ga. App. 264 (223 SE2d 468). As noted, on appeal the evidence must be construed to uphold the verdict, the conflicts must be resolved against the appellant, and if there is evidence of the requisite sufficiency to support the verdict, it must be affirmed as against a motion for a directed verdict of acquittal or an allegation of error based upon the general grounds. See Johnson v. State, 231 Ga. 138 (1) (200 SE2d 734); Merino v. State, 230 Ga. 604 (198 SE2d 311); Talley v. State, 137 Ga. App. 548, 549 (224 SE2d 455). A fair analysis of the evidence in support of the convictions of the two offenses charged satisfies this court that there was a sufficient quantum of credible evidence to satisfy any rational jury of reasonable persons of the guilt of the accused beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). There is no merit in the first four enumerations of error.

2. In his enumeration of error 5, Myers complains the trial court erred in allowing evidence of the blood alcohol test results over his motion to suppress those results. This enumeration is based upon two predicates. He first urges that the trial court should have held an evidentiary hearing at the time of the preliminary motion. The trial court denied the motion at the time it was made subject to a renewal at the time the evidence relating to the offer by the State of the conduct and results of the blood alcohol test. There is no requirement that a preliminary hearing be conducted on such a motion so long as there is an evidentiary predicate to support the ultimate ruling by the trial court. Clearly such evidence was presented in this case. Thus this ground for the claimed error is meritless. Secondly Myers complained there was no evidence that the blood was réfrigerated or that a preservative was added to the blood sample so as to protect it from contamination. However, the evidence before the court demonstrated that a parafin seal was placed into the mouth of the vial containing the blood and that seal had a preservative contained within it. Moreover, the chemist testified that the sample was not contaminated nor degenerated at the time he examined it. Even if we found some support for the contamination arguments advanced by Myers, such arguments go only to the weight to be afforded the evidence and not to its admissibility. Thus there is no merit to the second predicate of this enumeration.

3. Myers argues in his enumeration of error 6 that the trial court erred in admitting a copy of the death certificate because the certificate had not been filed with the registrar within 72 hours as required by OCGA § 31-10-15 (a). This same type of enumeration was considered in Sherrer v. Lynn, 172 Ga. App. 745 (324 SE2d 500). In that case the certificate was held to be admitted properly and to be prima facie evidence of the facts stated thereon but subject to rebuttal. The same conclusion must be reached in regard to the argument that the certificate was not transmitted to the custodian of vital records within 10 days. This enumeration lacks substantial merit.

4. In enumeration of error 7, Myers contends that the DUI statute is unconstitutional because it is vague and non-specific. Contrary to Myers’ contention, the language of this statute has already passed constitutional muster. Cargile v. State, 244 Ga. 871, 873 (1) (262 SE2d 87). There is no issue for this court to consider. 5. In enumeration of error 8, Myers contends the trial court erred in its charge by telling the jury a witness who testifies that a person is under the influence of an intoxicant testifies to a fact rather than to an opinion. See Garrett v. State, 146 Ga. App. 610, 611 (247 SE2d 136) criticized in New v. State, 171 Ga. App. 392 (5) (319 SE2d 542) and overruled in Luke v. State, 177 Ga. App. 518 (340 SE2d 30).

The appellant misconstrues the intent of the charge of the trial court. The court in its charge stated: “A witness who satisfactorily shows that he had an opportunity to observe ... a person’s condition may testify, as a statement of fact actually observed by him, whether such person was under the influence of intoxicating liquor. Nevertheless, you, the Jury, may consider all the actual facts which the witness testified that he observed concerning the condition of the defendant and reach a conclusion based exclusively on those facts wholly independent from the conclusion testified to by any witness.”

In the New case, the objectionable feature of the charge was that the trial court told the- jury that what obviously was an opinion should be treated as fact. Thus the jury was to accept that a person was drunk as a fact when in actuality the witness was only giving his conclusion based upon certain external criteria. In this case considering the entire charge on this subject, the reasonable understanding to be drawn by the jury was that if they found the witness had observed sufficient external criteria upon which to base a conclusion that the appellant was drunk, he (the witness) could express his conclusory opinion and state this as a composite fact based upon his revealed observations. But the jury also was sufficiently informed that this was nothing more than a composite fact based upon those observations and the jury was not obligated to draw that same conclusion and thus could reject the conclusory fact; Thus, what constituted the “fact” were the observations of the witness. We conceive this to be no different than testimony that a person is “insane” based upon the observations that lead to that conclusion. Though we do not find this portion of the charge to be a model of clarity, we find the charge in this case readily distinguishable from that condemned in the New case, supra. We find the charge to be sufficiently clear so as not to mislead the jury and in practical effect gave the jury the option to accept the composite fact of observed intoxication if it agreed or to reject the composite fact if it differed with the conclusion drawn by the witness. Thus contrary to the assertion made by Myers, we do not find the charge to be a misstatement of applicable law. This enumeration is without merit.

6. In enumeration of error 9, Myers argues that allowing the attending technician who withdrew Myers’ blood to testify violated notice requirements. The facts show that the State notified Myers’ attorney before any evidence was offered that the technician would be called. Before the witness testified, Myers was given the opportunity to interview the witness and availed himself of that opportunity. The rights accorded Myers by the trial court in relation to this witness satisfied the rights of notice, confrontation, and eliminated any element of surprise. White v. State, 253 Ga. 106, 109 (3) (317 SE2d 196). This enumeration lacks merit.

Decided October 1, 1987

Rehearing denied October 22, 1987

Joseph M. Todd, for appellant.

Robert E. Keller, District Attorney, Deborah C. Benefield, Assis tant District Attorney, for appellee.

7. In enumeration 10, Myers urges error in allowing the report of the state chemist showing the .20 blood alcohol level on the grounds the report was “self serving [and] not the original document.” However the witness testified the document was an official document, prepared by him in the course of business and contained his signature. Also the witness testified fully to the test and its results.

Counsel for Myers did not show upon what basis he concluded the document was “self serving” or was not an “original” document. This is tantamount to an objection that the evidence is irrelevant and immaterial without stating what renders the evidence irrelevant or immaterial. See Newman v. State, 239 Ga. 329, 330 (236 SE2d 673); Dillard v. State, 128 Ga. App. 747 (197 SE2d 924). See also Bolden v. State, 150 Ga. App. 298 (3) (257 SE2d 367) to the effect that an inadequate objection raises no ground for reversal. Moreover, assuming arguendo the document was not the best evidence or simply supported oral testimony, it was merely cumulative and thus caused no harm or prejudice. Robinson v. State, 229 Ga. 14 (189 SE2d 53).

8. In his last enumeration of error, Myers complains he was entitled to a mistrial because the State’s expert testified that in his opinion the accident was largely caused by Myers’ running a stop sign. Myers then and now urges this placed an unconvicted act into issue and thus raised his character improperly. First, we observed that Myers was charged initially with the offense of running a stop sign. That offense was removed from the jury by a grant of a directed verdict of acquittal. Thus the jury was not acquainted with uncharged misconduct by the testimony of the expert. Secondly, the officer was not exposing evidence of some criminal act unrelated to and occurring before the present charged misconduct. We are more impressed with the ingenuity of this argument than with its merit, of which we find none.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    75352.
    MIXON v. THE STATE.
    (362 SE2d 111)
   Deen, Presiding Judge.

A1 Frisco Mixon appeals from his conviction of trafficking in cocaine, contending that the trial court erred in denying his motion to suppress. Held:

The evidence showed that Noe, an agent of the Clayton County Narcotics Unit, observed appellant at Hartsfield International Airport exiting a Delta Airlines flight which originated in Miami, Florida. His attention was drawn to Mixon because he noticed a large, circular softball-shaped bulge in his lower abdominal area. The agent noticed that as appellant walked down the concourse he repeatedly looked at the bulge and eventually pulled out his shirt-tail to hide it. Agent Noe and a GBI agent decided to interview him. They were casually dressed, approached him in the concourse, identified themselves as police officers, and asked if they could talk to him. Mixon responded, “Yes,” and Noe asked to see his airline ticket. Appellant produced it, and Noe observed that it was a one-way ticket and did not have any baggage claim stubs attached. Noe returned the ticket to appellant and asked if he had any identification. Appellant produced identification in his true name. The agent inquired as to the nature of his travel and Mixon stated that he had been visiting friends in Florida for four days and then asked the agent, “What’s this all about?” Noe told appellant that they were narcotics officers looking for drugs being carried through the airport, and asked if he would cooperate and consent to a search of his person and tote bag. After he consented, Mixon agreed to the suggestion that the search take place in a private room. Once inside the room, the agent read appellant his consent to search rights, which stated that he had the right to allow or refuse a search of his person and the personal property that he had with him, and the right to consult with an attorney before deciding whether to allow the searches; and that if he consented, any illegal object found could be used in court proceedings against him. Mixon consented to the search. Noe patted him down and felt the suspicious bulge which from prior experience he believed to be a pliable powdery substance. Appellant voluntarily opened his trousers when asked about the substance, and the agent reached in Mixon’s athletic supporter and seized it. He was immediately arrested.

The agent’s only uncertainty in his testimony went to the return of appellant’s identification. He testified that he could not recall returning it to Mixon in the concourse, but that he always returned a person’s identification before requesting a consent to search and was positive that he returned appellant’s identification before Mixon was informed of his consent to search rights. Appellant denied that his ticket and identification were returned to him by the agent.

Appellant contends that there was no probable cause to arrest and search him without a warrant. A consent search is one undertaken with knowledge and without objection by the defendant. Once consent is legally obtained, it continues until it is either revoked or withdrawn. Bell v. State, 162 Ga. App. 79, 81 (290 SE2d 187) (1982). Unless it is clearly erroneous, the trial court’s ruling on disputed facts and credibility on a motion to suppress must be accepted by the appellate court. Williams v. State, 251 Ga. 749, 792 (312 SE2d 40) (1983); Voight v. State, 169 Ga. App. 653 (314 SE2d 487) (1984). The evidence showed that the agents were justified in making a “Terry” stop when appellant was observed after deplaning from a known drug source city carrying a small tote bag and attempting to conceal a suspicious abdominal bulge. Once the stop was made, an examination of his ticket which indicated it was one-way, paid in cash, and had no baggage claim checks attached, supported an articulable suspicion that he was a drug courier.

As pointed out in Allen v. State, 172 Ga. App. 663 (324 SE2d 521) (1984), the seizure of a person occurs only when all the circumstances indicate that a reasonable person would believe that he was not free to leave. Brief seizures, however, require a reasonable suspicion of criminal activity while full-scale arrests must be supported by probable cause. The evidence here does not support an allegation that appellant was seized while he was in the airport concourse. See Reid v. State, 247 Ga. 445, 449 (276 SE2d 617) (1981); Voight v. State, supra. The encounter was non-coercive, and there was evidence to enable the trier of fact to find that appellant’s ticket and identification were returned to him before he was asked to consent to search. The evidence was also sufficient for the court to find that appellant freely consented to the search after the initial request was made, and voluntarily accompanied the agents to the room where the search was conducted. Once in the room, he intelligently and voluntarily consented to a search of his person and possession after being informed that he had the right to refuse the search and consult with an attorney. The trial court was therefore authorized to find that a valid consent had been given. McShan v. State, 150 Ga. App. 232 (257 SE2d 202) (1979).

Appellant’s reliance upon Florida v. Royer, 460 U. S. 491 (103 SC 1319, 75 LE2d 229) (1983), is not warranted. In that case the officers retained the suspect’s ticket and driver’s license when they asked him to accompany them to a police room in the airport. The officers also retrieved his checked luggage without his consent. The suspect produced a key and unlocked one suitcase in which drugs were found and did not object when an officer pried open a second in which marijuana was found. The court held that the detective’s actions exceeded the bounds of an investigative stop and tainted the consent to search. This problem did not exist in the instant case.

Decided October 8, 1987

Rehearing denied October 22, 1987.

James W. Studdard, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    74978.
    In re HENSLEY.
    (362 SE2d 432)
   Pope, Judge.

The Columbia County grand jury for the September 1986 term of the superior court appointed a citizen committee to conduct a civil investigation of the Columbia County Sheriffs Office. The committee consisted of most, but not all, of the members of the grand jury. Over a period of seven days the committee heard sworn testimony from twenty-nine witnesses, including appellant, Sheriff Otis Hensley. On February 11, 1987 the committee issued an extensive report charging numerous instances of improper or illegal action by Sheriff Hensley and other officials within the Sheriff’s department. On the same day, the grand jury met and adopted the report of the committee as its own and directed that a copy of the report be published in the official county organ. The report recommended, inter alia, that the district attorney take legal action to remove Sheriff Hensley from office.

On February 28, 1987 appellant Hensley filed a petition in the lower court to expunge the grand jury report from the record and to restrain the grand jury from further publishing said report. Appellant also filed a motion to disqualify members of the grand jury from any further participation in any investigation of appellant or the sheriff’s department. Subsequently, the grand jury, before the expiration of its term, issued special presentments charging appellant and one of his deputies with two counts of theft by taking and with perjury during sworn testimony before the citizen committee. Sheriff Hensley appeals the lower court’s denial of his petition and his motion for disqualification of grand jurors.

1. “While it is the duty of the grand jury to investigate and present public officials for malpractice in the performance of their official duties [cits.], a grand jury has no right in the absence of specific statutory authority to file a report charging or casting reflections of misconduct in office upon a public officer or impugning his character, except by presentment or true bill of indictment charging such individual with a specific offense against the State; and it is the fundamental right of one who is the subject of such extrajudicial report to have it expunged from the official records. [Cits.] This is not to infer, however, that the grand jury in exercising the investigative powers of a civil nature, specifically delegated to it by statute . . . , may not make fair reports of its findings, even though such reports of necessity incidentally reflect negligence or incompetence, upon the officials involved.” Kelley v. Tanksley, 105 Ga. App. 65, 66 (123 SE2d 462) (1961).

Responding for the grand jury, the district attorney argues the report in question falls within the exception set forth in Kelley. The grand jury in this instance had the statutory authority to appoint a committee to inspect the records of the sheriff and “to hear evidence in regard to fraud, the nonperformance of official duty, and the improper disbursement of county funds.” OCGA § 15-12-76 (a) and (b). Upon the report of the committee the grand jury could have issued a presentment of malpractice in office. See OCGA § 45-11-4; Beauchamp v. Smith, 250 Ga. 16 (295 SE2d 97) (1982). However, the grand jury’s adoption of the report of the citizen committee was not set forth as a presentment. In fact, it was filed with the court and served upon appellant under the title “Grand Jury Investigation Report.” As in Kelley, the report souglht to be expunged from the record “was not a special presentment or true bill of indictment charging any individual with the violation of the penal laws of this State.” Kelley v. Tanksley, supra at 66.

“[Reports specifically authorized by statute] are allowed, but if they contain ‘statements unnecessary to the purpose sought to be accomplished by the report,’ they are overbroad and exceed the powers of the grand jury. [Quoting Kelley v. Tanksley, supra.] Under Kelley . . . the only proper way to accuse an identifiable person with misconduct would be to return a presentment or an indictment. On the other hand, reports of a general nature concerning those areas where the grand jury has a statutory duty to investigate are acceptable. The dividing line between acceptable reports and those reports that go too far in criticizing individuals for unindictable activity is a tenuous one. Because of the practical difficulty involved in trying to distinguish in each case between permissible and impermissible reports, and because of the fundamental individual rights implicated by a report that criticizes identifiable individuals but does not indict, this court is of the opinion that statutory reform of [OCGA § 15-12-71 et seq.] is required before reports similar to the one in this case could be permitted without threat of expungement.” Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777, 778 (273 SE2d 19) (1980). In a special concurrence to the Thompson opinion, Justice Hill stated: “In my view, a grand jury could return [a report critical of a public official] and preclude it from being expunged, in the absence of legislation, by adopting rules affording the official notice of the nature of the investigation, and the right to testify before the grand jury, call witnesses and append an answer to the grand jury’s report.” Id. at 780. The legislature has not seen fit to expand the statutory authority of the grand jury to permit the publication of general presentments criticizing or accusing individuals of unindictable activities. Neither did the grand jury in this case permit the appellant to call witnesses before the grand jury and append his own response to the grand jury’s report.

The fact that criminal presentments were subsequently handed down against appellant and one of his deputies does not excuse the publishing of those portions of the general civil presentment which exceed the grand jury’s statutory authority. See In re Presentments of Lowndes County Grand Jury, 166 Ga. App. 258 (304 SE2d 423) (1983). The rights of numerous other individuals identified in the report are also affected. Therefore, we reverse the trial court’s denial of appellant’s petition to expunge the offensive portions of the report from the official record.

In Kelley, the court ordered only the offensive paragraphs of the report be expunged. In the case sub judice, all paragraphs within the sections entitled “Findings of Fact” and “Recommendations” must be expunged. The introductory paragraphs which describe the committee, the scope of the investigation and identity of the witnesses who testified before the committee may remain in the record, along with the final paragraph and signatures of the committee members at the end of the report. While this effectively removes the substance of the report, the record will still reflect that the committee conducted an investigation and reported to the grand jury which ultimately returned criminal presentments.

2. In his second enumeration of error appellant argues the court erred in denying his motion to disqualify the grand jury from any further investigation of him. Appellant argues that because the members of the grand jury were also members of the committee which investigated him and issued the report in question, they could not possibly be fair and unbiased in making a decision whether he should be indicted. However, the law “ ‘does not require that grand jurors should be impartial and unbiased. In this respect, their position is entirely different from that of petit jurors. . . .’ United States v. Knowles, 147 FSupp. 19, 21 [(D.D.C. 1957)].” Creamer v. State, 150 Ga. App. 458, 460-461 (258 SE2d 212) (1979). It is the statutory duty of grand jurors to examine or make presentments of offenses which come to their knowledge either before or after they have been sworn. OCGA § 15-12-74. Family relationship is the only statutory ground for disqualification of an otherwise qualified grand juror. OCGA § 15-12-70. Therefore, the court did not err in denying appellant’s motion to disqualify the grand jury.

Decided October 22, 1987.

Charles L. Wilkinson III, for appellant.

Sam B. Sibley, Jr., District Attorney, for appellee.

Appellant also argues it is improper for the grand jury which appointed the citizen committee to receive or take action on any report issued by that committee because the statute authorizing the appointment of such a committee requires the report to be made to the grand jury at the succeeding term of the superior court. However, OCGA § 15-12-76 (a) simply permits a citizen committee to make its report to the succeeding term and does not prohibit such a committee from returning a report during the term of the court at which it was appointed. See Chatham County v. Gaundry, 120 Ga. 121 (4) (47 SE 634) (1904).

3. Finally, appellant argues the lower court erred in not allowing him to call as a witness the foreman of the grand jury to establish that grand jurors comprised the citizen committee which issued the report in question. Since this fact provided no ground for disqualifying the grand jury, the testimony of the witness was irrelevant to the issues presented and the court did not err in refusing to allow the witness to be called.

Judgment affirmed in part; reversed in part and case remanded.

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


text:
    75332.
    SMITH et al. v. DeKALB COUNTY.
    (362 SE2d 435)
   Deen, Presiding Judge.

This appeal flows from the denial of a motion for a new trial after a jury verdict was rendered in appellants’ favor and made the judgment of the court. DeKalb County originally filed a complaint condemning appellants’ real property and an initial order and judgment were entered on the same day. The funds were later paid into court. Appellants appealed to the superior court and demanded a jury trial.

1. Appellants assert as error the court’s charge to the jury that they could deduct consequential benefits from consequential damages when there was no evidence presented as to consequential benefits. The charge stated that “just and adequate compensation for the property condemned is the value of the property taken or used, or the damage done, and also the consequential damages, if any, to the property not taken or used, deducting from such consequential damages, if any, the consequential benefits to that property.”

It is general law that the condemning authority must pay a coridemnee just and adequate compensation for the land taken. In addition, when there is a partial taking, as there was in this case, the condemnee is entitled to any consequential damages to the remainder. OCGA § 22-2-62. However, any consequential damages are offset by any consequential benefits to the remainder. OCGA § 22-2-63; Department of Transp. v. Knight, 143 Ga. App. 748, 751 (240 SE2d 90).

In the instant appeal, the county’s expert appraiser, Wallace E. White, testified: “In this case the road was widened and the subject property benefitted by that widening in terms of having a better and safer access to their property.” White “did not measure [the value of] any special benefits because in [his] opinion there were no [consequential] damages to the remaining property.” The condemnee’s expert was of the opinion that there were consequential damages to the remainder in the amount of $22,500, but found no consequential benefits. Because there was some evidence of both, consequential damages and benefits, the trial court gave the charge which is now the basis of this objection. It is general law that where a party makes a claim for damages it is incumbent upon him to present evidence showing the amount in a manner in which a jury can calculate the award with a reasonable degree of certainty, for an award of damages cannot be based on guesswork. Lingo v. Kirby, 142 Ga. App. 278 (236 SE2d 26).

“However, where, as in the case sub judice, there was no evidence from which the jury could have formed a reasonable estimate of the amount or value of such benefits, it is error to charge the jury that they could reduce the amount of consequential damages to the remainder by the amount of special consequential benefits.” Continental Corp. v. Dept. of Transp., 172 Ga. App. 766, 768 (324 SE2d 588); accord Theo v. Dept. of Transp., 160 Ga. App. 518, 519 (287 SE2d 333); Andrus v. State Hwy. Dept., 93 Ga. App. 827, 829 (93 SE2d 174); see also City of Alma v. Morris, 180 Ga. App. 420 (1) (349 SE2d 277). The trial court therefore erred in denying appellants’ motion for a new trial.

2. As Continental Corp. v. Dept. of Transp., supra, does not refer to speculative damages and appellants present no argument or other citation to authority as to how the court’s charge on speculative damages was erroneous, this enumeration is deemed to be abandoned pursuant to Rule 15 of the Court of Appeals. Lillard v. State, 173 Ga. App. 293 (325 SE2d 903) (1985).

3. As this case must be reversed and remanded for retrial, we find that appellants’ remaining enumeration of error pertaining to the cross-examination of an expert witness will not be considered, as any alleged error is unlikely to recur upon retrial of the case. We would, however, direct the lower court’s attention to State Hwy. Dept. v. Willis, 106 Ga. App. 821, 824 (128 SE2d 351) (1962), which holds that an expert witness “cannot be cross-examined upon a treatise which has not been proved to be a standard treatise on the subject.”

Decided October 22, 1987.

William V. Hall, Jr., Neil L. Heimanson, for appellants.

Harmon W. Caldwell, Jr., Harry W. MacDougald, for appellee.

Judgment reversed.

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


text:
    75585.
    McQUEEN v. THE STATE.
    (362 SE2d 436)
   Deen, Presiding Judge.

Willie Charles McQueen was indicted for making terroristic threats, hindering or obstructing a police officer and carrying a concealed weapon. A jury found him guilty on Counts 1 and 3. On appeal he contends that the trial court erred in denying his motion to suppress and in failing to give his requested jury charge on simple assault.

The evidence showed that McQueen was pushing a bicycle along a sidewalk near Valdosta State College at approximately 12:45 a.m. A college police officer testified that his suspicions were aroused because the defendant was not riding the bicycle, he did not appear to be in the student age group, and was not dressed like a student. The officer decided to investigate because of the high incidence of bicycle thefts on campus. The officer pulled his vehicle over to the side of the road and got out of it to talk to the defendant. McQueen asked, “What’s your g_problem.” The officer stated that he did not have a problem and inquired if McQueen was a student. McQueen responded, “Do I look like a g_student?” When the officer asked for some identification, McQueen appeared to be upset and replied that someone in a van had tried to run over him. The officer asked for identification again, and McQueen replied, “F_you,” and began to leave the area. The officer claimed that McQueen shoved him inside his car, began striking him in the face, chest and arms, and threatened to kill him. The officer was able to call backup officers who quickly responded, helped get the defendant out of the officer’s car and were able to restrain the defendant, who appeared to be reaching into his jacket pocket. During a pat-down search, the officers removed a ninja bear-type claw from his jacket pocket. One of the officers testified that he heard McQueen threaten the officer’s life.

The defendant’s testimony was somewhat similar to that of the officer except that he claimed the officer grabbed his collar when he attempted to leave after being asked for his identification. The defendant claimed that he reached back and squeezed his fist and the officer laid back in his car. The other officers arrived and grabbed him. One of them hit him three times. He denied striking the officer and claimed that he just grabbed him back. He denied making threats in the presence of the officers and claimed that after he arrived at the jail he said to the officer who stopped him, “You know you’re dead, don’t you” because “I knew the Lord was going to look after him for what he did to me out there for no reason.” He further claims that the officer replied, “You’ve got a charge now,” and “get the electric cage ready.”

1. The trial court did not err in denying the defendant’s motion to suppress because the facts as set forth above show that the officer had an articulable suspicion under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), which justified stopping McQueen. Appellant’s acts in shoving the officer and attempting to flee, when combined with the other circumstances in this case, provided probable cause for McQueen’s apprehension, the search of his jacket pocket, and the seizure of the ninja claw. State v. Reid, 149 Ga. App. 685 (255 SE2d 71) (1979). There is no merit in this enumeration of error.

2. It is error for the trial court to fail to charge on lesser included crimes if the accused makes such a request to charge and if the evidence warrants such a requested charge. State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976). The sole issue for decision therefore is whether the crime of simple assault is a lesser included offense of making terroristic threats.

OCGA § 16-11-37 defines a terroristic threat as a threat “to commit any crime of violence or to burn or damage property with the purpose of terrorizing another . . .” No person can be convicted on the uncorroborated testimony of the person to whom the threat is communicated. Under OCGA § 16-5-20 a person commits simple assault when he either: “(1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” “[T]he crime of terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.” Boone v. State, 155 Ga. App. 937, 939 (274 SE2d 49) (1980). “The communication of a terroristic threat is not punishable under the simple assault statute and one may be guilty of simple assault without violating the terroristic threats statute. Lanthrip v. State, 235 Ga. 10, 12 (218 SE2d 771) (1975). OCGA § 16-1-6 provides that an accused may be convicted of a lesser included offense when: “(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged, or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.” “ ‘To warrant conviction of a lesser offense, ... it is essential that the allegations describing the greater offense contain all essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser.’ ” Williams v. State, 144 Ga. App. 130, 134 (240 SE2d 890) (1977). Simple assault requires proof of different elements not included in terroristic threats; namely, attempting to commit a violent injury to another or causing apprehension of bodily harm on the part of the victim. Terroristic threats, however, focuses solely on the conduct of the accused. We therefore find that simple assault is not a lesser included offense of terroristic threats. Accordingly, the trial court did not err in refusing to give the requested charge.

Decided October 22, 1987.

Patricia M. Karras, for appellant.

H. Lamar Cole, District Attorney, Elise B. Ossen, Samuel F. Greneker, Assistant District Attorneys, for appellee.

Judgment affirmed.

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