text:
    A01A0495.
    TUKES v. THE STATE.
    (550 SE2d 678)
   Johnson, Presiding Judge.

Kenneth Tukes was found guilty of one count of theft by conversion and two counts of theft by taking in connection with three purported car sales.

1. Tukes challenges the sufficiency of the evidence to support his convictions. He contends that the convictions cannot stand because his failure to perform as promised under the agreements at most amounts to breach of contract, not theft by conversion or theft by taking. We disagree.

(a) Theft by conversion. The indictment charged Tukes with theft by conversion, stating that he, “being in lawful possession of $1750.00, the property of Wanda Denise Cuyler, as owner or custodian, unlawfully and without authority appropriate[d] said property to [his] own use with the intention of depriving” Cuyler of its use or possession.

OCGA § 16-8-4 (a) provides, in pertinent part, that a person commits the offense of theft by conversion when, having lawfully obtained funds of another, under an agreement or other known legal obligation to make a specified application of such funds, he knowingly converts the funds to his own use in violation of the agreement or legal obligation.

The evidence, viewed in a light most favorable to the verdict, shows that Tukes told Cuyler that he owned a finance company and was planning to open a used car business. About a month later, Cuyler wrecked her car and contacted Tukes, telling him she wanted to buy a sport utility vehicle. Tukes replied that he had two such vehicles on hand and requested a down payment. After Cuyler saved some money toward a down payment, Tukes brought a Jeep Cherokee to show her. Tukes requested a $1,500 down payment, but Cuyler could give him only $250. Cuyler said that she would have the balance of the down payment within a week. Tukes agreed to hold the car for her.

Two weeks passed before Cuyler was able to accumulate the balance of the down payment. When she presented it to Tukes, he told her that she had forfeited the $250 payment she made earlier and that she would need to pay the entire $1,500 down payment if she wanted the car. Cuyler gave him $1,500. Rather than giving her the promised vehicle at that time, however, Tukes told her that a Jeep was on order for her and that she would have it in a week or two. When Cuyler said she needed a car immediately, Tukes said he would let her use his pickup truck. She drove it for two days before it stopped running. Two weeks later another man, apparently the truck’s true owner, came and took the truck from Cuyler’s driveway. Tukes never delivered the Jeep or another vehicle to Cuyler. And although he made several appointments to meet Cuyler to refund her money, Tukes never showed up for the appointments and did not refund any of her money.

Tukes is correct that OCGA § 16-8-4 is not intended to punish a simple breach of contract. The presence of fraudulent intent, however, distinguishes theft by conversion from breach of contract. There was evidence of fraudulent intent in this case. For example, Tukes told Cuyler he had a Jeep on order for her, repeatedly asked for money from her but never delivered a Jeep or comparable vehicle, and, although he made arrangements to do so, never refunded any of her money.

In addition, there was evidence that Tukes had entered into agreements with several people in which he took their cars and either promised to take over their loan payments or promised to sell their cars to others but then failed to pay for or return the cars. The evidence was sufficient.

We point out that this case is different from those in which the state failed to prove criminal intent, such as where the defendant was late performing under an agreement and then did a poor job or where the defendant delegated to a neighbor his duty to return rental equipment, but the neighbor failed to return it. In this case, the trier of fact was authorized to find from the evidence presented the fraudulent intent necessary to support a theft by conversion conviction.

(b) Theft by taking. The indictment charged Tukes with two counts of theft by taking. The first count accused him of theft by taking a motor vehicle, stating that he “did take a 1996 Chevrolet Camaro, the property of Michael Gibbs, with a value of approximately $18,000.00, with the intention of depriving said owner of said property, contrary to the laws of said State. . . .” The second count charged Tukes with taking a motor vehicle, in that he “did take a 1995 Z-71 Chevrolet truck, the property of Michael Gibbs, with a value of approximately $20,000.00, with the intention of depriving said owner of said property, contrary to the laws of said State. . . .”

A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property.

The evidence shows that Michael and Cathy Gibbs wanted to sell their pickup truck and placed an advertisement in the paper. Tukes responded to the ad and offered to buy the truck. Tukes prepared a contract in which he agreed to buy the truck by paying $447.35 each month for 54 months. Although the agreement indicates that Tukes was to make the payments to Cathy Gibbs, the parties understood that Tukes would take over the Gibbses’ monthly debt payments to the creditor and take the loan out of the Gibbses’ names. The contract, which was termed a “LEASE/PURCHASE” agreement, also specified that Tukes, the “Lessee/Buyer,” would have to keep the truck insured and in good repair, that Cathy Gibbs would have the right to inspect the vehicle at least once a month, and that if Tukes defaulted on any of the terms of the agreement, Cathy Gibbs would have the right to repossess the vehicle. Tukes and Cathy Gibbs signed the contract, and the Gibbses gave Tukes possession of the truck.

About a month later, Tukes told the Gibbses that if they were interested in selling their Camaro, he would buy it. The Gibbses agreed to sell the car, and at Tukes’ request, Cathy Gibbs drove the Camaro to another town to show it to a potential buyer. Tukes had promised to pay Cathy Gibbs $200 for driving the car out of town, but he paid her only $100. The buyer gave Tukes $1,500 as a down payment, then took the car.

Tukes orally promised the Gibbses that he would pay for the car by making the monthly car payments as they came due. Tukes had not prepared any written agreement or documents memorializing the transaction but promised to meet the Gibbses at their home with the paperwork the next morning. When Tukes failed to arrive as promised, the Gibbses phoned him. He said he was waiting for the credit union to open and would come by later. Tukes never showed up and never returned the Gibbses’ car. Other than the $100 Tukes gave Cathy Gibbs for driving the car out of town, the Gibbses did not receive any money for the car. The Gibbses recovered the car from an impound lot three weeks later. Tukes had made no payments on the car or the truck after he took possession of the vehicles.

If a person, meaning to steal another’s goods, fraudulently prevails on the latter to deliver them to him, under the understanding that the property in them is to pass, he does not commit a crime by the taking, unless the transaction involves that criminal intent which would support an indictment. If, with fraudulent intent, he gets leave to take possession only and takes and converts the whole to himself, he becomes guilty of larceny, because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession.

(i) The Camaro. There was evidence that Tukes, with fraudulent intent, was given only possession of the Camaro at the time he took it and then converted the vehicle to himself. Although the Gibbses had intended to sell the car to Tukes, the transaction had not been completed at the time he took the car. The Gibbses consented to Tukes taking possession of the car that evening, subject to his returning early the next morning to provide and complete the paperwork necessary to complete the transaction. Indeed, Cathy Gibbs testified that Tukes indicated that he would bring the paperwork the next day “to accomplish that sale.” Tukes was also expected to remove the Gibbses’ names from the loan, a task which he did not complete. A jury could have found that the Gibbses had no intention of passing title to Tukes at the time he, with fraudulent intent, got leave to take possession of the vehicle. The theft by taking conviction was supported by the evidence.

Moreover, the broad definition of theft by taking in OCGA § 16-8-2 includes thefts perpetrated by deception and by conversion. The real issue, therefore, was Tukes’ intent. From the evidence presented, including the similar transaction evidence, the jury could infer that Tukes possessed the criminal intent necessary to deprive the owners of their property. The evidence is sufficient under the standard of Jackson v. Virginia to authorize the jury’s finding that Tukes is guilty of theft by taking the Camaro as alleged in the indictment.

(ii) The truck. Cathy Gibbs signed an agreement in which she expressly retained a security interest in the truck. The contract gave her the right to, among other things, retake possession of the truck if Tukes defaulted on his payments. The Gibbses did not convey their entire interest in the vehicle, but delivered no more than possession until certain other specific conditions were met. The issue of whether a seller retains a security interest in the goods is an important consideration in this type of case. There being evidence that Tukes, with fraudulent intent, got leave to take possession only of the truck, then took the truck and converted it to himself, the jury was authorized to find Tukes guilty, beyond a reasonable doubt, of theft by taking the truck.

2. Tukes contends that the trial court erred in joining the theft by conversion and theft by taking charges for trial, when the incidents involved different victims, different schemes, and different witnesses. We disagree.

Where offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant has an absolute right to a severance of the offenses. However, where joinder is based on the same conduct or on a series of acts connected together that evince an ongoing criminality, the question of joinder or severance is within the sound discretion of the trial court. Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme, or bent of mind.

All three of the incidents here occurred in or around October 1996 and involved Tukes holding himself out as a car dealer, meeting the buyer or seller and conducting the transaction at a location other than a car lot, purporting to buy or sell a vehicle, and failing to pay for or deliver a vehicle as promised. The offenses constituted a series of acts connected together that evince an ongoing criminality and show a pattern evincing a common motive, plan, scheme, or bent of mind. The trial court did not abuse its discretion in deciding to try the offenses together.

3. Tukes argues that the trial court erred in admitting evidence of similar transactions because the state did not indicate the purpose for which it sought to introduce the evidence. Our review of the record belies this argument. In its “Notice to Present Evidence of Similar Transactions,” the state specifically indicates that its purpose for seeking to introduce the evidence is to establish Tukes’ scheme, motive, bent of mind, or course of conduct. These are proper purposes.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided June 18, 2001.

Grantham & Peterson, William M. Peterson, for appellant.

Kelly R. Burke, District Attorney, Amy L. Smith, Assistant District Attorney, for appellee.

       See Scarber v. State, 211 Ga. App. 260 (439 SE2d 83) (1993).

       For example, in one of the two theft by taking offenses discussed below, Tukes took possession of the owners’ truck, promised to take over their monthly payments, then made no payments; in the other case, he took the owners’ car after promising to make the payments, took a down payment from a buyer, and failed to make any payments or share the proceeds he received with the owners.
      In another instance, the owner of a Mercedes-Benz sought to sell his car by placing an advertisement in the newspaper. Tukes responded to the ad and told the owner he owned a used car lot and had a buyer for the car. Tukes asked the owner to allow him to drive the car to Atlanta so he could sell it. With the owner’s permission, Tukes took the car. Tukes never returned the car or any sales proceeds. A month later, the owner found the car in an impound lot and retook possession of it.
      In another case, the owner of a Nissan advertised her car for sale. Tukes responded, telling her he would buy her car by taking over her loan payments. Because she owed more than the car was worth, the owner gave Tukes $500. He assured her that he would contact the lender the next business day to put the loan in his own name. When the owner called the lender the following business day, she was told that Tukes had not called. The owner called Tukes, who denied having agreed to change the name on the loan, and who insisted that he agreed only to lease, not buy, the car. He told her that over the weekend her car had been broken into and her CD player stolen and that she could pick up the car at a particular location, which she did. In a similar case, the owner of a Toyota 4-Runner advertised his "vehicle for sale. Tukes offered to buy it by taking over the payments. Tukes demanded that the owner pay him $400 or $500 to repair dents in the vehicle, but the owner gave him only $50. A short time later, the owner became suspicious and told Tukes he was uncomfortable with the transaction. Tukes tried to reassure him, but the owner called police. The next morning, the owner recovered the vehicle from an impound lot.

       See Myrick v. State, 210 Ga. App. 393 (436 SE2d 100) (1993).

       See Barrett v. State, 207 Ga. App. 370 (427 SE2d 845) (1993).

       See Cottrell v. State, 210 Ga. App. 55, 57 (435 SE2d 272) (1993); Byrd v. State, 186 Ga. App. 446, 447 (1) (367 SE2d 300) (1988); see generally Lovell v. State, 235 Ga. App. 140, 141 (1) (a) (508 SE2d 771) (1998).

       OCGA § 16-8-2.

       See Gill v. State, 197 Ga. App. 558, 559 (1) (398 SE2d 833) (1990).

       Id. at 559-560.

        Romano v. State, 233 Ga. App. 149, 152 (2) (503 SE2d 380) (1998).

       See id.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See Romano, supra.

       See Elliott v. State, 149 Ga. App. 579, 580 (1) (254 SE2d 900) (1979).

        Cobb v. State, 236 Ga. App. 265, 268 (2) (511 SE2d 522) (1999).

       Id.

       Id.

       See Rodriguez v. State, 211 Ga. App. 256, 258 (4) (a) (439 SE2d 510) (1993).

       See King v. State, 246 Ga. App. 100, 101 (2) (539 SE2d 614) (2000).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A01A0628.
    FONTAINE v. HOME DEPOT, INC.
    (550 SE2d 691)
   Pope, Presiding Judge.

In October 1995, Douglas Fontaine was injured when he fell in a stairwell at a Home Depot office facility. Fontaine filed this premises liability action against The Home Depot, Inc. in October 1997. Home Depot, Inc. answered that it was an improper defendant because it had no interest in the premises which was the subject of the action. Approximately nine months after receiving Home Depot, Inc.’s answer, and approximately ten months after the expiration of the statute of limitation, Fontaine moved to amend his complaint to add Home Depot U.S.A., Inc., which owned the premises, as a defendant. Home Depot, Inc. opposed Fontaine’s motion to amend and moved for summary judgment.

The trial court denied Fontaine’s motion to amend because it found that Home Depot U.S.A. would be prejudiced by the amendment adding it as a party defendant and because Fontaine allowed an inexcusable delay to occur before filing his motion to amend. The trial court also found that Home Depot, Inc. did not occupy the subject premises as contemplated by OCGA § 51-3-1 and granted summary judgment to Home Depot, Inc. Fontaine appeals. For the reasons which follow, we find that the trial court abused its discretion in. denying Fontaine’s motion to amend and that issues of fact preclude summary adjudication. Accordingly, we reverse.

The addition of a new party defendant by an amendment to the complaint requires the exercise of discretion by the trial court. See Shiver v. Norfolk-Southern R. Co., 220 Ga. App. 483, 484 (469 SE2d 769) (1996). To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The trial court ruled on the record but held no evidentiary hearing. The record shows that GAB Robins agreed to provide insurance adjusters for Home Depot U.S.A. Fontaine was one of these adjusters. He was paid by GAB Robins, but he worked in a Home Depot office facility under the direction of Nancy Baker, an employee of Home Depot U.S.A. Baker is described as the national litigation manager for “Home Depot.” Baker is the registered agent for both Home Depot, Inc. and Home Depot U.S.A. The two corporations also share legal counsel.

The deed records reflect that Home Depot U.S.A. owned the premises where the injury occurred. But the Cobb County tax records reflect that Home Depot, Inc. is the owner of the premises and the ad valorem taxpayer. There is evidence that Home Depot, Inc. and Home Depot U.S.A. both occupied office space in the building where Fontaine was injured. We note that in reviewing the record and the briefs, we have found it difficult to identify whether an attorney’s, deponent’s, or affiant’s reference to “Home Depot” refers to Home Depot, Inc. or Home Depot U.S.A. in particular or is simply meant as a generic reference.

1. Fontaine based his motion to add, or in the alternative to substitute, Home Depot U.S.A. as a party defendant under OCGA §§ 9-11-15 and 9-11-21. OCGA § 9-11-15 (c) provides:

Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

OCGA § 9-11-15 (c) applies to motions to add a party as well as to substitute a party. Cobb v. Stephens, 186 Ga. App. 648, 649 (368 SE2d 341) (1988). Fontaine argues that he met the three requirements for effecting an amendment under OCGA § 9-11-15 (c): (1) the amendment adding Home Depot U.S.A. arises out of the same facts as the original complaint; (2) Home Depot U.S.A. had notice of the action when it was filed against Home Depot, Inc., as they share the same registered agent; and (3) Home Depot U.S.A. knew or should have known it would have been named a defendant but for a mistake by Fontaine. See Harding v. Godwin, 238 Ga. App. 432, 434 (518 SE2d 910) (1999).

We agree that Fontaine’s motion to amend meets the requirements of OCGA § 9-11-15 (c). The record is factually similar to Rich’s, Inc. v. Snyder, 134 Ga. App. 889 (1) (216 SE2d 648) (1975), and Tanner’s Rome, Inc. v. Ingram, 236 Ga. App. 275 (511 SE2d 617) (1999). Both Rich’s and Tanner’s involved slip and fall cases in which the plaintiff commenced an action within the statute of limitation against a corporation that did not own the premises where the fall occurred. After the statute of limitation had run, the plaintiffs moved to amend the complaint to substitute the owner of the premises as the party defendant and to have the amendment relate back to the original filing date. The corporations which owned the subject premises were related to and similarly named as the original defendants and knew or should have known that the plaintiffs made a mistake in failing to name them as party defendants. We found that OCGA § 9-11-15 (c) was intended to operate in such a situation to effect an amendment relating back to the original filing date. Thus, this court has held that under these facts a trial court abuses its discretion when it denies a motion to amend. See Shiver, 220 Ga. App. at 484; Robinson v. Piggly Wiggly of Calhoun, 193 Ga. App. 675, 677 (388 SE2d 754) (1989); Rich’s, 134 Ga. App. at 891-892.

Home Depot, Inc. claims that Fontaine sat on his rights, neglected due diligence, and was guilty of laches and that therefore it was within the trial court’s discretion to deny Fontaine’s motion to amend. Home Depot, Inc. argues that where the original defendant’s answer puts the plaintiff on notice that there was a question regarding the proper defendant, lack of due diligence in ascertaining the proper defendant can be considered by the trial court in disallowing a motion to amend. See Benschoter v. Shapiro, 197 Ga. App. 357 (398 SE2d 399) (1990).

Delay alone is not sufficient grounds to deny the addition of a party, but laches and unexcused delay may bar a proposed amendment. See Robinson, 193 Ga. App. at 675. “It should be particularly noted, however, that while laches and unexcused delay may bar a proposed amendment, the mere fact that an amendment is offered late in the case is not enough to bar it if the other party is not prejudiced.” (Punctuation omitted; emphasis in original.) Gordon v. Gillespie, 135 Ga. App. 369, 376 (2) (217 SE2d 628) (1975). And prejudice, for purposes of OCGA § 9-11-15 (c), does not include the relation back of an amendment to before the expiration of the statute of limitation. Id. Laches requires more than the passage of time; laches also requires prejudice arising from that passage of time; and when the original defendant and the defendant which plaintiff proposes to add by amendment are intertwined corporations which both have received notice of an action before the expiration of the statute of limitation, the prejudice that might otherwise exist is negated. See Shiver, 220 Ga. App. at 484-485. Compare Harrison v. Golden, 219 Ga. App. 772, 773 (1) (466 SE2d 890) (1995), in which the additional defendant and existing defendant were unrelated.

In Benschoter, the plaintiff sued an individual rather than the individual’s associated corporation, which owned the trailer which was the subject of the action. The defendant’s response put the plaintiff on notice that he had sued the wrong defendant, and we held that “from a review of the entire record . . . that plaintiff/appellant did not exercise due diligence in seeking to amend his pleadings to correct a misnomer.” 197 Ga. App. at 357. We found the trial court failed to abuse its discretion in denying plaintiff’s motion to amend. Id. at 358. We are privy to only a limited recitation of the record in Benschoter, so we cannot say that it was wrongly decided. But Benschoter failed to address whether the plaintiff’s delay in amending his complaint was prejudicial. Here, there is no prejudice to Home Depot U.S.A. because it was on notice of this action from the very beginning, and although Home Depot, Inc. did claim in its answer that it was an improper defendant, and prompt and diligent action by Fontaine might have led to an earlier motion to amend, a nine-month period between the filing of the answer and the motion to amend is not sufficient for a finding of laches or unreasonable delay because the nine-month period was not prejudicial to Home Depot U.S.A.

It can also be argued that Fontaine did not make a mistake in identity as required by OCGA § 9-11-15 (c). Deleo v. Mid-Towne Home Infusion, 244 Ga. App. 683 (536 SE2d 569) (2000), and Harding v. Godwin, 238 Ga. App. 432, were decided on this ground. Deleo and Harding involved plaintiffs who tried to add individual defendants to their complaint after the expiration of the statute of limitation. But these individuals had no reason to believe that “but for a mistake concerning the identity of the proper party, the action would have been brought against him.” OCGA § 9-11-15 (c). In contrast, as shown by Rich’s, Tanner’s, and Robinson, the courts will recognize a mistake when it is unclear which related corporation controlled a premises for purposes of a slip and fall action. We are unpersuaded that Fontaine’s work as an adjuster should have made him aware that Home Depot U.S.A. was a proper defendant.

Because Fontaine’s motion to amend conforms to the requirements of OCGA § 9-11-15 (c) and is not prejudicial, the trial court abused its discretion in denying Fontaine’s motion to amend his complaint. We direct the trial court to allow Fontaine to add Home Depot U.S.A. as a party defendant, with the date of service relating back to the date of service on Home Depot, Inc.

2. Home Depot, Inc. can be liable under principles of premises liability only if it had control of the premises. See Scheer v. Cliatt, 133 Ga. App. 702, 704 (2) (a) (212 SE2d 29) (1975). That it does not own the office building in question mitigates against a finding that Home Depot, Inc. had control of the premises, but lack of ownership is not conclusive.

There are many other factors which should be considered as evidence of control: Who managed the daily operations of the shop — hiring, wages, hours, etc.? Who had the right to admit or exclude customers? Who maintained and repaired the premises? Who paid the bills, taxes, wages? What were the responsibilities of the parties under the lease? Etc.

Id. Because ownership of the premises is not the sole factor in determining control, and the record is otherwise unclear as to whether Home Depot, Inc. had control of the premises, the trial court erred in granting summary judgment to Home Depot, Inc. on that basis.

3. Fontaine claims the trial court erred in granting summary judgment to Home Depot, Inc. on the “borrowed servant” principle. Apparently, GAB Robins payed Fontaine workers’ compensation benefits related to the injuries he suffered in his fall. But even if he received workers’ compensation, Fontaine was also entitled to recover damages from a third-party defendant such as Home Depot, Inc. See Avis Truck Rental v. Coggins, 129 Ga. App. 81, 82 (1) (198 SE2d 716) (1973). However, Home Depot, Inc. may escape tort liability if Fontaine was a borrowed servant. For this doctrine to apply, the third party must establish that “(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.” (Punctuation omitted.) Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (1) (276 SE2d 572) (1981). After reviewing the trial court’s order, we are not certain that the trial court ruled against Fontaine on the basis of the borrowed servant doctrine, although it recited Fontaine’s arguments on the issue in its order. In any case, questions of fact remain as to the extent of control by GAB Robins over Fontaine.

4. Home Depot, Inc. argues that summary judgment is proper because under the principle of premises liability it could not have had superior knowledge of the hazard which allegedly caused Fontaine’s injury. The trial court made no specific findings on this issue. As our Supreme Court noted in Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997), “the ‘routine’ issues of premises liability . . . are generally not susceptible of summary adjudication.” We find that questions of fact remain on this issue.

Decided June 18, 2001.

Greer, Klosik, Daugherty & Swank, Robert J. McCune, for appellant.

Mozley, Finlay son & hoggins, Carroll G. Jester, Jr., Theo M. Sereebutra, Troy A. Gay, for appellee.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.

       For example, in their appellate brief appellee’s counsel defines “The Home Depot, Inc.” as “Home Depot”; they then refer to Fontaine as having worked at “Home Depot’s home office” and Baker to be in charge of “Home Depot’s” litigation unit. We suspect that counsel intends for these references to “Home Depot” to refer to Home Depot U.S.A. rather than the defined term “The Home Depot, Inc.,” but we cannot be sure.


author: Smith, Presiding Judge.

text:
    A01A0709.
    SMITH v. THE STATE.
    (550 SE2d 683)
   Smith, Presiding Judge.

We granted Roy D. Smith’s application for a discretionary appeal to consider whether his probation was improperly revoked because a designated magistrate lacked jurisdiction to hear the case on several grounds. Smith also contends that the trial court erred in revoking his probation and resentencing him because no evidence existed of a violation. We find no merit in Smith’s contentions, and we affirm the judgment.

Smith was indicted in Fulton County in 1994 on a charge of possession of marijuana with intent to distribute. At a bench trial on November 3, 1994, before the Honorable Richard Hicks, a Fulton County magistrate sitting by designation, he was found guilty and sentenced under the First Offender Act to five years probation and a fine of $2,500. After reporting to the probation office, Smith filed an appeal in this court, which affirmed his conviction. Smith v. State, 218 Ga. App. 12 (460 SE2d 114) (1995). The remittitur was transmitted to the trial court on July 31, 1995. Smith made no attempt after that to comply with the terms of his probation.

In May 1997, when Smith was in the Gwinnett County jail on an unrelated charge, a warrant was issued for his arrest by Fulton County because of his failure to comply with the terms of his probation. A hearing was scheduled and postponed several times before finally being held on March 20,1998, before the Honorable Benjamin Spaulding, a Fulton County magistrate sitting by designation.

At the commencement of the hearing, Smith’s counsel objected to Judge Spaulding hearing the probation revocation case, contending both that he had not been properly designated and that he was not the “sentencing judge” within the meaning of OCGA § 42-8-34 (g). Judge Spaulding was satisfied that he could hear the case, and the hearing proceeded.

1. As best we can understand Smith’s initial contention, he relies on the holding in Hicks v. State, 231 Ga. App. 552 (499 SE2d 341) (1998), to support his argument that Judge Spaulding had no authority to hear the probation revocation case because he was not specifically appointed to hear this particular case. In Hicks, the appellant challenged “the practice in Cobb County of assigning cases brought by the Marietta, Smyrna, Cobb Drug Task Force (‘MCS’), regardless of the case assignment to a particular Cobb Superior Court Judge under Uniform Superior Court Rule 3.1, to the Chief Judge of the Cobb Magistrate Court . . . for disposition.” Id. at 552-553. In that case, no order could be found assigning that particular case, “or any MCS case,” to the chief magistrate, id. at 553 (2), and no evidence was presented as to what office assigned the cases to the chief magistrate or how the cases were assigned. Id. We held in Hicks that under USCR 3.1 and 3.3, only the superior court judge assigned to the case had authority to change the assignment to the chief magistrate and that a “proper written and filed request for assistance under OCGA § 15-1-9.1 is an indispensable prerequisite to clothe the designated judge with jurisdiction and power to act. [Cit.]” Id. at 555 (2). We also held that under the Supreme Court’s holding in Cramer v. Spalding County, 261 Ga. 570, 573 (409 SE2d 30) (1991), a designating order must specify “either the scope or length of the assisting judge’s service.” (Citation and punctuation omitted.) Hicks, supra at 556 (2). Indefinite appointments may therefore not be made. In Hicks, we noted that “the limited record suggests that the requests for assistance were not temporary.” Id. In short, this court was concerned in Hicks “about the prosecutor’s comments that suggest that OCGA § 15-1-9.1 is being used to create a special drug court and that cases are being assigned to that court in violation of [USCR] 3.1 and 3.3.” Id. at 557 (2).

In this case, those concerns are not present, and the designating order specified both the scope and the length of Judge Spaulding’s service. For those reasons, we find that Hicks is distinguished. Moreover, in Massey v. State, 265 Ga. 632 (458 SE2d 818) (1995), the Supreme Court held that an

order designating a specified, qualified judge to assist a requesting court must contain the time period of the assistance and must be filed and recorded on the minutes of the clerk of the court requesting the assistance. OCGA § 15-1-9.1 (f). Thus, a judge is designated to serve temporarily and does not appear in the superior court on a continuing basis. The statute recognizes that our courts, faced with ever-increasing demands on the judiciary, must be given flexibility to effectively utilize members of the judiciary in mutual assistance.

Id. at 634 (3). The order designating Judge Spaulding meets the requirements set forth in Massey.

2. Smith also contends that Judge Spaulding had no authority to hear his probation revocation case because he was not the original “sentencing judge,” within the meaning of OCGA § 42-8-34 (g). That statute provides:

The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of his probated sentence. The judge is empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or, in any manner deemed advisable by the judge, to modify or change the probated sentence at any time during the period of time originally prescribed for the probated sentence to run.

It is apparent that the term “sentencing judge” refers to the office and not the person. Our Georgia Constitution provides that as long as he or she is “otherwise qualified, a judge may exercise judicial power in any court upon the request and with the consent of the judges of that court and of the judge’s own court under rules prescribed by law.” Ga. Const., Art. VI, Sec. I, Par. III. Provisions such as this serve the purpose of avoiding “delay, expense, and inconvenience.” McCullough v. McCullough, 208 Ga. 776, 777 (1) (69 SE2d 764) (1952) (provision by which city court judges and superior court judges may assist each other by presiding in each other’s courts). Smith’s interpretation of the Code provision would cause great delay and inconvenience; Smith’s original trial took place four years before the hearing on his probation revocation, and it is not clear from the record that Judge Hicks, the original sentencing judge, was available. Both Judge Hicks and Judge Spaulding were sitting for Judge Long, to whom Smith’s case was assigned, and they were both presiding over a matter pending in Judge Long’s court. See generally Rooney v. State, 217 Ga. App. 850, 851 (459 SE2d 601) (1995). The original sentence was therefore entered under Judge Long’s authority, as was the revocation order. We find no error.

Decided June 18, 2001.

Spruell, Taylor & Associates, Billy L. Spruell, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

3. Finally, Smith contends he did not violate his probation by failing to report or pay his fine after his appeal was resolved. He argues that he had no duty to report until notified of the remittitur. But it is not the duty of the clerks of this court and the trial court to notify defendants of their probation requirements. The clerk of this court mails a copy of the decision to all attorneys. Court of Appeals Rule 35. And the filing of an order is a matter of public record, concerning which attorneys have the duty of keeping their clients informed. See Kessler v. Liberty Mut. Ins. Co., 157 Ga. App. 287, 288 (277 SE2d 257) (1981). “It is fundamental that it is the duty of counsel who have cases pending in court to keep themselves informed as to the progress of the cases so that they may take whatever actions may be necessary to protect the interests of their clients.” Bragg v. Bragg, 225 Ga. 494, 496 (170 SE2d 29) (1969).

Moreover, Smith knew he was required to resume reporting and paying his fine when his appeal was concluded. Smith’s probation officer testified that Smith had been given a copy of the probation conditions. He testified that Smith was told to report after his appeal was final. Smith did not report, nor did he make any effort to contact his probation officer, for over two years after his appeal was final. The trial court was authorized to find that he failed to comply with the terms and conditions of his probation.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Smith did not contest the designation of Hicks in his earlier appeal.

       Smith was permitted to sign his own bond at a hearing before the Honorable Wayne Pressley on December 2,1997.

       “[B]ond motions and other matters as designated by the Chief Judge.”

       “[D]uring the term of court, May and June, 1998 as an extension of his duties set forth” in a previous order.


author: Phipps, Judge.

text:
    A01A1516, A01A1517.
    WILKINSON v. HOUSEHOLD FINANCE CORPORATION, III (two cases).
    (550 SE2d 677)
   Phipps, Judge.

Household Finance Corporation, III filed a complaint for declaratory judgment against Cheryl Jessup and Tyrone Wilkinson. Household sought a declaration that property levied on by Jessup and sold at a marshal’s sale to Wilkinson is subject to its prior, unsatisfied security interest. By entering a consent judgment, Jessup recognized Household’s priority. In Case No. A01A1516, Wilkinson appeals the trial court’s grant of Household’s motion for summary judgment against him. Case No. A01A1517 is Wilkinson’s appeal from the trial court’s grant of Household’s motion to require Wilkinson to post a supersedeas bond pending appeal. We affirm the judgment in the first case and dismiss the appeal in the second.

Household holds a duly recorded first security deed to property located at 831 South Candler Road in Decatur. The property was previously owned by Thomas Bingley. Jessup caused the property to be levied upon and sold by marshal’s sale to satisfy an outstanding judgment lien held by her. Wilkinson was the purchaser. Contrary to the requirements of OCGA § 9-13-60 (c), Household’s security interest was not satisfied.

Household brought this complaint for declaratory judgment that Wilkinson took the property subject to Household’s deed. Wilkinson answered the complaint and filed a cross-claim against Jessup and a counterclaim against Household. Wilkinson alleged that Household is guilty of laches, lack of diligence, and unreasonable delay in enforcing its rights and that it fraudulently conspired with Jessup to deprive him of the property.

In his appellate brief, Wilkinson correctly argues that the burden is on the movant for summary judgment to demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Wilkinson, however, fails to recognize the rule that the burden is on the appellant to show error affirmatively by the record. Wilkinson has in no way carried this burden. Therefore, we affirm the trial court’s award of summary judgment to Household.

Despite the grant of an extension in the second appeal, Wilkinson neither filed a brief and enumeration of errors nor requested another extension. Therefore, we dismiss the second appeal as having been abandoned. Moreover, affirmance in the first appeal moots the second.

Judgment affirmed in Case No. A01A1516. Appeal dismissed in Case No. A01A1517.

Smith, P. J., and Barnes, J., concur.

Decided June 18, 2001.

Louise T Hornsby, for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Peter L. Lublin, Herald J. A. Alexander, for appellee.

       OCGA § 9-11-56 (c).

        In the Interest of M. J. B., 238 Ga. App. 833, 834 (1) (520 SE2d 497) (1999).

       See Court of Appeals Rule 26 (a); Lambros v. Longiotti, 189 Ga. App. 837 (378 SE2d 416) (1989).

         See California Fed. Sav. &c. Assn. v. Hudson, 185 Ga. App. 384, 390 (9) (364 SE2d 582) (1987).


author: Johnson, Presiding Judge.

text:
    A01A0782.
    BOONE v. THE STATE.
    (549 SE2d 713)
   Johnson, Presiding Judge.

Donnie Lee Boone, Jr. appeals his convictions of armed robbery (two counts), kidnapping (four counts), aggravated assault (two counts), and possession of a firearm during the commission of a crime (four counts). He was tried by a jury with co-defendants Robert Williams and James Courtney. Boone challenges his convictions with 16 enumerations of error. With the exception of his enumeration of error regarding the trial court’s aggravated assault charge to the jury, Boone’s remaining enumerations of error lack merit. We therefore reverse Boone’s convictions for aggravated assault and remand the case for a retrial on the aggravated assault counts. We affirm Boone’s other convictions.

1. On appeal we view the evidence in a light most favorable to support the jury’s verdict, and the appellant no longer enjoys the presumption of innocence. In addition, we do not weigh the evidence or determine witness credibility; we only determine whether, after viewing the evidence in this light, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Viewed in this light, the record reveals the following facts.

Around 11:00 p.m. on June 26, 1994, Damon’s Restaurant in Augusta, Richmond County, was robbed. Shortly after completing her closing duties, employee Patricia Sheppard left the restaurant through the back door. She got into her car and drove it behind the restaurant and parked next to the dumpster. As she was removing a box from the trunk of her car and throwing it into the dumpster, a man came up behind her. The man grabbed her, put a gun to her head, and ordered her back inside the restaurant. As Sheppard was being pushed toward the door, she noticed another man getting inside her car. Because Sheppard could not open the back door, she knocked on it until her co-worker, Darean Jordan, unlocked the door and let her in. The robber pushed Sheppard inside the building, demanding that she keep walking. He took Jordan’s keys and ordered them to take him to the safe or he would shoot them. Sheppard noticed that another man followed them into the restaurant. She saw this man throw a towel over the surveillance camera — a camera that would not have been visible upon entry. The robbers ordered Jordan and three other employees — Michael Vidal, Sarah Romeo, and Daniel Troup — to move into the office. Sheppard managed to slip away during the commotion and hide in another part of the restaurant.

Upon entering the office, the robbers told Romeo to put the evening’s proceeds into a plastic bag the robbers had brought with them. The robbers took the evening’s $7,000 in receipts, which consisted of cash (including a $1,000 bill), several rolls of quarters, and numerous credit card receipts. After filling the bag, one of the robbers grabbed Romeo by the arm and said, ‘You’re going with me.” He told the other employees not to move or he would shoot Romeo. On their way out of the restaurant, the robbers locked Romeo in a closet with the restaurant keys. In addition to the evening’s receipts, the robbers took Sheppard’s Cadillac, her purse, and her cell phone. The employees could not identify the robbers. The two men who were observed inside the restaurant were described only as African-American males wearing dark clothing and stocking masks.

Shortly after 11:00 p.m., Jay Watkins, a man who resided near the restaurant, noticed a two-door silver-gray car parked along the road with its interior light on. As he drove by the car, he noticed that the driver’s door was ajar and that the driver was standing outside the car. His suspicions aroused, Watkins wrote down the car’s tag number. Fifteen minutes later, on his way back home, he noticed a Cadillac with its trunk open abandoned in the same area. Watkins also wrote down the tag number of this car. When he returned home, he called the police. The police determined that the abandoned Cadillac was Sheppard’s. They found a roll of quarters and a stocking mask in the Cadillac.

Suspecting that the silver car may have been involved in the robbery, the police located the car’s owner, Valerie Davis, and obtained a warrant to search her car and her residence. The police found a 9 mm bullet, a wallet belonging to Donnie Boone, and a large number of quarters in Davis’ car. They found five $20 bills in her purse. Davis told police and testified at trial that she received the money from Boone, her cousin. She loaned her car to Boone that evening so that he and his friends, Williams and Courtney, could go out. Davis also said that she, Boone, Williams, and Courtney had spent the afternoon together, visiting at the home of Michelle Dunn. Around midnight, Boone returned Davis’ car to her at Dunn’s house. Davis then drove Boone to a hotel. When she dropped him off, she saw Williams leaning over the second floor balcony of the hotel.

The police then spoke with Dunn, Courtney’s girlfriend, who confirmed in part Davis’ account of the evening. Upon a consent search of Dunn’s residence, the investigators found a pair of pantyhose from which the legs had been cut. The shade of the hose matched that of the stocking mask found in the back of the Cadillac. Based upon this information, the investigators got a warrant for Boone’s arrest and then went to the hotel.

During their search of Boone’s hotel room, the investigators found a loaded 9 mm handgun, a black plastic bag filled with credit card receipts from Damon’s Restaurant, a bank bag, a $1,000 bill, and the restaurant keys. Also in the bag were Sheppard’s wallet, cell phone, and car keys and dark-colored clothing similar to that worn by the robbers. Boone and Williams each had about $1,300 in cash stuffed in their pockets. Police later learned that Boone once worked at Damon’s Restaurant as a dishwasher and thus would have known of the surveillance camera in the restaurant’s kitchen.

Courtney was also arrested. He gave a statement acknowledging that he knew Boone and Williams had planned to rob the restaurant. He also gave police his one-third share of the robbery proceeds, $1,390, explaining that Boone and Williams had asked him to keep this money for them. Courtney’s statement was admitted into evidence. Courtney, who testified at trial and denied any involvement in the robbery, was also cross-examined with respect to his prior inconsistent statements.

Although Boone and his mother testified that Boone was at his mother’s house during the time of the robbery, this Court does not weigh the evidence or assess witness credibility. The evidence presented was sufficient to enable rational jurors to find Boone guilty on all counts beyond a reasonable doubt.

2. Boone argues the trial court erred in allowing the state to introduce Courtney’s out-of-court statement without properly redacting the statement and in allowing the state to cross-examine Courtney using the name of his two alleged accomplices. We find no error.

In Bruton v. United States, the United States Supreme Court held that a defendant’s Sixth Amendment right of confrontation is violated when: (a) co-defendants are tried jointly; (b) one co-defendant’s statement is used to implicate the other co-defendant in the crime; and (c) the co-defendant who made the implicating statement employs his Fifth Amendment right not to testify and thus does not take the stand to face cross-examination about the statement. Thus, while the confession of a co-defendant normally cannot be admitted against another defendant at a joint trial, this rule applies only where the co-defendant does not testify and is not available for cross-examination.

Boone’s enumeration of error is meritless. Once Courtney took the stand and answered questions concerning his statement, even if he denounced or recanted his statement, he was subject to cross-examination by Boone, and the Bruton rule did not apply.

3. Boone contends the trial court erred in permitting testimony which he claims injected his character into evidence. However, the record reveals that Boone never objected to the testimony on this ground. It is well established that a party must object to alleged improprieties when they occur to allow the trial court an opportunity to take remedial action. Failure to do so results in a waiver of the right to urge error on appeal. Because Boone failed to object to the admission of this evidence on the ground asserted as error, he has waived his right to claim error.

4. Boone claims the trial court erred in denying his motion for new trial on the ground that the state failed to disclose a promise of leniency made to Courtney in exchange for his trial testimony. We disagree.

The record reveals that Courtney repeatedly told the jury that he made his out-of-court statement to the officers in exchange for their promise to assist him in obtaining pretrial release on bail. However, Boone fails to point to any other evidence showing that the officers offered Courtney any consideration in exchange for his statement. And, there is no evidence in the record showing that Courtney’s testimony at trial, repudiating his out-of-court statement, was given pursuant to a promise of leniency. In fact, Courtney admitted that he had been given the opportunity to plead to a less severe offense than armed robbery if he decided to testify against his co-defendants. This offer was rejected, and Courtney went to trial, repudiating his out-of-court statement. Clearly, even if the state made a promise of leniency to Courtney if he testified against his co-defendants, Courtney did not accept such a promise, and his credibility based on such a promise was not at issue.

Boone has adduced no evidence of any deal or other arrangement with Courtney that might have caused the jury to view his testimony in a different light. The record clearly shows that Courtney took the stand, repudiated his out-of-court statement, and denied all culpability in connection with the incident. The trial court’s finding was authorized, and there was no due process violation.

5. Boone contends the trial court erred in denying his motion for new trial because one of the jurors allegedly gave false testimony during the selection process. At the hearing on Boone’s motion for new trial, one of his witnesses testified that he heard the juror say during voir dire that he did not know the prosecuting attorney, but later heard the same juror say he had known the prosecuting attorney for about a year. No other evidence regarding this issue was presented.

It is axiomatic that hearsay testimony is not only inadmissible, but is wholly without probative value, and its introduction does not give it any weight in establishing a fact. Testimony is considered hearsay if the witness is testifying to another party’s statement in order to prove or demonstrate the truth of the matter asserted in that statement. Since the juror who allegedly made the statements to the witness was not called to testify at the hearing on the motion for new trial, the statements constituted hearsay and could not authorize the grant of a new trial. Therefore, the trial court did not abuse its discretion in refusing to grant the motion on this ground.

6. Boone contends the trial court erred in denying his motion for new trial on the ground that the motion to suppress evidence taken from his cousin’s car should have been granted. However, the record shows that Boone had no ownership or proprietary interest in the car that was searched. Thus, he had no standing to complain of the search and the resulting seizure of evidence from the search.

7. Boone argues that the trial court erred in sentencing him on counts of aggravated assault, kidnapping, and armed robbery because these counts merged with other counts. We disagree.

The record reveals that Boone’s conviction for armed robbery (Count 1) against Sheppard was based on evidence showing that the robbers took her car from her at gunpoint when she exited the restaurant. The kidnapping charge (Count 2) was predicated on the fact that the robbers marched Sheppard back into the restaurant at gunpoint. The aggravated assault (Count 4) and kidnapping (Count 5) charges concerning Jordan were based on evidence showing that the robbers pointed a gun in his face and then forced him to walk into another room in the restaurant. With regard to Romeo, the armed robbery offense alleged in Count 7 was founded on her testimony that she was forced at gunpoint to surrender the restaurant’s receipts to the robbers. She likewise was compelled by the robbers to move from place to place in the restaurant, conduct forming the basis of the kidnapping charge in Count 8. The aggravated assault (Count 10) and kidnapping (Count 11) charges concerning Troup were based on his testimony that the robbers placed a gun at his back and threatened him. They also forced him to move about the restaurant.

The evidence shows that all of the offenses charged were separate and supported by different facts. Accordingly, they did not merge as a matter of fact or law.

8. The trial court did not err in refusing to sever the trial of Boone’s case from that of his co-defendants. The decision of whether to sever was within the trial court’s discretion, and we will not disturb that ruling absent a showing of clear abuse of that discretion. Boone argues that he was prejudiced by Courtney’s out-of-court statement. However, Courtney testified at trial, allowing Boone the opportunity to cross-examine him concerning both his trial testimony and his out-of-court statement. We find no abuse of discretion in the present case.

9. Boone contends the trial court erred in allowing an investigator whose name was not on the list of witnesses furnished by the state to testify at trial. In support of this argument, Boone relies on OCGA § 17-7-110, which dealt with permitting witnesses not listed to testify. The purpose of OCGA § 17-7-110 was to insure that an accused was not confronted at trial with testimony against him from a witness whom he had not had an opportunity to interview prior to trial. In the present case, the purpose of the statute was not thwarted, and Boone was not harmed, since Boone was given open access to the state’s file and the investigator’s name and reports were included in the file. Contrary to Boone’s assertion, exclusion of the investigator’s testimony was not mandatory under OCGA § 17-7-110 “where the trial judge in his discretion determine [d] that the defendant can be protected by some other form of relief.” Moreover, where the trial court has determined not to exclude the testimony of a witness whose name was not listed on the witness list, proper remedies include requests for a continuance or a mistrial. Here, no continuance was requested when the trial judge, in the exercise of his discretion, overruled Boone’s motion to exclude the investigator’s testimony, concluding that Boone was not surprised by the witness and had ample opportunity to interview him prior to trial. We find no error.

10. The trial court did not err in refusing to allow Boone to act as co-counsel with his attorney during the hearing on his motion for new trial. Essentially, Boone argues that both he and his attorney should have been able to participate in the hearing on his motion for new trial. We disagree, since the right to such hybrid representation has been abolished in Georgia.

11. Boone maintains that the trial court erred during the trial in not requiring the court reporter to take down certain bench conferences, objections to closing arguments, questions from the jury, and the court’s responses to jury questions. In felony cases, it is the duty of the trial judge to direct the recordation of the trial proceedings, including “all motions, colloquies, objections, rulings, evidence, . . . and all other proceedings which may be called in question on appeal.” However, Boone has not attempted to demonstrate any harm or prejudice resulting from this failure to record. Nor has

Boone fulfilled his duty to have the record completed by reconstruction pursuant to OCGA § 5-6-41. Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for us to review.

The record on appeal reveals that Boone filed a motion to enlarge the record on appeal and the trial court ordered the court reporter to transcribe the requested matters. The court reporter replied that she could not do so because the matters were not taken down. Boone made no further attempts to create a supplemental record.

Although Boone contends the trial court erred by failing to hold a hearing on this issue, in the absence of disagreement, the trial court was not required to “set the matter down for a hearing with notice to both parties and resolve the difference.” And the record does not show any attempt by Boone to meet with the state and augment or supplement the record to include the nontranscribed matters. We cannot determine that any harm was done by the failure to record the noted bench conferences, objections to closing arguments, questions from the jury, and the court’s responses to those questions because Boone has not had the record completed by reconstruction, pursuant to OCGA § 5-6-41 (f). To warrant reversal for the failure to record particular proceedings, “the party asserting error must show it by the record.” Under these circumstances, Boone has shown no grounds for reversal.

12. Boone contends his convictions should be set aside because the delay in the transcription and filing of the trial transcript resulted in his failure to locate and subpoena a witness. We have consistently held that the mere passage of time is not enough, without more, to constitute a denial of due process. To prevail, Boone must show that he was prejudiced by the delay.

While Boone argues in his appellate brief that the delay caused him to be unable to locate and subpoena a witness, he fails to point to any evidence in the record substantiating this claim. We cannot consider allegations of error in the brief of a party which are not supported by evidence in the record. Furthermore, Boone has failed to provide this Court with any indication of the contents of the absent witness’ testimony. A proffer of what the excluded evidence would have shown is necessary to afford a basis for an assertion of error. Since Boone has not made the requisite showing of prejudice, the delay in filing the transcript is not adequate grounds on which a new trial should be granted.

13. Boone lists two separate enumerations of error under subsection 13 of his brief.

(a) First, he contends his convictions should be set aside because the state intentionally withheld from him the clothing he was wearing at the time of his arrest, and this clothing did not match the clothing described by the witnesses to the robbery. However, Boone does not support this enumeration of error in his brief with a single citation to the record or to authority. In addition, he does not indicate any place in the record where he requested or subpoenaed the clothing. The burden is always on the appellant in asserting error to show it affirmatively by the record. Boone has not met this burden, and it is not the function of this Court to cull the record on behalf of a party in search of instances of error. Thus, we find that this enumeration of error lacks merit.

(b) Boone also contends the state improperly informed a victim that although the victim saw only two robbers, there were actually three participants. Boone claims that, but for the state’s comment regarding the number of robbers, the victim would have told police that Boone was not one of the robbers. First of all, Boone has failed to show that the state’s comment to the victim was, in the words of Boone, “purposeful misconduct” or improper. Secondly, Boone has failed to show that he was unable to question the victim regarding his identification of the robbers. We find no error.

14. Boone contends the trial court erred in charging the jury on the law of assault, conspiracy, and theft by receiving because these charges were not contained in the indictment.

(a) The trial court did not err in defining assault for the benefit of the jury and in explaining the essential elements of aggravated assault. In fact, this Court has on one occasion held that the trial court is required to do so in cases of this nature.

(b) The facts of the case show that the co-defendants were clearly acting in concert in perpetrating this crime. Such coordinated conduct justified the inference that there was a pre-existing agreement or conspiracy to commit the act before it occurred. “It is not error to charge on the subject of conspiracy when the evidence tends to show a conspiracy, even if a conspiracy is not alleged in the indictment.” A charge on the law of conspiracy was authorized by the evidence.

(c) The trial court set forth the elements of theft by receiving stolen property in its charge even though none of the defendants were accused of that crime. While the charge would have been clearer and more concise had the trial court not instructed the jurors on this unindicted offense, we find no harmful error.

At the outset of the charge, the trial court informed the jurors regarding the crimes of which the defendants were being tried. And, at the conclusion of the charge, the trial court specifically directed the jurors’ attention to the various crimes set forth in the indictment. At no point did the trial court ever tell the jurors that they were authorized to convict any defendant of the crime of theft by receiving stolen property. “[A]n erroneous charge touching on a matter not in issue under the evidence, unless prejudicial or harmful as revealed by the entire record, does not require or demand reversal.” We find no prejudice sufficient to demand a new trial.

15. The trial court’s charge to the jury regarding reasonable doubt was not error. In its jury instructions, the trial court charged the jury that the defendants were presumed innocent. The trial court then charged as follows:

This presumption remains with the Defendants until it is overcome by the State with evidence which is sufficient to convince you beyond a reasonable doubt that the Defendants are guilty of the offense charged. No person shall be convicted of any crime .unless until [sic] each element of the crime is proven beyond reasonable doubt. The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. There is no burden of proof upon the Defendants whatever and the burden never shifts to the Defendants to prove their innocence. However, the State is not required to prove the guilt of accused beyond all doubt or to a mathematical certainty. A reasonable doubt means just what it says. It is a doubt of a fair-minded, impartial juror honestly seeking the truth. It is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given arising from a consideration of the evidence, a lack of evidence, a conflict in the evidence, or a combination of these things. If after giving consideration to all the facts and circumstances of the case, your minds are wavering, unsettled, or unsatisfied, then that is the doubt of the law and you should acquit the Defendants. But if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the Defendants. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the Defendants’ guilt. There are very few things in the world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If based on your consideration of the evidence you are firmly convinced that the Defendants are guilty of the crimes charged, you must find them guilty. If on the other hand you think there is a real possibility that they are not guilty, you must give them the benefit of the doubt and find them not guilty. If the State fails to prove the Defendants’ guilt beyond a reasonable doubt, as I just stated, it will be your duty to acquit the Defendants.

Boone contends the trial court erred in authorizing the jury to convict if it was “firmly convinced” he was guilty and in authorizing the jury to find him not guilty if there was a “real possibility” he was not guilty. We find no error sufficient to require reversal.

Contrary to Boone’s assertion, the language charged by the trial court in the present case is not like the improper language found in Ward v. State. In Ward, the Supreme Court found that the trial court improperly lowered the state’s burden of proof when it charged the jury that the defendants could be found guilty or not guilty depending on what the jurors “honestly believed.” The charge in the present case does not suffer from the infirmity condemned in Ward.

Here, the jury was not instructed that it was authorized to convict Boone if, after balancing the evidence for themselves, they concluded that the state’s evidence of guilt was more persuasive than Boone’s evidence introduced in his defense. Rather, the trial court repeatedly emphasized the state’s burden of proving guilt beyond a reasonable doubt and informed the jury that they must be “firmly convinced” that Boone was guilty of the crimes charged before rendering a guilty verdict. There was no reversible error because the charge viewed in its entirety repeatedly and accurately conveyed to the jury the concept of reasonable doubt.

16. Boone contends the trial court erred in its charge on aggravated assault because even though he was indicted for aggravated assault by use of a handgun, the trial court instructed the jury that intent to murder, rape, or rob are alternative methods by which a person commits aggravated assault. We agree that this was error.

OCGA § 16-5-21 (a) provides that aggravated assault is committed when a person (1) assaults with intent to murder, rape, or rob; (2) assaults with a deadly weapon or with any instrument which, when used offensively against a person, is likely to or actually does cause serious injury; or (3) discharges a firearm from a motor vehicle toward a person.

The state alleged in the indictment that Boone assaulted two victims by abducting the victims at gunpoint. The type of assault alleged in the indictment would come within part (2) of OCGA § 16-5-21 (a). However, in its charge to the jury, the trial court recited both parts (1) and (2) of OCGA § 16-5-21 (a). The trial court further charged the jury: “The intent to murder or rape or rob is a material element of an aggravated assault as charged in this case,” and then detailed what the jury could consider when passing on the question of intent.

Boone contends that the trial court erred in giving this charge because the jury may have convicted him of the alternate manner of aggravated assault, namely, assault with intent to murder, rape, or rob. To support his argument, he points to testimony from the victims that when the robber entered the restaurant with the gun, he told one of the victims to take him to the safe or he would shoot the victim, and he told the victims to give him the money. According to Boone, the jury could have concluded from this evidence that the offense of aggravated assault was committed with the intent to murder (he was going to shoot the victim) or to rob (he demanded that the victims give him the money).

The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment. In the present case, while the trial court directed the jury’s attention to the indictment, no limiting instruction was given. Moreover, the trial court erroneously charged the jury that intent to murder, rape, or rob was a material element of the aggravated assault charges in the case. Clearly there was sufficient evidence from which the jury could conclude that the victims were assaulted with the intent to murder or rob — allegations not contained in the indictment. Accordingly, Boone’s due process rights were violated by the jury charge given by the trial court. Boone is entitled to a new trial on the aggravated assault counts, and we hereby remand this case for a new trial on these counts.

Judgments affirmed in part and reversed in part. Case remanded with direction.

Ruffin and Ellington, JJ, concur.

Decided May 7, 2001

Reconsideration denied June 19, 2001.

Sam B. Sibley, Jr., for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

        Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

       Id.

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams, supra.

       391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

        York v. State, 242 Ga. App. 281, 284 (2) (528 SE2d 823) (2000).

        House v. State, 237 Ga. App. 504, 507 (3) (515 SE2d 652) (1999); see also In the Interest of J B., 223 Ga. App. 429, 432 (2) (477 SE2d 874) (1996).

        Haynes v. State, 269 Ga. 181, 182 (2) (496 SE2d 721) (1998); Depree v. State, 246 Ga. 240, 242 (1) (271 SE2d 155) (1980).

        Ward v. State, 238 Ga. App. 540, 542 (2) (519 SE2d 304) (1999).

       Id.; Clark v. State, 236 Ga. App. 153, 155 (2) (510 SE2d 907) (1999).

       Compare Dinning v. State, 266 Ga. 694, 696-697 (2) (470 SE2d 431) (1996).

       See Klinect v. State, 269 Ga. 570, 572 (2) (501 SE2d 810) (1998).

        In re Burton, 271 Ga. 491, 494 (3) (521 SE2d 568) (1999).

       Id.

        Kodadek v. Lieberman, 247 Ga. App. 606, 611 (3) (545 SE2d 25) (2001).

        Banks v. State, 262 Ga. 190, 192 (5) (415 SE2d 634) (1992); Keishian v. State, 202 Ga. App. 718 (415 SE2d 324) (1992).

       See OCGA § 16-1-7; Emmett v. State, 199 Ga. App. 650, 651-652 (3) (405 SE2d 707) (1991); Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) (1983).

       OCGA § 17-8-4.

       See Belcher v. State, 207 Ga. App. 117 (1) (427 SE2d 88) (1993).

       See Rooks v. State, 238 Ga. App. 177, 181-182 (4) (518 SE2d 179) (1999); Montijo v. State, 238 Ga. App. 696, 699-702 (3) (520 SE2d 24) (1999).

       It should be noted that this statute was repealed effective January 1, 1995.

        Grace v. State, 210 Ga. App. 718, 721 (5) (437 SE2d 485) (1993); Griffin v. State, 183 Ga. App. 386, 388 (3) (358 SE2d 917) (1987).

       See generally McLarty v. State, 238 Ga. App. 27, 29 (2) (516 SE2d 818) (1999).

        Davis v. State, 135 Ga. App. 203, 207 (3) (217 SE2d 343) (1975).

        Grace, supra.

        Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986); Jones v. State, 171 Ga. App. 184, 185-186 (2) (319 SE2d 18) (1984).

       OCGA § 5-6-41 (a), (d).

       See Ramsay v. State, 220 Ga. App. 618, 626 (13) (469 SE2d 814) (1996).

       See Mapp v. State, 204 Ga. App. 647, 648 (2) (420 SE2d 615) (1992).

        Ivory v. State, 199 Ga. App. 283, 284 (1) (405 SE2d 90) (1991).

       OCGA § 5-6-41 (f); Turner v. State, 226 Ga. App. 348, 349 (1) (486 SE2d 639) (1997).

       (Citations and punctuation omitted.) Mapp, supra.

       See Ramsay, supra.

        Proffitt v. State, 181 Ga. App. 564, 566-567 (3) (353 SE2d 61) (1987).

        Cowan v. State, 243 Ga. App. 388, 396 (9) (531 SE2d 785) (2000); Proffitt, supra.

        Causey v. State, 215 Ga. App. 723, 726 (9) (452 SE2d 564) (1994).

       Id.

        Proffitt, supra.

        Melton v. State, 222 Ga. App. 555, 559 (6) (474 SE2d 640) (1996).

       Id.

        Smith v. State, 140 Ga. App. 395, 396 (1) (231 SE2d 143) (1976).

       (Citation omitted.) Holmes v. State, 272 Ga. 517, 519 (6) (529 SE2d 879) (2000); Wiley v. State, 238 Ga. App. 334, 335 (4) (519 SE2d 10) (1999).

       (Citation omitted.) Byrd v. State, 186 Ga. App. 446, 450 (4) (b) (367 SE2d 300) (1988).

       271 Ga. 62, 63-64 (2) (515 SE2d 392) (1999).

       See id. at 64.

       See York, supra at 290 (5) (a); Mitchell v. State, 225 Ga. App. 26, 28-29 (2) (482 SE2d 419) (1997).

        Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999).

       Id.; compare Thomas v. State, 268 Ga. 135, 141 (17) (485 SE2d 783) (1997); Johnson v. State, 245 Ga. App. 761-762 (1) (538 SE2d 850) (2000).


author: Ruffin, Judge.

text:
    A01A0680.
    ROSENHEIMER et al. v. TIDAL CONSTRUCTION COMPANY.
    (550 SE2d 698)
   Ruffin, Judge.

Robert Rosenheimer and Victoria Soland (the plaintiffs) purchased a new home built by Tidal Construction Company (Tidal). After discovering an alleged moisture problem with the synthetic stucco exterior of the house, the plaintiffs sued Tidal and Colormatch Exteriors, Inc. (Colormatch), the company that manufactured the synthetic stucco. The defendants moved for summary judgment, asserting that all of plaintiffs’ claims were barred by the statute of limitation. The trial court granted defendants’ motions, and this appeal ensued. For reasons that follow, we reverse.

To prevail on a motion for summary judgment, a defendant must demonstrate that there are no genuine issues of material facts and that the facts, viewed most favorably to the plaintiff, warrant judgment as a matter of law. “We review a grant of summary judgment de novo.”

Viewed in this light, the evidence shows that Tidal obtained a building permit in June 1994 to build a house in Bryan County. The exterior of the house was finished using an exterior insulation and finish system, also referred to as synthetic stucco, that was allegedly manufactured by Colormatch. The construction was essentially complete in February 1995, and in March or April 1995, a real estate agent showed Rosenheimer the house. On April 15, 1995, Rosenheimer and Soland signed a contract to purchase the house. Tidal obtained a certificate of occupancy on June 22, 1995, and the closing took place on June 26, 1995.

According to Rosenheimer, after closing on the house, he began noticing moisture problems with the house, which he attributes to both the “defective” nature of Colormatch’s synthetic stucco as well as Tidal’s improper application of the product. On April 19, 1999, Rosenheimer and Soland filed suit against Tidal. On June 22, 1999, Colormatch was added as a party to the suit. The plaintiffs asserted claims for negligence, negligent misrepresentation, breach of implied warranty, breach of implied contract, and bad faith. With respect to Colormatch, the plaintiffs also asserted a strict liability claim.

Both defendants moved for summary judgment, arguing that the plaintiffs’ claims were barred by the statute of limitation in OCGA § 9-3-30 (a), which provides that “[a]ll actions for . . . damage to realty shall be brought within four years after the right of action accrues.” According to defendants, the right of action accrued four years after Tidal finished building the house in February 1995. Thus, they reasoned, the April 1999 complaint was not timely filed. The trial court agreed and granted both motions for summary judgment.

1. In several enumerations of error, the plaintiffs contend that the trial court erred in concluding that their tort claims are barred by the statute of limitation. The parties agree that tort claims are governed by a four-year statute of limitation. The issue on appeal is when the right of action accrues for damage to realty claims. “It is well settled that the starting date for [such] damage to realty claims is the date of ‘substantial completion.’ ” According to the plaintiffs, the house was not substantially complete until the builder obtained the certificate of occupancy on June 22, 1995. The defendants, on the other hand, argue that the house was substantially complete in February 1995, when the construction was complete. We agree with the plaintiffs.

In the recent case of Hickey v. Bowden, this Court addressed this exact issue. We held that “[b]ecause the [plaintiffs] could not legally occupy the house for the purpose for which it was intended — as their residence — until the certificate of occupancy was issued,” the date the certificate is issued serves as the earliest date the house can be deemed substantially completed. Here, it is undisputed that the plaintiffs filed suit prior to June 22, 1999, four years from the date the certificate of occupancy 'was issued. It follows that the trial court erred in concluding that their tort claims are barred by the statute of limitation.

2. The plaintiffs also contend that the trial court erred in finding that the contractual claims are governed by the four-year statute of limitation set forth in OCGA § 9-3-30. We agree. In several recent cases, this Court has made abundantly clear that “the six-year statute of limitation governing simple written contracts applies to a contract for the sale of new construction.” Thus, to the extent that the plaintiffs’ complaint alleges breach of the written contract — including claims for breach of implied warranty stemming from that contract — such claims are governed by the six-year statute of limitation. To the extent that the complaint alleges breach of an implied contract, such claim would be subject to the four-year statute of limitation. For the reasons set forth in Division 1, such claims were timely asserted. Accordingly, the trial court erred in granting defendants’ motions for summary judgment.

Decided June 19, 2001.

Eugene C. Brooks TV, Christopher M. Kessinger, for appellants.

Brannen, Searcy & Smith, Daniel C. Cohen, Ashlee H. Vaught, for appellee.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       See Swan Kang, Inc. v. Kang, 243 Ga. App. 684, 685 (534 SE2d 145) (2000).

       Id.

       See Mitchell v. Jones, 247 Ga. App. 113, 115-116 (2) (541 SE2d 103) (2000).

        Hickey v. Bowden, 248 Ga. App. 647, 649 (2) (548 SE2d 347) (2001).

       Id.

       Id. at 650 (2).

        Smith v. KLS Constr. Co., 247 Ga. App. 493, 494 (1) (544 SE2d 197) (2001). See also Stimson v. George Laycock, Inc., 247 Ga. App. 1, 3 (1) (542 SE2d 121) (2000); Mitchell v. Jones, supra at 114 (1).

       See Hickey, supra at 649 (1).

       See Bauer v. North Fulton Med. Center, 241 Ga. App. 568, 572 (3) (b) (527 SE2d 240) (1999).


text:
    A01A0734.
    BROWN v. THE STATE.
    (550 SE2d 701)
   Smith, Presiding Judge.

Cornelius Edward Brown (“Brown”), his son Robert Michael Brown, and Tom Perry were indicted by a Madison County grand jury on one count of arson in the first degree by burning the dwelling house of another. Brown was tried separately for the offense; Robert Brown pled guilty and testified against his father. The jury found Brown guilty, his motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Brown first complains that the trial court erred when it allowed the State to question Robert Brown regarding his prior consistent statement to the police. In Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998), the Supreme Court of Georgia limited the application of the rule established in Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985), regarding the introduction of prior consistent statements of a witness. In Woodard, the State introduced the victim’s prior consistent statement through the testimony of a sheriff’s investigator on direct examination. The Supreme Court held that the statement was “hearsay evidence improperly admitted to bolster the witness’s credibility in the eyes of the jury.” Id. at 321 (2).

In contrast, Robert Brown was questioned by the State regarding his own earlier statement to investigators.

The simple answer to this enumeration is that a witness’ testimony as to what he (the witness) said is not hearsay. Hearsay evidence is that which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. In short, the hearsay rule prohibits the witness from testifying as to what another person said; it does not apply to what the witness himself said.

(Citations and punctuation omitted.) Webb v. State, 154 Ga. App. 395, 397 (2) (268 SE2d 438) (1980); see also Butts v. State, 141 Ga. App. 634 (5) (234 SE2d 176) (1977); Sellers v. White, 104 Ga. App. 148, 149 (5) (121 SE2d 385) (1961).

Even if this were not the case, the evidence against Brown in addition to Robert Brown’s testimony regarding his prior statement was overwhelming. The State presented testimony from a fire investigator and a forensic chemist that the fire was incendiary in origin and that gasoline was used as an accelerant. An eyewitness saw a black Dodge truck several times near the house, wrote down the tag number, and observed one man waiting in the truck while the other was running down the driveway carrying a garbage bag with “something sticking out of it.” Within “about two minutes” he saw that the house was on fire. At trial, he positively identified Brown and his son as the two men he had seen. The police located Brown and his son using the tag number of his truck, and they were questioned and confessed to the arson. At trial, Robert Brown testified in detail to the arson. lie testified that Perry hired him and his father to burn down the house of a man who owed him money, that they drove by the house “three or four times” to identify it, that his father purchased two gallons of gasoline, and that he poured the gasoline on the porch and side of the house and lit it. Under the circumstances, it does not appear likely that Robert Brown’s testimony regarding his earlier statement to police contributed to the verdict. Astudillo v. State, 244 Ga. App. 612, 613-614 (536 SE2d 271) (2000).

2. Brown also contends the trial court erred in failing to grant his motion for directed verdict because the State failed to prove the corpus delicti of the alleged crime. He asserts that while the indictment showed the address of the burned property as Cleghorne Road, the house actually was located on George Washington Avenue.

Brown relies upon Charles v. State, 167 Ga. App. 806 (307 SE2d 703) (1983). In that burglary case, the victim, a business, owned five warehouses in the county. The indictment alleged that a warehouse at a specific address was burglarized, but the proof at trial showed that the crime actually occurred at another of the victim’s warehouses at a different address. We held that failure to grant a directed verdict of not guilty was error, holding that the general rule of DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) (1969), requires “specification in a burglary indictment of the particular business structure burglarized when that business operates from two or more locations in the county. [Cits.]” Charles, supra at 807. But we have declined to expand this holding beyond the specific situation in which a business owns more than one location within a county. Mobley v. State, 164 Ga. App. 154 (1) (296 SE2d 617) (1982). Even if we assume that the rule in a burglary prosecution may be applied to a case of arson, it is undisputed that the victims in this case owned only one home in Madison County and that their home was burned.

The variance between the indictment and the proof did not misinform or mislead [appellant] in any manner that surprised him at trial or impaired his defense. Nor can he be subjected to another prosecution for the same offense. Accordingly, there was no fatal variance between the allegations and the proof. The trial court properly denied [appellant’s] motion for a directed verdict on this ground.

(Citation omitted.) Jackson v. State, 217 Ga. App. 485, 490 (5) (458 SE2d 153) (1995) (physical precedent only) (error in street address immaterial when victim owned no other residence).

In addition, the State presented evidence from which the jury could conclude that the address of the home in question was in fact Cleghorne Road at the time of the fire. Several witnesses testified that, at approximately the time of the fire, Madison County was in the process of implementing a 911 call system and standardizing road names in the county. The process took approximately one year to complete, and forms were required to be completed and sent to the county by the property owner. The owner of the property received the forms and forwarded them to the individuals renting the property, but “they weren’t there long enough to send it in and get the address properly changed.” Before this change, the address of the house was known as Cleghorne Road, the paved road upon which the mailbox for the residence was located. One of the owners of the house testified to the address and brought her cancelled checks, insurance policy on the house, and bills showing the address as Cleghorne Road. The volunteer fire department report of the fire also showed the address as Cleghorne Road. While some evidence was presented that the address had changed to George Washington Avenue by the time of the fire, this issue clearly was in dispute and hotly contested by the parties at trial. The trial court was correct in its assessment that such a disputed issue of fact was for the jury to decide and that a directed verdict of acquittal was inappropriate on this basis.

3. Finally, Brown complains that his confession was improperly admitted for the jury’s consideration, contending that it was not freely and voluntarily given and that he did not knowingly and intelligently waive his rights. The trial court held a Jackson-Denno hearing and heard evidence from the chief deputy who interviewed Brown at the sheriff’s office for “probably an hour or so.” The deputy testified that he informed Brown of his rights by means of a standard form, which he read to Brown in its entirety and read again for the jury. The form also recorded information regarding Brown’s age, level of education, and illiteracy; he informed the deputy that he could not read and write, although he had completed the ninth grade in school. Illiteracy, however, “does not dictate a determination that there has been no voluntary knowledgeable waiver.” (Citation and punctuation omitted.) Watson v. State, 159 Ga. App. 618, 620 (2) (284 SE2d 636) (1981). The deputy testified that Brown did not have any questions regarding the waiver form, that he did not wish to have an attorney present, that he did not appear to be under the influence of alcohol or drugs, that he appeared to know what he was doing in giving his statement, and that the deputy did not promise him anything or threaten him in any way. After having the statement read to him, Brown signed the waiver agreeing “to answer questions and make a statement.”

Brown testified that he “asked for a lawyer, I don’t know how many times. Bunches and bunches. And he told me I did not need one.” He also testified that the chief deputy cursed him and threatened to break his arm off and beat him to death with it. He denied having his rights read to him, although he acknowledged that he signed the waiver form, contending that “[h]e told me to sign it, and I signed it.” He denied having made the written statement, contending that he “didn’t have a choice. They wasn’t letting me do nothing. They kept me in there. They told me I couldn’t have an attorney.” He maintained that the deputies told him, “Robert said it. And I says, okay, whatever.” He also contended he was denied food and drink, but he acknowledged that he did not ask for any and that he was allowed to go outside and smoke a cigarette.

Decided June 19, 2001

James W. Smith, for appellant.

Robert W. Lavender, District Attorney, Marsha D. Cole, Assistant District Attorney, for appellee.

Brown’s live-in girlfriend testified that she sat outside in the hallway for “six or seven hours” while the sheriff’s deputies were questioning Brown and that during that time she heard only four things from inside the room: She heard Brown ask for an attorney; she heard a deputy say “that he didn’t need a d — n attorney”; she heard the deputy tell Brown “he was going to rip his arm off and beat him with it”; and she heard “slamming” and “cursing and hollering and real loud.” The interviewing deputy denied having made any such statements. The witness also contended she asked a “fire marshal, fire chief, or something” for a lawyer for Brown and that he too responded that “he didn’t need a d — n attorney.” She also testified that Brown was not allowed food and drink, although he did step outside and smoke. The deputy, however, testified that Brown was allowed to get “drinks there from the drink machine” and to go home to retrieve some clothes.

The trial court found that the statement was freely and voluntarily made after Brown was advised of his Miranda rights, although noting that “of course, the State still has to prove that fact before the jury.” The jury was instructed to this effect.

Factual and credibility determinations of this sort made after a Jackson-Denno voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous. Since the trial court’s determination here is supported by evidence (even though contradicted), it is not clearly erroneous and is therefore affirmed.

(Footnotes omitted.) Hammett v. State, 246 Ga. App. 287, 288 (1) (539 SE2d 193) (2000).

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Shortly afterward, the Browns discovered that they had burned the wrong house.

       This decision was originally physical precedent only, but it has been cited on numerous occasions without noting its precedential status, although not for the proposition stated in this Division. See, e.g., Smith v. State, 270 Ga. 68, 69 (2) (508 SE2d 145) (1998); Parker v. State, 244 Ga. App. 419, 421 (3) (535 SE2d 795) (2000).