text:
    A89A0910.
    WHITTLESEY v. THE STATE.
    (385 SE2d 757)
   Pope, Judge.

Whittlesey was charged with aggravated assault and possession of a firearm by a convicted felon arising out of events on December 5, 1986, and he also was charged with aggravated assault, burglary, and kidnapping arising out of events on December 19, 1986. After a jury trial, Whittlesey was convicted of the December 5 aggravated assault and firearms possession charges and of the burglary charge stemming from the December 19 events. He was acquitted of the aggravated assault and kidnapping charges related to the events of December 19. Whittlesey appeals and argues the general grounds. Held:

The victim testified that she and Whittlesey were formerly intimate companions, but on December 5, 1986, they were estranged. However, she and Whittlesey were riding to the store that day when Whittlesey turned to her and said “You don’t believe I’d shoot you, do you?” When the victim replied “No,” Whittlesey shot her in the leg. The victim, her mother and a neighbor testified that, on December 19, 1986, Whittlesey broke through a glass door at the victim’s mother’s house and fired two shots at the victim and then dragged her out to his car and drove off. Three days later, the victim hailed a police officer in Atlanta and told him she had been kidnapped in Columbus.

“It is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. This court must view the evidence in a light most favorable to the jury’s verdict.” Harris v. State, 190 Ga. App. 516, 517 (379 SE2d 600) (1989). (Punctuation and citations omitted.) Though there is conflict, there is sufficient evidence to support the jury’s verdict.

Decided September 5, 1989

H. Haywood Turner III, for appellant.

Douglas C. Pullen, District Attorney, Martha D. Blackmon, Assistant District Attorney, for appellee.

Whittlesey argues particularly that his conviction of burglary cannot stand because it was predicated upon unauthorized entry with intent to commit a felony and the jury acquitted him of the two underlying felonies, aggravated assault and kidnapping. “To complete the crime of burglary, it is not necessary that a defendant actually commit a theft or a felony; it is sufficient if he enters without authority and with the intent to commit a theft or a felony.” Childs v. State, 257 Ga. 243, 251 (357 SE2d 48) (1987). (Citation and punctuation omitted.) The evidence showed that Whittlesey parked his car in a wooded area three blocks from the house and cut the telephone lines before bursting through a glass door at the home and dragging the victim off at gunpoint. Though the jury apparently believed that the victim acquiesced in her departure from the premises and thus acquitted Whittlesey of the kidnapping, nonetheless the jury was authorized by the evidence to find that he entered the residence without authority and with the intent to kidnap. The crime of burglary was complete at that moment and the acquittal on the charge of kidnapping did not affect the basis for the conviction of burglary.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A89A0912.
    DARBY v. THE STATE.
    (385 SE2d 758)
   Banke, Presiding Judge.

On appeal from his conviction of trafficking in cocaine, the appellant contends that the trial court erred in refusing to suppress as evidence 79 grams of powder containing 26 grams of cocaine which were seized from inside an aerosol spray can found in the trunk of his automobile. He further contends that the trial court erred in allowing the State to recall one of its witnesses and that the evidence was insufficient to establish that he had in fact been in possession of the cocaine in question.

The appellant’s business premises were searched pursuant to a warrant on December 11, 1987, and he was arrested at that time based on the discovery of cocaine inside his pocket watch and inside a clock located in his office. In addition, cocaine residue was found on a set of scales seized from the trunk of his automobile. Also observed in the trunk of his automobile at this time was a can of “Gunk” brand engine cleaner.

Decided September 5, 1989.

Jerry C. Gray, for appellant.

The appellant’s automobile was impounded at the time of his arrest. Five days later, on December 16,1987, a warrant was issued for a second search of the vehicle based on information received from an informant to the effect that it contained additional cocaine which had not yet been discovered. This second search, which occurred on the same day the warrant was issued, did not result in the discovery of any additional contraband. However, during a third search of the vehicle which was conducted seven days later, on December 23, 1987, the cocaine in question was discovered inside a false bottom in the Gunk can. Held:

1. The appellant contends that the third search of the vehicle was unlawful in that it was conducted under the authority of a warrant which had already been executed a week,earlier. However, it was established without dispute that the vehicle had remained in police custody throughout this period, having been impounded at the time of the appellant’s arrest. Under the circumstances, we hold that the appellant had no reasonable expectation of privacy in the contents of the vehicle at the time the contraband was discovered and seized, with the result that the search did not violate his Fourth Amendment rights. Accord United States v. Johnson, 572 F2d 227 (9th Cir. 1978).

2. The appellant contends that the trial court erred in allowing the State to recall one of its witnesses for the purpose of establishing that his (the appellant’s fingerprints had been lifted both from the Gunk can and from the plastic bag securing the cocaine). In response to the appellant’s objection that this witness had already testified, the State explained that the evidence in question could not have been elicited during the witness’ previous testimony because at that time both the can and the plastic bag were still in the possession of the forensic chemist from the State Crime Lab, who had not yet arrived to testify. The trial court has the discretion to allow a witness to be recalled to present additional evidence even after both sides have closed. See Rick v. State, 152 Ga. App. 519, 521 (14) (263 SE2d 213) (1979). Accordingly, this enumeration of error is without merit.

3. The evidence, considered as a whole, was amply sufficient to enable a rational trier of fact to find the appellant guilty of trafficking in cocaine beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier and Pope, JJ., concur.

Larry J. Darby, pro se.

Timothy G. Madison, District Attorney, Michael H. Booth, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    A89A0917.
    MARLOW v. THE STATE.
    (385 SE2d 759)
   Beasley, Judge.

Defendant appeals his conviction of burglary, OCGA § 16-7-1, enumerating as error that: 1) the prosecutor expressed his personal belief in defendant’s guilt; 2) a State’s witness placed defendant’s character in evidence; 3) his custodial statement was admitted into evidence in violation of OCGA § 17-7-210; 4) certain admitted testimony was hearsay.

1. The prosecutor responded to an objection to cross-examination regarding a Bible defendant was holding closely during his testimony: “Your Honor, the relevance is that the entire defense is a charade and that this is a prop.” The jury could infer he personally disbelieved defendant’s testimony. After defendant’s motion for mistrial, the court took prompt corrective action both out of and in the jury’s presence, sternly admonishing the prosecutor. The prosecutor apologized both times. Afterwards, defendant neither renewed his motion for mistrial nor requested any other additional court action. What was raised was not preserved for appellate review. Burgess v. State, 149 Ga. App. 630, 631 (1) (255 SE2d 100) (1979); Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981).

2. Defendant asserts error in the failure to grant his motion for mistrial because his character was placed in evidence. The victim of the burglary, who allegedly placed defendant’s character into evidence, was repeating defendant’s statement to him “that he had a problem with cocaine.”

Defendant’s indicating he may have committed another separate offense is not a valid ground of objection to the recitation of his incriminatory statement. Bradford v. State, 166 Ga. App. 584, 585 (4) (305 SE2d 32) (1984); Mathis v. State, 172 Ga. App. 314 (1) (323 SE2d 227) (1984). See McGinnis v. State, 258 Ga. 673, 674 (2) (372 SE2d 804) (1988). Moreover, the court promptly gave curative instructions and defendant failed to renew his motion or object further. Tarver v. State, 186 Ga. App. 905, 906 (2) (368 SE2d 828) (1988).

3. Prior to trial and pursuant to OCGA § 17-7-210, defendant requested copies of any custodial statements he made which were in the State’s possession. He asserts error in the admission of the statement which arose out of his discussion with the victim. See Walraven v. State, 250 Ga. 401, 405 (2) (297 SE2d 278) (1982). The prosecutor explained that he became aware of it at 11:30 the morning of the trial. This was corroborated by the victim and the investigating officer. OCGA § 17-7-210 (e) excepts from the exclusionary provisions of the statute evidence discovered after the request is filed. Satterfield v. State, 256 Ga. 593, 600 (12) (351 SE2d 625) (1987). The court was authorized to conclude that the sanctions for failing to supply the statement were not applicable. Ledesma v. State, 251 Ga. 487, 489 (5) (306 SE2d 629) (1983); Eady v. State, 182 Ga. App. 293, 299 (8) (355 SE2d 778) (1987); Wesley v. State, 177 Ga. App. 877, 879 (3) (341 SE2d 507) (1986); Hampton v. State, 162 Ga. App. 672, 674 (3) (292 SE2d 544) (1982).

Decided September 5, 1989.

Robert G. Rubin, for appellant.

Lewis R. Slaton, District Attorney, William C. Akins, Nancy A. Grace, Joseph J. Drolet, Assistant District Attorneys, for appellee.

4. Defendant contends that certain testimony given by an officer regarding statements made to him in the course of his investigation were prejudicial hearsay. See Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982). Substantially the same evidence was introduced another way. It was cumulative and harmless. Teague v. State, 252 Ga. 534, 537 (2) (314 SE2d 910) (1984); Spaulding v. State, 185 Ga. App. 812, 814 (3) (366 SE2d 174) (1988).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


author: McMurray, Presiding Judge.

text:
    A89A0983.
    OWENS v. THE STATE.
    (385 SE2d 761)
   McMurray, Presiding Judge.

Defendant was charged in two counts for trafficking in cocaine and for violating Georgia’s Controlled Substances Act (possession of less than one ounce of marijuana). The evidence adduced at a motion to suppress hearing revealed the following:

While working in plain-clothing at the Atlanta airport, Agent Terrell Toles of the Drug Enforcement Administration’s Airport Task Force observed defendant deplane from a flight arriving from Fort Lauderdale, Florida. Defendant was dressed casually and he was carrying “a small suitcase . . . .” As defendant approached airline employees who were assisting passengers with their connecting flights, Agent Toles positioned himself behind and to the side of defendant. Agent Toles discovered that defendant’s travel arrangements and itinerary matched those of a typical drug courier, i.e., defendant’s flight reservation was one-way passage from a known drug source city, defendant had paid cash for his airline ticket and defendant had purchased his ticket shortly before the flight.

Agent Toles and Agent Gil Lollimere, another plainclothes drug enforcement officer, proceeded to the boarding gate of defendant’s connecting flight. As the agents approached the area, Agent Toles noticed defendant walking in their direction and, from a distance of “[a]bout fifty feet. . .,” he observed defendant stop and turn around “as if he was just looking around . . . .” Defendant then “circled” and the agents “walked up beside . . .” defendant; identified themselves as law enforcement officers and Agent Toles “asked [defendant] if [he] could speak to him for a second.” Defendant consented and Agent Toles asked defendant for his airline ticket. Defendant produced his ticket and Agent Toles noticed that defendant had no baggage claim receipts attached to the ticket, another characteristic of a drug courier. Agent Toles returned the ticket to defendant and asked defendant for identification. Defendant produced a “State of Florida birth registration card ...” and, after inquiry, defendant indicated that he had no “pictured identification . . . .” Agent Toles returned the birth registration card to defendant and informed defendant that he and Agent Lollimere “were narcotics officers looking for drugs and or the proceeds from drug transactions going through the airport.” At that point, defendant’s “breathing became real heavy and his hands were shaking.” Agent Toles asked defendant if “he would cooperate and allow a search of himself and of the suitcases that [defendant] was carrying.” Defendant responded, “yeah, okay.” Agent Toles “then explained to [defendant] that the search could be done there in the public area ... or that [they] could go to a small private office that was just a few feet away . . . .” Defendant “indicated that he preferred a private office.”

After the men entered the private office, Agent Toles again asked defendant for permission to conduct a search. Defendant agreed and, “[a]s [Agent Toles] began to unzip the bag, [defendant] made the statement, you guys go ahead and arrest me.” Agent Toles asked, “why is that. . .” At that moment, Agent Toles looked in defendant’s suitcase and discovered two packages which contained “approximately five hundred and sixty grams of a white powder” which he suspected to be cocaine. Defendant was placed under arrest and a search of defendant’s clothing revealed that he was also carrying a substance which appeared to be marijuana. Upon the conclusion of the hearing, the trial court denied defendant’s motion to suppress evidence. The case was later tried before the court without a jury and defendant was found guilty on both counts of the indictment. This appeal followed. Held:

1. Defendant first contends the trial court erred in denying his motion to suppress evidence, arguing that “there was no reasonable and articulable suspicion a crime was about to be committed [, that his] detention . . . violated his constitutional right to be free from unreasonable searches and seizures and therefore the evidence should have been excluded as fruit of the poisonous tree.”

“The Fourth Amendment’s proscription against unreasonable searches and seizures governs all seizures of the person, ‘including seizures that involve only a brief detention short of traditional arrest. [Cits.]’ [Cit.] ‘The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by énforcement officials with the privacy and personal security of individuals.” (Cit.]’ [Cit.] In distinguishing between an intrusion amounting to a ‘seizure’ of the person and an encounter that intrudes upon no constitutionally protected interest, [this Court has adopted the] standard proposed by Justice Stewart in United States v. Mendenhall, (446 U. S. 544, 554 (100 SC 1870, 64 LE2d 497) (1980)); ‘(A) person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Moran v. State, 170 Ga. App. 837, 839 (1), 840 (318 SE2d 716) (1984). See also McA-doo v. State, 164 Ga. App. 23, 25 (1) (295 SE2d 114) (1982).

“In other words, the ‘Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief “seizures” that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause. (Cits.)’ United States v. Berry, 670 F2d 583, 591 (5th Cir. 1982). Factors determinative of whether or not an intrusion or ‘seizure’ has occurred ‘include the lack of interference with the individual’s progress, ascertaining whether the individual is willing to cooperate with police before making further inquiries, no display of official authority beyond a statement that the person stopping the individual is a law enforcement officer, and conducting the encounter in an appropriately deferential manner to avoid causing the individual . . . anxiety and fear . . . .’ McAdoo v. State, supra at 26-27.” Allen v. State, 172 Ga. App. 663, 664 (1), 665 (324 SE2d 521).

In the case sub judice, the agents wore no uniforms and displayed no weapons. They did not summon defendant to their presence, but instead “walked up beside” defendant and identified themselves as law enforcement officers. Agent Toles spoke in a conversational tone, asking for, rather than demanding, defendant’s ticket and identification. Agent Toles held the ticket and identification card only long enough to read them before returning them to defendant. Finally, Agent Toles twice requested defendant’s permission to search defendant and his belongings. These circumstances demonstrate that defendant was not “seized” during his encounter with Agent Toles and Agent Lollimere in the airport. “ ‘In short, nothing in the record suggests that the (defendant) had any objective reason to believe that (he) was not free to end the conversation . . . and proceed on (his) way . . .’ United States v. Mendenhall, 446 U. S. 544, 555 [, supra]. Accord State v. Reid, 247 Ga. 445 (276 SE2d 617) (1981); Allen v. State, 172 Ga. App. 663 (1) [, supra]; Berry v. State, 163 Ga. App. 705 (3) (294 SE2d 562) (1982).” Ullrich v. State, 176 Ga. App. 260, 262 (335 SE2d 490). Consequently, since defendant’s encounter with the agents involved no coercion or detention, his constitutional rights were not invoked and the trial court did not err in denying defendant’s motion to suppress. See William W. Daniel’s Ga. Criminal Trial Practice, (1986 ed.) § 3-4, 53.

Decided September 5, 1989.

William E. Frey, for appellant.

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

2. Next, defendant contends that he did not voluntarily and freely consent to the search of his suitcase.

Agent Toles testified that defendant consented to the search in a public area of the airport and again in the private office where the search was conducted. This evidence was sufficient to warrant the trial court in concluding that defendant’s consent to the search was freely and voluntarily made. See Allen v. State, 172 Ga. App. 663, 666 (4), supra. “ ‘ “(T)he trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. (Cits.)” (Cit.)’ McShan v. State, [155 Ga. App. 518, 519 (2) (271 SE2d 659)]” Allen v. State, 172 Ga. App. 663, 666 (3), supra.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A89A0995.
    GREENWAY v. SOUTHERN GENERAL INSURANCE COMPANY.
    (385 SE2d 793)
   Pope, Judge.

Appellant Greenway was involved in an accident while driving a Chevrolet Suburban vehicle provided to him by his employer. At issue in this appeal is whether the insurance policy issued by appellee Southern General Insurance Company (Southern General) to Green-way’s wife, in which Greenway is an insured person, provides coverage in this situation. The trial court held that no coverage existed and granted summary judgment to Southern General in this declaratory judgment action. Held:

Decided September 5, 1989.

J. Calloway Holmes, Jr., for appellant.

Freeman & Hawkins, Michael J. Goldman, N. Jackson Harris, for appellee.

We affirm. The policy in question was issued to Green way’s wife for her 1978 Chrysler. By definition in the policy, Greenway was an insured. However, the policy, in a section captioned “Use of Other Automobiles,” specifically excluded from coverage “any automobile owned by or furnished for regular use to either the named insured or a member of the same household . . . .”

The undisputed facts show that Greenway was furnished a vehicle on a regular basis by his employer. The fact that the vehicle normally used by Greenway, a .1983 Ford truck, was in the shop and he had been driving the Suburban only a short time does not remove this situation from the rule set out in Mattox v. Cotton States Mut. Ins. Co., 156 Ga. App. 655 (275 SE2d 667) (1980). We agree with the trial court that Mattox is controlling and summary judgment to Southern General was appropriate.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Carley, Chief Judge.

text:
    A89A1013.
    HUNTER v. THE STATE.
    (385 SE2d 764)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of armed robbery and aggravated assault. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Appellant enumerates the general grounds.

Because the victim had not seen her assailant and the knife found at the scene of the crime could not be identified as belonging to appellant, the contention is that the evidence is insufficient to convict. Whether the evidence presented at trial excluded every reasonable hypothesis save that of appellant’s guilt was a question for the jury. See generally Moore v. State, 189 Ga. App. 810 (377 SE2d 897) (1989). The jury was authorized to find that appellant was the only person who could have committed the crimes. We find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt of aggravated assault and armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 5, 1989.

Lennie W. Jones, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J.| Michael McDaniel, Assistant District Attorneys, for appellee.

2. The trial court determined a registered nurse to be qualified as an expert witness in the field of anatomy. This ruling is enumerated as error.

“[T]he law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise. ... [A] licensed registered nurse is qualified to testify as an expert witness within the areas of her expertise. [Cit.]” Hyde v. State, 189 Ga. App. 727, 728 (377 SE2d 187) (1988). Whether a person possesses the “ ‘qualification as an expert witness rests entirely in the sound discretion of the judge . . . The decision of the judge will not usually be overturned’ unless the witness actually lacks appropriate credentials or the judge has applied the wrong criteria.” Hyde v. State, supra at 729. There was no abuse of the trial court’s discretion in the present case.

3. There was no inconsistency between the victim’s trial testimony and the pre-trial statement that she had made. The record shows only that the victim’s trial testimony included facts which were not contained in her pre-trial statement. “This addition does not. . . create an inconsistency in her testimony.” See Baxter v. State, 254 Ga. 538, 541 (3b) (331 SE2d 561) (1985). Accordingly, the trial court’s failure to provide appellant with a copy of the victim’s pre-trial statement was not violative of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). See Baxter v. State, supra at 541 (3b).

4. The trial court’s admission into evidence at the sentencing hearing of appellant’s prior convictions is enumerated as error. Appellant argues that he was not given timely notice of the State’s intent to introduce those convictions.

OCGA § 17-10-2 (a) provides, in relevant part, that “only such evidence in aggravation [of punishment] as the State has made known to the defendant prior to his trial shall be admissible.” The trial court heard the conflicting recollections of the attorneys and concluded that timely notice of the State’s intent to introduce appellant’s prior convictions as evidence in aggravation was given. This factual finding is supported by the record, is not clearly erroneous, and will not be disturbed by the appellate courts. See Lee v. State, 258 Ga. 481, 483 (6) (371 SE2d 389) (1988).

Judgments affirmed.

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


text:
    A89A1019.
    WATERS v. THE STATE.
    (385 SE2d 765)
   Pope, Judge.

Defendant Weldon Waters was convicted of rape and child molestation of his eleven-year-old granddaughter and appeals.

1. The trial court ruled that the State could not present the testimony of a child psychologist who examined the victim as to any opinions contained in the psychologist’s written evaluation of the victim due to the State’s failure to provide the written report to defendant’s counsel in a timely manner as required by OCGA § 17-7-211. Nevertheless, the trial court permitted the psychologist to testify as a rebuttal witness as to what the victim had told her about the defendant. Defendant’s first, second and fifth enumerations of error assert that the court erred in admitting the psychologist’s testimony.

The victim testified as a witness for the State and provided a detailed account of the defendant’s offenses against her. The victim’s veracity was challenged by the defendant who attempted to show she had made out-of-court statements which were inconsistent with her testimony. The psychologist was called as a rebuttal witness and provided a detailed account of what the victim had told her about the defendant’s actions on the three occasions the psychologist interviewed the victim. According to the psychologist’s testimony, the account the victim gave in these three interviews was consistent in all material aspects with the victim’s in-court testimony. Prior consistent out-of-court statements by a witness whose veracity is in issue on the question of defendant’s guilt are admissible as substantive evidence on the issue of guilt. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). Thus, the testimony of the psychologist was properly admitted. Contrary to defendant’s assertions, the psychologist did not offer opinion testimony which had been excluded pursuant to OCGA § 17-7-211 (c). The psychologist’s testimony was limited to those statements and demonstrations made to the psychologist by the victim.

2. The trial of this case commenced January 25, 1988. In response to defendant’s request, the State provided defendant written notice on January 15 of its intent to present evidence of similar transactions. However, the original written notice included only the name of the victim of the alleged similar transactions. On January 19 the notice was amended to include the location and dates of the alleged similar transactions. At a pre-trial hearing the trial court ruled that the January 19 notice was sufficient and that evidence of the alleged similar transactions would be admitted at trial. Defendant argues that the court erred in admitting this evidence on the ground the written notice was insufficient because it was untimely given. According to Uniform Superior Court Rule 31.1: “Notice of the state’s intention to present evidence of similar transactions and occurrences . . . shall be given and filed at least 10 days before trial unless the time is shortened or lengthened by the judge.” “We interpret this as clothing the trial court with discretion which will not be controlled absent abuse.” Hall v. State, 181 Ga. App. 92, 93 (351 SE2d 236) (1986). We find no abuse of discretion in the trial court’s ruling in this case.

Decided September 5, 1989.

George J. Thomas II, for appellant.

Garry T. Moss, District Attorney, for appellee.

3. Defendant argues that the court erred in allowing the prosecutor to make allegedly inflammatory or prejudicial remarks to the jury in closing argument. During closing argument the prosecutor stated: “What you realize is that if you [acquit the defendant] you tell [the victim] one, that you don’t believe her and two, that this never happened to her. But most importantly that she could go back to her grandfather’s, you can go back to Weldon Waters, you can do that now.” First we note that no objection was raised to the prosecutor’s statement. Even if an objection had been timely raised it would be without merit. See Lumpkin v. State, 136 Ga. App. 828 (3) (222 SE2d 669) (1975). See also Chambers v. State, 134 Ga. App. 53 (4) (213 SE2d 158) (1975).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1038.
    WASHINGTON v. THE STATE.
    (385 SE2d 767)
   McMurray, Presiding Judge.

Defendant was indicted for armed robbery. The evidence at a jury trial showed that defendant and a companion entered a convenience store in Savannah, Georgia, on February 11, 1988. Defendant displayed a gun and defendant’s companion ordered the convenience store clerk to open the cash register. The clerk complied and defendant’s companion reached across the check-out counter and took $25 from the cash register. Defendant and his companion then fled. A sur-j veillance camera recorded the crime and produced several color photographs of defendant and his confederate. Detective J. C. Whitcomb,j of the Savannah Police Department, identified defendant from thi photographs and later arrested defendant at this home. While in po lice custody, defendant was advised of his Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), rights. Defendant indicated that he understood his rights and that he did not wish to make a statement, commenting that the police “didn’t have any evidence against him.” Detective Whitcomb then told defendant that he had a photograph of defendant at the scene of the robbery and that he had “a statement from a codefendant.” Defendant asked to see the photograph and Detective Whitcomb complied. “At that point, [defendant] said, what have I got to lose . . .” and Detective Whitcomb questioned defendant and obtained the following tape recorded interview:

“[Detective Whitcomb:] Mr. Washington, you’ve been read a constitutional rights form and you signed the rights form; is that correct? [Defendant:] Yes, sir. Q. You understand what your constitutional rights are? A. Yes, sir. Q. And you’re willing to talk to me in reference to the armed robbery that took place last night? A. Yes, sir . . . Q. Did you all go in the store a couple times before the robbery or did you go right in and get the beer and rob the place? A. Went in a couple times . . . Q. I mean, you went in to check it out? A. Yes, sir. Q. Who decided to do the robbery? A. We both did. Q. Where’d the gun come from? A. I don’t know. Q. What happened to the gun? A. I don’t know. Q. Anything else you want to tell us about the robbery? A. No, sir. . . . Q. You understand what your constitutional rights were before? A. Yes, sir. Q. Nobody’s forced you to make a statement? A. No, sir. Q. Did anybody promise you anything at all? A. No, sir. Q. You were making it free and voluntarily? A. Yes, sir. Q. And no duress at all[?] A. No, sir. I’m under the influence of drugs. Q. You’re under the influence of drugs [?] A. Yes, sir. Q. All right, what kind of drugs are you under the influence of? A. Cocaine and reefer and beer. Q. How much cocaine and reefer did you have? A. About a eight ball, an eighth of an ounce. Q. Are you so under the influence you don’t understand what’s going on? A. No, sir. Q. Do you understand what’s going on? A. Yes, sir. Q. You say you’re high now? A. Partial. Q. Partially high[?] A. Yes, sir. Q. Okay, but you’re in full control of your faculties [?] A. Yes, sir. Q. And you understand what’s going on[?] A. Yes, sir.” Defendant was found guilty and this appeal followed. Held:

In three enumerations, defendant contends the trial court erred in allowing his statement into evidence. Defendant argues that “the police did not scrupulously honor his request not to make a statement” and that the statement was not freely and voluntarily made “because [he] was intoxicated” and because “an oifer of reward was made by the police.”

At a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), hearing Detective Whitcomb testified that defendant was offered no reward or inducement for making the statement; that defendant was i not threatened or coerced into making a statement and that defendant did not appear to be under the influence of alcohol or drugs, i.e., defendant’s speech was clear, he had no problem walking and he seemed to be in complete control of his bodily senses. Detective Whit-comb further testified that he fully explained to defendant his Miranda v. Arizona, supra, rights; that defendant indicated that he understood his rights and that, after examining a photograph that depicted defendant during the robbery, defendant decided to waive his constitutional right to remain silent and talk to Detective Whit-comb.

The fact that defendant initially asserted his right to remain silent, did not absolutely bar subsequent questioning. “The [United States] Supreme Court, in rejecting such an absolute bar, observed that ‘a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.’ Michigan v. Mosley, 423 U. S. 96, 102 (96 SC 321, 46 LE2d 313) (1975); Bright v. State, 251 Ga. 440, 445 (306 SE2d 293) (1983). In such a case, the test for admissibility of a statement is whether the asserted right to terminate the questioning was scrupulously honored. Ibid.” Wright v. State, 169 Ga. App. 693, 695 (1) (314 SE2d 709).

In the case sub judice, Detective Whitcomb did not question defendant after defendant indicated that he did not wish to make a statement. The detective merely responded to defendant’s comment — that the police “didn’t have any evidence against him” — by informing defendant of the evidence the State had accumulated in the case. In response, defendant requested to examine some of this evidence and, after doing so, defendant decided to talk to the detective, affirming that he understood his constitutional rights, that he was not “forced ... to make a statement,” that no one promised him “anything at all,” that he made the statement “freely and voluntarily” and that he was under “no duress at all.” Under these circumstances, we cannot say that Detective Whitcomb failed to “scrupulously honor” defendant’s initial request to remain silent or that the trial court erred in finding that defendant knowingly, freely, and voluntarily made a statement to the police, without hope of benefit and under no duress. “Factual and credibility determinations as to voluntariness of a confession are normally made by the judge at a suppression hearing and must be accepted by appellate courts unless such determinations are clearly erroneous. Griswold v. State, 159 Ga. App. 22, 23 (2) (282 SE2d 679) (1981).” Sanders v. State, 182 Ga. App. 581 (1), 582 (356 SE2d 537). The trial court did not err in allowing defendant’s state-| ment into evidence.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.

Decided September 5, 1989.

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.


text:
    A89A1040.
    ADAIR REALTY COMPANY v. PARRISH.
    (385 SE2d 770)
   Pope, Judge.

A default judgment was entered against defendant David G. Parrish in this case on August 1, 1975. On November 22, 1988, the trial court granted defendant’s motion to set aside the judgment on the ground that the court lacked personal jurisdiction over him because he never received service of the complaint. Defendant’s motion was supported by his affidavit that he never received service of the complaint and had no knowledge of the judgment entered against him until plaintiff served his employer with a garnishment proceeding in 1988. The affidavit contradicted the statement contained in the return of service signed by the Deputy Marshal of the trial court declaring that personal service of the defendant was completed on June 12, 1975.

“ ‘A return of service entered upon a declaration ... is of itself . . . evidence of a high order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.’ [Cits.]” Bullard v. C & S Nat. Bank, 167 Ga. App. 47 (306 SE2d 51) (1983). In Bullard the trial court considered the conflicting affidavits of the defendant, declaring he had not been served, and the affidavit of the sheriff plus the sheriff’s return of service, verifying that defendant had been served, and denied defendant’s motion to set aside. Because we found no abuse of discretion, this court refused to overturn the judgment of the trial court. In the case now before us the trial court considered the conflicting evidence and ruled in favor of defendant, granting his motion to set aside the judgment. The sworn affidavit of the defendant was direct evidence and therefore sufficient to contradict the return of service, if [believed. This court will not interfere with the judgment of the trial court on a motion to set aside a judgment for lack of personal jurisdiction if there is any evidence to support it. Wolfe v. Rhodes, 166 Ga. [App. 845 (305 SE2d 606) (1983).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided September 5, 1989.

Kirby G. Bailey, for appellant.

Dana F. Persells, for appellee.


author: Sognier, Judge.

text:
    A89A1059.
    RAY’S MOBILE HOME REPAIR SERVICE, INC. v. PRESIDENTIAL FINANCIAL CORPORATION.
    (386 SE2d 48)
   Sognier, Judge.

Presidential Financial Corporation (PFC) brought suit against Ray’s Mobile Home Repair Service, Inc. (Ray’s) to recover the amounts owed on accounts in which it had a perfected security interest. Ray’s appeals from the trial court’s grant of summary judgment to PFC.

The record reveals that Ray’s sold inventory consisting of mobile home parts and materials to Paul Hill and received a promissory note from Hill. Ashmore Homes, Inc. (Ashmore) then purchased the inventory from Hill and guaranteed the note to Ray’s. Ashmore and Ray’s also entered into an agreement whereby Ray’s agreed to advance certain sums to Ashmore in exchange for a security interest in “all of Ashmore’s inventory of mobile home parts and manufacturing materials as well as its work-in-progress relating to the manufacturing of mobile homes and all completed mobile homes,” and Ray’s perfected its interest by recording a UCC financing statement on May 27, 1987. Ashmore also executed a loan and security agreement with PFC, giving PFC a security interest in Ashmore’s “accounts, contract rights, chattel paper, instruments, drafts and general intangibles . . . and all rights of [Ashmore] earned or to be earned under contracts to sell goods” in exchange for PFC’s commitment to lend Ashmore up to 82.5 percent of the value of any mobile home under a contract of sale.¡ PFC’s security interest was perfected on September 4, 1987. On September 21st Ray’s recorded a partial release, giving up its interest in Ashmore’s “accounts receivable and proceeds of inventory sold in thel normal course of business.” Although the record does not affirma-j tively reflect this information, apparently Ashmore subsequently del faulted on these obligations. I

Ray’s thereafter purchased certain mobile homes from AshmorJ but refused to pay the invoiced amount, contending it was entitled tJ hold the sums to apply to Ashmore’s outstanding obligation to itl PFC exercised its option under the security agreement it had witll Ashmore and filed suit to enforce collection of the accounts due t| Ashmore from Ray’s.

Decided September 5, 1989.

Sims, Fleming & Swan, John S. Sims, Jr., for appellant.

Reinhardt & Whitley, Robert C. Wilmot, for appellee.

1. Ray’s contends the trial court erred by granting summary judgment to PFC because Ray’s had a prior perfected security interest in the mobile homes it purchased, and accordingly had no obligation to protect PFC’s interest.

We agree that Ray’s had a prior perfected security interest in Ashmore’s goods and inventory, but find that execution of the partial release by Ray’s eliminated any secured interest in Ashmore’s accounts receivable or proceeds it otherwise would have had under OCGA § 11-9-306. Thus, Ray’s became an account debtor, see OCGA § 11-9-105 (1) (a), and Ashmore’s right to payment for the sold goods became an account in which PFC held a security interest. See OCGA § 11-9-106. Conversely, PFC had not released its security interest in Ashmore’s accounts receivable, so that upon Ashmore’s defaulting on its agreement with PFC, as the secured party with the perfected security interest in Ashmore’s accounts receivable and proceeds (including the account for goods sold to Ray’s) PFC was entitled to enforce its right under its security agreement to collect on the obligations. OCGA § 11-9-501; see generally Dorsey Heating &c. Co. v. Gordon, 162 Ga. App. 608, 609 (292 SE2d 452) (1982). As Ray’s did not take possession of the goods pursuant to a procedure authorized by the Uniform Commercial Code, it became a purchaser of the collateral, not a secured party in possession, and PFC’s security agreement with Ashmore was enforceable against Ray’s. OCGA § 11-9-201; see Continental American Life Ins. Co. v. Griffin, 251 Ga. 412, 414 (306 SE2d 285) (1983). Even assuming, without deciding, that Ray’s had a contractual setoff right, PFC’s perfected security interest had priority. Id. Accordingly, we affirm the award of summary judgment to PFC.

2. Ray’s also contends that the trial court erred by ruling on the summary judgment motion without first unsealing and considering certain depositions filed of record. “However, as appellant [Ray’s] has cited to us no deposition testimony which raises a genuine issue of material fact, and our review of the testimony discloses no such factual dispute, this enumeration of error is without merit. [Cits.]” Andrews v. City of Macon, 191 Ga. App. 745, 748 (382 SE2d 739) (1989).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1099.
    AAA BONDING COMPANY et al. v. STATE OF GEORGIA.
    (386 SE2d 50)
   Pope, Judge.

This appeal was brought by the surety on a $550 bail bond from a judgment of forfeiture entered pursuant to OCGA § 17-6-71 on September 14, 1988, in the Superior Court of Henry County. The bond was returnable on September 25, 1987, to the Magistrate Court of Henry County and when the principal failed to appear on that date the case was transferred to the Superior Court. An accusation was drawn by the district attorney on May 18, 1988, incorporating additional charges and notice of arraignment was mailed to the principal on June 2, 1988. When this notice was returned undelivered, a bench warrant was issued for the arrest of the principal on June 13, 1988. Notice of a bond forfeiture and execution hearing was filed on June 14 and after service on the principal was unsuccessful on June 18, additional service was undertaken. An execution hearing was scheduled for August 25, 1988, and after the hearing was continued to September 14, the judgment of forfeiture was entered over the objections of the appellant surety.

1. Appellant contends that because OCGA § 17-6-71 (a) requires that an execution hearing be set not sooner than 60 days nor later than 90 days from the principal’s failure to appear, and the failure to appear here occurred on September 25, 1987, but the execution hearing was not held until eleven months later on August 25, 1988, the proceeding was defective and the judgment erroneous. We do not agree. While the principal did not appear at the September 25, 1987, hearing scheduled in the Magistrate Court, no forfeiture proceeding was ever held there. Rather, the case was transferred to the superior court when the district attorney filed an accusation there, and the statutory failure to appear thus occurred on the arraignment date ofl June 13, 1988. The execution hearing was set for August 25, 1988, which was within 60 to 90 days of the failure to appear at arraignment, and was then continued by the court until September 14, 1988,1 pursuant to the court’s discretion in regulating and controlling its! business. See Ace Bonding Co. v. State, 180 Ga. App. 261 (1) (349 SE2d 15) (1986). Furthermore, appellant has not shown that it waa harmed by the continuance, and since it was thereby allowed an extra three weeks to attempt to locate and produce the principal “we fail tJ discern how the surety could claim harm from the reprieve affordeci by the court.” Id. at 262. I

2. Appellant complains that it did not receive notice of the execul tion hearing within 72 hours of the principal’s failure to appear al required by OCGA § 17-6-71 (a), and that because strict compliancl with the forfeiture proceeding law is required the judgment must h| reversed. Osborne Bonding Co. v. State, 163 Ga. App. 648 (295 SE2d 577) (1982), which appellant cites as authority for its position, involved nonamendable defects on the face of the record and we do not find it to be controlling here. The failure to perfect service within 72 hours is not one of the conditions listed in OCGA § 17-6-72 as precluding forfeiture or remission of forfeiture; nor does any language in OCGA § 17-6-71 itself expressly address the failure to comply with the 72-hour provision or bar forfeiture in the event of less than strict compliance.

OCGA § 1-3-1 (C) provides that “[a] substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” (Emphasis supplied.) If the General Assembly had intended the 72-hour notice provision to be a condition precedent to forfeiture, this should have been expressed within the statute. See State of Ga. v. Battise, 177 Ga. App. 583 (340 SE2d 240) (1986). We conclude that the superior court clerk substantially complied with the statutory direction by sending the notice within five days of the principal’s failure to appear.

3. We reject appellant’s assertion that because the bail bond was returnable on its face to the Magistrate Court of Henry County then the superior court lacked jurisdiction to entertain the forfeiture proceedings. “When a person posts bail bond prior to a preliminary or commitment hearing and is later bound over to another court for trial, the original bail bond shall not terminate but shall be valid to provide for the person’s appearance at the trial of the case unless the amount of the bail is set higher by lawful authority . . ..” OCGA § 17-6-14 (a). The principal was charged with misdemeanor bad check offenses and the superior court had concurrent jurisdiction with the other state courts within its territorial limits to try the offense. OCGA § 15-7-4 (1). The case was effectively transferred to and lawfully before the superior court when the district attorney filed the accusation there and no further bail was sought for the additional charges. OCGA §§ 17-7-70; 17-7-71.

“There is nothing in this record to show why the appellant could not have traversed any defective entries in the record. [Cits.] We have found on the face of the record a sufficient notice and compliance with the statutory forfeiture proceedings. Moreover, there is a presumption that a trial judge, acting as a public official, faithfully and lawfully performed the duties devolving upon him [cit.] and in the absence of a showing in the record that notice and opportunity for hearing was denied to appellant, we will presume that the trial court fully complied with the law. [Cit.] We find no merit in the enumeration of error by appellant.” Ace Bonding Co. v. State, 152 Ga. App. 477, 479, supra.

Decided September 5, 1989.

Cowen & Cowen, Martin L. Cowen III, for appellants.

Tommy K. Floyd, District Attorney, Edwin J. Wilson, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1204.
    RAGIN v. THE STATE.
    (385 SE2d 770)
   Sognier, Judge.

Joseph Napoleon Ragin was convicted in a nonjury trial of trafficking in cocaine, speeding, driving without a valid driver’s license, and giving a false name to a law enforcement officer, and he appeals from the trafficking conviction.

1. In five enumerations of error appellant challenges the sufficiency of the evidence and the trial court’s denial of his motions for a directed verdict of acquittal.

Construed to uphold the verdict, the record reveals that on the night of June 6, 1987, Corporal W. D. Jones of the Georgia State Patrol was operating stationary radar on Interstate 95 when he clocked a 1983 Lincoln traveling at 76 mph in a 55 mph zone. Corporal Jones testified that when he pursued and stopped the car, appellant, who was driving, gave him a driver’s license issued to Arthur L. Gantt, which Jones concluded was false because the photograph on the license did not resemble appellant. Jones also testified that as appellant searched his pockets for the license, he pulled out “the biggest fold of cash money I’ve ever seen on a person,” and that appellant was unable to produce proof of ownership of the car. Corporal Jones cited appellant for speeding and then called for backup because he had become suspicious the car might be stolen. Sergeant J. R. Beaver and Trooper Barry Alan Riner arrived, and after obtaining inconsistent versions of their travel plans from appellant and his passenger, Mary Margaret Thompson, the officers requested permission to search the car, which they testified appellant readily gave, tellingl them the car did not belong to him. The officers testified that upon searching the trunk after appellant unlocked it for them, they found! no contraband, but they noticed the screws on the interior doorl panels appeared to be nonstandard, and found behind the panel ora the front passenger door a package containing what later proved to ba one kilogram of 71.3 percent pure cocaine. Appellant and Thompson were arrested, and appellant’s urine test taken later at the station wa| positive for cocaine and marijuana.

Appellant testified that he borrowed the car from his nephew to drive from South Carolina to Jacksonville to pick up his brother Robert and return to South Carolina for the funeral of another brother. Appellant admitted having been a user of cocaine, but disavowed any knowledge of the cocaine found in the door panel. He also testified that he was carrying approximately $8,000 in cash, which he said he received in a settlement of a lawsuit arising from the loss of his leg in an industrial accident, to assist his family in paying for the brother’s burial expenses. Family members corroborated appellant’s testimony that the car belonged to appellant’s nephew and that appellant’s trip was for the purpose of taking his brother to the funeral. At trial Thompson likewise confirmed appellant’s testimony regarding the funeral and their intended destination.

Appellant contends the evidence was not sufficient to show that he was knowingly in actual possession of cocaine as required by OCGA § 16-13-31 (a) (1) prior to its amendment. See Ga. Laws 1988, p. 420, § 2 (effective March 28, 1988). We do not agree, “ ‘for we have held that a person who knowingly has direct physical control over a thing at a given time is in actual possession of it. . . . Although (appellant) testified (he) knew nothing about the (cocaine), (his) credibility was a question for the [trier of fact]. . . .’” (Citations omitted.) Reed v. State, 186 Ga. App. 539-540 (367 SE2d 809) (1988). The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of trafficking in cocaine. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Coop v. State, 186 Ga. App. 578, 580 (2) (367 SE2d 836) (1988).

2. Appellant also contends the trial court erroneously denied his motion to suppress because he did not consent to the search of the car.

The search occurred after a lawful stop for a traffic violation, Partridge v. State, 187 Ga. App. 325-326 (1) (370 SE2d 173) (1988), and after the officers learned appellant had no valid driver’s license or proof of ownership of the vehicle. Although appellant testified the officers did not request his permission to search the car and that he did not consent to a search, “[t]his court must accept a trial court’s rulings on disputed facts and credibility at a suppression hearing, unless those findings are clearly erroneous. [Cit.] In the instant case, the evidence authorized the trial court’s finding that [appellant] had freely and voluntarily consented to the search of [the car].” Deych v. State, 188 Ga. App. 901-902 (1) (374 SE2d 753) (1988). Further, as appellant disavowed ownership of the car, he had no expectation of privacy and thus the search violated no constitutional right. Id. at 902 (1); see Little v. State, 180 Ga. App. 359, 360 (349 SE2d 248) (1986). Accordingly, we find no error in the trial court’s ruling on the motion to suppress.

Decided September 5, 1989.

Nathan & Nathan, Ivan H. Nathan, for appellant.

Dupont,K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1230.
    POWELL v. THE STATE.
    (385 SE2d 772)
   Sognier, Judge.

Eric Powell was indicted on the felony charge of obstructing a law enforcement officer under OCGA § 16-10-24 (b) and was convicted of the lesser misdemeanor offense of obstruction of an officer under OCGA § 16-10-24 (a). He appeals.

Construing the evidence to support the verdict, the jury was authorized to find that while appellant, an inmate at the Georgia Industrial Institute, was taking his regularly scheduled shower along with several other inmates, appellant began cursing the guards, particularly Officer Randy Kelly, with whom appellant was upset because of an earlier disciplinary report Kelly had written. Appellant was ordered to leave the shower and Kelly then escorted appellant back to his cell. Upon reaching the cell, however, appellant refused to enter and hit the officer, pushing him up against a cabinet inside the cell. Another officer came to Officer Kelly’s rescue and tried to handcuff appellant, who broke away and ran out of the cell, but was shortly thereafter apprehended.

1. Appellant asserts in his first enumeration that his acquittal on the felony offense of obstruction of an officer, which, unlike the misdemeanor offense, requires threat or use of violence, see OCGA § 16-10-24, indicates the evidence was insufficient to support his conviction. “Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), abolished the inconsistent verdict rule in criminal cases. Thus, the sole question is whether the evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It was.” Stephens v. State, 185 Ga. App. 825 (1) (366 SE2d 211) (1988).

2. Appellant contends the trial court erred by failing to charge his requested charge no. 4 that “[w]here Defendant made neither verbal nor physical threat or violence to the officer but was merely obnoxiousl and contemptuous, the evidence was insufficient to support a convic-J tion for obstructing a law enforcement officer.” Appellant apparent!; adopted this “charge” from the annotated entry under OCGA § 16-10-24 for Moccia v. State, 174 Ga. App. 764 (331 SE2d 99) (1985). In the case sub judice, while there is evidence that appellant cursed Officer Kelly, there is also evidence that appellant, by refusing to obey Kelly’s order to enter his cell and subsequently running from his cell away from Kelly and an assisting officer until caught by a third officer, took nonviolent actions which prevented Officer Kelly from performing his duties. Thus the charge requested would have required the jury to ignore this evidence and acquit appellant solely on the basis of appellant’s allegedly non-threatening verbal behavior.

Decided September 5, 1989.

It is well established that a requested charge need not be given unless it embraces a correct and complete principle of law, Daniels v. State, 183 Ga. App. 222, 223 (2) (358 SE2d 637) (1987), is not argumentative, Ferry v. State, 161 Ga. App. 795, 800 (6) (287 SE2d 732) (1982), and is adjusted to the facts. Price v. State, 175 Ga. App. 780, 783 (2) (334 SE2d 711) (1985). We find no error in the trial court’s failure to give appellant’s requested charge.

3. We find no merit in appellant’s contention that the State failed to prove the authority of the officer to take the actions which appellant obstructed. Officer Kelly testified that he was employed at the Georgia Industrial Institute as a Correctional Officer and that his duties include being in charge of security and maintaining control over the inmates as well as seeing to the welfare of the inmates. There was evidence that one of the officers’ duties was to accompany the inmates to the showers to ensure that no problems would arise. Both Kelly and a fellow officer testified that appellant’s behavior in cursing and verbally harassing Officer Kelly became a problem and that appellant was “getting out of control,” which is why Kelly determined it was necessary to return appellant to his cell. This evidence was sufficient to authorize the jury to find the essential element under OCGA § 16-10-24 that Officer Kelly was engaged “in the lawful discharge of his official duties.” See generally Dixon v. State, 154 Ga. App. 828 (1) (269 SE2d 909) (1980); Carr v. State, 176 Ga. App. 113, 114-115 (1) (335 SE2d 622) (1985). We do not agree with appellant that the State could prove that Officer Kelly was executing a lawful act only by producing the administrative rules of the State Board of Corrections which governed Officer Kelly’s behavior. Since the cases cited by appellant all involve unincarcerated citizens alleged to have obstructed law enforcement officers outside of a penal institution environment, we find them inapposite to the case sub judice.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.

J. Edward Staples, Jr., for appellant.

Michael H. Crawford, District Attorney, for appellee.


text:
    A89A1243.
    BASSFORD v. THE STATE.
    (386 SE2d 738)
    Decided September 5, 1989.

      John W. Davis, for appellant.

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

Bassford was convicted of trafficking in cocaine. On appeal, his sole enumeration of error is that the trial court erred in resolving the fact question of whether Bassford voluntarily consented to the search by which the contraband was discovered rather than submitting the issue to the jury. The facts relating to the search and the motion to suppress may be found in a previous appeal of this case. State v. Bassford, 183 Ga. App. 694 (359 SE2d 752) (1987). Held:

On a motion to suppress, all issues, both factual and legal, are to be resolved by the trial court. Hamilton v. State, 185 Ga. App. 749 (2) (365 SE2d 542) (1988); Rogers v. State, 155 Ga. App. 685 (2) (272 SE2d 549) (1980). The jury has no role in a motion to suppress. If the record supports the trial court’s findings, as it does in this case, an appellate court will not disturb them. Durden v. State, 187 Ga. App. 433 (2) (370 SE2d 528) (1988). Thus, the trial court did not err in refusing to submit the issue of consent to the jury.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1264.
    HARRISON v. THE STATE.
    (385 SE2d 774)
   Banke, Presiding Judge.

The appellant brings this appeal from the denial of his motion for new trial following his conviction of armed robbery. Held:

1. It is contended that there was a fatal variance between the indictment and the proof in that the indictment alleged a robbery of Phil Stephenson, the owner of the service station where the robbery occurred, whereas the evidence established that the victim had been, Randy Hicks, an employee of the service station. The state does not dispute that Hicks and Stephenson are two different individuals but| contends that the variance cannot be considered fatal in view of the Georgia Supreme Court’s holding in McKisic v. State, 238 Ga. 644 (2), 646 (234 SE2d 908) (1977), that “the identity of the person alleged to have been robbed is not an essential element of the crime [of armed robbery] and need not be proved by direct evidence.”

We do not find McKisic to be controlling under the circumstances of the present case, inasmuch as it did not involve a situation in which the person robbed was shown to have been someone other than the person identified as the victim in the indictment. The armed robbery victim in McKisic was a security guard who had been employed at the location where the robbery occurred for only a few days and who quit immediately following the robbery. He was not available to testify at trial, and none of his former co-employees who had witnessed the robbery could remember his name. However, a police investigator identified him as Ronny Hollifield, which was the name alleged in the indictment. The Supreme Court concluded that under these circumstances the material allegations of the indictment had been proven.

The general test for determining whether a variance between the allegations and the proof is fatal is as follows: “ ‘The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ [Cits, omitted.] Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314)” DePalma v. State, 225 Ga. 465, 469-70 (169 SE2d 801) (1969). Even, under this test, however, it has been held that “ ‘no averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed).’ ” Walker v. State, 146 Ga. App. 237 (1), 242 (246 SE2d 206) (1978).

In cases such as the present one, where a variance exists between the victim’s name as alleged in the indictment and as proven at trial, it has generally been held that the variance is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved or where the variance is attributable to the use of a nickname or alias by the victim. See Wilson v. State, 67 Ga. App. 404 (20 SE2d 433) (1942) (where it was held that the appellant’s indictment for the murder of “Clayburn Blash” was not fatally at variance with evidence identifying the victim as “Cleveland Blash”); Bland v. State, 182 Ga App. 626 (356 SE2d 704) (1987) (holding that an indictment alleging the commission of certain offenses against the person and property of “Blossom Henderson” was not fatally at variance with evidence identifying the victim as “Daisy M. Henderson,” where a rational trier of fact could have determined beyond a reasonable doubt that the two names referred to the same person). Cf. Anno: Homicide: Identification of Victim as Person Named in Indictment or Information, 86 ALR2d 722.

Decided September 5, 1989.

Harriss, Hartman, Aaron & Townley, Amy E. Abernathy, for appellant.

Ralph Van Pelt, Jr., District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.

It is apparent without dispute from the evidence in the present case that the person identified as the victim in the indictment was not in fact the person against whom the robbery was committed, and the state has suggested no reason why this error could not have been corrected prior to trial. Being aware of no decision from any state or federal appellate court in the nation upholding a conviction of a crime of personal violence under such circumstances, we hold that the variance was fatal and that the trial court consequently erred in denying the appellant’s motion for new trial.

2. The appellant’s remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge.

text:
    A89A1290.
    In the Interest of A. H., a child.
    (385 SE2d 776)
   Deen, Presiding Judge.

A delinquency petition was filed in the juvenile court against A. H., alleging that she committed child molestation by performing various sexual acts on a child under 14 years old. At the adjudicatory hearing, the trial court allowed certain witnesses to testify to what the five-year-old victim had told them about the sexual activity with A. H., pursuant to OCGA § 24-3-16. The victim also was questioned extensively about the entire matter before any ruling on his competence as a witness was made. When pressed by the juvenile’s attorney for a definite ruling on the child’s competence, the trial court expressed doubt over the child’s competence and ruled that he was “not going to rule at this point that he’s competent to testify fully as a normal witness. However, his testimony today will be considered part of the foundation to let in his out-of-court statements to these other people. . . .”

Under OCGA § 24-3-16, “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” This court has previously held that if the child is incompetent as a witness, he is not “available to testify,” and the out-of-court statements of such a child are not rendered admissible by OCGA § 24-3-16. Ward v. State, 186 Ga. App. 503 (368 SE2d 139) (1988). The Code section does not envision a hybrid degree of competency seemingly employed by the trial court so as to admit the child’s out-of-court statements to others.

Decided September 5, 1989.

David K. Smith, for appellant.

Jack O. Partain III, District Attorney, Todd L. Ray, Assistant District Attorney, for appellee.

However, this court cannot ascertain from the record whether the trial court actually concluded that the child was competent to testify, or whether the trial court made a finding of “quasi-competency.” Under this circumstance, we must remand this case to the trial court for a clear ruling on the issue of the child’s competence.

Case remanded with direction.

Birdsong and Benham, JJ., concur.


text:
    A89A1309.
    FULTON v. THE STATE.
    (385 SE2d 777)
   Banke, Presiding Judge.

On appeal from his conviction of trafficking in cocaine, the appellant contends that the trial court erred in denying his motion to suppress the contraband on which his conviction was based.

The appellant caught the attention of Drug Enforcement Administration Agent David Noe at the Atlanta Airport as he was deplaning from a flight- from Miami, which was described by Noe as a drug source city. Based on the fact that the appellant seemed to avoid the gate agent in favor of obtaining information concerning connecting flights from a television screen, Noe approached him at the bottom of an escalator, displayed his credentials as a law enforcement officer and introduced himself. The appellant agreed to speak with the agent and, at the latter’s request, produced his airline ticket, which Noe observed to be a one-way ticket to Washington, D. C., purchased with cash earlier that day in Miami. The agent further observed that the ticket had a baggage claim check attached to it. Noe asked the appellant his name, and he responded, “Ronald Fulton,” which was the name on the ticket. Also, in response to a request for identification, the appellant produced a social security card and a “Florida identification card,” both of which also bore the name “Ronald Fulton.” Noe returned the documents to the appellant, advised him that he was investigating illegal drug trafficking at the airport, and asked him if he would agree to a search of his person. The appellant consented, and the agent conducted a patdown. However, this search did not result in the discovery of any contraband.

Noe then inquired about the appellant’s luggage. The appellant responded that he had checked his bag in Miami the day before but then had missed his originally scheduled flight, with the result that the bag should already have arrived in Washington. Agent Noe testified that he believed this information to be false because the appellant’s ticket had been purchased that same day, and he knew it was airline policy not to accept baggage without a ticket. He then asked the appellant if he would consent to a search of his bag by an agent in Washington, and the appellant replied that he would.

At this time the agent noted the baggage claim check number and asked the appellant for a description of the bag. The appellant replied that it was a medium size, blue Samsonite suitcase. The agents then looked through the luggage which had been checked in Atlanta for the next Delta flight to Washington and found a beige London Fog tote bag bearing the name, “Ronald Fulton,” along with a baggage check number identical to the one attached to the appellant’s ticket. The appellant was thereupon advised his bag had been located in the Atlanta Airport and was asked again if he would consent to it being searched. According to Agent Noe, the appellant gave his consent but declined the offer of an opportunity to be present during the search, explaining that he wished to inquire about changing his connecting flight. Agent Noe then asked the appellant if another agent “could walk with him,” and, according to Noe, the appellant again agreed. The ensuing search of the appellant’s bag resulted in the discovery of 500 grams of cocaine. While the appellant acknowledged that the bag was his, he denied knowledge of the presence of the cocaine. Held:

1. The trial court did not err in denying the appellant’s motion to suppress, based on the undisputed evidence of record showing that the appellant had consented to the search of the bag. “ ‘The facts disclose a valid police-citizen encounter followed by (appellant’s) consent to the officer’s examination of (his person and tote bag.) (Cits.) Thus, the appeal presents only a question of fact as to whether there was a valid consent to search. This was a matter exclusively within the province of the factfinder, the trial court. (Cit.)’ ” Miller v. State, 183 Ga. App. 55, 56 (357 SE2d 876) (1987). “Unless clearly erroneous, the trial court’s rulings on disputed facts and credibility at a suppression hearing must be accepted ... on appeal. . . .” Williams v. State, 251 Ga. 749, 792 (312 SE2d 40) (1983). The trial court’s ruling on the motion to suppress in the present case was supported by the evidence and was not clearly erroneous.

Decided September 5, 1989.

Lillian L. Neal, for appellant.

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

2. Having reviewed the evidence in the light most favorable to the verdict, we hold that it was sufficient to enable a rational trier of fact to find the appellant guilty of trafficking in cocaine beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1317.
    TRAVIS v. THE STATE.
    (385 SE2d 779)
   Banke, Presiding Judge.

Following the denial of his motion to suppress, the appellant, while specifically reserving the right to appeal that ruling, pled guilty to an indictment charging him with possessing cocaine in violation of the Georgia Controlled Substances Act. This appeal followed.

Based upon information provided by a confidential informant that drugs were being “sold, stored and concealed” at a specified residence in DeKalb County, Georgia, a warrant was issued for the search of the premises. The warrant additionally authorized the search of two described individuals believed to be violating the Controlled Substances Act, as well as “any person on said premises ... for the discovery and seizure” of cocaine. Although the appellant was present on the premises during the execution of the warrant, he was not named in the warrant and was not a resident of the house.

Detective Brown of the City of Atlanta Narcotics Squad testified that after the officers executing the warrant knocked on the front door and identified themselves, they heard scuffling inside, whereupon, having received no response to their knocking, they forcibly entered the residence. Brown stated that at this time he gave chase to the appellant as the latter ran from the kitchen down a flight of stairs to the basement and through a back door into the backyard, where he was apprehended by another officer. Brown testified that he believed the appellant might be trying to dispose of contraband and that he might be armed and dangerous. An immediate patdown search of the appellant was conducted, following which he was taken into the house and searched more thoroughly. The second search resulted in the discovery of two small bags of cocaine on his person. The appellant testified that he had arrived at the house some 15 minutes prior to the execution of the warrant and that he was merely visiting the residence, which belonged to his uncle. Held:

Decided September 5, 1989.

Stephen T. Maples, Gregory N. Crawford, for appellant.

Robert E. Wilson, District Attorney, Fran Shoenthal, Robert M. Coker, Assistant District Attorneys, for appellee.

OCGA § 17-5-28 provides as follows: “In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, article, or things particularly described in the search warrant.” It has been held that this statute “does not limit the officer’s right to search persons as to whom probable cause for a war-rantless search exists.” Wallace v. State, 131 Ga. App. 204, 205 (205 SE2d 523) (1974). See also Campbell v. State, 139 Ga. App. 389 (228 SE2d 309) (1976).

“ ‘Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. [Cits.] . . . (F)light in connection with other circumstances may be sufficient probable cause to uphold a war-rantless arrest or search. [Cits.]’ ” State v. Billoups, 191 Ga. App. 834, 835 (383 SE2d 162) (1989). See also Cook v. State, 136 Ga. App. 908, 909 (1) (222 SE2d 656) (1975); Banks v. State, 187 Ga. App. 280, 282 (370 SE2d 38) (1988); Moore v. State, 155 Ga. App. 721 (1) (272 SE2d 575) (1980); Green v. State, 127 Ga. App. 713, 715 (194 SE2d 678) (1972).

In the present case, the appellant’s presence on the premises at the time the warrant was executed, coupled with his flight, provided probable cause for a belief that he was in possession of, or was at least a party to the possession of, unlawful contraband. “It is settled law that an officer at the time of a lawful custodial arrest may, even without a warrant, make a full search of the person of the accused. [Cit.]” Clark v. State, 184 Ga. App. 380, 383 (361 SE2d 682) (1987). It follows that the motion to suppress was properly denied.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1325.
    A89A1326.
    CAMERON v. THE STATE. PERSON v. THE STATE.
    (385 SE2d 792)
    Decided September 5, 1989.

      Herbert Shafer, for appellant (case no. A89A1325).

      Patrick G. Longhi, for appellant (case no. A89A1326).

      Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E.

      Hicks, Katherine Beaver, Assistant District Attorneys, for appellee.
   Deen, Presiding Judge.

Jerry Person, Jr., and Charles Cameron were convicted of possession of cocaine with intent to distribute and possession of a firearm during the commission of a felony. The trial court denied the motion to suppress, which was consolidated with the bench trial. Cameron and Person appeal, contending that the police lacked probable cause to stop the vehicle in which they were passengers.

Held:

The evidence showed that the principal of Westlake High School requested the police to come to the school on September 2, 1988. Several officers were with the principal in the parking lot discussing an incident which occurred on the school grounds the previous night. The principal told the officers about an altercation between students and the other persons and that weapons were involved. While they were talking, the principal pointed out a maroon pickup truck that was moving through the parking lot and told the officers that the truck’s occupants had been at the school during the altercation, that they were not students, and that they did not belong on school property.

An officer stopped the truck and went to the driver’s side. He told Cameron, the driver, to get out. When he got out, the officer saw a gun on the floor and three plastic bags which appeared to have cocaine in them in plain view behind the seat.

The information provided by the principal gave the police sufficient cause to make a brief investigatory stop of the vehicle under the rule set forth in Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Grizzard v. State, 188 Ga. App. 303 (372 SE2d 683) (1988). The pistol and suspected contraband were in plain view and subject to immediate seizure. State v. Hodges, 184 Ga. App. 21, 24 (360 SE2d 903) (1987).

Judgments affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1373.
    BENNETT v. CLARK et al.
    (385 SE2d 780)
   Banke, Presiding Judge.

The appellant sued the appellees to recover damages based on certain misrepresentations which were allegedly made to him in connection with his purchase of a house. He appeals the grant of the ap-pellees’ motions for summary judgment.

Appellee Shirley Horton and her husband, who is not a party to these proceedings, owned a home in Walker County, Georgia, which they desired to sell. To this end, they entered into an exclusive listing agreement with appellee Century 21 Clark Realty, Inc. (hereafter referred to as “Century 21”). In connection with this listing agreement, Mrs. Horton provided certain information regarding the property to appellee Jerry Clark, a sales agent for Century 21. Mrs. Horton concedes that she incorrectly told Mr. Clark the interest rate on the existing mortgage loan on the property was 9-Vi percent, whereas the rate was actually 2-Vi percent. Mr. Clark maintains that Mrs. Horton also mistakenly told him the loan matured in 1999 rather than 2009, the year the last payment was in fact due. Mrs. Horton disputes this latter contention; but, whatever the source of the error, it is apparent that following their discussion Mr. Clark caused the property to be advertised in a multiple-listing service catalog with the incorrect information not only that the interest rate on the mortgage was 9-Vi percent but also that it matured in 1999. The remaining balance owing on the loan was stated correctly in the advertisement, as was the name of the mortgage company which held the loan. Printed at the bottom of the page on wjiich the advertisement appeared were the words, “INFORMATION DEEMED RELIABLE BUT NOT GUARANTEED.”

The appellant subsequently noticed a “For Sale” sign in front of the house and approached appellee Elsie Drennan, a sales agent for appellee Seasons Properties, d/b/a Gloria Sutton Realtors (hereafter referred to as “Seasons Properties”), to obtain more information about the property. At his request, Ms. Drennan showed him the information appearing in the multiple-listing service advertisement. Negotiating throügh Ms. Drennan, the appellant ultimately executed a contract with the Hortons to purchase the property. Like the multiple-listing advertisement, the sale contract correctly disclosed the balance owing on the loan but incorrectly specified that the interest rate was 9-Vi percent rather than 9-1/2 percent. The maturity date of the loan was not shown in the contract.

It is undisputed that both the interest rate and the maturity date on the mortgage loan were correctly stated in the security deed, which was properly filed of record. However, the appellant did not cause the title to be examined prior to the closing, nor did he contact the mortgage company which held the security deed in an attempt to verify the terms and conditions of the loan. Although the appellant was shown a loan assumption statement at the time of the closing which correctly disclosed the interest rate on the-loan, he evidently did not become cognizant of the discrepancy until over a year later. In the present action, he seeks damages against Mrs. Horton, Mr. Clark, and Century 21 based on their alleged fraud in misrepresenting to him the terms and conditions of the loan; and he seeks damages against Ms. Drennan and Seasons Properties for their alleged breach of a fiduciary duty to verify the terms and conditions of the loan on his behalf. Held:

1. “The gist or gravamen of an action for damages in tort based on the falsity of representations is that they must have involved actual moral guilt. [Cits.]” Gaultney v. Windham, 99 Ga. App. 800, 804 (109 SE2d 914) (1959). There has been no suggestion that the misrepresentations at issue in this case were made with the intent to deceive. More importantly, it is apparent without dispute from the record that the appellant neither asked any of the appellees to affirm the accuracy of the loan figures shown in the multiple-listing advertisement nor otherwise sought to verify the correctness of these figures. Under such circumstances, his blind reliance on the correctness of the figures taken from the multiple-listing ad must be considered unjustified as a matter of law. See Crawford v. Williams, 258 Ga. 806, 808 (375 SE2d 223) (1989); Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754 (2) (371 SE2d 217) (1988). Accordingly, we hold that the trial court did not err in entering summary judgment against the appellant on the fraud claim.

2. The trial court similarly did not err in concluding as a matter of law that Ms. Drennan and Seasons Properties owed no fiduciary duty to the appellant to verify the correctness of the loan figures shown in the multiple-listing ad. By affidavit, Ms. Drennan testified that she had neither acted as the appellant’s agent with respect to the transaction nor told him she was doing so. She averred that she was instead acting at all times as a sub-agent for Century 21, the listing broker; and her testimony in this regard is supported by examination of the sale contract, which she signed in precisely that capacity. There being no independent evidence in the record to refute these aver-ments and to support the appellant’s position that Ms. Drennan was acting as his fiduciary in dealing with the sellers, we conclude that the trial court was also correct in entering summary judgment against the appellant with respect to his claim against these appellees. See Jim Royer Realty v. Moreira, 184 Ga. App. 848 (363 SE2d 10) (1987). Accord Hill v. Century 21 Max Stancil Realty, supra.

Decided September 5, 1989.

Harriss, Hartman, Aaron, & Townley, Amy E. Abernathy, for appellant.

Gleason & Davis, John W. Davis, Jr., David J. Dunn, Jr., Clifton M. Patty, Jr., Larry D. Ruskaup, for appellees.

3. The appellant’s remaining contentions on appeal are rendered moot by the foregoing.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A1376.
    GILBERT v. FARMERS & MERCHANTS BANK.
    (385 SE2d 782)
   Sognier, Judge.

The Farmers & Merchants Bank brought suit against Hubert E. Gilbert seeking a deficiency judgment after repossessing and selling a piece of logging equipment pledged as collateral by Gilbert on a loan on which he defaulted. Gilbert answered and counterclaimed, alleging the bank had failed to dispose of the collateral in a commercially reasonable manner. Cross-motions for summary judgment were filed, and the trial court granted the bank’s motion and denied that of Gilbert. Gilbert appeals.

The record reveals that on May 7, 1985, the equipment, a 1982 Case Uni-Loader, Model 1845, was originally pledged to appellee as collateral for a loan in the amount of $7,641.19. On October 2, 1986, the balance remaining on that loan, $4,551.91, was refinanced with the Uni-Loader in question remaining as collateral for the new loan. Appellant admitted at his deposition that he defaulted on the loan, and that he parked the Uni-Loader in his yard to enable appellee to repossess it. It is uncontroverted that appellant received notice, complying with the U.C.C.’s requirements, that the equipment would be sold at a private sale. See OCGA § 11-9-504 (3). After repossession, the Uni-Loader was held at a local car and truck lot in anticipation of sale and for viewing by prospective bidders, and was eventually sold to the highest bidder for $1,000.

1. Appellant contends a material issue of fact exists regarding whether appellee carried its burden of proving that the sale price obtained for the Uni-Loader was equal to its fair market value, and thus the trial court erred by granting summary judgment to appellee regarding the commercial reasonableness of the sale.

“[A] creditor who . . . fails to prove that the disposition (sale), including its method, manner, time, place and terms, was commercially reasonable, is barred from obtaining a deficiency judgment, [cit.], except where the sole defect is the adequacy of the sale price, in which event the creditor is not barred from recovery but must overcome the presumption that the value of the collateral equals the debt on it. [Cits.] This presumption is overcome by proving the fair and reasonable value of the collateral, whereupon the creditor is entitled to a deficiency judgment in the amount of the debt (plus or minus any payments or charges properly applicable to the disposition) less the fair and reasonable value of the collateral proved by the creditor (if the resale price is less than the fair and reasonable value proved). [Cit.]” Farmers Bank v. Hubbard, 247 Ga. 431, 436-437 (276 SE2d 622) (1981).

Although this case, unlike Hubbard, was decided on summary judgment rather than by a jury after hearing evidence, “[t]he commercial reasonability of a sale of personalty under [OCGA § 11-9-504] is as appropriate a subject of summary judgment as any other issue triable by a jury. Ultimately the commercial reasonability of a sale of repossessed collateral may be a question of law; where the creditor shows prima facie that the sale was reasonable, to prevent summary judgment the debtor must support his challenge to the sale by asserting specific facts showing there is a genuine issue for trial. [Cits.]” Slaughter v. Ford Motor Credit Co., 164 Ga. App. 428-429 (296 SE2d 428) (1982). However, in this case, although appellee may have presented a prima facie case that the sale price was equal to the fair market value of the collateral in its affidavits in support of its motion for summary judgment, each and every one of these affidavits was rebutted by appellant in his own affidavits submitted in opposition to the motion.

Appellee proffered affidavits from Moses Greene, the buyer, who deposed that the equipment was not worth the $1,000 he paid for it; that the motor and transmission were “locked up”; and that it had no starter and the tires were all flat; A. Sidney Lane, the loan officer, who deposed that the equipment was “a piece of junk”; Jimmy Davis, the car and truck dealer on whose lot the equipment was placed, who stated that he was “familiar with the value of equipment of this type generally” and was of the opinion that $1,000 “was the best price that could be obtained for it”; and Gary Deen, the owner and operator of the repossession service, who stated that the equipment was “broken down and had several parts missing from it.”

In opposition to the motion, appellant submitted affidavits from Henry Williamson, in which he attested that he assisted appellant in moving the Uni-Loader to his residence for the purpose of repossession and it was “in running condition and operational.” In his own affidavit, appellant swore that Moses Greene had admitted to him that the machine was operational; that the equipment was in working order and operable on the day it was repossessed and that the motor was not “locked up” nor the tires flat; and that he had bought and traded equipment of this type for approximately 20 years, and that in his opinion the Uni-Loader was worth approximately $10,000 at the time of the repossession. In another affidavit submitted by appellant, Curtis Tanner, a mechanic and service manager for Southeastern Uni-Loader, Inc., stated that he had worked on, bought and/or traded this type of equipment for over 20 years and that he had personally observed and worked on the Uni-Loader in question shortly before the repossession and that it was “certainly not junk and positively worth more than $1,000.00.” Finally, Kenneth Welch averred in his affidavit that he had 26 years of experience in “selling, trading, buying and repairing” equipment of the type in question here, and that he was familiar with the selling prices and values of such equipment, new and used, in the Atlanta and Middle Georgia area. Based on his personal knowledge and experience, published prices in the National Farm & Power Equipment Dealers Associations’s “Official Industrial Equipment GUIDE” also provide information as to the fair and reasonable value of such equipment; and based on his own personal knowledge and experience and the published guide prices, it was his opinion that the equipment had a retail value of $11,000 and a wholesale “as is” value of $9,000.

Thus, we cannot agree with the trial court that there is no genuine issue as to any material fact or that appellee was entitled to judgment as a matter of law. Rather, there exists a genuine issue of material fact as to whether the sale price equalled the fair market value of the equipment, and consequently, whether appellee was entitled to a deficiency judgment and, if so, in what amount. Accordingly, these issues must be decided at trial by the trier of fact.

2. Because of our decision in Division 1, supra, it is not necessary to address appellant’s contention that the trial court erred by granting summary judgment to appellee because material questions of fact exist with regard to the amount of the deficiency, if any.

3. Appellant also contends the trial court erred by denying his motion for summary judgment on his counterclaim on the issue of whether appellee was barred from recovering a deficiency judgment because it had not acted in a commercially reasonable manner in regard to all aspects of the sale other than the sale price. Appellant alleged in his brief in support of his motion that the sale was not commercially reasonable in that appellee failed to obtain an appraisal on the Uni-Loader and that the sale was not conducted in the manner usually used for disposing of this type of collateral. Appellant further stated that the proper method for disposal and sale of such collateral was shown in an affidavit from Ralph Dennard. However, no affidavit from Dennard appears in the record.

Decided September 5, 1989.

Alfred D. Fears, Jr., for appellant.

Donald W. Huskins, for appellee.

“The burden of proof on motion for summary judgment is always on the movant, even with respect to issues on which the opposing party would have the burden of proof during the trial of the case. [Cits.]” Best v. Dublin Eye Assoc., 188 Ga. App. 225, 226 (372 SE2d 495) (1988). Error must be shown affirmatively by the record, and statements in the brief may not be used in lieu of evidence in the record. See Cantrell v. Red Wing Rollerway, 184 Ga. App. 506, 508 (2) (361 SE2d 720) (1987). As appellant failed to carry his burden on summary judgment, the trial court did not err by denying his motion.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Pope, J., concur.


text:
    A89A1410.
    WHITE v. THE STATE.
    (386 SE2d 56)
   Banke, Presiding Judge.

The appellant was convicted of armed robbery. Though represented by retained counsel at trial, he filed a pro se notice of appeal, which we dismissed both on the ground that it was not timely filed and on the ground no brief and enumeration of errors were filed after the appeal was docketed in this court. The appellant thereafter filed a motion in the trial court for appointment of counsel. That motion was granted, whereupon this appeal was filed pursuant to the trial court’s grant of a motion for out-of-time appeal. Held:

The appellant’s sole enumeration of error concerns the effectiveness of his trial counsel. “Currently, the rule appears . . . to be that a challenge to the effectiveness of trial counsel will not be considered on appeal where it has not been raised in the trial court in such a manner as to enable the court to rule on it.” Huff v. State, 191 Ga. App. 476, 477, (382 SE2d 183) (1989). Because no motion for new trial was ever filed in this case, the trial court has not had the opportunity to consider the issue of the effectiveness of the appellants’ trial counsel, with the result that the present appeal presents nothing for review. See also Bell v. State, 259 Ga. 272 (381 SE2d 514) (1989).

Judgment affrmed.

Sognier and Pope, JJ., concur.

Decided September 5, 1989.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Eleni A. Pryles, Patricia G. Higginbotham, Assistant District Attorneys, for appellee.


text:
    A89A1416.
    ANGLIN et al. v. GRISAMORE et al.
    (386 SE2d 52)
   Banke, Presiding Judge.

The appellants, Mr. and Mrs. Earl Anglin, brought this medical malpractice action against the appellees, Dr. Jennings Grisamore and his professional corporation, seeking to recover for the doctor’s alleged negligence in deciding to perform a gastroplasty operation upon Mrs. Anglin. A gastroplasty is a surgical procedure by which the size of the stomach is.reduced to promote loss of weight. The appellants did not contend at trial that the actual performance of the operation by Dr. Grisamore was in any way deficient or negligent but sought to prove that he had failed to perform adequate pre-operative medical and psychological screening on Mrs. Anglin to determine whether she was an appropriate candidate for the surgery. They contend that had such screening been performed, it would have revealed that Mrs. An-glin lacked the capacity to alter her eating habits post operatively in such a manner as to enable herself to benefit from the surgery. The jury returned a verdict in favor of Dr. Grisamore. The appellants’ sole contention on appeál is that the trial court erred in charging on comparative negligence. Held:

1. It is apparent without dispute that the reason the surgery was unsuccessful as a remedy for Mrs. Anglin’s obesity was because of her inability or unwillingness to restrict her diet post operatively in accordance with the instructions given to her. There is no contention that the necessity of adhering to these dietary restrictions was not made known to Mrs. Anglin prior to the surgery. In McMullen v. Vaughan, 138 Ga. App. 718 (2) (227 SE2d 440) (1976), this court held that a charge on comparative negligence.was authorized in a medical malpractice action by evidence that the patient had failed to perform certain prescribed post-operative physical therapy exercises which would have minimized the disabling effects of a nerve injury inflicted during surgery on his shoulder. Accord Seay v. Urban Med. Hosp., 172 Ga. App. 344, 347 (323 SE2d 190) (1984). The facts in the present action present a stronger case for a comparative negligence charge than did the facts in McMullen.

The appellants contend that the holding in McMullen should not be applied to the present case because their claim is based not on events which occurred during the surgery but on Dr. Grisamore’s failure to ascertain prior to the surgery that Mrs. Anglin would be unable to adhere to the post-operative dietary conduct required of her. However, there is no suggestion that Mrs. Anglin was laboring under any legal disability which would have relieved her of responsibility for her own actions and decisions. If she was psychologically and emotionally unprepared to enable her eating habits post operatively in such a manner as to alter the surgery to be successful, she certainly must share at least some of the blame for not realizing this ahead of time. There was no “informed consent” doctrine in Georgia at the time the surgery was performed, and Dr. Grisamore was accordingly required only to disclose the general terms of the treatment. See McMullen v. Vaughan, supra, 138 Ga. App. at 721. See also OCGA § 31-9-6 (d); Robinson v. Parrish, 251 Ga. 496, 497 (306 SE2d 922) (1983). There has been no suggestion that he failed to do this, nor has there been any suggestion that he made any misrepresentation to Mrs. Anglin regarding what would be required of her after the surgery. Thus, there was simply no basis upon which he could have been held liable for her decision to undergo the surgery. Accord Hooker v. Headley, 192 Ga. App. 629 (_ SE2d _) (1989).

Decided September 5, 1989.

Blank & LaChance, A. Russell Blank, for appellants.

Hart & Sullivan, Michael G. Frick, Alexander H. Booth, for ap-pellees.

2. It appearing to this court that there was no basis upon which reversal of the judgment below might reasonably have been anticipated, a penalty of $500 is hereby assessed against the appellants pursuant to Rule 26 (b) of this court for filing a frivolous appeal. The trial court is directed to enter judgment in favor of the appellees in this amount upon the return of the remittitur in the case.

Judgment affirmed with direction.

Sognier and Pope, JJ., concur.