text:
    A92A1132.
    HOGAN v. THE STATE.
    (423 SE2d 47)
   Johnson, Judge.

Willie James Hogan appeals from his conviction of armed robbery and the denial of his motion for a new trial.

1. Hogan first contends that there was insufficient evidence to support the verdict. This contention is without merit.

A convenience store security guard testified that on the night of the incident he saw Hogan and another man get into the victim’s taxicab. The victim testified that Hogan and the other man asked him for a ride in his cab. Hogan sat in the back seat and the other man sat in the front passenger seat. As the victim drove, the man in the front seat pointed a .38 caliber pistol at him and told him to pull over. After the victim pulled over, the man took $70 from him. Hogan then reached around from the back seat and frisked the victim. Hogan also yanked the microphone loose from the cab radio. A detective testified that the victim positively identified Hogan from a book of photographs and that a .38 caliber bullet was found on Hogan at the time of his arrest. Reviewing the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Hogan guilty beyond a reasonable doubt of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hogan complains in his second enumeration that the trial court erred in refusing to give his requested charge to the jury on the lesser included offense of theft by taking. “The correct rule is that a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” (Citation and punctuation omitted.) Walton v. State, 201 Ga. App. 118, 119 (410 SE2d 339) (1991). Hogan’s sole defense was that he denied being in the victim’s cab at the time of the incident. Thus, the evidence showed that Hogan either participated in an armed robbery or that he did nothing at all. There is no evidence that Hogan merely committed a theft by taking. “Although both robbery and theft by taking have been held to be lesser included offenses of armed robbery, it is not necessary to charge on the lesser included offense where the evidence demonstrates completion of the greater offense.” (Citations and punctuation omitted.) Belcher v. State, 201 Ga. App. 139, 141 (4) (410 SE2d 344) (1991). As the evidence in this case demonstrated that Hogan either completed an armed robbery or that he was not present at the scene of the crime, the trial court did not err in refusing to charge the jury on theft by taking.

3. Hogan’s final argument is that the trial court erred in failing to charge the jury that its verdict must be unanimous. At the outset, we note that the record on appeal shows that the court polled the jurors, upon Hogan’s request, after receiving their verdict. The record contains no indication that the jury’s verdict was not unanimous. Furthermore, Hogan made no request, either written or oral, that the court give a charge to the jurors that their verdict must be unanimous. “It is not error for the trial court in the absence of a written request to fail to charge that a jury verdict must be unanimous. [Cit.]” Smith v. State, 161 Ga. App. 240, 241 (3) (288 SE2d 304) (1982). Moreover, although the trial judge never used the word “unanimous” in his jury instructions, we find that the judge did inform the jurors that the verdict must be unanimous where he told them, “One of your first duties in the jury room will be to select one of your number to act as foreperson, who will preside over your deliberations, who will sign the verdict to which all twelve of you freely and voluntarily agree.” See Mulligan v. Kemp, 818 F2d 746, 748 (5) (11th Cir. 1987). Although the preferred method for charging the jury is to give the pattern jury instructions, which contain a clear statement that the verdict must be unanimous, we must find that under the circumstances of this case the trial court committed no error.

Decided September 29, 1992.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Barbara A. Smith, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A92A1398.
    JOHN McDONALD PONTIAC-GMC TRUCK, INC. v. KLOPPER.
    (422 SE2d 925)
   McMurray, Presiding Judge.

On March 31, 1989, Dr. Jeffrey Klopper purchased a silver Alfa Romeo automobile with an automatic transmission from John McDonald Pontiac-GMC Truck, Inc. (“John McDonald”) for $14,700. The purchase price was to include an extended warranty and a special undercoating for the automobile.

Klopper wanted another Alfa Romeo with a manual transmission but he was told by John Miraglia, one of John McDonald’s sales representatives, that John McDonald did not have the automobile that plaintiff wanted in stock. To smooth things over, Miraglia agreed that Klopper could subsequently exchange the Alfa Romeo for another automobile, “if the terms were agreeable” and Klopper was willing to make an additional payment.

Klopper gave John McDonald a check for the full purchase price of the Alfa Romeo. However, at John McDonald’s request, Klopper signed papers to finance the Alfa Romeo with a bank and John McDonald held Klopper’s check without cashing it.

Klopper did not make payments to the bank and, in time, he received letters from the bank demanding payment. Having given John McDonald a check for the automobile, Klopper did not understand why he was being dunned by the bank. He was told that John McDonald would take care of the problem — but it never did. Ultimately, Klopper was forced to pay the bank principal and interest totalling $16,055.15.

John McDonald returned Klopper’s $14,700 check after Klopper paid off the bank. In all likelihood, John McDonald received a premium for the financing of the automobile.

Klopper was not pleased with the automobile from the start. Problems showed up immediately. For example, the heater was stuck in the “on” position and the brake warning light did not function properly. These problems were eventually fixed by John McDonald; however, other problems remained. For example, condensation was continuously building up in the headlights. Moreover, according to Klopper, the special undercoating was never applied to the automobile even though it was included in the purchase price and Klopper asked John McDonald to apply it many times.

Klopper was not satisfied with John McDonald’s attempts to repair the automobile either. In an attempt to remedy the condensation problem, for example, John McDonald did nothing more than blow dry and wipe the headlights. Moreover, it took John McDonald four or five weeks to repair a dent in the rear pillar of the automobile.

Klopper brought the automobile to another dealership for repair work under the extended warranty. At that time, Klopper learned that there was no extended warranty covering the automobile. It would appear that John McDonald had cancelled the warranty and had received a refund for the cancellation.

On December 1, 1989, Klopper’s attorney wrote a letter to John McDonald in which he pointed out the many problems Klopper experienced after purchasing the Alfa Romeo. He concluded the letter thusly: “You need to provide Dr. Klopper a functioning automobile meeting the description of the automobile you originally promised. Please contact me so we can resolve the situation. If we do not hear from you by Friday, December 8, 1989, we will take the appropriate action.”

Thereafter, on February 22, 1990, Klopper brought suit against John McDonald. In his complaint, Klopper sought damages for breach of contract in the amount of “at least $18,000.” He also sought reasonable attorney fees, alleging defendant was stubbornly litigious. He did not seek rescission.

At trial, Klopper testified that he wanted to get back the money he paid for the Alfa Romeo; in turn, he said he would give the automobile back to John McDonald. He testified that he asked Miraglia “to take back” the Alfa Romeo “several times.” But he also testified that he offered to exchange the Alfa Romeo for another automobile on many occasions and added that he never asked for anything more than a “resolution of the problem.”

John McDonald moved for a directed verdict, arguing, inter alia, that the evidence did not support a claim for rescission. The trial court denied the motion. Following the close of the evidence, the trial court charged the jury, over John McDonald’s objection, on the law of rescission. The jury returned a plaintiff’s verdict for $16,055.15 and attorney fees, adding “return the car to dealer.” In its judgment, the trial court awarded Klopper $16,055.15, attorney fees and costs, and ordered Klopper to return the automobile to John McDonald. This appeal followed. Held:

“Forfeitures of rights under valid legal contracts are not favored under the law. Our courts generally are quick to seize upon any waiver of a forfeiture, the rule being that the right to rescind for any breach must be asserted promptly, and a waiver of a breach or forfeiture can not be recalled. [Cits.]” Pearson v. George, 209 Ga. 938, 945-946 (77 SE2d 1). Thus, “ Tf a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it. Otherwise, he cannot avoid or rescind such contract.’ ” Cloud v. Bagwell, 83 Ga. App. 769, 772 (64 SE2d 921) (quoting Gibson v. Alford, 161 Ga. 672 (5) (132 SE 442)).

In the case sub judice, Klopper did not announce a rescission of the contract until the case was tried. He testified that, until the time of trial, he only wanted to resolve the situation. Compare Bob Maddox Dodge v. McKie, 155 Ga. App. 263 (270 SE2d 690). At no point did Klopper plainly and firmly state an intention to rescind before he took the witness stand. True, Klopper testified that he asked Miraglia to “take back” the Alfa Romeo “several times.” But it is not clear whether such requests were made in conjunction with a demand for rescission or in conjunction with Klopper’s contractual right to “exchange” the Alfa Romeo for another automobile. See generally DeLoach v. General Motors, 187 Ga. App. 159, 161 (6) (369 SE2d 484).

Even if it can be said that Klopper’s “take back” requests amounted to a rescission, it is clear that Klopper did not adhere to any requests to rescind. On the contrary, in his December 1, 1989 letter, Klopper’s attorney sought another automobile, not rescission. And in his complaint, Klopper sought damages for breach of contract, not rescission. Thus, any requests to rescind the contract were waived and Klopper could not recall them at the time of trial. Pearson v. George, 209 Ga. 938, 945, 946, supra.

As to the issue of whether or not rescission is involved in the case sub judice, the trial court erred in failing to grant John McDonald’s motion for a directed verdict on this issue and in charging the jury on the law of rescission, because the evidence did not support a claim for rescission. To meet the ends of justice under the facts of this case, however, a new trial should be had. See OCGA § 9-11-50 (e).

In view of our ruling on the rescission issue, we need not address the remaining enumerations of error.

Decided September 29, 1992.

Summers & Jones, Ezra B. Jones III, Robert H. Stansfield, for appellant.

Gary P. Bunch, for appellee.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1887.
    FLEURY v. AFAB, INC.
    (423 SE2d 49)
   McMurray, Presiding Judge.

AFAB, Inc. d/b/a Fugi’s Hair Designers (“Fugi”) filed a complaint and a motion for a temporary restraining order against Melanie Fleury seeking to enjoin her from performing hairstyling services within two miles of Fugi’s barber shop located at Buckhead Plaza in Atlanta, Georgia. Fugi alleged that Fleury is performing hairstyling services in violation of a covenant not to compete prohibiting her from competing with Fugi within one year after her termination of employment.

After a hearing on Fugi’s motion for a temporary restraining order, the superior court enjoined Fleury from competing with Fugi “for a period of one (1) year from February 20, 1992, the date of termination of employment and within a two (2) mile radius from [Fugi’s] place of employment located at Buckhead Plaza, Atlanta, Georgia, which injunction shall become effective after April 9, 1992.” Fleury later filed a motion to dissolve the temporary restraining order and Fugi filed a motion to have Fleury held in contempt for performing hairstyling services in violation of the temporary restraining order. Fleury then filed an answer and a counterclaim, seeking damages for abusive litigation. Fleury also filed a motion to dismiss, arguing that the covenant not to compete is unenforceable because the activity restrictions are unreasonable and indefinite.

The superior court subsequently entered an order finding that Fleury began cutting and styling hair for Fugi after the parties entered into an employment agreement on October 4, 1989, and that the employment agreement included the following covenant not to compete: “ ‘To induce the Employer to enter into this Employment Agreement and as a condition precedent to this Contract, the Employee agrees that upon termination or expiration of Employee’s employment with the Employer, Employee shall not, for a period [of] one (1) year and within a radius of two (2) miles from the Employee’s place of employment. . . enter into or engage in any duty or responsibility for which Employee performed for Employers, or any business performed by Employer, either as an employee of an existing or new business or on his/her own account, either as a proprietor, partner, joint venturer, or controlling stockholder of a corporation. This agreement shall not be construed to prohibit Employee from having an ownership interest in an industry related business so long as Employee is not employed by that business to perform the duties which Employee is performing for Employer hereunder.’ ”

The superior court also found that the employment relationship between Fleury and Fugi terminated on February 20, 1992, and that Fleury began performing hairstyling services less than two miles from Fugi’s Buckhead based barber shop before the anniversary of Fleury’s termination of employment. The superior court concluded that “the Covenant Not to Compete is enforceable and [ordered Fleury to] comply with the terms of the Covenant Not to Compete by 5:00 p.m., May 15, 1992.” Appellant Fleury initially appealed to the Supreme Court of Georgia. However, that Court transferred the appeal to this Court, stating “[t]he central issue in this appeal involves the validity of a covenant not to compete.” Held:

A covenant not to compete ancillary to an employment contract is “unreasonable where the nature of the business activities in which the employee is forbidden to engage is not specified with particularity. Dixie Bearings, Inc. v. Walker, [219 Ga. 353, 356 (133 SE2d 338)]; Southeastern Beverage &c. Co. v. Dillard, 233 Ga. 346 (211 SE2d 299) (1974), and cases cited. These indefinite business activities generally are identified by reference to the employer’s business, e.g., the employee agrees not to engage in or be employed by any ‘business similar to employer’s business.’ ” Howard Schultz &c. v. Broniec, 239 Ga. 181, 184 (2) (236 SE2d 265).

In the case sub judice, the restrictive covenant prohibits Fleury from engaging “in any duty or responsibility for which [she] performed for [Fugi], or any business performed by [Fugi], either as an employee of an existing or new business or on his/her own account, either as a proprietor, partner, joint venturer, or controlling stockholder of a corporation.” This covenant is unreasonable because Fleury is prohibited from working in any capacity for a competitor. The covenant also fails to specify with any particularity the activity Fleury is prohibited from performing. Consequently, the covenant “imposes a greater limitation upon the employee than is necessary for the protection of the employer and therefore is unenforceable. Dunn v. Frank Miller Associates, 237 Ga. 266 (227 SE2d 243) (1976); Federated Mut. Ins. Co. v. Whitaker, 232 Ga. 811 (209 SE2d 161) (1974); Dixie Bearings, Inc. v. Walker, supra.” Howard Schultz &c. v. Broniec, 239 Ga. 181, 184 (2), supra. It follows that the superior court erred in declaring the covenant enforceable and ordering Fleury to comply with the terms of the covenant. Further, genuine issues of material fact also remain as to Fleury’s counterclaim for abusive litigation.

Decided September 29, 1992.

Patricia B. Ball, for appellant.

Mark Weber, Mark A. Baker, for appellee.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1955.
    HAGEMAN v. THE STATE.
    (423 SE2d 56)
    Decided September 29, 1992.

      Douglas R. Daum, for appellant.

      Ralph T. Bowden, Jr., Solicitor, Cassandra J. Cook, R. Javoyne

      Hill, W. Cliff Howard, Assistant Solicitors, for appellee.
   McMurray, Presiding Judge.

Defendant Hageman appeals his conviction of the offense of speeding. Held:

Each of defendant’s three enumerations of error contend the trial court erred in admitting certain evidence at trial. However, defendant has failed to comply with OCGA § 5-6-37 by stating in the notice of appeal whether any transcript of evidence is to be transmitted to this Court as part of the record on appeal and there is no transcript of the trial included in the record on appeal. “ ‘In the absence of a transcript, we cannot consider enumerations of error concerning the evidence or proceedings at trial. Dean v. State, 188 Ga. App. 128 (372 SE2d 286) (1988).’ Hasty v. State, 195 Ga. App. 427 (394 SE2d 800).” Williams v. State, 200 Ga. App. 84, 85 (1) (406 SE2d 498). “In the absence of a transcript, or a record prepared from recollection or a stipulation of the case pursuant to OCGA § 5-6-41 (g, i), we cannot consider enumerations of error based on the evidence. Dean v. State, 188 Ga. App. 128 (372 SE2d 286) (1988).” Sizemore v. State, 195 Ga. App. 548 (395 SE2d 669). See also Powell v. State, 198 Ga. App. 509, 512 (2) (402 SE2d 108), and Sheriff v. State, 184 Ga. App. 180 (361 SE2d 53). Since defendant’s enumerations can be reviewed only by reference to a transcript, the absence of a transcript requires that we assume that the trial court’s rulings on the admission of evidence were correct.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1411.
    ROBINSON v. ROBERTS et al.
    (423 SE2d 17)
   McMurray, Presiding Judge.

Plaintiff Nettie Freeman, individually and as next friend of her minor child (“plaintiff child”), brought an action against Leviticus Roberts and Paul Miller (defendants), alleging that the child was a student at M. L. King, Jr. Middle School (“the school”) during the 1985-1986 school year; that defendant Miller was then a teacher at the school and that defendant Roberts was then principal of the school. Plaintiffs further alleged that defendant Miller was responsible for supervising and directing a school-sponsored performing arts group (“the group”); that the plaintiff child was a member of the group and that defendant Miller sexually molested the child while the group was on off-campus field trips. Plaintiffs alleged that defendant Roberts was negligent in performing his duty as school principal, failing to investigate reports that defendant Miller had sexually molested other students at the school and allowing defendant Miller to arrange off-campus performances of the group in violation of school policy and procedure.

The case was tried before a jury and the evidence revealed that defendant Miller sexually molested the 13-year-old child while serving as a teacher at the school and supervising the group’s off-campus field trips. The evidence also revealed that defendant Roberts was the principal of the school when the child was sexually molested by defendant Miller; that he received reports that defendant Miller had sexually molested other students before the child was molested and that he was aware that defendant Miller was transporting the group on field trips in his personal vehicle in violation of school policy and procedure.

The jury returned a verdict against defendant Miller in the amount of $8,580 and a verdict in favor of defendant Roberts as to plaintiffs’ claims. This appeal is by the plaintiff child from the judgment entered on the verdict in favor of defendant Roberts. Held: The plaintiff child contends the trial court erred in failing to give the following request to charge: “I charge you that a child under fourteen (14) years of age is legally incapable of consenting to sexual intercourse. If the act of having sexual intercourse is committed by an adult with a child who is under fourteen (14) years of age, the law conclusively presumes that the child was incapable of consenting. Likewise, it would be immaterial that the adult did or did not use force.”

Decided September 14, 1992

Reconsideration denied September 30, 1992

Nations, Yates & Freeman, J. Comer Yates, Herald J. A. Alexander, for appellant.

Mark Harper, Arnold J. Wright, Jr., Troutman, Sanders, Lockerman & Ashmore, Robert L. Pennington, for appellees.

“ ‘A request to charge the jury must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence. (Cit.)’ Keno v. Alside, Inc., 148 Ga. App. 549, 553-554 (5) (251 SE2d 793) (1978).” Concrete Constr. Co. v. City of Atlanta, 176 Ga. App. 873, 875 (4a), 876 (339 SE2d 266). In the case sub judice, the plaintiff child argues that the above charge is relevant to rebut defendant Roberts’ claims of contributory negligence and assumption of the risk. More specifically, plaintiff child reasons that a child’s inability to consent to sexual intercourse is relevant to his ability to appreciate the dangers of associating with defendant Miller. We do not agree.

A charge on the inability of a child under 14 years of age to consent to sexual intercourse may be relevant in cases involving a child’s ability to consent to criminal acts (Drake v. State, 239 Ga. 232 (1) (236 SE2d 748)), but it is not relevant in cases involving a 13-year-old child’s ability to appreciate dangers of his environment and to avoid consequences associated with exposure to such dangers. See Horton v. Hinelyr 261 Ga. 863, 864 (1) 413 SE2d 199). Under such circumstances, the matter of a child’s ability to appreciate dangers of the environment is “ordinarily left as a question of fact for the jury rather than as a matter of law for the court.” Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 234 (3), 235 (378 SE2d 857). Consequently, the trial court did not err in failing to give plaintiff’s request to charge.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A1550.
    HARDIN v. SUPER DISCOUNT MARKET, INC.
    (423 SE2d 18)
   McMurray, Presiding Judge.

Patricia Ann Hardin (plaintiff) brought an action against Super Discount Market, Inc. (defendant), seeking damages for injuries she allegedly sustained when she slipped and fell at defendant’s grocery store. Defendant denied the material allegations of the complaint and filed a motion for summary judgment.

Plaintiff testified during a deposition that she slipped and fell in a puddle of milk while shopping near the dairy section of defendant’s grocery store. Plaintiff explained that she was on her way to retrieve orange juice at the time of the fall; that she did not see the spilled milk before the fall and that the milk puddle was in an area of about “2 or 3 feet. . . .” Plaintiff also testified that she observed “buggy marks” and shoe prints in the milk puddle and that this drew her to the conclusion that the spilled milk “had been spread out by different buggies pushing through it.” Plaintiff filed an affidavit and further explained that “immediately after [she] fell and looked up [she saw] a store clerk that apparently had been stocking shelves in the bakery section and [that] this Clerk did have a full and complete view of the area where [plaintiff] fell in that there are no obstructions from where [the clerk] was standing that would have blocked [the clerk’s] view of the milk spill.” Plaintiff also deposed that “[a]t the time of [the] fall [she] was walking between two freezers and looking slightly to [her] left and up to locate the refrigerated section where orange juice was displayed [and that it] was at that moment that [she] fell.”

Phillip Smith testified during a deposition that he was employed as a “[l]oss prevention clerk” at defendant’s grocery store on the day of plaintiff’s fall and that his responsibilities included visually inspecting the store for “anything that anybody could get hurt on. . . .” Smith further testified that he assisted plaintiff after the fall but the deposition transcript reveals that he did not independently recall specific details of the incident. However, Smith recalled that he had been in the area where plaintiff fell “[m]aybe fifteen, twenty, or so” minutes before the incident and that he did not then observe the milk puddle. Smith also testified that he did not recall asking the clerk in the nearby bakery department if she saw the spill, but he explained that “it’s like everyone’s responsibility on cleaning up spills, and what to do if they observe or walk up on a spill, how to handle it.”

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

“While a proprietor is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show that the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980).” Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565 (417 SE2d 202). In the case sub judice, Phillip Smith testified that he examined the area where plaintiff fell about 15 or 20 minutes before the incident and that he did not then observe the spilled milk. See Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178). However, this evidence was expanded when plaintiff deposed that another employee was in the area of the spilled milk immediately after the fall.

Decided September 14, 1992

Reconsideration denied September 30, 1992

William L. Skinner, for appellant.

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

“When an action is based on constructive knowledge, to avoid summary judgment for the defendant, the plaintiff must establish a question of fact whether the foreign substance remained on the floor for a sufficient length of time for knowledge of it to be imputed to the proprietor, showing that he had an opportunity to discover the defect and correct it. Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991). This may be done by showing that employees of the proprietor were in the area and easily could have seen the hazard and corrected it, or by showing that the proprietor failed in his duty to exercise ordinary care in inspecting the premises to keep them safe. Queen v. Kroger Co., 191 Ga. App. 249-250 (1) (381 SE2d 413) (1989).” Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565, supra. In the case sub judice, evidence showing that an employee of defendant was within sight of the spilled milk stocking shelves immediately after plaintiff’s fall, evidence that the spilled milk had been spread in a two to three foot area of a shopping aisle by shopping traffic or other store activity and Phillip Smith’s testimony that “it’s like [every employee’s] responsibility on cleaning up spills, and what to do if they observe or walk up on a spill, how to handle it” gives rise to genuine issues of material fact as to defendant’s actual and constructive knowledge of the spilled milk and defendant’s degree of care in keeping its shopping premises safe.

Judgment reversed.

Cooper, J., concurs. Sognier, C. J., concurs in the judgment only.


author: Beasley, Judge.

text:
    A92A1627.
    McIVER v. THE STATE.
    (423 SE2d 27)
   Beasley, Judge.

Mclver was indicted December 3, 1990, in two counts for selling cocaine in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30 (b). His motion for discharge under OCGA § 17-7-170, for the State’s alleged failure to try him within two terms following his demand for speedy trial, was denied. The question is whether Mc-Iver’s incarceration in custody of another sovereign extended the time. We hold that it did.

Mclver filed a demand for trial on March 27, 1991, during the court’s February 1991 term. Juries were impaneled and qualified then and until April 4, but Mclver was in federal custody until May 6. No jurors were impaneled in that term after Mclver’s release.

Decided September 16, 1992

Reconsideration denied September 30, 1992

Richard Phillips, for appellant.

Dupont K. Cheney, District Attorney, for appellee.

Jurors were impaneled during the May term (May 27 to September 8), but no jurors were impaneled during the September term (September 9 to December 1). Mclver sought discharge in the December term, in February 1992. Under the statute, two circumstances must coexist before discharge occurs: two terms of juries impaneled and qualified to try defendant, and the availability of defendant. The first is explicit in the statute and the second is implicit.

“It was incumbent upon [Mclver] to show by competent evidence both that a jury was impaneled and qualified to try him at the term when his demand was filed and that there was a jury impaneled and qualified to try him during the next succeeding term. [Cit.] . . . ‘(I)n computing the time allowed by the two-term requirement, terms or remainders of terms during which no jury is impaneled are not counted.’ [Cits.]” Deadwiley v. State, 192 Ga. App. 229 (384 SE2d 221) (1989).

“There is no inherent authority in a court of this state to compel an accused’s presence or in-court attendance where such defendant is incarcerated by or in the control of a different sovereign. [Cits.]” Luke v. State, 180 Ga. App. 378, 379 (349 SE2d 391) (1986), overruled by State v. Collins, 201 Ga. App. 500 (411 SE2d 546) (1991), only to the extent that it required physical presence.

Mclver was not available for trial prior to his release from federal custody. Collins, supra at 501. If the State had placed his case on the trial calendar, his presence for trial would not have been secured. Mclver, however, could have followed the requirements of the Interstate Agreement on Detainers, OCGA § 42-6-20, but he did not do so.

There were no jurors available on May 6, or thereafter during the February term, so the statutory time did not begin to run until the following term, i.e., the May term. The September term is excluded because no jurors were impaneled. Deadwiley, supra. Accordingly, the State was not required to try Mclver’s case prior to the conclusion of the December term. Mclver’s motion for discharge was premature.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A92A0782.
    MORRIS v. THE STATE.
    (423 SE2d 54)
    Decided September 30, 1992.

      Ballard, Slade & Ballard, Scott L. Ballard, for appellant.

      W. Fletcher Sams, District Attorney, W. Hawley Stevens, Assis

      tant District Attorney, for appellee.
   Johnson, Judge.

Carla Morris was charged by accusation with five counts of traffic-related violations. A jury found Morris not guilty of counts two, three, and five and guilty of counts one and four. She appeals only her conviction of the charge in count one, driving under the influence of alcohol.

Morris contends that the trial court erred in failing to permit her counsel to state his reasons for moving for a directed verdict thereby denying Morris’ right to counsel. This enumeration is without merit.

At the close of the State’s evidence, Morris’ counsel moved for a directed verdict on counts one, two, and three. When counsel attempted to argue his motion, he was interrupted by the trial judge who stated that he was aware of counsel’s reasons for the directed verdict motion. At the close of all of the evidence, Morris’ counsel renewed his motion for directed verdict and the court denied the motion.

“A directed verdict of acquittal is authorized only where there is no evidence to support a verdict to the contrary.” Lane v. State, 177 Ga. App. 553, 554 (340 SE2d 228) (1986); see also OCGA § 17-9-1. After a review of the entire record, we find that a verdict of acquittal was not demanded in this case. Evidence was presented at trial indicating that Morris performed poorly on the field sobriety tests which were administered to her. Additional evidence resulting from an intoximeter test further indicated that Morris had been driving under the influence of alcohol. We find that there was sufficient evidence presented at the trial of this case that Morris was driving under the influence of alcohol such that a reasonable trier of fact could find her guilty of that offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

No matter how compelling counsel’s argument may have been, a review of the record reveals that the standards for granting a directed verdict clearly were not met. While it would have been better practice for the court to have allowed Morris’ counsel to state his reasons in support of the motion, the court’s refusal to do so did not constitute harmful error.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0914.
    RUCKER v. THE STATE.
    (423 SE2d 51)
   Johnson, Judge.

Thaddeus Hernandez Rucker appeals from his conviction of operating a motor vehicle after having been declared an habitual violator and the denial of his motion for a new trial. In his sole enumeration of error, Rucker contends that the trial court erred in allowing the State to impeach a defense witness by proof of the witness’ prior criminal conviction without introducing a certified copy of the conviction. This enumeration is without merit because the trial court’s ruling, although erroneous, was harmless.

Evidence presented at trial showed that a police officer stopped a jeep being driven in a reckless manner. Rucker was seated in the driver’s seat of the jeep and Andre Payne was in the passenger seat. Rucker asserted as his defense that he was actually the passenger in the jeep and that Payne was the driver. Rucker claimed that he and Payne switched places after being pulled over by the officer because Payne was on parole and feared revocation of his parole status. Payne testified on behalf of Rucker. The State attempted to impeach Payne by questioning him about a prior criminal conviction without introducing a certified copy of that conviction.

It is well-settled that evidence of a witness’ prior convictions must be tendered and admitted in the form of certified copies of the convictions and not by testimony alone. See Richards v. State, 157 Ga. App. 601, 602-603 (278 SE2d 63) (1981); see also Allen v. State, 152 Ga. App. 481 (263 SE2d 259) (1979). It was therefore error for the trial court to allow oral evidence of Payne’s prior felony convictions absent certified copies of the convictions. However, such error was harmless given the circumstances of the instant case.

Where error inures to the benefit of the defendant it is harmless. See generally Kirk v. State, 252 Ga. 133 (311 SE2d 821) (1984). Rucker benefitted from the improper introduction of Payne’s prior felony convictions as such convictions supported the defense theory that Payne switched seats with Rucker in the jeep to avoid having his parole status revoked.

Furthermore, the transcript shows that during the sentencing phase of the trial, Rucker admitted that he was, in fact, the driver of the jeep at the time that the officer stopped them. An admission during the sentencing phase is considered an admission in judicio and as such renders all trial error harmless. See Johnson v. State, 171 Ga. App. 91 (318 SE2d 799) (1984); see also Harris v. State, 133 Ga. App. 310 (211 SE2d 144) (1974). In order for an error at trial to warrant reversal on appeal such error must be harmful. Greer v. State, 201 Ga. App. 775 (2) (412 SE2d 843) (1991).

Decided September 30, 1992.

Shandor S. Badaruddin, for appellant.

Lewis R. Slaton, District Attorney, Henry M. Newkirk, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, J., concurs. Carley, P. J., concurs in judgment only.


text:
    A92A1273.
    POOLE v. THE STATE.
    (423 SE2d 52)
   Beasley, Judge.

Following the denial of his motion for new trial, Poole appeals from a judgment of conviction for burglary, OCGA § 16-7-1, claiming insufficiency of evidence and errors in the jury charge.

Responding to a burglar alarm call at a furniture store, police officers arrived to find that a glass portion of the side door had been broken by a concrete block. Appellant was observed inside the store carrying a television set. When the officers entered the building, they found the television on the floor in an aisle and appellant hiding between some mattresses. A cash drawer in the office had been disturbed and the change box overturned. Appellant had no authority to be in the store, which was closed for the Christmas holiday.

1. A directed verdict of acquittal is demanded as a matter of law only when “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” OCGA § 17-9-1 (a). The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of burglary beyond a reasonable doubt. Coursey v. State, 196 Ga. App. 135 (395 SE2d 574) (1990). The trial court properly denied his motion for a directed verdict of acquittal. Humphrey v. State, 252 Ga. 525 (1) (314 SE2d 436) (1984); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends that the trial court erred in refusing to give his requested jury instruction as follows: “I charge you . . . that if the facts in evidence in this case, and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence of the crime charged in the indictment, the justice and humanity of the law compels the acceptance of the theory which is consistent with innocence.” See Davis v. State, 13 Ga. App. 142, 143 (1) (78 SE 863) (1913). The charge has been discredited. Nolen v. State, 124 Ga. App. 593, 594 (184 SE2d 674) (1971). The instruction “commonly called the ‘two theories’ charge,” Hamilton v. State, 260 Ga. 3, 4 (4) (a) (389 SE2d 225) (1990), is appropriate, if at all, only when the evidence relied upon by the State is entirely circumstantial. Id. at (4) (b) ; Hawkins v. State, 260 Ga. 138 (6) (390 SE2d 836) (1990); Patterson v. State, 258 Ga. 592, 593 (1) (372 SE2d 809) (1988); Stephens v. State, 201 Ga. App. 737 (2) (412 SE2d 568) (1991). Since there was direct evidence of appellant’s guilt, the charge was not applicable.

Decided September 30, 1992.

Roy E. Harkleroad, for appellant.

Harry D. Dixon, Jr., District Attorney, John A. Rumker, Assistant District Attorney, for appellee.

3. Appellant’s requested charge relating to the elements of burglary was covered by the general charge. He was not entitled to a charge in the exact language of his written request. Williams v. State, 199 Ga. App. 566, 571 (5) (405 SE2d 716) (1991).

4. Appellant contends the trial court erred in failing to give his requested jury instruction on criminal trespass as a lesser included offense of burglary. “[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990). However, “ ‘[w]here the intent to steal is proved, the crime of criminal trespass [OCGA § 16-7-21] merges with or is included within the crime of burglary [OCGA § 16-7-1]. (Cit.)’ [Cit.]” Varnes v. State, 159 Ga. App. 452, 453 (2) (a) (283 SE2d 673) (1981). Here, as in Varnes, “the only evidence disclosed that the defendant [ ] entered the [building] for the unlawful purpose of committing theft, and thus, there was nothing to authorize an instruction on the lesser offense of criminal trespass. [Cit.]”

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A92A0964.
    WRIGHT v. CRAWFORD LONG HOSPITAL OF EMORY UNIVERSITY et al.
    (423 SE2d 12)
   Sognier, Chief Judge.

Christine Wright brought a medical malpractice claim against Crawford Long Hospital and six physicians. Her complaint, as amended, was dismissed for noncompliance with OCGA § 9-11-9.1, and she appeals.

In her complaint appellant alleged that defendants were liable for damages she incurred when an introducer wire was left in her body during catheterization procedures performed in July 1989. Appellant attached to her complaint the deposition of Dr. Pamela Benitez, the surgeon who discovered and removed the wire in December 1989. In this deposition, which was given in a Michigan lawsuit, Dr. Benitez testified that leaving a broken catheter threader wire in a patient’s body violated the applicable standard of care. However, Dr. Benitez also stated that the wire she removed was not the kind of wire used to thread a catheterization line and that she did not recognize the type of wire and was unable to identify a medical procedure in which such a wire would be used. In addition, Dr. Benitez testified that she had not reviewed appellant’s medical records pertaining to the procedures performed by appellees and did not know the names of appellant’s Georgia physicians.

Four days after filing her complaint, appellant amended it to allege that the statute of limitation would expire within ten days of filing and that because of this time constraint she was unable to obtain the required affidavit before filing the complaint. Appellees raised the issue of noncompliance with OCGA § 9-11-9.1 in their answers and motions to dismiss. In her second amendment to the complaint, filed 41 days after the complaint was filed, appellant attached the affidavit of Dr. Jose Evangelista, who averred that he had reviewed the records of appellees’ treatment of appellant and had determined that appellees were negligent in failing to remove a catheter guide wire and in failing to so inform appellant. The trial court dismissed the complaint on the basis that Dr. Benitez’s deposition testimony did not satisfy the requirements of OCGA § 9-11-9.1 (a) and that appellant could not amend the action to add Dr. Evangelista’s affidavit because the original complaint did not include the language required by OCGA § 9-11-9.1 (b).

1. Contrary to appellant’s contentions, the deposition did not meet the requirement of “set [ting] forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim,” OCGA § 9-11-9.1 (a), as Dr. Benitez did not identify any negligent act committed by appellees and was unable even to speculate as to the source of the wire. See Piedmont Hosp. v. Milton, 189 Ga. App. 563, 564 (377 SE2d 198) (1988). Thus, the complaint as originally filed was subject to dismissal for noncompliance with OCGA § 9-11-9.1

2. Alternatively, appellant contends she properly amended her complaint under either OCGA § 9-11-9.1 (b) or (c). The statute permits amendment of a complaint to add the required affidavit only in limited circumstances: (1) if the statute of limitation will expire within ten days and the plaintiff alleges that an expert affidavit could not be prepared because of time constraints (OCGA § 9-11-9.1 (b)); or (2) if the court determines that the plaintiff had the requisite affidavit available before the complaint was filed and the failure to file “was the result of a mistake” (id. at (e)). Paragraph (e) does not apply because Dr. Evangelista’s affidavit was dated after suit was filed, and appellant does not contend the affidavit was available prior to filing. See Cheeley v. Henderson, 261 Ga. 498 (3) (405 SE2d 865) (1991); compare Hospital Auth. of Fulton County v. McDaniel, 192 Ga. App. 398 (385 SE2d 8) (1989). Paragraph (b) likewise is inapplicable because appellant did not allege in her original complaint that she was unable to obtain an affidavit because of time constraints, but instead alleged that the requisite affidavit — the deposition of Dr. Benitez — was attached to and filed with the complaint, but the deposition was insufficient.

Appellant maintains that under the liberal amendment provisions of OCGA § 9-11-15, she was entitled to amend her complaint to add the allegations required by OCGA § 9-11-9.1 (b) and then to file a second amendment to add the affidavit as contemplated by paragraph (b). We disagree, for in Cheeley, supra, the Supreme Court held that the contemporaneous filing requirement is mandatory and that the filing of an insufficient affidavit cannot be cured by amendment unless the requirements of paragraph (e) are met. As the court noted, paragraph (e) expressly states that the failure to comply with the contemporaneous filing requirement cannot be cured by amendment under OCGA § 9-11-15 unless the affidavit was available prior to the filing of the complaint but was not filed due to a mistake. Cheeley, supra at 499. The legislature clearly has limited the manner in which OCGA § 9-11-15 is applied in malpractice cases and has authorized amendment only in certain limited circumstances not present here.

Although this court reached a contrary result in Thompson v. Long, 201 Ga. App. 480 (411 SE2d 322) (1991), that case involved a pro se plaintiff and applied the less stringent pleading standard used in pro se cases but not applicable here. Moreover, the Thompson plaintiff clearly had intended from the outset to proceed under paragraph (b) — i.e., to file the complaint just before the statute of limitation expired and then to obtain and file the affidavit thereafter — but neglected to add the “magic language” in her pleading, id. at 482, whereas here appellant originally filed a deposition she alleged met the requirements of paragraph (a). Thus, this case, like Cheeley, “involves the misinterpretation of OCGA § 9-11-9.1 (a). . . . Because of the misinterpretation, the requisite affidavit [filed with the complaint] failed to comply with OCGA § 9-11-9.1 (a).” (Punctuation and citation omitted.) Cheeley, supra at 498 (3). Accordingly, the trial court properly granted appellees’ motions to dismiss.

3. Since the trial court did not rule on appellant’s contentions that OCGA § 9-11-9.1 is unconstitutional, her enumerations on that issue present nothing for appellate review. In re Parrott, 194 Ga. App. 856 (392 SE2d 48) (1990).

Decided September 8, 1992

Reconsideration denied October 1, 1992

Siler & Associates, William A. Dinges, Jonap & Associates, Arthur C. Nilsen, for appellant.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, J. M. Hudgins IV, Johnathan T. Krawcheck, Love & Willingham, John A. Gilleland, Allen & Peters, Hunter S. Allen, Jr., for appellees.

Judgment affirmed.

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


text:
    A92A1143, A92A1237.
    STATE OF SOUTH CAROLINA et al. v. REEVES (two cases).
    (423 SE2d 32)
   McMurray, Presiding Judge.

Debra Dawkins Reeves, as the administratrix of the estate of Randall Reeves (plaintiff Reeves), filed a complaint against the State of South Carolina and the South Carolina Department of Corrections in the Superior Court of Lincoln County, Georgia, alleging that negligent acts and omissions of employees at McCormick Correctional Institute in McCormick County, South Carolina (“the prison”) enabled inmate Johnny Jones (“the prisoner”) to escape into Georgia and fatally wound plaintiff Randall Reeves. Debra Dawkins Reeves, as next friend of Elizabeth Leigh Drew (plaintiff Drew), filed a separate complaint against the State of South Carolina and the South Carolina Department of Corrections in the Superior Court of Lincoln County, alleging that negligent acts and omissions of employees at the prison enabled the prisoner to escape into Georgia and seriously injure Elizabeth Leigh Drew. The State of South Carolina and the South Carolina Department of Corrections denied the material allegations of the complaints and filed motions for summary judgment, challenging (in pertinent part) personal jurisdiction under the Georgia Long-Arm Statute.

The trial court consolidated the cases for purposes of summary judgment and entered an order denying the motions for summary judgment, finding (in pertinent part) that the “contacts” requirement of the Georgia Long-Arm Statute (OCGA § 9-10-91) is satisfied because defendants “transact business in Georgia, at a minimum in the form of tourism solicitation [and receive] revenue from taxpayers who live in Géorgia, but work or own property in South Carolina.” The State of South Carolina and the South Carolina Department of Corrections then filed applications for interlocutory appeal. These direct appeals followed orders granting the applications for interlocutory appeal. Both appeals are supported by the same enumeration of errors and briefs and involved virtually identical issues. Consequently, the cases have been consolidated for the purpose of this opinion. Held:

1. The State of South Carolina and the South Carolina Department of Corrections contend the trial court lacks personal jurisdiction because insufficient contacts exist between Georgia and South Carolina to satisfy the “contacts” requirement of the Georgia Long-Arm Statute.

“The Georgia Long-Arm Statute is different from the corresponding statute in some other states because it ‘requires that an out-of-state defendant ... do certain acts within the State of Georgia before [a nonresident defendant] can be subjected to personal jurisdiction.’ Gust v. Flint, 257 Ga. 129, 130 (356 SE2d 513) (1987).” McDonnell v. Roy E. Beatty & Assoc., 203 Ga. App. 807, 808 (1) (418 SE2d 95). Specifically, subsection (3) of OCGA § 9-10-91 provides that a nonresident defendant may only be haled into a Georgia court to answer for “tortious injury which occurred in this state [and which was] caused by an act or omission of the defendant outside the state [if the] defendant ‘regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state. . . .’ OCGA § 9-10-91 (3).” McDonnell v. Roy E. Beatty & Assoc., 203 Ga. App. 807, 808 (1), supra.

In Shellenberger v. Tanner, 138 Ga. App. 399 (227 SE2d 266), this Court enumerates “three ‘rules’ by which to judge the power of a forum state to exercise jurisdiction over a nonresident defendant. They are (1) The nonresident must purposefully avail himself of the privilege of doing some act or consummating some transaction with or in the forum. ... (2) The plaintiff must have a legal cause of action against the nonresident, which arises out of, or results from, the activity or activities of the defendant within the forum; and (3) If (and only if) the requirements of Rules 1 and 2 are established, a ‘minimum contact’ between the nonresident and the forum exists; the assumption of jurisdiction must be found to be consonant with the due process notions of ‘fair play’ and ‘substantial justice.’ ” (Emphasis supplied and footnotes omitted.) Shellenberger v. Tanner, 138 Ga. App. 399, 401 (1), 404, supra.

In the cases sub judice, plaintiffs instituted these actions against the State of South Carolina and the South Carolina Department of Corrections for negligent acts and omissions relating to the operation of the prison. These claims neither arise out of, nor result from, South Carolina’s “tourism solicitation [and] revenue from taxpayers who live in Georgia, but work or own property in South Carolina.” Further, we are directed to no evidence that “contacts” exist between South Carolina and Georgia which relate to plaintiffs’ claims against the State of South Carolina and the South Carolina Department of Corrections. In this vein, there is no evidence that maintenance and operation of the prison involves solicitation of business in Georgia or engagement of conduct in Georgia; there is no evidence that maintenance and operation of the prison results in substantial revenue to the State of South Carolina or the South Carolina Department of Corrections from goods used or consumed in Georgia and there is no evidence that maintenance and operation of the prison involves services rendered in Georgia. Under these circumstances, we cannot say that sufficient “contacts” exist between Georgia and South Carolina within the meaning of OCGA § 9-10-91 (3) to authorize personal jurisdiction over the State of South Carolina and the South Carolina Department of Corrections. Shellenberger v. Tanner, 138 Ga. App. 399, 401 (1), 404, supra. To say otherwise would result in an unconstitutionally broad construction of Georgia’s Long-Arm Statute. See Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408 (104 SC 1868, 80 LE2d 404). Consequently, the trial court erred in exercising personal jurisdiction over the State of South Carolina and the South Carolina Department of Corrections.

Decided September 21, 1992

Reconsideration denied October 1, 1992

Allgood & Daniel, Robert L. Allgood, for appellants.

Stanley G. Jackson, for appellee.

The cases sub judice are remanded and the trial court is directed to enter orders dismissing plaintiffs’ complaints for lack of personal jurisdiction.

2. It is unnecessary to address the remaining enumerations of error in light of the holding in Division 1 of this opinion.

Judgments reversed and cases remanded.

Sognier, C. J., and Cooper, J., concur.

       Plaintiffs also sued William Mitchell, naming him as a defendant in both complaints. However, Mitchell is not a party to the cases sub judice because plaintiffs dismissed their claims against him before entry of the orders from which these appeals arose.


text:
    A92A1559.
    LEE v. THE STATE.
    (423 SE2d 29)
   McMurray, Presiding Judge.

Defendant Lee appeals his conviction of the offense of burglary. Held:

1. An off-duty police officer was driving past the Dougherty County Health Department building at approximately 10:46 p.m. when he noticed two persons walking in the hallway of the building. The officer was aware of previous burglaries of the building and decided to investigate. When the officer approached the building, he saw defendant trying to open the back door from the inside and a companion bringing some boxes. The officer called for backup but the two men inside the building had fled by the time assistance arrived. One of the backup units spotted two men fleeing the scene and apprehended defendant, while the accomplice escaped. A subsequent investigation revealed that entry to the building had been gained by removing an air conditioning duct from the roof. Inside the building the door had been removed from a soda machine and change was scattered on the floor. The evidence was sufficient to enable a rational trier of fact to find the defendant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Miller v. State, 202 Ga. App. 745 (3), 746 (415 SE2d 701).

2. Defendant enumerates as error the admission into evidence of testimony concerning three previous convictions of defendant for burglary without a sufficient showing of similarity. However, defendant’s only objection before the trial court in regard to the similar crime evidence was that it was irrelevant, immaterial, and prejudicial since defense counsel had stipulated that defendant had been charged with and pled guilty to the prior crimes. “The very first time that [defendant] has ever urged’ that the State failed to meet its evidentiary burden of showing that his prior conviction was for a sufficiently ‘similar’ crime is in the brief that he filed with this court in support of the instant appeal. . . . [T]o warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. If the argument that [defendant] advances in his brief had been raised in the form of an objection in the trial court, it is possible that . . . [it] might warrant a reversal of [defendant’s] conviction. In the absence of such an objection, however, any discussion of . . . [the issues now raised by defendant] in the instant case is inappropriate.” Hunter v. State, 202 Ga. App. 195, 196 (3), 198 (413 SE2d 526).

3. The trial court did not err in admitting into evidence photographs of the building burglarized in the case sub judice. Although the photographs in question were taken during the day while the crime occurred at night, and show a tinting of certain glass in the building that was done subsequent to the burglary, we find no abuse of the trial court’s discretion in admitting this evidence. Thomas v. State, 146 Ga. App. 530 (3) (246 SE2d 514).

Decided September 16, 1992

Reconsideration denied October 1, 1992.

Dorough & Sizemore, W. James Sizemore, for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

4. Nor did the trial court err in excluding from evidence certain letters. The individuals who wrote these letters did not testify, therefore, the letters were pure hearsay and were inadmissible in the absence of a foundation pursuant to OCGA § 24-3-14. Conner Ins. Agency v. Strauch, 198 Ga. App. 536, 537 (2) (402 SE2d 129).

5. Contrary to defendant’s assertion, the transcript shows that the trial court conducted a presentence hearing in compliance with OCGA § 17-10-2 (a). Defendant’s trial counsel presented argument in extenuation and mitigation of punishment, but made no objection to the procedure utilized.

6. Defendant’s final enumeration of error contends that his trial counsel was ineffective. However, since the ineffectiveness claim was not raised at the earliest practical moment, it is waived. As in Buchanan v. State, 200 Ga. App. 416, 417 (2) (408 SE2d 721), “present counsel filed the instant notice of appeal during the time within which a motion for new trial would have been appropriate but did not file a motion for new trial, in the context of which a claim of ineffectiveness of trial counsel could have been heard by the trial court.” Id. at 417.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A92A0835.
    CORLEY v. GILLEY.
    (423 SE2d 55)
   Andrews, Judge.

Plaintiff/appellant Corley and defendant/appellee Gilley were involved in a vehicular accident on October 15, 1988. Corley claimed that she was injured in the collision and on October 10, 1990 filed a lawsuit for damages for personal injuries against Gilley.

The record shows that the Fulton County marshal unsuccessfully attempted to serve Gilley on October 19, 1990 and on December 13, 1990. On December 20, 1990, 71 days after the complaint was filed, and 66 days after the applicable statute of limitation expired, Gilley was served. Gilley filed a motion to dismiss on the basis that the suit was barred by the applicable statute of limitation; the trial court granted the motion and Corley appeals.

Decided October 1, 1992.

Jim White, Fred R. White, for appellant.

Harper, Waldon & Craig, Russell D. Waldon, Hilliard V. Castilla, for appellee.

Corley claims that the trial court erred in granting the motion to dismiss in that there was considerable evidence that she acted in a reasonable and diligent manner to ensure proper service as quickly as possible.

We find no error. “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation.” (Citations and punctuation omitted.) Anderson v. Hughes, 196 Ga. App. 186, 187 (1) (395 SE2d 623) (1990).

“The burden is on the plaintiff, not the sheriff, to show diligence in attempting to insure that proper service has been made as quickly as possible. The trial court was authorized to exercise its discretion in determining whether under the facts presented to it the delayed service constituted laches so as to warrant dismissal where the statute of limitation had run before the service was belatedly perfected. Considering the factual posture, we cannot say as a matter of law that the trial court abused its discretion in holding that the plaintiff did not exercise due diligence in attempting to perfect timely service on defendant.” (Citations and punctuation omitted.) Jarmon v. Murphy, 164 Ga. App. 763, 764 (298 SE2d 510) (1982); see also Watters v. Classon, 193 Ga. App. 493 (1) (388 SE2d 397) (1989).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A92A0899.
    EDMONDSON et al. v. BROOKS COUNTY BOARD OF EDUCATION et al.
    (423 SE2d 413)
   Beasley, Judge.

The Edmondsons, as parents, guardians, and next friends of their minor daughter, Kimberly, sued the Brooks County Board of Education, members, and the superintendent of schools for damages due to injuries sustained by the child on a merry-go-round located on the Quitman Elementary School playground. The trial court granted summary judgment to the defendants on the basis of non-liability under the Recreational Property Act, OCGA § 51-3-20 et seq., citing Welch v. Douglas County, 199 Ga. App. 269 (404 SE2d 450) (1991). Concurrently, it denied the plaintiffs’ cross-motion for summary judgment.

The Edmondsons contend that they, rather than defendants, were entitled to judgment as a matter of law because of defendant’s superior knowledge of the conditions causing the injury and their knowledge that small children, like the injured child, were coming on the premises and using the playground equipment. They also maintain that the defendants failed to establish that the school property was subject to the Recreational Property Act because it was clear that the property in question was not intended to be open for public use. They further urge that the Board maintained an attractive nuisance.

We hold, as did the trial court, that the Recreational Property Act applied and that the undisputed facts compelled judgment in favor of defendants as a matter of law.

The purpose of the Recreational Property Act “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” OCGA § 51-3-20. Governmentally-owned property qualifies. Stone Mtn. Mem. Assn. v. Herrington, 225 Ga. 746, 748 (2) (171 SE2d 521) (1969). Welch, supra, is a recent illustration of this.

The Act applies if the landowner does not charge a fee for admission and if the property is open to the public for recreational purposes. See Cedeno v. Lockwood, Inc., 250 Ga. 799, 801 (2) (301 SE2d 265) (1983). “The important criterion is the purpose for which the public is permitted on the property.” Id. at 802. The quid pro quo is that the “owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.” OCGA § 51-3-22. There is an exception to this immunity. OCGA § 51-3-25 (1) specifies that an owner is not relieved of liability “[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. . . .” See Welch, supra at 270 (1).

First, the undisputed evidence leads to the conclusion that the RPÁ was applicable to the property because the schoolyard and its playground equipment were made accessible to the public for play, a recreational purpose, during non-school hours and without fee.

Second, the undisputed facts, which are extracted from the evidence construed in favor of respondent-appellants, require the conclusion as a matter of law that there was no wilful or malicious failure to guard or warn of the condition and dangerousness of the merry-go-round. Appellants do not contend that there is any question of malice. The issue is resolved by a four-part test. “ ‘(A) wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences. This test excludes either constructive knowledge or a duty to inspect.’ ” Georgia Marble Co. v. Warren, 183 Ga. App. 866, 867 (1) (360 SE2d 286) (1987). “This knowledge” refers to the three previously listed facts of which the owner must have actual knowledge in order to be liable for “choos[ing] not to guard or warn. . . .”

Mr. Edmondson took 5 3/4-year-old kindergartner Kimberly and two other children to the playground. The children played on one of the two manually-operated merry-go-rounds until another child was injured on it because a board was missing. He told them to get off but did not instruct them not to use the other merry-go-round. He thought the children would recognize its obvious state of disrepair and not go on it. He also thought Kimberly “would have sense enough herself” not to get on it. In fact, he thought it would not even turn. Its axle was leaning so one part of the wheel was resting on the ground, and all the wooden floor slats were out. In her deposition, Kimberly never said she did not know she should not get on it.

Without Mr. Edmondson’s knowledge, the children got the merry-go-round to turn, and Kimberly was injured when, while on it, she stuck her foot down between the framework and the ground where there was no flooring. She had seen such merry-go-rounds before but had never been on one prior to this occasion.

Defendants rely on the absence of the third prong of the test. That prong requires plaintiffs to show the defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground. Plaintiffs’ own evidence shows that the defective condition of the merry-go-round was known and appreciated by the injured child’s attending father, and his opinion was that Kimberly was able to appreciate it also. Plaintiffs have produced no evidence that she did not. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Thus, as in Georgia Marble, supra at 868, “the evidence is conclusive against [plaintiffs], who cannot show ‘that the condition is not apparent to those using the property.’ ” Consequently, they could not show that defendants knew that the condition was not apparent, because it was.

Decided October 1, 1992.

Kitchens, Wolfson, Smith & Hannan, B. Miles Hannan, for appellants.

Young, Clyatt, Turner, Thagard & Hoffman, F. Thomas Young, Sherry S. Harrell, for appellees.

Appellants’ alternative theory of attractive nuisance does not apply. The concept of attractive nuisance arose to protect trespassing children, see Gregory v. Johnson, 249 Ga. 151, 153 (289 SE2d 232) (1982). The evidence in this case shows that the injured child was not a trespasser but rather a person who was permitted on the property but to whom only a limited duty of care was owed. See OCGA §§ 51-3-23 and 51-3-25.

The trial court did not err in granting summary judgment to defendants.

Judgment affirmed.

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


text:
    A92A0764.
    BRIDGES v. THE STATE.
    (423 SE2d 293)
   Johnson, Judge.

Gary Wayne Bridges was convicted of arson in the first degree and theft by receiving stolen property. His motion for a new trial was denied. He appeals.

1. Bridges contends in his first enumeration of error that the trial court’s charge on flight impermissibly shifted the burden of proof to him to explain why he left the scene of the crime. This contention has been decided adversely to Bridges. Kettman v. State, 257 Ga. 603, 604 (3) (362 SE2d 342) (1987). Bridges attempts to bolster his enumerated error by further arguing in his brief that the charge on flight was not supported by the evidence at trial and that absent a charge on flight the evidence was insufficient to authorize the jury’s verdict. “On appeal an enumeration of error cannot be enlarged by brief to give appellant viability to an issue not contained in the original enumeration. [Cit.]” Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522) (1991). For the foregoing reasons, we find no error in the court’s charge.

2. Bridges claims in his second enumeration of error that he was given ineffective assistance of counsel at trial. After a hearing on Bridges’ motion for a new trial, the trial court found that Bridges was not denied effective assistance of counsel. We agree with the trial court’s ruling.

“There are two components to a claim for ineffective assistance of counsel. First, the defendant must show that counsel’s performance was deficient. Second, the defendant must show that the defense was prejudiced by the deficient performance. Both components must be shown before we can find that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Citation and punctuation omitted.) Whitner v. State, 202 Ga. App. 608 (415 SE2d 52) (1992). Bridges argues that his trial attorney’s performance was deficient in that he failed to object to the court’s jury charge on flight on the ground that there was not evidence to support such a charge. Contrary to Bridges’ assertion, the record on appeal indicates that there was evidence to support such a charge. Moreover, at the conclusion of the court’s charge to the jury, Bridges’ trial attorney reserved any objections to the charge. Thus, Bridges has failed to show that his counsel’s performance was deficient or that any alleged deficiency prejudiced his defense.

Bridges further contends that his trial counsel was ineffective in advising him not to testify and in failing to call his mother as a witness regarding an apparent burn wound found on Bridges’ back at the time of his arrest. Bridges’ counsel testified at the motion for new trial hearing that he advised Bridges not to testify because he did not want Bridges to inadvertently place his character in issue by referring to his prior criminal record. Trial counsel further testified that during his numerous communications with Bridges’ mother both before and during the trial she never indicated any knowledge of the wound. “The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citations and punctuation omitted.) Cauley v. State, 203 Ga. App. 299, 301 (2) (416 SE2d 575) (1992). Bridges has failed to overcome this presumption. Trial counsel’s strategy and tactics in advising Bridges not to testify and in not calling Bridges’ mother as a witness do not equate with ineffective assistance of counsel. The trial court’s finding in the instant case that Bridges was afforded effective assistance of counsel is not clearly erroneous and therefore must be upheld. Cauley, supra at 301.

Decided October 2, 1992.

Marc D. Celia, for appellant.

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

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

       As this case was tried before January 10, 1991, the giving of a flight instruction was not prohibited by Renner v. State, 260 Ga. 515, 517 (3) (397 SE2d 683) (1990).


author: Carley, Presiding Judge.

text:
    A92A0773.
    FOODY v. THE STATE.
    (423 SE2d 423)
   Carley, Presiding Judge.

By way of accusation, appellant was charged with driving under the influence. After a jury had been sworn, the trial court found appellant’s counsel to be in criminal contempt. Appellant’s counsel was immediately incarcerated and the trial court, sua sponte, declared a mistrial. The contempt citation was reversed on appeal. In re Spruell, 200 Ga. App. 218 (407 SE2d 451) (1991). When appellant’s case was recalled, he filed a plea of double jeopardy. In the instant case, appellant appeals directly from the denial of that plea.

The power of a trial court “to interrupt the proceedings on [its] own or the prosecutor’s motion by declaring a mistrial is subject to stringent limitations. . . . [R]etrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the end[s] of public justice be defeated; the existence of ‘manifest necessity’ is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances. [Cits.]” Jones v. State, 232 Ga. 324, 327 (206 SE2d 481) (1974).

“[T]he question whether under the Double Jeopardy Clause there can be a new trial after a mistrial has been declared without the defendant’s request or consent depends on whether ‘there is a manifest necessity for the (mistrial), or the ends of public justice would otherwise be defeated.’ [Cits.]” United States v. Dinitz, 424 U. S. 600, 606-607 (II) (96 SC 1075, 47 LE2d 267) (1976). “In cases in which there is no manifest necessity for aborting a trial rather than using other less drastic remedies to cure problems, in the absence of defendant’s motion for a mistrial, the granting of a mistrial is an abuse of discretion. [Cit.] The rule that only ‘manifest necessity’ justifies a mistrial . . . indicates that a consideration of alternative remedies is highly important.” Haynes v. State, 245 Ga. 817, 819 (268 SE2d 325) (1980) . “ ‘In the absence of ... a [defendant’s] motion [for mistrial], the . . . doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option [to have his trial completed by a particular tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. [Cit.]’ [Cit.]” United States v. Dinitz, supra at 607-608 (II).

Unlike Chatham v. State, 247 Ga. 95, 96 (1) (274 SE2d 473) (1981) , there is no indication that, in the instant case, “once the trial court had sent appellant’s counsel off to jail it had no choice other than to call a mistrial.” See In re Spruell, supra. “It is apparent from the exchange between court and counsel and from the hearing on the plea in bar that the defendant was afforded [no] opportunity to object and to suggest alternatives to the mistrial. [Cit.]” Burleson v. State, 259 Ga. 498, 500 (384 SE2d 659) (1989). Compare United States v. Dinitz, supra at 604 (wherein the trial court “set forth three alternative courses that might be followed”); Haynes v. State, supra at 819 (wherein the trial court “carefully considered alternative remedies”).

Moreover, the record does not indicate that the trial court had no other choice but to order the immediate incarceration of appellant’s counsel. There appears to be no reason why the trial court, having found outside the jury’s presence that appellant’s counsel was in contempt, could not have allowed the trial to proceed with appellant’s counsel being incarcerated only at the conclusion of the proceedings. There is no question that a trial court is authorized to punish what it considers to be a contempt of court committed in its presence. However, that authority must be weighed against “the defendant’s ‘valued right to have his trial completed by a particular tribunal.’ . . . [Cits.]” United States v. Dinitz, supra at 606 (II). The subsequent incarceration of appellant’s counsel at the conclusion of the proceedings would have vindicated the trial court’s authority without infringing upon appellant’s right.

“When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial. [Cit.]” United States v. Jorn, 400 U. S. 470, 487 (III) (91 SC 547, 27 LE2d 543) (1971). “[I]n the final analysis the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn, supra at 486 (II).

Decided October 2, 1992.

Billy L. Spruell, Brian M. Dubuc, for appellant.

Ralph T. Bowden, Jr., Solicitor, Andrew T. Rogers, W. Cliff Howard, Assistant Solicitors, for appellee.

“[T]he record does not show that the [trial court’s] action [in citing appellant’s counsel for contempt] was motivated by bad faith or undertaken to harass or prejudice [appellant].” United States v. Dinitz, supra at 611 (II). However, the record does show that the trial court’s action in ordering a sua sponte mistrial thereafter was undertaken without regard to any consideration of alternative remedies which would have preserved appellant’s “valued right” to proceed with the trial. Since there was no showing of the manifest necessity for the sua sponte mistrial, it follows that appellant’s plea of double jeopardy was erroneously denied.

Judgment reversed.

Pope and Johnson, JJ., concur.


text:
    A92A0850, A92A0851.
    BRYSON et al. v. BUTTON GWINNETT SAVINGS BANK et al.; and vice versa.
    (423 SE2d 691)
   Johnson, Judge.

Jerry W. and Barbara A. Bryson brought suit against the builders, real estate agency and agent, builders’ lender and its loan officer in connection with the purchase of a newly built house. The Brysons alleged that the builders breached the terms of the sales contract because the house was not constructed and landscaped in a skillful and workmanlike manner. They also alleged that the real estate agent, and the bank’s loan officer fraudulently represented that certain construction and landscaping would be completed after the closing and that sufficient funds were available from the closing to complete the work. The Brysons also sought punitive damages and attorney fees. The real estate agency and its agent entered into a settlement agreement with plaintiffs and were dismissed prior to trial. A jury trial was held to quantify unliquidated damages awarded in a default judgment entered against one of the builders (the other builder-defendant having filed bankruptcy) and on the remaining claims against the bank and Michael Engram, its loan officer. The jury returned a verdict in favor of the bank and Engram. The Brysons’ motion for a new trial was denied, and this appeal follows. The bank filed a cross-appeal raising as error the denial of its motions for a directed verdict and to dismiss.

Case No. A92A0850

1. The Brysons allege that the trial court erred in refusing to give certain requested charges, specifically numbers 9, 11, 21, 22, 23, 27, 28 and 29. The Brysons asserted a fraud claim against the bank and Engram. As to the court’s refusal to give requested charges 9 and 21, the Brysons alleged that Engram knowingly misrepresented projected costs to finish the house, that they relied on Engram’s estimate in deciding to go forward with their purchase of the home and that they were thereby damaged. They further assert that Engram failed to fully apprise them of the builders’ financial situation. The court refused the requested charges because those charges define the elements of fraud in terms of equity (OCGA Title 23) rather than in tort. The charges suggest that the bank withheld information from the Brysons which it had an obligation to disclose. The court correctly delineated the obligations of the bank to the Brysons in charging: “It is not the type of relation which would permit the borrower to rely on representations expressed by the lender without prosecuting their own inquiries.” See Pardue v. Bankers First Fed. S & L Assn., 175 Ga. App. 814, 815 (334 SE2d 926) (1985).

Similarly proposed charge numbers 11, 22, 23 and 27 all related to the issue of the obligation of the plaintiff to conduct an independent investigation regarding the veracity of the information or lack of information transmitted by the defendant. The court gave a full and accurate charge on the elements of the tort of fraud. “A requested charge is properly refused when the principle involved is substantially covered by the court’s general charge.” (Punctuation and citations omitted.) Mattox v. MARTA, 200 Ga. App. 697, 699 (2) (409 SE2d 267) (1991). Therefore the court did not err in refusing to give these charges.

No argument was articulated or authority cited with regard to asserted error in the trial court’s refusal to give requests to charge numbers 28 and 29. Therefore, assertions of error with regard to these requests to charge are deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).

2. The Brysons further allege that the trial court erred in giving the bank’s requested charge numbers 12, 17, 19 and 20. No objection was made during the charge conference with regard to charge number 12. This charge was a correct statement of law. There not being any substantial error which would require consideration by this court in the absence of objection, we deem objection to that charge waived and will not consider it for the first time on appeal. OCGA § 5-5-24; Hunter v. Batton, 160 Ga. App. 849 (1) (288 SE2d 244) (1982); Pool Markets South v. Moore, 189 Ga. App. 48 (1) (374 SE2d 831) (1988).

The bank’s requested charge numbers 17, 19 and 20 are variations on the principle of law which holds that a lender is not an insurer of the work of the contractor. This is a correct statement of the law. See Harden v. Akridge, 193 Ga. App. 736 (389 SE2d 6) (1989); First Fed. Savings &c. v. Fretthold, 195 Ga. App. 482 (394 SE2d 128) (1990). In this trial, the jury was also being asked to assess damages against the builder. The trial court correctly gave these charges in order to avoid confusion concerning which damages were attributable to the various parties. We find no error in these charges being given to the jury.

3. In their third enumeration of error, the Brysons contend that the charge to the jury, when considered as a whole, made a jury verdict in their favor impossible. “ ‘(T)he- isolation of segments of the overall charge to the jury and the individual dissection of such parts is not grounds for reversal. . . .’ [Cit.]” Chesser v. Wallace, 200 Ga. App. 567, 568 (2) (408 SE2d 814) (1991). In the instant case, we have reviewed the charge in its entirety and find that it fully and correctly instructed the jury on the elements of fraud asserted against the bank and Engram. Accordingly, the Brysons’ contention that the charge as a whole was erroneous is without merit.

4. The fourth and fifth enumerations of error allege error in connection with the testimony of Keith Lehr. Lehr was the real estate agent who negotiated the sale of the house to the Brysons. Initially a defendant in this action, Lehr and his broker, ReMax Intown, were dismissed from the action prior to the trial of the case. The Brysons subpoenaed Lehr to testify at the trial. After Brysons’ counsel completed his cross-examination, counsel for the bank began her examination of the witness, asking leading questions. Counsel for the Brysons objected to the form of the questions and the court overruled the objection stating that leading questions were permissible since Lehr was not an agent of the bank and therefore subject to cross-examination. Counsel has not cited any authority or articulated any argument on appeal in support of his position that permitting the bank to ask the witness leading questions was error. Instead, he has merely copied 21 leading questions posed during that examination from the transcript of the trial into the Brysons’ brief. “Every party has the right to a thorough and sifting cross-examination of witnesses called against him, and the control of the right of cross-examination is left to the sound discretion of the trial judge, whose decision will not be reversed absent abuse of that discretion. [Cit.]” Hightower v. Mc Intyre, 170 Ga. App. 269, 270 (2) (316 SE2d 849) (1984).

Decided October 2, 1992.

Gary C. Harris, for appellants.

Schreeder, Wheeler & Flint, Timothy C. Batten, for appellees.

Similarly, appellants ask us to find harmful error in the trial court’s permitting both the bank’s lead and co-counsel to question Lehr. The only authority for this alleged error is former Georgia Code Annotated § 24-3388 which was repealed in 1985 when the new Uniform Superior Court Rules were adopted. Although we can envision situations in which such “double-teaming” would constitute harmful error, we are not persuaded by this authority or the circumstances of this case that it was necessarily error to permit two attorneys to question the same witness. Even if it was error, the Brysons have not identified any harm as a result. For error to be reversible it must be harmful. Ingram v. Peterson, 196 Ga. App. 888, 891 (6) (397 SE2d 141) (1990).

5. The Brysons complain in their final enumerations of error that the trial court erred in dismissing their claim for tortious conversion, and in denying their motion in limine seeking to exclude portions of both Jerry and Barbara Bryson’s depositions from use at trial. We have reviewed these complaints and they are without merit. The Brysons have not cited any authority in support of their position on either of these issues. Although these enumerations contain argument, it is conclusory and insufficient to raise justiciable issues. Hunter v. State, 201 Ga. App. 9, 10 (410 SE2d 204) (1991). Accordingly, we find no error.

Case No. A92A0851

In its cross-appeal, the bank asserts that the trial court erred in denying its motion for a directed verdict and to dismiss. In light of our holding in Case No. A92A0850 above, we find that cross-appeal A92A0851 is rendered moot.

Judgments affirmed.

Carley, P. J., and Pope, J., concur.,


author: Andrews, Judge. Beasley, Judge,

text:
    A92A0958.
    DRYER v. THE STATE.
    (423 SE2d 297)
   Andrews, Judge.

Amos Dryer was convicted by a jury of first degree arson (OCGA § 16-7-60), based on an indictment charging that Dryer did “knowingly damage by means of fire the building of another, to wit: Roy Culliver, located at 1615 3rd Avenue, without his consent. . . .”

1. Dryer claims the evidence was insufficient to sustain his conviction. The State presented direct and circumstantial evidence of guilt. One witness testified that Dryer told her he set the fire. Testimony from other witnesses showed that shortly before the fire began, Dryer purchased a gallon of gasoline from a nearby convenience store, and walked in the direction of the subject building carrying the gasoline in a metal can. When the fire was discovered, a metal can like the one Dryer carried was ablaze at the scene. The fire inspector testified that the fire and resulting damage were caused when gasoline was poured in the burned area and ignited. See Parker v. State, 145 Ga. App. 205, 207 (243 SE2d 580) (1978). Other testimony related to establishing motive for setting the fire showed that Dryer had prior difficulties with the occupiers of the building. See Sleeth v. State, 197 Ga. App. 349-350 (398 SE2d 298) (1990).

“Arson has three basic elements: (1) damage by fire or explosion; (2) the intentional act or direction of the defendant knowing that it will damage a protected structure; (3) lack of the owner’s consent.” Kurtz, Criminal Offenses & Defenses in Ga. (3d ed.), Arson, p. 7; see Frost v. State, 200 Ga. App. 267, 270 (407 SE2d 765) (1991). In particular, Dryer claims there was an absence of evidence proving lack of consent by Mr. Culliver, as alleged in the indictment. As Mr. Culliver did not testify, the State relied in part on a stipulation between the prosecution and the defense that Mr. Culliver owned the building and did not consent to the fire. It is clear from the record that defense counsel orally acknowledged the existence of such a stipulation in open court in the presence of the defendant. Dryer does not claim that the facts contained in the stipulation are untrue, nor does he claim that he did not authorize it. Rather, he complains that the stipulation was not reduced to writing and admitted into evidence.

Generally, a statement by defense counsel made in the presence of the defendant relating to the defendant’s conduct is considered a statement by the defendant himself if the defendant does not repudiate counsel’s authority to make the statement. Tolbert v. State, 12 Ga. App. 685, 686 (78 SE 131) (1913); White v. State, 153 Ga. App. 808, 809 (266 SE2d 528) (1980). “The general rule as to stipulations is that once made in the course of judicial proceedings an estoppel results unless the complaining party can show fraud or mistake.” Id. at 809. Such an express stipulation should generally be made in writing or in open court. See Dein v. Mossman, 244 Ga. 866, 870 (262 SE2d 83) (1979).

Under the present circumstances, we find Dryer acquiesced in an oral stipulation of facts made in open court upon which the case was agreed to be tried for the express purpose of dispensing with proof of the agreed facts, and which amounted to a conclusively binding admission in judicio as to such facts. Tribble v. State, 89 Ga. App. 593, 598 (80 SE2d 711) (1954); Young v. State, 191 Ga. App. 651, 653-654 (382 SE2d 642) (1989); Snell v. State, 158 Ga. App. 860, 861 (282 SE2d 408) (1981); School Boy Sportwear Corp. v. Cornelia Garment Co., 106 Ga. App. 99, 101-102 (126 SE2d 248) (1962). The evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration, Dryer contends the trial court erred by instructing the jury that counsel had stipulated that the owner did not consent to the fire. In light of our conclusion in Division 1, the trial court properly instructed the jury as to the facts agreed to by the prosecution and the defense.

3. We find no merit in Dryer’s claim that he was prejudiced by alleged ineffective assistance of counsel at trial. The defendant has the burden of proving ineffectiveness by showing, first, that counsel’s performance was deficient, and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The first inquiry centers on whether counsel’s performance was reasonable under the circumstances in light of the strong presumption that all significant decisions were made in the exercise of reasonable professional judgment. Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). Secondly, even if the presumption is overcome, the defendant must prove “that there is a reasonable probability . . . that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Cit.]” Id. at 783.

The trial court conducted a hearing to consider the claims of ineffectiveness raised below in the defendant’s motion for a new trial. Counsel was not ineffective in failing to object to the jury instruction on the stipulation, nor under the above standard does the record support the defendant’s claim that defense counsel was’ unprepared or presented an inadequate defense.

4. The defendant claims his 20-year maximum sentence imposed pursuant to the recidivist statute was excessive because no portion of it was probated despite the trial court’s discretion to do so. See OCGA §§ 16-7-60; 17-10-7. The sentence was within the statutory limits, and will not be reviewed by this Court. Branch v. State, 182 Ga. App. 818, 820 (357 SE2d 136) (1987).

Decided October 2, 1992.

William J. Mason, for appellant.

Douglas C. Pullen, District Attorney, J. Mark Shelnutt, Jerry G. Croley, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

With respect to Division 4, it is necessary to construe subsection (c) as it relates to guilty pleas. Defendant was indicted under OCGA § 17-10-7 (a), which alleges two prior “convictions” within the meaning of OCGA § 17-10-7 (c). The judge apparently thought he was sentencing under OCGA § 17-10-7 (b). He may have considered the armed robbery as a separate “conviction,” but it,, too, was sentenced at the same time as the other guilty pleas on June 24, 1977. The seven guilty pleas on June 24 are to be regarded as one “conviction” due to OCGA § 17-10-7 (c), so defendant was subject to subsection (a) and not subsection (b).

Although the court indicated some uncertainty as to whether or not he had discretion, he clearly ruled that, assuming he did, he chose to impose the maximum sentence.

       “Admissions by agents or attorneys are not admisible in criminal cases in the sense in which they are admissible in civil cases. They should not be treated as evidence against the accused unless shown to have been authorized by him.” (Punctuation and citations omitted.) In re Glenn, 200 Ga. App. 276, 277 (407 SE2d 428) (1991) (physical precedent); 134 Baker Street v. State, 172 Ga. App. 738, 741 (324 SE2d 575) (1984).