text:
    A94A1120.
    ODOM v. THE STATE.
    (447 SE2d 704)
   McMurray, Presiding Judge.

Defendant Odom appeals his conviction of two counts of aggravated assault and one count of robbery. Held:

1. Defendant contends that the trial court erred in refusing to grant his motion for a directed verdict of acquittal on the grounds that the State’s case was based on the uncorroborated testimony of his co-defendant. See OCGA § 24-4-8. More specifically, the defendant argues that the evidence was not sufficient to support his conviction.

Defendant, along with his cousin and co-defendant Billy Ray Wood, traveled from Tennessee to the Atlanta area home of his brother and sister-in-law. The victim left that home in an automobile with defendant and Billy Ray Wood. Defendant’s statement to police related that he let the victim out in the parking lot of a “QT” and last saw him talking on a telephone there.

Co-defendant Billy Ray Wood testified that he and defendant had been drinking a great deal on the drive down to Atlanta, half a case of Budweiser and some wine coolers. The drinking continued in Atlanta and the victim was also drinking. The three left the residence together in order that defendant and Billy Ray Wood could take the victim to the bus station. However, first they stopped at a liquor store where defendant and the victim each bought a bottle of whiskey. The defendant was driving, Billy Ray Wood was in the rear seat, and the victim was in the front passenger seat. They drove past the “QT” and turned into a little deserted dead-end road where defendant first demanded the victim’s money, then repeatedly hit him with his fist, knocking him out. At this point, the victim was bleeding from his mouth and nose. The defendant then exited the car and walked around to the passenger side where he pulled the victim from the car, continued to demand money, ordered the victim to put his hands behind his head, and threatened co-defendant Billy Ray Wood. Defendant punched the victim in the face again and stomped his head. Defendant removed the victim’s money and other contents of his pockets, and left the victim lying on the pavement as he returned to the car. Defendant started to leave and then saying “No, I’m going to have to kill the son-of-a-bitch,” drove the car over the victim, first backing over him, then pulling forward over him. Defendant then drove away and started back towards Tennessee.

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8 (Code Ann. § 38-121). The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. Allen v. State, 215 Ga. 455 (111 SE2d 70) (1959). ‘However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. (Cit.)’ Reaves v. State, 242 Ga. 542, 543 (250 SE2d 376) (1978).” Castell v. State, 250 Ga. 776, 780 (1c) (301 SE2d 234). See also Bradford v. State, 262 Ga. 512 (421 SE2d 523); Myers v. State, 260 Ga. 412, 413 (3) (395 SE2d 811); Taylor v. State, 209 Ga. App. 102, 104 (432 SE2d 679); Clanton v. State, 208 Ga. App. 669, 670 (1a) (431 SE2d 453).

Defendant and Billy Ray Wood were arrested on unrelated charges when they stopped en route back to Tennessee. The evidence obtained from the automobile and at the crime scene provided sufficient corroboration of the testimony of co-defendant Billy Ray Wood. Skid marks at the scene and some items of clothing worn by the victim, particularly a belt buckle suggested that the victim was run over by an automobile which accelerated as the victim was dragged along the pavement while wedged under a front wheel well so tightly that the front tire could not rotate. The victim’s baggage and bus ticket were recovered from the car. Blood found within the car and on the shirt defendant was wearing when arrested matched the victim’s blood type but neither defendant’s nor Billy Ray Wood’s. Hairs removed from the undercarriage of the car were consistent with the victim’s hair. The evidence is sufficient to persuade a rational trier of fact of defendant’s guilt beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant objected at trial to the admission of testimony concerning the results of attempts to analyze clothing worn by defendant and Billy Ray Wood at the time of their arrest so as to determine whether there was human blood on the clothing and if so of what blood type. Defendant had filed a motion pursuant to OCGA § 17-7-211 for the production of scientific reports and objected on the grounds that there was no report on these tests. After it was established that there was no written report, defendant’s trial counsel argued that “the State could always get out of providing us with any kind of written reports and just allowing their scientists to testify by saying, ‘Well, there wasn’t any written report done of their work.’ ” The prosecuting attorney responded and defense counsel acknowledged that defense counsel was informed of the test results by the crime laboratory forensic serologist at the same time that the prosecuting attorney was informed. Generally, OCGA § 17-7-211 is inapplicable where there is no writing. Hair v. State, 262 Ga. 284 (417 SE2d 657). There is no evidence of private notes containing test results such as in Durden v. State, 187 Ga. App. 154 (1) (369 SE2d 764). While defendant argues that the prosecution was less than diligent obtaining these specific scientific tests so that they were done shortly before trial, there was no showing that the prosecution attempted to circumvent the discovery process. Wellborn v. State, 258 Ga. 570, 571 (1), 572 (372 SE2d 220). We also note that the proper remedy for a late scientific report is a motion for continuance and none was submitted by defendant on this basis. See Shannon v. State, 205 Ga. App. 831 (1) (424 SE2d 51). Under these circumstances, we find no error.

3. The trial court did not err in refusing to give a requested charge on intoxication negating intent based on the decision in Ely v. State, 159 Ga. App. 693 (285 SE2d 66). Nor did the trial court err in refusing a charge on accident. Neither of these charges were authorized by the evidence.

Defendant did not testify. The testimony of Billy Ray Wood and the forensic evidence confirming the initial assault upon the victim while he was still in the car suggest that when defendant drove over the victim, he did so with an intent to kill the victim.

Decided August 2, 1994.

Melissa M. Nelson, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, J. Mike McDaniel, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A1208.
    GARNER v. BLAIR.
    (448 SE2d 24)
   Blackburn, Judge.

The appellee, Teresa Blair, brought the instant action against the appellant, Monroe Garner, based upon Garner’s excavation of dirt from an embankment located on the boundary line of their adjoining property which resulted in the erosion of Blair’s property. The trial court granted Blair’s motion for partial summary judgment on the issue of liability, and the case proceeded to trial on the issues of damages and attorney fees. Following the jury trial, the trial court entered judgment on the jury’s verdict in favor of Blair for $22,500 in damages and $5,000 in attorney fees. Garner’s motion for new trial was denied by the trial court and this appeal followed.

1. Initially, Garner asserts the trial court erred in granting Blair’s motion for partial summary judgment on the issue of liability. Specifically, Garner maintains that a previous owner of the property excavated the dirt and this prior excavation proximately caused the damage to Blair’s property. It is undisputed that Garner did not respond to Blair’s motion for summary judgment but unsuccessfully requested the trial court to reconsider its grant of the motion.

Pretermitting whether Garner has preserved this issue for appellate review, the evidence viewed in the light most favorable to Garner as a nonmovant shows Garner and his employees admittedly removed the dirt which resulted in the subsidence of dirt on Blair’s property. In his response to interrogatories propounded by Blair, Garner indicated he and his employees removed dirt from the embankment during the summer of 1987. In addition, an engineer averred in an affidavit submitted in support of the motion that the erosion on Blair’s property resulted from the excavation of the dirt. Under Georgia law, a landowner who makes excavations which cause injury to the adjoining property is liable for damages. OCGA § 44-9-3; Paul v. Bailey, 109 Ga. App. 712 (137 SE2d 337) (1964). In light of Garner’s failure to rebut the showing made by Blair prior to the trial court’s ruling on the motion, the trial court’s grant of partial summary judgment on the issue of liability was proper.

Decided August 2, 1994.

Garner, Reynolds & Pruitt, Michael E. Garner, Christopher J. McFadden, for appellant.

Denney, Pease, Allison, Kirk & Lomax, Allen C. Levi, for appel-lee.

2. Next, Garner maintains that a directed verdict was warranted on the issue of damages because Blair failed to produce evidence on the value of the land before and after the injury. We agree.

Generally, the measure of damages for injuries to real property is the difference in the value of the property before and after the injury. Southeast Consultants v. O’Pry, 199 Ga. App. 125, 126 (404 SE2d 299) (1991). A directed verdict based upon the failure of proof of damages is only authorized if there is a complete absence of any competent evidence on the issue. M. K. Developers v. McCall, 202 Ga. App. 224, 225 (2) (414 SE2d 260) (1991). In this case, Blair did not produce any evidence on the value of the property prior to the injury, and merely testified as to the price of the property at the time of purchase. Although the purchase price of the property is relevant and admissible to establish its value at the time of purchase, standing alone, it is insufficient to establish the value of the property at some later time period. See Builders Transport v. Hall, 183 Ga. App. 812 (1) (360 SE2d 60) (1987). Inasmuch as Blair’s evidence failed to provide sufficient data to permit a reasonable determination of allowable damages, the trial court erred in failing to direct a verdict on this issue. See Allgood Rd. United Methodist Church v. Smith, 173 Ga. App. 28 (2) (325 SE2d 392) (1984).

3. Based upon our decision in Division 2, Garner’s remaining enumerations of error need not be addressed.

Judgment reversed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1212.
    OLIFF v. SMITH et al.
    (447 SE2d 707)
   Blackburn, Judge.

Debra Oliff, plaintiff in the underlying action, appeals the trial court’s order granting the defendants’ motion to dismiss for failure to respond to discovery requests. On appeal, Oliff asserts several enumerations of error; however, as each enumeration pertains to the trial court’s dismissal of Oliff’s complaint, they will be addressed together.

Defendants served plaintiff with interrogatories and requests for production of documents on February 27, 1992. Defendants’ counsel corresponded with plaintiff’s counsel, on May 6, 1992, in an effort to resolve the discovery dispute. Plaintiff’s counsel asserted that he had not received the discovery requests, therefore, defendants served them again on June 10, 1992. By letter dated June 15, 1992, plaintiff’s counsel acknowledged receipt of the discovery requests and indicated that the responses should be served within the next ten days. Discovery was later extended, by agreement of counsel, to November 1, 1992.

On November 20, 1992, defendants filed a motion to dismiss plaintiff’s complaint, based on plaintiff’s failure to respond to discovery. Plaintiff served the discovery responses and filed her response to defendants’ motion to dismiss on December 21, 1992, two days before a scheduled pre-trial conference. Of the three sets of responses filed by plaintiff, only one set was verified. The trial court determined that plaintiff’s explanation that she was “out-of-pocket” did not justify her failure to timely respond to the discovery requests.

Plaintiff’s assertion that the trial court erred in failing to hold a hearing is without merit. Our Supreme Court has determined that a hearing is not necessary in every case. Schrembs v. Atlanta Classic Cars, 261 Ga. 182 (402 SE2d 723) (1991). Specifically, the Supreme Court found that “[s]uch a requirement serves no purpose where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.” Id. at 183.

Plaintiff’s reliance on her ultimate service of the discovery responses is also without merit. The ultimate service of responses, after the defendants filed their motion to dismiss, does not save plaintiff from the sanction of dismissal. See Barron v. Spanier, 198 Ga. App. 801, 802 (403 SE2d 88) (1991).

“This court has repeatedly held that it will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion. The trial court is the trier of fact and its finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it.” (Citations and punctuation omitted.) Addington v. Anneewakee, Inc., 204 Ga. App. 521, 522 (420 SE2d 60) (1992). In the present case, the trial court’s determination is supported by the record.

Plaintiff’s remaining arguments assume facts not in the record and are without merit. Appellees’ motion for penalties pursuant to Georgia Court of Appeals Rule 26 (b) is denied.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided August 2, 1994.

Joseph M. Todd, for appellant.

Lokey & Bowden, K. Scott Graham, Peter K. Kintz, Jon W. Burton, for appellees.


text:
    A94A1704.
    DAVIS v. THE STATE.
    (448 SE2d 26)
   Blackburn, Judge.

William T. Davis appeals his conviction by a jury of aggravated sexual battery, aggravated child molestation, aggravated assault, and burglary. On appeal, Davis asserts the trial court committed several errors which require reversal of his convictions.

1. In his first enumeration of error, Davis contends the trial court erred in permitting testimony of child hearsay statements from two witnesses who questioned the victim. Specifically, Davis argues that the introduction of such statements was erroneous because the witnesses obtained their information through an interpreter, rather than directly from the victim. OCGA § 24-3-16 provides that “[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”

The 11-year-old victim is deaf. Although the witnesses asked the victim questions, the victim’s answers were given through an interpreter. The interpreter did not testify at trial. Davis contends the witnesses’ knowledge was based on their “interpretation of the interpreter” rather than direct knowledge of the child’s statement.

Davis’ argument is without merit. The witnesses’ knowledge was based on the victim’s answers to the witnesses’ questions. The statute allows child hearsay testimony from the “person or persons to whom made.” Answers communicated through an interpreter are made to the person asking the question, despite the existence of an interpreter. Furthermore, the witnesses’ testimony was consistent with the victim’s mother, who testified without objection, and the victim’s testimony.

2. Davis contends a mistrial was warranted due to a variance in the charge of aggravated child molestation in the indictment and the evidence presented at trial on that charge. The indictment charged Davis with the offense of aggravated child molestation in that “said accused did forcibly remove the panties of [the victim] and then said accused exposed his sexual organ ... in the presence of [the victim].”

Davis argued at trial that the acts alleged in the indictment do not constitute aggravated child molestation. The State agreed and requested the court charge on child molestation rather than aggravated child molestation. Davis did not request a mistrial, nor had Davis previously alleged error in the indictment prior to arraignment. The trial court presented the jury with a copy of the indictment in which the word “aggravated” had been removed. Compare Tibbs v. State, 211 Ga. App. 250 (1) (438 SE2d 706) (1993).

“Generally, the principle is well established in Georgia that [i]t is immaterial what the offense is called, if the averments of the presentment are such as to describe an offense against the laws of the State. It is not the name given to the bill which characterizes it, but the description in the averments of the indictment. It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy. State v. Eubanks, 239 Ga. 483, 484-485 (238 SE2d 38) (1977).” (Citations and punctuation omitted.) Rank v. State, 179 Ga. App. 28 (1) (345 SE2d 75) (1986). In the present case, the State presented evidence of the specific acts alleged in Count 2. Therefore, we find no error.

3. Davis contends the trial court erred in charging the jury on child molestation when the indictment alleged aggravated child molestation. Based upon our discussion in Division 2, we find no error.

4. In his fourth enumeration, Davis contends his conviction of aggravated sexual battery and child molestation merged and that the trial court erred in sentencing him as to each count. Davis’ position is without merit.

Count 1 of the indictment charged Davis with aggravated sexual battery by penetrating with a foreign object the sexual organ of the victim. OCGA § 16-6-22.2. Count 2, as amended, charged Davis with child molestation by removing the panties of the victim and exposing his sex organ. “ ‘Under OCGA § 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all the facts used to prove the other.’ [Cit.]” Ellis v. State, 211 Ga. App. 605, 609 (440 SE2d 235) (1994). The State produced evidence of each of these separate acts. Neither count alleged actions that were factually or legally contained in the other count. Therefore, the crimes did not merge and the trial court was correct in sentencing Davis on each count.

5. Davis asserts his conviction of aggravated assault and child molestation merged and the trial court erred in sentencing him on each conviction.

Count 3 charged Davis with aggravated assault with the intent to rape. The State produced evidence that Davis pulled the victim’s panties down to her ankles, put his finger in the victim’s mouth and in her vagina, and attempted to penetrate her vagina with his penis. The child molestation count required proof that Davis pulled the victim’s panties down and exposed his sex organ. This evidence does not merge with Davis’ attempt to penetrate the victim’s vagina with his sex organ. See Division 4.

Decided August 2, 1994.

Burkhalter & Stephens, Albert F. Burkhalter, Jr., for appellant.

Stephen F. Lanier, District Attorney, Tambra P. Colston, Fred R. Simpson, Assistant District Attorneys, for appellee.

6. In his final enumeration of error, Davis contends the trial court erred in refusing to conduct a pre-sentence investigation as provided by OCGA § 17-10-2. The record reveals the trial court indicated that it was ready to receive evidence in mitigation. Davis’ counsel replied that he had “none that [he could] present.” The court then requested any further argument and counsel declined. Davis was given the opportunity for a pre-sentence investigation and such opportunity was declined. We find no error. See Willey v. State, 209 Ga. App. 398 (4) (433 SE2d 674) (1993).

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge.

text:
    A94A1873.
    FREEMAN v. OAK GROVE ANIMAL CLINIC, P.C. et al.
    (448 SE2d 28)
   Birdsong, Presiding Judge.

Mildred Freeman appeals the grant of summary judgment to defendants Oak Grove Animal Clinic and Melvin Gordon, D.V.M., in this slip and fall case. Freeman contends there are issues of fact as to defendants’ superior knowledge of a defect on the premises which caused her injuries, and that she was excused from any contributory negligence in failing to see the defect due to a “distraction,” under Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473 (249 SE2d 276). Held:

The trial court correctly granted summary judgment to the defendants. According to Freeman’s own statement of facts, after she parked her car in defendants’ parking lot she traversed a narrow path between a car on her left and the sidewalk on her right, and as she traversed this narrow path, she focused her attention on the car because she feared she might bump into it; as she stepped up toward the sidewalk leading to the clinic’s entrance, her foot became entangled in grassy weeds next to the sidewalk curb in the gravel. She did not see the weeds until she fell and she was not expecting to see large clumps of grass in the parking lot.

Decided August 2, 1994.

Munday & Gammage, John S. Husser, for appellant.

Freeman & Hawkins, Ollie M. Hartón, William H. Major III, for appellees.

A proprietor has the duty to keep premises safe for invitees, but the plaintiff must by the exercise of ordinary care avoid the effect of the proprietor’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). Assuming defendants were negligent in allowing grass to grow in the gravel, Freeman did not exercise ordinary care for her own safety. She failed to watch where she was putting her feet and she put them in weeds.

Further, weeds are a natural element which will persist despite careful attention of a proprietor. It is presumed Freeman is a person of ordinary intelligence to whom the risk of finding weeds on a narrow gravel path would be naturally apparent (see Bloch v. Herman’s Sporting Goods, 208 Ga. App. 280, 281 (430 SE2d 86)); she could not choose to walk on the gravel while looking away and thereby impose liability on the proprietor for the existence of what normally occurs in nature.

No contrary result is required by Stenhouse, where a “distraction” was placed by a defendant in its store. The alleged distraction in this case was self-induced because Freeman chose to walk on the gravel path without looking where she was going; she chose instead to look at a car. Id. at 475. That she perceived the car to pose a peril does not change the analysis. She was not prevented from stopping and looking where she was putting her foot; the weeds were in plain view, which eliminates the distraction theory. Wal-Mart Stores v. Hester, 201 Ga. App. 478, 479 (411 SE2d 507).

Moreover, Freeman at first did not testify that she was distracted, and her own evidence is therefore contradictory on this point and is adjudged against her on motion for summary judgment. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680); Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383); Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 755 (388 SE2d 909). We must conclude, as the trial court evidently did, there was no distraction, and that appellant simply failed to look where she was going.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A93A0680.
    A93A0807.
    RICHARDSON v. HENNLY. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF VALDOSTA, INC. v. RICHARDSON.
    (448 SE2d 91)
    Decided August 3, 1994.

      Zimring & Ellin, Jonathan A. Zimring, for Richardson.

      Young, Clyatt, Turner, Thagard & Hoffman, Robert M. Clyatt, Daniel C. Hoffman, for Hennly.

      Tillman, McTier, Coleman, Talley, Newbern & Kurrie, C. George Newbern, Edward F. Preston, for First Federal.
   Smith, Judge.

In Richardson v. Hennly, 209 Ga. App. 868 (434 SE2d 772) (1993), this court affirmed the judgment in Case No. A93A0807 and reversed the judgment in Case No. A93A0680, holding that summary judgment was not appropriate in either case. The Supreme Court reversed our judgment in Hennly v. Richardson, 264 Ga. 355 (444 SE2d 317) (1994), holding that summary judgment was appropriate in both cases. Accordingly, our prior decision in these cases is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court granting partial summary judgment to Hennly is affirmed in Case No. A93A0680. The judgment of the trial court denying summary judgment to First Federal is reversed in Case No. A93A0807.

Judgment affirmed in Case No. A93A0680.

Judgment reversed in Case No. A93A0807. Johnson and Blackburn, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A94A1276.
    ABERNATHY v. THE STATE.
    (448 SE2d 30)
   McMurray, Presiding Judge.

Defendant was charged, via indictment, with burglary and possession of a firearm by a convicted felon. The evidence at a jury trial shows the following: The victim reported a burglary of his family homeplace after he “saw this brown station wagon sitting in the drive; and . . . noticed [defendant] coming in and out of the bushes with his arms loaded. . . . [T]he rear of the station wagon was open, and [defendant] was placing items in there.” Officer Johnny Richards of the Gordon County Sheriff’s Department responded and found “a station wagon car backed up to the front of the residence.” Defendant “was sitting behind the steering wheel on the driver’s side.” Items found in the defendant’s pockets and in the station wagon were identified by the victim as family property which had been removed “[f]rom the residence and the storage building there[,]” without permission or authority. The police recovered “[a] small caliber handgun” from the passenger-side floorboard of defendant’s station wagon.

Defendant was found guilty of burglary and possession of a firearm by a convicted felon. This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his first enumeration, defendant contends the evidence is insufficient to support either conviction. Specifically, he argues that the evidence shows only his mere presence at the scene and that the State did not disprove every reasonable hypothesis save that of his guilt.

“ ‘[Rjecent possession of stolen goods will not automatically support a guilty verdict for theft or burglary under the Jackson v. Virginia[, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)] standard in every case. Instead, recent possession is to be viewed as probative evidence of the crime, see 1 Wigmore on Evidence § 152 (3d ed. 1940), and reviewed along with the other evidence in the case to determine whether any rational juror could find the defendant guilty beyond a reasonable doubt.’ [Cit.]” Bankston v. State, 251 Ga. 730, 731 (309 SE2d 369). “ ‘(W)hether or not a defendant’s explanation of his possession of the stolen property is satisfactory or reasonable is a question for the jury. (Cit.)’ Brown v. State, 157 Ga. App. 473, 474 (1) (278 SE2d 31) (1981).” Williams v. State, 205 Ga. App. 397 (1) (422 SE2d 438). In the case sub judice, the jury was authorized to disbelieve defendant’s explanation for his presence at the scene in possession of the stolen property and also disbelieve his explanation of why a gun was inside his vehicle. See, e.g., Howard v. State, 186 Ga. App. 7 (366 SE2d 369). Evidence that defendant was caught “red-handed” with items stolen from the victim’s homeplace is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of burglary as charged in the indictment. Shaw v. State, 211 Ga. App. 647 (1), 648 (440 SE2d 245). Evidence that a “small caliber handgun” was found on the floor of his vehicle authorized the jury’s finding that defendant is guilty, beyond a reasonable doubt, of possession of a firearm by a convicted felon. See Black v. State, 261 Ga. 791, 795 (10) (410 SE2d 740).

2. In his second enumeration, defendant contends the trial court erred “in failing to grant a new trial because trial counsel was ineffective to the extent that [defendant’s] due process rights were violated and he did not receive a fair trial.”

“In order to preserve the issue of trial counsel’s effectiveness for appellate review, ‘a claim of ineffective assistance of counsel (must) be determined by means of an evidentiary hearing at the earliest practicable moment.’ Ponder v. State, 260 Ga. 840, 841 (1) (400 SE2d 922) (1991).” Duitsman v. State, 212 Ga. App. 348, 350 (4) (441 SE2d 888). “ ‘[Wjhere the issue of effectiveness is raised for the first time on appeal by an appellate attorney who did not represent the defendant at trial or on motion for new trial and who did not file an amended motion for new trial, a remand for hearing on the issue of effectiveness may be appropriate. Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989).’ (Emphasis supplied.) Meders v. State, 260 Ga. 49, 55 (389 SE2d 320) (1990).” Owens v. State, 263 Ga. 99, 102 (3) (428 SE2d 793).

In the case sub judice, defendant’s trial attorney filed a timely motion for new trial on defendant’s behalf, but he did not raise the issue of his own ineffectiveness in the motion for new trial. Further, there is no indication in the record that the issue of ineffective assistance of trial counsel was thereafter raised in the trial court via an amended motion for new trial or by an attorney (other than defendant’s trial attorney) at the hearing on defendant’s motion for new trial. The record shows only that the trial court entered an order denying defendant’s motion for new trial on February 3, 1994, and that, on February 18, 1994, the attorney representing defendant on appeal (not defendant’s trial attorney) filed a notice of appeal enumerating (in pertinent part) ineffective assistance of counsel. The State contends this enumeration presents nothing for review because defendant’s appellate attorney did not raise the issue of ineffective assistance of counsel at the hearing on defendant’s motion for new trial.

The record does not include a transcript of a hearing on defendant’s motion for new trial, nor does it otherwise disclose at what point appellate counsel first appeared on behalf of defendant. Further, this Court’s inquiry with the clerk of the trial court reveals that a transcript of the hearing on defendant’s motion for new trial is not a part of the trial court’s record. Consequently, we cannot determine whether appellate counsel was present at the hearing on defendant’s motion for new trial; nor can we determine whether he or any other attorney (other than defendant’s trial attorney) had an opportunity to raise the issue of ineffective assistance of trial counsel before the trial court’s ruling on defendant’s motion for new trial. We therefore “defer the determination of the issue of waiver to . . . proceedings on remand. See Gary v. State, 260 Ga. 38 (2) (389 SE2d 218) (1990).” (Footnote omitted.) Black v. State, 261 Ga. 791, 797 (19), 798 (410 SE2d 740). In the event the trial court finds no such waiver upon remand, i.e., that defendant did not have an opportunity to raise the issue of ineffective assistance of trial counsel “at the earliest practicable moment,” the trial court is directed to resolve defendant’s claim of ineffective assistance of trial counsel. Compare Bailey v. State, 264 Ga. 300 (443 SE2d 836); Owens v. State, 263 Ga. 99, supra. If the trial court finds that defendant’s claim of ineffective assistance of trial counsel is precluded because the issue was not raised “at the earliest practicable moment,” then defendant’s right to appeal that finding within 30 days after entry of the trial court’s order is preserved. See Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797).

Decided August 3, 1994.

Scott J. Forster, for appellant.

Willis M. Abernathy, pro se.

T. Joseph Campbell, District Attorney, Rebecca B. Tierce, Mickey R. Thacker, Assistant District Attorneys, for appellee.

3. Defendant’s pro se motion for appeal bond has been considered and is found to be moot.

Judgment affirmed and case remanded with direction.

Pope, C. J., and Smith, J., concur.


text:
    A94A1697.
    CARR v. THE STATE.
    (448 SE2d 33)
   McMurray, Presiding Judge.

Defendant Carr appeals his conviction of three counts of child molestation and one count of aggravated child molestation. The victim of each offense was the same female child, who was ten years of age at the time of the trial. Held:

1. Defendant contends that the evidence was not sufficient to authorize his conviction. The indictment distinguished the separate offenses by designation of which body parts of defendant and victim were brought together in order to arouse and satisfy the sexual desires of defendant. The victim testified specifically that each of the combinations identified in the counts of which defendant was convicted did in fact occur. Corroboration of the victim is not required for conviction of child molestation. Morales v. State, 210 Ga. App. 414, 415 (1) (436 SE2d 528). A rational trier of fact was authorized to find defendant guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Morales v. State, 210 Ga. App. 414, 415 (1), supra.

2. In his remaining enumeration of error, defendant contends the trial court erred in allowing the prosecution to present evidence of specific instances of prior criminal misconduct, thereby placing defendant’s character into issue, in order to impeach defendant’s wife, contending that she testified about a wholly immaterial matter. Defendant’s wife testified on his behalf and stated that defendant was a loving and attentive father, that she had not seen any child display fear of him, and that she had not observed anyone having any problems with defendant. The prosecuting attorney sought the consent of the trial court to present evidence that the wife had been present during a certain confrontation between defendant and one of his wife’s children. In response to the prosecuting attorney’s assertion that the wife’s testimony had opened the door for evidence concerning the confrontation, defendant’s trial attorney stated only that his questions concerning defendant’s relationship with children was intended to address only defendant’s children and that he had not intended to also address the children of defendant’s wife. Defendant’s trial counsel made no argument in opposition to the prosecuting attorney’s argument that he was entitled to elicit testimony concerning the confrontation. The trial court allowed the prosecuting attorney to proceed with his questions. Defendant’s trial counsel offered no objections to the questions and answers of which defendant now complains. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. [Cits.]” Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536). “A party’s acquiescence to the ruling of a trial court deprives the party of a right to complain of that ruling on appeal [cit.], and acquiescence can be caused by silence. [Cit.]” State v. Pattee, 201 Ga. App. 690, 693 (411 SE2d 751). Defendant has waived the issue argued on appeal by failing to raise an objection in the trial court.

Decided August 3, 1994.

Bruce S. Harvey, Pete C. Whitlock, for appellant.

J. Tom Morgan, District Attorney, Jeffrey H. Brickman, Robert M. Coker, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Judge Harold R. Banke.

text:
    A94A0913.
    McHAFFIE v. DECATUR FEDERAL SAVINGS & LOAN ASSOCIATION et al.
    (448 SE2d 36)
   Judge Harold R. Banke.

The appellant, a pro se litigant, appeals from a judgment entered in favor of the appellee, Brand Banking Company (“Brand Banking”), in an interpleader action brought by the appellee, Decatur Federal Savings & Loan Association (“Decatur Federal”).

Exercising its power of foreclosure and sale with respect to real property owned by the appellant, Decatur Federal sold the property to Brand Banking for the sum of $52,742.33. The purchase price exceeded the appellant’s indebtedness to Decatur Federal by $23,601.33. To identify who was entitled to the excess funds, Decatur Federal conducted a title examination of the property which revealed that Brand Banking held a second priority deed to secure debt and that the appellee, Bramblett Drywall Supply, held a judgment lien against the appellant. Faced with three potential claims to the funds, Decatur Federal paid the funds into the registry of the court and filed a complaint for interpleader.

The matter was tried before the trial court without a jury. The appellant was present at trial and participated in the proceedings but did not present any evidence. The uncontroverted evidence shows that Brand Banking held a properly recorded deed to secure debt on the property which was second in priority to Decatur Federal’s interest and that the appellant was indebted to Brand Banking in the sum of $25,645.46 on the promissory note secured by Brand Banking’s deed to secure debt. Thus, the excess proceeds were awarded to Brand Banking, and this appeal followed.

On appeal, the appellant has failed to comply with several Court of Appeals Rules, including Rule 27, Rule 15 (a), and Rule 15 (c). Instead, the appellant’s “brief” includes “enumerations of error” which consist of nine factual allegations, none of which identify error committed by the trial court. This is followed by a “statement of the issues” in which all nine statements are accompanied by citations of authority, but they are totally unrelated to the enumerations of error and irrelevant to the matters at issue in the trial.

“Notwithstanding the deficiencies in appellant’s presentation, we are willing, because of appellant’s pro se status, to review the merits of appellant’s argument to the extent that we can discern what those arguments are. However, in spite of our leniency, appellant still has the burden of showing error affirmatively by the record. [Cit.]” Collier v. South Carolina Ins. Co., 205 Ga. App. 323 (422 SE2d 52) (1992).

Since the appellant failed to identify any errors committed by the trial court, we examined the record to ascertain whether the evidence generally supported the judgment. “A trial judge sitting without a jury is entitled to have his judgment considered as a verdict by a jury, and if there is any evidence to support the finding, it should be affirmed. Also the evidence must be construed most strongly in favor of the prevailing party.” (Citations and punctuation omitted.) Id. at 324. In the instant case, the evidence amply supports the trial court’s judgment in favor of Brand Banking.

Decided August 4, 1994.

Cecil E. McHaffie, pro se.

McCurdy & Candler, Dana B. Miles, Donald C. Suessmith, Jr., Webb, Tanner & Powell, Ralph L. Taylor III, Steven A. Pickens, for appellees.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1123.
    WHITFIELD v. THE STATE.
    (447 SE2d 708)
   Blackburn, Judge.

Appellant, Phillip Bernard Whitfield, appeals his jury conviction of robbery. His sole enumeration of error is that there is insufficient evidence to support the verdict.

At trial, Mrs. Chang Oak Song, one of the owner/operators of the S & S Food Store testified that on the morning of February 8, 1994, Whitfield reached over the check-out counter at the store and grabbed approximately $140 in $20 bills from the open cash register. Song positively identified Whitfield at a pre-trial lineup and at trial as the person who robbed her store. Song testified that Whitfield then exited the store and fled in a small white automobile. Song followed Whitfield outside and wrote down the license tag number of the vehicle on a brown paper bag.

The police were summoned, and Song gave a physical description of Whitfield to the investigating officers, including information that Whitfield was wearing a black jacket and dark pants and holding sunglasses. Song also described Whitfield’s automobile and provided the officers with the license tag number written on the brown paper bag.

Shortly after leaving the crime scene, the officers located a white Nissan Maxima with a license tag number matching that provided by Song in an apartment complex within one-quarter mile of the store. Upon further investigation, Whitfield was discovered in one of the apartments crouching under a blanket in a bedroom. Whitfield was wearing dark pants at the time and possessed keys to the white Nissan parked outside. A subsequent search of the vehicle yielded a black jacket and a pair of tinted safety glasses.

Whitfield testified at trial that he did not commit the crime charged. Whitfield explained he loaned the car to a third party who must have robbed the store. Whitfield also explained that he hid in the closet because he believed the police were looking for him because he was behind in his child support payments.

Decided August 4, 1994.

Patrick G. Longhi, for appellant.

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

“It is well settled that the weight of the evidence and the credibility of witnesses are questions for the jury. [Cit.] Having reviewed the evidence in the light most favorable to the verdict, we find that there was sufficient evidence such that a rational trier of fact could have found [Whitfield] guilty of [robbery] beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Foster v. State, 208 Ga. App. 699 (2) (431 SE2d 400) (1993).

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge

Harold R. Banke concur.


text:
    A94A1247.
    WILBOURNE v. THE STATE.
    (448 SE2d 37)
   Birdsong, Presiding Judge.

James Stanton Wilbourne appeals his conviction of two counts of simple battery and one count of battery. The conviction was by the trial court sitting without a jury.

Appellant was arrested after he and Cheryl Bartimore got in a fight at appellant’s house. Only two witnesses testified: the arresting officer and appellant. Appellant testified that he and Bartimore had been drinking; that Bartimore started the fight at about 4:00 p.m. by hitting him on the head and throwing an ashtray; that Bartimore was a “fighter,” he tried to restrain her from tearing up the house, and they “wrestled.”

The police officer testified that she responded to a third-party complaint at 7:36 p.m. on that day; Cheryl Bartimore was sitting, on the front porch steps; Bartimore was visibly upset and had been drinking, she had a fresh bruise under her left eye and bruises on her arms, and her blouse was ripped; she told the officer appellant struck her and beat her head against the kitchen floor. The officer testified Bartimore said she never hit appellant; the officer believed Bartimore because Bartimore is a very small, thin woman and the officer saw no marks on appellant. The State concedes the interval between the fight and the officer’s arrival was, at the most, three-and-one-half hours.

Bartimore’s absence from trial was unexplained. Appellant objected to the officer’s testimony about what Bartimore told her, as hearsay. The trial court admitted the evidence as res gestae. On appeal, appellant contends the trial court erred in admitting hearsay and that the evidence is insufficient to support the verdict. Held:

1. Obviously a criminal conviction does not depend upon the victim’s presence at trial. The question is whether the officer was properly allowed to testify as to what Bartimore told her up to three-and-one-half hours after the fight, under the res gestae exception (OCGA § 24-3-3); if not, the officer’s testimony as to what Bartimore told her is hearsay (OCGA § 24-3-1 (a)), in which case it could only be admitted from necessity. OCGA § 24-3-1 (b).

The trial court erred in admitting this evidence as part of the res gestae exception.

The determination whether evidence is res gestae is in the discretion of the trial court, but the correct rule to be followed by the trial court is that the declaration must be “undeniably ‘free from all suspicion of device or afterthought.’ ” (Emphasis supplied.) Andrews v. State, 249 Ga. 223, 227-228 (290 SE2d 71); OCGA § 24-3-3. On appeal, the question is whether the factfinder would be authorized to believe the declarations were “made without premeditation or artifice, and without a view to the consequences.” Id. at 227 and 225, quoting Hart v. Powell, 18 Ga. 635.

Res gestae declarations are those “accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought.” OCGA § 24-3-3. Res gestae evidence is usually contemporaneous to the act (see Gaines v. State, 232 Ga. 727 (208 SE2d 798)), but the length of time between the event and the declaration is not conclusive. When evidence is part of the res gestae, its value comes from the fact that it is “free from all suspicion of device or afterthought” of the declarant. OCGA § 24-3-3; Barnett v. State, 211 Ga. App. 651 (440 SE2d 247); Robinson v. State, 197 Ga. App. 600 (399 SE2d 94); Shortes v. State, 193 Ga. App. 859 (389 SE2d 354); T. G. & Y. Stores Co. v. Waters, 175 Ga. App. 884 (334 SE2d 910); Nasworthy v. State, 169 Ga. App. 603 (314 SE2d 446). Res gestae is admitted based on its nature and quality as being so spontaneous or so connected to the act as to be inherently reliable. OCGA § 24-3-3.

The declarations of Bartimore were not part of the res gestae. The only evidence as to the time of the fight was given by appellant, who placed the fight at about three-and-one-half hours before the officer arrived. When the officer arrived, Bartimore was not in the house or at the scene of the fight; she was outside, sitting on the front porch steps. She was upset and had been drinking, but she was not in such a state that her utterances bore a “special trustworthiness” (Godfrey v. State, 187 Ga. App. 319, 320 (370 SE2d 183)); they assuredly were not “ [declarations accompanying an act, or so nearly connected therewith in time” (OCGA § 24-3-3) or clothed with such other spontaneity or reliability as to be “undeniably ‘free from all suspicion of device or afterthought.’ ” Andrews, supra at 227.

This evidence was created hours after the occurrence and bears no mark of “spontaneity” or other such state of mind undeniably free of conscious device or afterthought (id.; see Godfrey, supra); it is not admissible as res gestae.

2. The officer’s report of what Bartimore told her is pure hearsay; it does not derive its value solely from the credit of the witness (the officer) “but rests mainly on the veracity and competency of other persons, [Cheryl Bartimore].” OCGA § 24-3-1 (a). Such hearsay is admissible only in specified cases “from necessity.” (Emphasis supplied.) OCGA § 24-3-1 (b). The State must show “necessity” to admit hearsay, to wit, that the declarant is unavailable to testify and that it made reasonable efforts to locate the declarant and secure her presence. Patterson v. State, 202 Ga. App. 440, 443 (414 SE2d 895); Adams v. State, 191 Ga. App. 16 (2) (381 SE2d 69). This is a statutory adjuration. OCGA § 24-3-1 (b). The two underlying reasons for any exception to the hearsay rule are, first, a necessity for the exception and, second, a “circumstantial guarantee” of the trustworthiness of the evidence. Higgs v. State, 256 Ga. 606, 607 (3), 608-609 (7) (351 SE2d 448). The second aspect operates only after a witness is shown to be unavailable. Adams, supra.

The State contends the officer’s hearsay evidence is admissible without a showing that Bartimore was unavailable, under a new rule stated in Barnett, supra. Barnett never made such a rule. In Barnett, two police officers were in a tavern parking lot; one officer heard three shots and both officers saw Barnett put what turned out to be a gun in his waistband. The alleged hearsay was testimony by the officers that they heard people “hollering and screaming that they’d been shot at” and that about a dozen people ran past, shouting “he’s got a gun.” Id. at 652. We held that these spontaneous, contemporaneous utterances were res gestae. See similarly Ewald v. State, 156 Ga. App. 68 (1) (274 SE2d 31). In fact, Barnett did not contend the declarations “lack[ed] the spontaneity or other indicia of trustworthiness necessary to fall within the res gestae exception.” Barnett, supra at 653. Although that evidence was res gestae, Barnett (similarly to the confused arguments made in this case) contended the evidence was mere hearsay and that he was denied his right to confront the declar-ants because the State did not show they were unavailable to testify. We quoted portions of White v. Illinois,_U. S_(112 SC 736, 116 LE2d 848) which the State now contends amount to a new rule admitting hearsay without a showing of “necessity” so long as there is sufficient “spontaneity” and “reliability” in the hearsay. The State has misinterpreted both Barnett and White v. Illinois. The evidence in Barnett was res gestae evidence, which under Georgia law is an exception to the hearsay exclusion. OCGA § 24-3-3. Georgia law has never required proof of unavailability of the declarant to admit res gestae; Barnett, relying on White v. Illinois, merely held that neither does the United States Constitution. White v. Illinois addressed an argument that a four-year-old child’s spontaneous declarations about sexual abuse could not be received without producing the declarant at trial or showing that the declarant is unavailable; such a requirement (like the res gestae requirements) exists in Georgia law independent of the hearsay statutes. See OCGA § 24-3-16. In fact, what the United States Supreme Court described as evidence “ ‘so trustworthy that adversarial testing can be expected to add little to its reliability’ ” (Barnett at 652; White v. Illinois, 116 LE2d at 860) is evidence which by virtue of its spontaneity derives its value from the declar-ant-, such evidence is admissible as res gestae evidence in Georgia law. OCGA § 24-3-3; see Division 1, supra. Barnett involved res gestae; it did not create a new rule making “hearsay” (contrary to OCGA § 24-3-1) admissible without proof of “necessity” because it is “spontaneous” and “reliable.” It is misleading to talk about Barnett as if it involved hearsay.

Decided August 4, 1994.

H. Darrell Greene, for appellant.

Ben F. Smith, Jr., Solicitor, Mark A. Basurto, Barry E. Morgan, Assistant Solicitors, for appellee.

3. The conviction based on hearsay of what the declarant Cheryl Bartimore said and did is not supported by sufficient evidence under the standard stated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Aside from the hearsay of what Bartimore told the officer, the evidence in the case — that the officer did not see any marks on appellant and that Bartimore was a very small and thin woman and was very upset and bore marks and bruises — is ambiguous and is not inconsistent with appellant’s testimony that Bartimore started and carried on the fight and that they “wrestled.”

Judgment reversed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1342.
    DIXON v. THE STATE.
    (448 SE2d 40)
   Blackburn, Judge.

Following a trial by jury, the appellant, Willie Dixon, Jr., was convicted of the February 9, 1993, armed robbery of a convenience store in Sandersville, Georgia, and was sentenced to life in prison. His motion for new trial was denied by the trial court and this appeal followed.

The evidence produced at trial showed that Dixon entered the Handi Corner Food Store at approximately 10:45 p.m. wearing a dark ski mask and a jacket. Wielding a gun wrapped in a towel, Dixon demanded only dollar bills from the store’s cashier, refusing to accept coined money. After the cashier gave Dixon dollar bills contained in one of the store’s drawers, Dixon left the store. The cashier followed him outside the store in a well-lit area and Dixon removed his mask. The cashier recognized Dixon during the robbery from his eyes and his braided hairstyle as one of the store’s regular customers and as an acquaintance whom she had known for 15 years, and upon observing him unmasked, her earlier suspicions of his identity were confirmed. The police were summoned, and she provided police officers with Dixon’s nickname, surname, address, the name of his live-in girl friend, and a description of him. She also identified Dixon as the robber at the police station shortly after the incident and in court during the trial.

When the police located Dixon at the address provided by the victim, a scattered pile of dollar bills was found underneath a chair in the living room of the apartment, a black ski mask was found under a couch, and a torn white towel was seen on a coffee table. However, the weapon used in the robbery was not discovered. Dixon was subsequently arrested and taken to the police precinct where he was apprised of his Miranda rights.

. The next day, Jimmy Smith, an investigator with the Sanders-ville police department, conducted a 40 minute tape-recorded interview with Dixon during which Dixon admitted that he had robbed the store after he had ingested some tainted contraband but denied using a gun to effectuate the robbery. Prior to this interview, Dixon was again apprised of his Miranda rights, and signed a card delineating those rights, indicating that he understood them.

Over objection, the State introduced evidence of an armed robbery committed two days before the robbery in question for which Dixon was arrested. The robbery victim testified that a light-complected man entered the Jet Food Store where she worked wearing a black ski mask and a jacket. While wielding a gun wrapped in a turquoise towel, the assailant demanded dollar bills and refused to accept coined money. The witness could not identify Dixon as her assailant.

1. Dixon initially challenges the trial court’s refusal to suppress the “one-on-one” identification of him by the victim shortly after his arrest, asserting that the identification was impermissibly and inherently suggestive.

“Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. . . . Although the practice of showing suspects singly to a witness for identification purposes has been widely condemned, our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense.” (Citations and punctuation omitted.) McClendon v. State, 210 Ga. App. 404, 405 (1) (436 SE2d 524) (1993).

In this case, the robbery victim recognized Dixon during the robbery as a regular customer and as an acquaintance and had ample opportunity to observe him once he removed his mask in a well-lit area adjacent to the store. Under the totality of the circumstances, the one-on-one showup, which was made shortly after Dixon’s arrest following the commission of the offense, was not unreasonable or unduly suggestive and did not improperly taint the victim’s in-court identification of Dixon as the assailant. Id.; Matchett v. State, 190 Ga. App. 227 (378 SE2d 404) (1989). The resolution of any alleged inconsistencies in the victim’s recollection of the color of the mask worn by Dixon was for the trier of fact. See Norris v. State, 258 Ga. 889 (1) (376 SE2d 653) (1989); Sawyers v. State, 211 Ga. App. 668 (3) (440 SE2d 256) (1994).

2. Next, Dixon argues that his confession was inadmissible because it was induced by the promise of a lighter sentence if he confessed to the commission of the earlier robbery. Even assuming argu-endo that it can be construed as a promise of a lighter sentence for commission of the other robbery, the comment was made after Dixon confessed to the commission of the robbery in question and hence, could not have been an inducement to the confession. This court must accept a trial court’s determination of the voluntariness of a confession unless the trial court’s decision was clearly erroneous, and under the facts of this case, we find no error in the trial court’s admission of Dixon’s incriminating statement. Clay v. State, 209 Ga. App. 266, 268 (1) (433 SE2d 377) (1993).

3. Dixon, who is African-American, questions the prosecution’s exercise of all of its peremptory strikes to remove African-Americans from the venire, asserting that the jury selection process was racially discriminatory in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

We agree with Dixon that the prosecution’s overwhelming use of its peremptory strikes against prospective black jurors on the venire warrants an inference of racial discrimination. Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987); Kelly v. State, 209 Ga. App. 789 (1) (434 SE2d 743) (1993). Thus, our analysis must focus on whether the prosecution sufficiently showed that a discriminatory purpose was not involved in its selection of the trial jury by providing racially-neutral, case-related, clear and reasonably specific explanations for the exercise of the challenges. Gamble, supra.

A review of the transcript shows that the reasons offered by the prosecution were sufficiently race neutral to withstand the Batson challenge. The prosecutor explained that the jurors in question were stricken based upon their commission of criminal offenses in the past, familiarity with the case, lack of attentiveness, termination from a law enforcement position following struggles with substance abuse, or past representation by defense counsel. Most of the strikes were exercised by the prosecution based upon suspicions about the prospective juror’s impartiality, which may justify an exercise of a peremptory strike. Kelly, supra. Giving great deference to the trial court’s finding that racially-neutral reasons were provided by the prosecution as we are required to do, we find no error in the trial court’s denial of Dixon’s Batson motion. Higginbotham v. State, 207 Ga. App. 424 (3) (428 SE2d 592) (1993).

4. Dixon further argues that the trial court erred in allowing his girl friend to testify over his objection because her name was not included on the list of witnesses provided by the State as required by OCGA § 17-7-110. The name of the witness was provided to Dixon on the pre-trial docket approximately 13 days prior to trial. However, in making the objection, Dixon did not request a continuance or otherwise seek an opportunity to conduct an interview prior to the witness being called to testify.

“The purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had an opportunity to interview prior to trial. . . . [T]he proper remedy when a witness is called whose name was not on the list is to request a continuance, not the exclusion of the witness’ testimony.” (Citations and punctuation omitted.) Grace v. State, 210 Ga. App. 718, 721 (5) (437 SE2d 485) (1993). Under the circumstances, the admission of this testimony was not in contravention of the statute or otherwise error. See Tyus v. State, 196 Ga. App. 857 (3) (397 SE2d 194) (1990).

5. Lastly, Dixon asserts that the State did not meet the threshold requirement for the admission of evidence of the prior robbery by failing to show that the offenses were substantially similar or that he was the perpetrator of the prior offense as required under Williams v. State, 261 Ga. 640 (2) (409 SE2d 649) (1991). We agree with Dixon that the State did not meet the three-prong test enunciated in Williams because of the absence of evidence linking him to the prior occurrence and absence of evidence establishing that he was the perpetrator. Under other circumstances, the erroneous admission of this testimony might have been harmful error, requiring reversal. However, considering the overwhelming evidence of Dixon’s guilt of the offense charged, including the eyewitness testimony by a 15-year acquaintance and Dixon’s voluntary confession to the commission of the offense, we find that it was highly unlikely that the evidence contributed to Dixon’s conviction. See Bowdry v. State, 211 Ga. App. 626 (440 SE2d 59) (1994).

Decided August 4, 1994.

E. Allen Smith, for appellant.

Richard A. Malone, District Attorney, Anne L. Latta, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1628.
    WILSON v. THE STATE.
    (447 SE2d 709)
   Blackburn, Judge.

John Wilson appeals his conviction by a jury of attempt to commit burglary. On appeal, Wilson contends the trial court erred in allowing into evidence a videotape containing his oral statements and that the evidence was insufficient to support his conviction.

Rachael Reagan, age 11, testified that she and her six-year-old brother were at home alone when Wilson knocked on the front door. Rachael looked through the peephole and recognized Wilson as the man who had worked in their yard approximately ten times. Rachael did not open the door. Rachael observed Wilson return to his car and back it up the driveway next to the house. Rachael heard the car door close and then heard someone at her bedroom window trying to pry the screen off. Rachael’s bedroom window was on the back corner of the house. After waiting about five minutes, Rachael and her brother ran out the front door to the neighbor’s house and called 911.

Detective Phillips, with the LaGrange Police Department, testified that he arrived at the Reagans’ house within 45 seconds of receiving the call over the police radio. Upon his arrival, he observed Wilson standing at the side of the house at a window. Wilson turned and attempted to run as Detective Phillips ran toward him; however, Wilson stopped upon Detective Phillips’ command to do so. Thereafter, Wilson picked up a rake and began raking the dirt by the house and explained that he worked as the yardman.

Wilson testified that he went to the Reagans’ house to do some yard work. After parking his car, he heard some knocking at the back of the house. Upon investigating the noise, he found a black man and a white man by the windows at the back of the house. The black man had a shovel and was hitting it against the window, and the white man was “smoking a joint.” Wilson told them that he was the yardman and that they should get off the premises. Wilson testified that the black man hit him in the head and the leg with the shovel and took $5 from him. The two other men then ran off into the woods behind the house right before Detective Phillips arrived.

Rachael’s mother Penny Reagan testified Wilson had worked on her yard during the past week and that he was not scheduled to be at her house on the day of the incident. Penny further testified Wilson had stopped by her house twice in the past week and asked for money. On one occasion she did not give him any, but on another occasion she gave him a few dollars. Detective Phillips testified, upon cross-examination by Wilson’s counsel, he put Wilson on the ground and told him to shut up while Phillips waited for additional officers to arrive. Wilson’s counsel asked if Wilson complained about being injured and Detective Phillips testified he heard Wilson telling Detective Pitts, at the book-in desk, that he had received an injury a few days earlier from some guys. Defense counsel asked if that was contained on the videotape and Detective Phillips responded affirmatively.

Detective Pitts testified he read Wilson his rights and that Wilson did not make any statements. Wilson neither denied his involvement, nor gave information implicating anyone else. Pitts further testified he did not see any injury on Wilson.

During Wilson’s case, he introduced the testimony of three men who shared his cell the evening he was arrested. These witnesses testified they saw the wound on Wilson’s head and that it looked like it was a day old. On rebuttal, the State, over Wilson’s objection, introduced the videotape of Wilson at the book-in desk. During Wilson’s rebuttal, he recalled Tyrone Frazier who had testified and been dismissed earlier but had remained in the courtroom. Frazier testified Wilson told him about the black man attacking Wilson as Wilson tried to stop the break-in.

1. Wilson claims reversible error occurred because the prosecutor failed to provide him with a transcript or summary of his in-custody statements reflected in the videotape as required by OCGA § 17-7-210. At the time Wilson made his in-custody statements, they were neither inculpatory nor incriminating. The videotape became incriminating only as a result of Wilson’s testimony, and was used only for the purpose of impeachment. Maddox v. State, 210 Ga. App. 526 (20) (436 SE2d 730) (1993).

Wilson’s failure to object or move for a mistrial when the testimony was introduced constitutes a waiver of his claim. Ahmed Al-Beti v. State, 210 Ga. App. 312 (2) (436 SE2d 50) (1993); Wadsworth v. State, 209 Ga. App. 333 (9) (433 SE2d 419) (1993). Moreover, based on the record before us, it is unlikely that the admission of the videotape contributed to the verdict. Talley v. State, 251 Ga. 42 (302 SE2d 355) (1983); Wallin v. State, 248 Ga. 29 (5) (279 SE2d 687) (1981).

Decided August 4, 1994.

Franklin H. Thornton, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

2. In his second enumeration of error, Wilson contends the trial court erred in denying his motion for new trial, which was based on the general grounds.

“If the jury believed the entirety of [Wilson’s] testimony, it would have been authorized to return a verdict of not guilty of any crime. . . . However, it is also well settled that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited.” (Citations and punctuation omitted.) Bowers v. State, 177 Ga. App. 36, 39 (338 SE2d 457) (1985). Therefore, having reviewed the record in the light most favorable to the verdict, we conclude a rational trier of fact could have found Wilson guilty beyond a reasonable doubt of attempt to commit burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge

Harold R. Banke concur.


text:
    A94A1783.
    In the Interest of M. D., a child.
    (448 SE2d 43)
   Blackburn, Judge.

A delinquency petition was filed in the Cobb County Juvenile Court alleging that the appellant, M. D., committed the offenses of theft by taking specific property and theft by receiving specific items of stolen property. Both allegations involved property valued in excess of $500. M. D. subsequently admitted to theft by receiving stolen property and the theft by taking allegation was dismissed. Following a dispositional hearing, M. D. was adjudicated delinquent and in need of rehabilitation, and was placed upon probation subject to certain conditions, including the payment of $803 in restitution, which is the subject of this appeal. 1. In his first enumeration of error, M. D. contends that the trial court erred in ordering restitution to be paid on a football that was allegedly stolen but was not specifically set forth in the petition which he did not admit receiving. However, M. D. did not voice an objection at the hearing on this issue, and it is well-settled that this court cannot consider issues not properly raised before the trial court. City of Dalton v. Smith, 210 Ga. App. 858 (1) (437 SE2d 827) (1993). M. D. argues that this issue was preserved for appellate review by his mother when she stated in response to the trial court’s order of restitution that she was not informed until the hearing that the football was one of the items stolen. Even assuming that this statement is viewed as an objection, we are unaware of any authority which would allow a juvenile’s mother to make such a vicarious objection when the represented juvenile failed to do so. See Phillips v. Phillips, 159 Ga. App. 676 (285 SE2d 52) (1981).

2. Next, M. D. maintains that the trial court erred in ordering restitution on the football because there was insufficient evidence introduced at the hearing on its value. M. D. does not raise an issue as to the amount of restitution ordered on the other items, and accordingly the evidence on the value of those items will not be addressed.

“The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages. ... It has long been the rule that an owner of property may not testify as to his opinion of the value of the property without giving his reasons therefor, and an opinion as to value based solely on cost price is inadmissible in evidence as it has no probative value. To be admissible, testimony as to cost price must be coupled with other evidence such as a showing of the condition of the item both at the time of purchase and at the time its value is in issue.” (Citations and punctuation omitted.) Lovell v. State, 189 Ga. App. 311, 314 (3) (375 SE2d 658) (1988).

At the restitution hearing in the case sub judice, Robin Daniel testified that several items of property were taken from her home on November 15, 1992, including 11 video games, four Batman collector figurines, a penguin mobile, and a Pittsburgh Steelers superbowl football. In her opinion, the superbowl football was worth $300. On cross-examination, she admitted that she did not know if $300 was the price that she paid for the football, and further admitted that she based her opinion on the value of the football on what she had been informed by her husband, a collector of memorabilia. She did not otherwise indicate the basis for her opinion on the value of the football, did not state the condition of the item at the time that it was taken, and did not provide a basis for her husband’s valuation of the item. Based upon this testimony, the trial court concluded that “it’s not unrealistic to think that there might be some value to this football, but there is — since we have no way of knowing how that value was assessed, I’m just gonna knock it down to $200 and leave it at $200.”

Decided August 4, 1994.

Roger L. Curry, for appellant.

Thomas J. Charron, District Attorney, Amy H. McChesney, Assistant District Attorney, for appellee.

Considering this evidence, “[i]t is thus apparent that the amount of restitution was set by approximation rather than by a proper opinion of the value of the items damaged.” Id. at 313. Consequently, that portion of the trial court’s judgment setting the amount of restitution on the football must be vacated, and the case remanded to the trial court for the amount of restitution to be set properly after a hearing on competent evidence. See id.

Judgment affirmed in part and vacated and case remanded in part.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A93A0477.
    BRUMBY v. THE STATE.
    (448 SE2d 91)
    Decided August 5, 1994.
    Richard G. Brumby II, pro se.

      Ben F. Smith, Jr., Solicitor, Patrick H. Head, Barry E. Morgan,

      Aurieanne Sneed, Assistant Solicitors, for appellee.
   Smith, Judge.

Richard Brumby appealed from the trial court’s dismissal of his appeal from his conviction of speeding. In an unpublished opinion, we held that the trial court was not authorized to dismiss his appeal for the stated reasons. However, we held that a reversal of the trial court’s judgment was not warranted because dismissal of Brumby’s appeal would be required for other reasons.

In Brumby v. State, 264 Ga. 215 (443 SE2d 613) (1994) the Supreme Court reversed this court’s judgment, holding that the appeal should not have been dismissed. Our prior judgment is therefore vacated, the judgment of the Supreme Court is made the judgment of this court, the judgment of the trial court is reversed, and this case is remanded to the trial court for further proceedings consistent with this judgment.

Judgment reversed and remanded.

Johnson and Blackburn, JJ., concur.


text:
    A94A0995.
    EDWARDS v. THE STATE.
    (448 SE2d 51)
   Smith, Judge.

Willie James Edwards was convicted by a jury of armed robbery. The evidence presented at trial showed that in the early morning hours of February 27, 1992, two men entered a service station in Rockdale County. One man stayed at the door. The other man, wearing a light-colored shirt and brown pants, approached the clerk and displayed a pistol stuck in his waistband. He asked for the cash drawer, which the clerk placed on the counter, and the men left the store with the money. The clerk telephoned the police and described the robber with the gun and his clothing.

1. Edwards admitted he was in the store and took the money. He admitted he fled and dropped the money. He denied, however, that he had a gun. He contends on appeal that the evidence was insufficient to authorize the jury to convict him of armed robbery.

The victim testified that he saw the robber lift his shirt and observed him with his hand on a gun. He identified Edwards as the robber from a photographic lineup. He also identified him at trial.

Officer Bradley Flanagan of the Conyers Department of Public Safety responded to the call. He testified that when he reached the vicinity of the service station, he noticed a man meeting the description of the robber given by the clerk, cross the street in front of his car. It appeared to Flanagan that the man had a weapon in his hand. Flanagan then observed the man drop the object in his hand at the side of the road. Shortly thereafter, Flanagan saw the man pull something that looked like paper out of his pants and drop it into some bushes. He stopped Edwards and placed him under arrest. He identified Edwards at trial as the man he apprehended. A gun was found at the location where Flanagan saw Edwards drop something, and cash was found where Edwards was arrested. At trial, the victim identified the gun as the one used by the robber.

This evidence was sufficient to authorize the jury to convict Edwards of armed robbery under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Relying upon Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1990), Edwards contends the trial court committed reversible error in charging the jury that “[n]o person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt and to a moral and reasonable certainty.” (Emphasis supplied.) We do not agree.

Decided August 5, 1994.

David A. Lamalva, for appellant.

Cheryl F. Custer, District Attorney, Nancy N. Bills, Assistant District Attorney, for appellee.

We note initially that the standard against which the charge was tested in Cage was disapproved by the United States Supreme Court in Estelle v. McGuire, 502 U. S_, n. 4 (112 SC 475, 116 LE2d 385) (1991). See Ruff v. State, 212 Ga. App. 245, 246 (2) (441 SE2d 534) (1994). In Cage, the charge was held to be deficient because a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause. “[T]he correct inquiry is whether there is a ‘reasonable likelihood’ that the jury applied the instruction in a constitutionally impermissible manner. [Cits.]” Ruff, supra, 212 Ga. App. at 246 (2).

In Vance v. State, 262 Ga. 236, 237-238 (2) (416 SE2d 516) (1992), the Georgia Supreme Court disapproved a charge in which the phrase “moral and reasonable certainty” was used, but held that it was not reversible error because, taken as a whole, the trial court’s charge “repeatedly and accurately conveyed to the jury the concept of reasonable doubt.” Id. In McDuffie v. State, 210 Ga. App. 112, 114 (2) (435 SE2d 452) (1993), this court held that use of the term “moral and reasonable certainty” did not constitute reversible error because the court “expressly instructed the jury that a reasonable doubt was one that was based on a consideration of the evidence.” Id.

In this case, although the words “moral and reasonable certainty” were mentioned at one point, the trial court properly and specifically defined “reasonable doubt” as an evidentiary standard. The jurors were charged that “[a] reasonable doubt means just what it says. It is a doubt of a fair-minded impartial juror honestly seeking the truth. It is a doubt based upon common sense and reason. It does not mean a vague or arbitrary notion, but is a doubt for which a reason can be given arising from a consideration of evidence, the lack of evidence, a conflict in the evidence or a combination of these.” Considering this charge as a whole, we find no reasonable likelihood that the jury applied a standard of proof less than constitutionally permissible. Ruff, supra. We therefore find no reversible error.

Judgment affirmed.

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


text:
    A94A1126.
    ROSS v. THE STATE.
    (448 SE2d 52)
   Smith, Judge.

Jody Scott Ross was charged with the offense of battery, OCGA § 16-5-23.1, in that he caused visible bodily injury to the victim. He was convicted in a bench trial of simple battery, OCGA § 16-5-23. He contends his conviction cannot stand because he was convicted of a crime that was not charged and was not a lesser included offense of the crime charged.

“ ‘It is an elementary principle of criminal procedure that no person can be convicted of any offense not charged in the indictment. There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater offense but where the language used in the indictment is sufficient to embrace the smaller offense.’ [Cit.]” Smith v. State, 202 Ga. App. 664, 665 (415 SE2d 481) (1992).

OCGA § 16-5-23.1 (a) provides that “[a] person commits the offense of battery when he intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23 (a) provides that “[a] person commits the offense of simple battery when he either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.”

Where the greater offense charged includes all the essential aver-ments of the lesser offense, the lesser offense may be an included one. See generally Washington v. State, 190 Ga. App. 143, 144 (378 SE2d 381) (1989). Simple battery could be a lesser included offense of battery, when the defendant is charged with intentionally causing visible bodily harm and the State does not prove that the harm was visible.

Ross asserts that in this case he was convicted of simple battery by intentionally making physical contact of an insulting or provoking nature with the person of the victim, under OCGA § 16-5-23 (a) (1), which is not a lesser included offense of battery. However, the record on appeal indicates only that he was found guilty “of [the] lesser included offense of simple battery.” Ross has not furnished this court with a transcript of the proceedings, and this court will not consider factual assertions in the brief unsupported by the record. Neither will we assume error. “ ‘Since this is a court for correction of errors of law, our decision must be made upon the record and not upon briefs of counsel. Where there is nothing in the record to support the contention of error, there is nothing presented to this court for review.’ . . . [Cit.]” State v. Cobb, 208 Ga. App. 752, 753 (432 SE2d 112) (1993).

Judgment affirmed.

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

Decided August 5, 1994.

Robert Greenwald, for appellant.

Keith C. Martin, Solicitor, for appellee.


text:
    A94A0701.
    JOHNSON et al. v. JONES et al.
    (448 SE2d 1)
   McMurray, Presiding Judge.

This action began with a petition for appointment of a guardian for an alleged incapacitated adult, Mary Williamson. The petitioners were Beatrice Jones and Emmett Williamson, a niece and a son of the ward. The petition sought appointment of Beatrice Jones as guardian and provided the names and addresses of an additional son and daughter. The ward was found to be incapacitated due to a “mental disability with Alzheimer-like symptoms” and Beatrice Jones was appointed as guardian of the person and property of the ward. The only significant asset of the ward’s estate, other than monthly social security checks, was a pending medical malpractice action. A settlement agreement was reached concerning this claim and application made to the probate court to approve a settlement in the approximate amount of $100,000. Apparently at a hearing in connection with approval of the settlement agreement, the probate court determined that Beatrice Jones was in a potential conflict situation as to the estate of the ward and she was removed as guardian of the property. The county guardian was appointed as guardian of the ward’s property and authorized to settle the disputed medical malpractice claim.

Shortly thereafter, appellant James Larry Johnson, an adult son of the ward filed a pro se “Petition for Hearing” containing various allegations concerning the ward’s medical malpractice action and the procedure used in the guardianship procedure. These allegations include a suggestion that none of the ward’s adult children had been informed of the petition for guardianship. Appellant was the ward’s son listed in the petition for guardianship and whom the probate court had ordered notified by mail sent to the address provided in the application.

A hearing was held to consider the issues raised in appellant’s pro se petition for a hearing. After receiving evidence and argument at this hearing, the probate judge entered an order ratifying the previous orders of that court. Appellant, once more acting pro se, then filed this appeal. Held:

1. The first two enumerations of error maintain that the appointment of Beatrice Jones as guardian was void because the petition for appointment of the guardian failed to name one child of the ward and gave a false address for another. OCGA § 29-5-6 (a) (2) (F) requires that the names and addresses of all adult children of the proposed ward who are living and whose addresses are known must be set forth in the petition for appointment of the guardian. OCGA § 29-5-6 (b) (2) (C) requires that these individuals be notified of the proceedings. In the absence of compliance with these notice provisions the probate court may lack jurisdiction to consider the petition for appointment of a guardian. Wilson v. James, 260 Ga. 234 (392 SE2d 5); Edwards v. Lampkin, 112 Ga. App. 128 (144 SE2d 119), aff’d at 221 Ga. 486 (145 SE2d 518). Compare Phillips v. Phillips, 202 Ga. 776 (44 SE2d 767).

One adult child of the ward, Marvin Johnson, was omitted from the petition to appoint a guardian because the petitioner did not have an address for him. While appellant maintains that an address for Marvin Johnson could have been acquired by inquiry with a sister-in-law, Beatrice Jones disputed this supposition. At most there was a disputed factual question resolved against appellant as to whether Marvin Johnson’s address was known.

Appellant also maintains that petitioner Beatrice Jones knowingly used a false address for him on the petition for appointment of guardian resulting in his not being notified of the proceeding. Appellant established that Beatrice Jones knew that at the time of the filing of the petition for appointment of guardian that he was incarcerated in the county jail while the petition shows and notice was mailed to his prior residence address. This presents an interesting question as to when a jail becomes the residence of an incarcerated person. However, in the absence of evidence as to the period of appellant’s incarceration, we cannot say that a conclusion that appellant failed to establish a new residence or terminate the old residence is incorrect. Thus, the record fails to establish any failure to comply with the statutory notice requirements in connection with the guardianship proceedings.

2. Appellant’s third enumeration of error complains of the use of a second petitioner who is known to be mentally incapacitated. See OCGA § 29-5-6 (a) (3). Evidence was presented that the second petitioner, Emmett Williamson, received social security disability benefits based on a mental disability. Nonetheless, there was no evidence that Emmett Williamson had been adjudicated to be incapacitated pursuant to OCGA Ch. 29-5, thus pursuant to OCGA § 29-5-7 (c) he may not be presumed to be incapacitated or disqualified to petition for appointment of a guardian for his mother. The evidence presented was not sufficient to compel a finding that the presumption in favor of sound mind and discretion had been overcome in regard to Emmett Williamson. See Tri-Cities Hosp. Auth. v. Sheats, 156 Ga. App. 28, 30 (273 SE2d 903).

3. We have reviewed appellant’s remaining three enumerations of error and found them to be without merit because each fails to present any issue properly preserved for appellate review. As an appellate court we are concerned with the correction of errors of law committed by lower courts and where an issue has not been properly submitted for a ruling below, there is nothing to review on appeal. Minton v. State, 205 Ga. App. 430, 432 (3) (422 SE2d 300).

Decided May 11, 1994

Reconsideration dismissed August 9, 1994.

James L. Johnson, pro se.

James M. Crawford, for appellees.

4. The motion for assessment of a penalty against appellant for frivolous appeal pursuant to Court of Appeals Rule 26 (b), submitted by appellee Beatrice Jones, is denied.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A1030.
    MARTIN v. THE STATE.
    (448 SE2d 57)
   McMurray, Presiding Judge.

Defendant entered a plea of guilty under an indictment charging him with possession of cocaine with intent to distribute and conditioned the guilty plea upon reservation of a right to appeal the denial of his motion to suppress. This appeal followed. Held:

In his sole enumeration, defendant contends law enforcement officers “exceeded their authority [to conduct a warrantless search of his body] by pulling down his pants and searching his crotch area.”

At about 2:00 in the afternoon on September 23, 1992, Officer Ronnie Erwin of the Athens-Clarke County Police Department received a telephone call from a confidential informant who had been giving the officer reliable information for a period of six months. The confidential informant advised Officer Erwin that he heard defendant say that he was in possession of cocaine; that he observed defendant conceal the contraband in his pants and that he was then (while talking to the officer) watching defendant execute an illegal drug transaction. The informant informed Officer Erwin that defendant was at a particular vacant lot and that defendant was “wearing a green Miami T-shirt with brown blue jeans and white Reebok tennis shoes holding a quantity of crack cocaine between his legs and in his pants.” About 20 minutes later, Officer Erwin arrived on the scene with other law enforcement officers and observed defendant “wearing exactly what the confidential informant said he was wearing [and] sitting in the vacant lot where [the confidential informant] said [defendant] was sitting.” Officer Erwin and two other officers approached defendant and “advised him [that they have] information that he was in possession of crack cocaine. [Defendant] stood up and said, ‘You can search me,’ . . . pulling his pockets out.” One of the other officers “said, T want to walk you over here between two cars. We have information that you’re holding the drugs in your pants,’ at which time [defendant] began to resist, not giving a tremendous amount of physical resistance but saying, ‘Oh, man, I don’t want you going in my pants.’ ” The officer then extended defendant’s pants and underwear and observed a plastic bag in defendant’s “crotch” area. The plastic bag contained about 23 rocks of cocaine.

“A valid search without a warrant may be made incident to a legal arrest or under exigent circumstances when supported by probable cause. Brewer v. State, 129 Ga. App. 118, 119 (199 SE2d 109). Probable cause to search may be provided by reasonably contemporaneous information from a reliable confidential informant.” Smith v. State, 135 Ga. App. 424 (218 SE2d 133). In the case sub judice, informant’s reliability was established via Officer Erwin’s testimony that the informant had been giving him information in cases (apparently) involving “drug seizure[s]” for three months before the tip which led to defendant’s arrest and that every tip given by the informant had proved to be accurate. Further, exigent circumstances existed because of the transient nature of defendant’s alleged illegal drug distribution. See Gilliland v. State, 139 Ga. App. 399, 400 (1), 401 (228 SE2d 314), disapproved, as to Division 3 only, in Patterson v. State, 238 Ga. 204, 207 (232 SE2d 233). “Probable cause existed to search and to arrest, based upon the details and specific information from the personal observations of the known reliable informant. Register v. State, 124 Ga. App. 136, 139 (183 SE2d 68), U. S. cert. den. 405 U. S. 919. . . . The specificity provided by the informant, when verified by the observation of the police, provided additional indicia of probable cause. Draper v. United States, 358 U. S. 307 [(79 SC 329, 3 LE2d 327)] (1959); Burns v. State, 119 Ga. App. 678 (168 SE2d 786).” Smith v. State, 135 Ga. App. 424, supra. Consequently, the trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed. Pope, C. J., and Smith, J., concur.

Decided August 9, 1994.

B. Andrew Prince, for appellant.

Harry N. Gordon, District Attorney, Richard C. Dickson, Assistant District Attorney, for appellee.

       The procedure approved in Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824), for entering a guilty plea while reserving the opportunity to appeal rulings by the trial court which ordinarily would be waived by such a plea was disapproved in Hooten v. State, 212 Ga. App. 770 (1) (442 SE2d 836). Guilty pleas entered after July 9, 1994, “in which the accused attempts to condition upon the preservation of the rights to raise non-jurisdictional errors by the trial court will not be considered by this court, and all the usual rules of appellate practice, including the waiver of errors by guilty pleas, will be applied.” Hooten v. State, 212 Ga. App. 770 (1), 775, supra. We now consider the merits of the case sub judice since defendant’s conditional guilty plea was entered before July 9, 1994.


author: Pope, Chief Judge.

text:
    A94A1056.
    FOOD LION, INC. v. JOHNSON.
    (448 SE2d 59)
   Pope, Chief Judge.

Defendant Food Lion, Inc. appeals from the denial of its motion for directed verdict in this slip and fall case.

The evidence adduced at trial reveals that as plaintiff walked from her car toward defendant’s store, she noticed a man off to her left, approximately 15 feet from the store entrance, watering flowers. She saw “little trinklets” of water on the sidewalk but no standing puddles or streams of water. Although she did not walk through any water, she acknowledged that parts of the sidewalk and parking lot, across which she walked, were “slightly damp.” As plaintiff stepped inside the store, she slipped and fell, fracturing her ankle. Although plaintiff saw nothing on the floor, her hands became wet and dirty when she touched the floor after she fell. A store employee saw water and track marks from shopping carts in the area after plaintiff fell. There were no mats nor any caution or wet floor signs at the entrance. The trial court denied defendant’s motion for directed verdict, and the jury returned a verdict in favor of plaintiff for $55,000.

A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict. McDevitt & Street Co. v. K-C Air Conditioning Svc., 203 Ga. App. 640, 644 (3) (418 SE2d 87) (1992). The evidence is construed most favorably for the nonmovant. Id. In order to recover for a slip and fall resulting from a foreign substance, the plaintiff must show that the proprietor had actual or constructive knowledge of the foreign substance and that the plaintiff was without such knowledge. Patterson v. First Assembly of God of Tifton, 211 Ga. App. 718, 720 (440 SE2d 492) (1994). “She must exercise ordinary care for her own safety to avoid the effect of the. proprietor’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it.” Id.

Defendant does not contend that it did not have actual or constructive knowledge of the presence of water inside the doorway. However, it argues plaintiff was not exercising ordinary care for her own safety because she should have known the entranceway might be wet since she saw the employee watering flowers and saw that the parking lot and sidewalk were damp. We disagree. This case is distinguishable from those in which the plaintiff is barred from recovery because she knows the particular area in which she is walking is wet, see Bowman v. Richardson, 176 Ga. App. 864 (338 SE2d 297) (1985), or enters a building when it is raining and should reasonably expect the inside of the door to be wet, see Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 177 (138 SE2d 77) (1964). Here, plaintiff testified that she did not walk through any water on her way into the store and did not know that water had accumulated inside the store entrance. We cannot say plaintiff should have necessarily expected the entranceway to be wet simply because she saw an employee watering flowers in an area off to the side of the entrance and saw that portions of the parking lot and sidewalk were slightly damp. See Carder v. K-Mart, 185 Ga. App. 143 (363 SE2d 593) (1987). Because the evidence, with all its reasonable deductions, did not demand a verdict for defendant on the issue of plaintiff’s failure to exercise ordinary care, the trial court did not err in denying defendant’s motion for directed verdict. See Ga. Bldg. Svcs. v. Perry, 193 Ga. App. 288, 296-298 (387 SE2d 898) (1989).

Decided August 10, 1994.

Dennis, Corry, Porter & Gray, R. Clay Porter, Frederick D. Evans III, Craig P. Siegenthaler, Thomas D. Trask, for appellant.

Dye, Tucker, Everitt, Wheale & Long, Benjamin H. Brewton, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.