text:
    A90A0892.
    THE STATE v. LAMOTTE.
    (396 SE2d 806)
   Carley, Chief Judge.

Appellee was indicted for possession of cocaine, driving under the influence and improper lane usage. He filed a pre-trial motion to suppress the cocaine which had been seized during a search of the automobile that he had been driving before being arrested. The State appeals from the grant of appellee’s motion, enumerating as error the trial court’s failure to conclude that the search of the vehicle was authorized pursuant to a valid arrest of appellee.

“[E]ven when an arrestee is only a recent occupant of a vehicle, the officer ‘ “may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” (cit.) . . . even though ... at the time of the search of such a vehicle, articles in the passenger compartment are “unaccessible” to the arrestee.’ [Cits.]” Cain v. State, 178 Ga. App. 247, 248 (2) (342 SE2d 742) (1986). Nevertheless “‘[i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification. [Cit.]’ [Cit.]” Brewer v. State, 129 Ga. App. 118, 121 (1) (199 SE2d 109) (1973). Compare Collier v. State, 177 Ga. App. 217, 219 (338 SE2d 724) (1985).

The transcript of the hearing contains the testimony of the officers that the arrest of appellee for the traffic offenses preceded the search of his car. Thus, the evidence would support a finding that the search was authorized as an incident of appellee’s arrest. On the other hand, the transcript also contains appellee’s testimony that his car had been searched while the pre-arrest field sobriety tests were being administered. Thus, the trial court could have found that the search preceded the arrest and was not authorized as an incident thereof. It is clear, however, that the trial court did not consider the issue of whether or not the search was authorized as an incident of appellee’s arrest for the traffic offenses. The transcript reflects that the trial court was concerned with whether or not the impoundment of appellee’s car was reasonable. The trial court’s written order states that the motion to suppress “cocaine discovered during [the] inventory search of [appellee’s] vehicle . . . is . . . granted.” (Emphasis supplied.) Notwithstanding the invalidity of the search pursuant to impoundment and inventory, the trial court nevertheless could and should have considered whether there was a valid search incident to appellee’s arrest for the traffic offenses. See State v. Holden, 162 Ga. App. 33 (290 SE2d 130) (1982). See also Lewis v. State, 195 Ga. App. 59, 60 (1) (392 SE2d 563) (1990).

“ ‘(W)here there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld where there is any evidence to authorize a finding in support of his order.’ [Cit.] Although, in this case, the evidence was definitely conflicting, a review of the transcript statement of the trial court and of the written order itself reveals clearly that the trial court did not really resolve the disputed issues of fact. The trial court simply held that [an inventory search was not justified]. Furthermore, a review of the [transcript statement of the trial court] and the order also indicates that the trial court did not consider [whether the search was valid as an incident to appellee’s arrest]. In this connection, we recognize that there is no requirement that the trial judge make specific findings of fact after a hearing on a motion to suppress. [Cit.] Thus, if, on this record containing conflicting testimony, the trial court had simply granted the motion to suppress, we would affirm. [Cit.] In this case, however, the record shows that the trial court did not really make any findings of fact [as to the validity of the search as an incident to appellee’s arrest], articulated or not. . . . Accordingly, this case must be remanded to the trial court for redetermination of the relevant issues after consideration of all of the evidence. [Cits.]” State v. Peacock, 178 Ga. App. 96, 97 (342 SE2d 364) (1986). See also Atkins v. State, 254 Ga. 641 (331 SE2d 597) (1985); State v. Grimes, 195 Ga. App. 773 (395 SE2d 42) (1990).

Decided September 4, 1990.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellant.

Awtrey & Parker, J. Lynn Rainey, for appellee.

Judgment reversed and case remanded with direction.

McMurray, P. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A0903.
    CROSS v. THE STATE.
    (397 SE2d 125)
   Pope, Judge.

Defendant Gerald Wayne Cross was convicted of two counts of selling cocaine to an undercover agent. Defendant testified at trial. On cross-examination the prosecuting attorney asked defendant if he had ever used drugs. When defendant answered in the negative, the prosecutor immediately asked again, “You have never used drugs?” The defendant again answered negatively and defendant’s attorney objected on the ground the question had been asked and answered and on the ground the question improperly injected the issue of defendant’s character into the case. In the presence of the jury, the prosecutor responded that she intended to prove the defendant did use cocaine by introducing evidence of a chemical test. The trial court overruled the objection to the question and also permitted the prosecutor to present, on rebuttal, evidence that the results of a chemical test administered to the defendant after his arrest were positive for cocaine use.

We reject the State’s argument that the test results were admissible as evidence of similar conduct. The presence of cocaine in bodily fluids is admissible as direct evidence of the offense of possession of • cocaine. Buffington v. State, 190 Ga. App. 365 (378 SE2d 884) (1989). However, defendant in this case was not charged with possession but with the sale of cocaine. Proof of subsequent possession of some unused quantity of contraband is a sufficiently similar offense to be admissible in a trial for the sale of contraband. Whitley v. State, 193 Ga. App. 192 (1) (387 SE2d 348) (1989). However, is evidence that the defendant was in possession only of that cocaine which he ingested sufficiently similar to the sale of cocaine to be admissible in defendant’s trial for the sale of cocaine? We think not, for this would be taking the issue of the similarity of acts too far. “The purposes for which evidence of extrinsic offenses may be offered include motive; intent; absence of mistake or accident (each is [an] aspect of intent); plan or scheme (of which the crime on trial is a part); and identity.” (Citation and punctuation omitted.) Id. at 192. Evidence of mere use of a drúg (as opposed to its possession in some unused quantity) is not probative of motive, intent, plan or scheme to sell the drug; it is not sufficiently similar to the offense of the sale of that drug. Cf. Stevens v. State, 165 Ga. App. 814, 818 (302 SE2d 724) (1983), Carley, J., dissenting (where the three dissenting judges asserted that evidence the defendant was in possession of some cocaine which he ingested was insufficient evidence to sustain his conviction for joint possession of another quantity of cocaine found in the possession of the co-defendant). We cannot say that proof of mere personal use of an illegal substance, though it shows possession of at least that quantity of the substance which was ingested, is admissible in a trial for the sale of the illegal substance. Thus, neither would proof of use be admissible on the issue of the identity of the defendant since use of a drug is not sufficiently similar to the sale of the drug to show that the identity of one who is a user is the same as one who is a seller.

We also reject the State’s argument that the test results were admissible to impeach the testimony of the defendant that he did not use drugs. The question itself improperly injected the defendant’s character into evidence and thus it cannot be used to bootstrap the admissibility of the evidence impeaching the defendant’s answer to the question. “In the case sub judice, defendant did not voluntarily place his character in issue. He merely responded to questions which placed his character in issue. . . . This line of cross-examination was obviously an endeavor to compel defendant to respond to questions which placed his character in issue and which insured an excuse for the State’s introduction of evidence of defendant’s [subsequent bad acts]. We disapprove of this endeavor and adhere to the rule that the State cannot rebut or question the presumption of a defendant’s good character unless the defendant first chooses to place his character in issue. To say otherwise, would render meaningless one of the primary objectives of OCGA § 24-9-20 (b), to preserve the presumption of a defendant’s innocence. See Jones v. State, 257 Ga. 753, 754 (1), 756 [(363 SE2d 529) (1988)]. Consequently, since defendant did not voluntarily elect to place his character in issue, the trial court erred in allowing the State to attempt to impeach defendant and place his character in issue through the introduction of evidence of defendant’s [subsequent acts].” Arnold v. State, 193 Ga. App. 206, 207-208 (387 SE2d 417) (1989).

Decided September 4, 1990.

George P. Donaldson III, for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.

The objection to the improper question was not waived by the fact that defendant’s attorney did not interpose his objection until the question was asked and answered for the second time. First, we note that during the discussion on defendant’s objection the attorney responded to this argument by asserting that the questions and answers were made in “a very fast exchange” and that he objected immediately. Moreover, even if the objection was untimely, both the question and the subsequent admission of evidence of the defendant’s use of cocaine was improper as a matter of law and is reversible error. Id. at (2). This case is distinguishable from the facts of Beauchene v. State, 194 Ga. App. 222 (390 SE2d 116) (1990), where the State was allowed to impeach the defendant’s denial that he had ever sold drugs on occasions other than the sale for which he was on trial. In Beauchene, the defendant, himself, raised the issue of his selling cocaine by. admitting on direct examination that he made the sale to an undercover agent but asserting the defense of entrapment. Thus, in Beauchene, the defendant, himself, interjected the issue of his criminal activity.

Judgment reversed.

Been, P. J., and Beasley, J, concur.


author: Cooper, Judge.

text:
    A90A0913.
    SYCAMORE PELLET SYSTEMS, INC. v. SOUTHEASTERN STEAM, INC.
    (397 SE2d 6)
   Cooper, Judge.

Appellee, a company engaged in the business of servicing and installing boilers, brought suit on an open account against appellant, a company which pelletizes agricultural materials such as feed and seed. The jury returned a verdict in favor of appellee, awarding damages and attorney fees.

The record reveals that appellant and appellee entered into an agreement for the lease and installation of a used boiler to be used in appellant’s pellet mill. Following the installation of the boiler, appellant’s plant manager discussed with appellee the connection of the boiler to the utility system. Appellee agreed to perform the additional work for $5,000, and appellant’s manager authorized the work. After being billed for the additional work, appellant made three partial payments and incurred some expenses for service calls before failing to make any further payments on the account. Despite repeated assurances that payment in full would be forthcoming, appellant’s account remained past due and appellee brought suit to recover the balance due plus attorney fees. Appellant answered, denying the indebtedness, and counterclaimed seeking damages for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414 (1986). The case proceeded to trial following the denial of appellant’s motion for summary judgment.

1. In its first enumeration of error, appellant contends that the trial court erred in denying its motion for summary judgment. “ ‘After a verdict and judgment have been entered, this court cannot review a judgment denying a motion for summary judgment because that issue became moot when the court heard evidence at trial.’ [Cits.]” Litton Indus. Credit Corp. v. Lunceford, 175 Ga. App. 445 (1) (333 SE2d 373) (1985).

2. Appellant contends that the trial court erred in denying its motion for mistrial. The transcript from the trial reflects that following opening statements, which were not transcribed, appellant moved for a mistrial on the ground that during appellee’s attorney’s opening statement, he commented on the net worth of appellant’s sole shareholder, not a party to the action. The trial court denied the motion but ruled that the shareholder’s financial statement, which was attached to one of the exhibits listed in the pretrial order could not be admitted during the trial. We find no error in the trial court’s ruling. “ ‘The decision not to declare a mistrial is within the discretion of the trial court, and this discretion should not be interfered with unless manifestly abused.’ [Cit.]” Opatut v. Guest Pond Club, 188 Ga. App. 478 (4) (373 SE2d 372) (1988). Because the transcript does not reflect the opening statement made by appellee’s attorney, we cannot conclude that the remarks were so prejudicial as to have required the grant of a mistrial, regardless of how irrelevant the remarks may have been. See Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269 (3) (329 SE2d 900) (1985). “ ‘ “(T)he burden is on the party alleging error to show it affirmatively by the record, and . . . when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” ’ [Cit.]” Coffee v. Silver, 195 Ga. App. 247 (1) (393 SE2d 58) (1990).

Decided September 4, 1990.

Stephen L. Ivie, for appellant.

Mills & Chasteen, Ben B. Mills, Jr., for appellee.

3. Appellant contends in its third enumeration of error that the trial court erred in charging the jury on attorney fees. Appellant has waived his objection to the charge on attorney fees by not objecting to the charge at trial. OCGA § 5-5-24 (a); Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468 (8) (287 SE2d 257) (1981). Furthermore, we find no error in the charge which was harmful as a matter of law, so as to preclude the necessity of an objection. See OCGA § 5-5-24 (c).

4. Appellant’s fourth enumeration of error is not supported by citation of authority or argument and is deemed abandoned under Rule 15 (c).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Carley, Chief Judge.

text:
    A90A0920.
    JOHNS v. CARR et al.
    (397 SE2d 8)
   Carley, Chief Judge.

Appellant-plaintiff initiated this wrongful death action against appellee-defendant Timothy Carr and his employer, appellee-defendant Buckhead Movers, Inc. (Buckhead). In addition to appellee Buck-head’s vicarious liability for appellee Carr’s alleged negligence, appellant’s complaint alleged that appellee Buckhead had itself been negligent in hiring appellee Carr and in entrusting its vehicle to him. After answering the complaint, appellees moved to disqualify appellant’s attorney on the ground that he had previously represented appellee Carr. Appellant not only opposed appellees’ motion, she also sought an award of the attorney’s fees incurred in so doing. The trial court granted appellees’ motion to disqualify appellant’s attorney and denied appellant’s motion for attorney’s fees. However, the trial court certified its order for immediate review and appellant applied to this court for an interlocutory appeal. The instant appeal results from the grant of appellant’s application.

Decided September 4, 1990.

G. Clyde Dekle III, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Robert W. Browning, for appellees.

1. In urging that appellees’ motion was erroneously granted, appellant’s reliance upon Green v. Carver State Bank, 178 Ga. App. 798, 799 (2) (344 SE2d 507) (1986) is misplaced. In Green, the client whose confidences and secrets might have been compromised was not actually a party to the underlying action. Here, on the other hand, it is undisputed that appellant’s attorney had previously served as the legal representative for appellee Carr himself.

Appellee Carr averred that, subsequent to that undisputed representation, he had continued to consult with appellant’s attorney in connection with matters which would necessarily be put in issue in the instant case by virtue of appellant’s allegations regarding appellee Buckhead’s independent negligence. Compare Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467, 468 (1) (326 SE2d 827) (1985), wherein the client “was unable to remember even the general nature of the matters discussed which he [asserted that] he expected to be kept confidential.” Accordingly, the evidence would authorize the trial court to find that appellant’s continued representation by appellee Carr’s former counsel would “‘[tend] to “taint the underlying trial” ....’” Reese v. Ga. Power Co., 191 Ga. App. 125, 127 (2) (381 SE2d 110) (1989). “A lawyer cannot use information acquired in the course of the representation of a client to his later disadvantage, or for the advantage of another. The obligation to preserve confidences [and secrets] continues after employment is terminated.” (Emphasis supplied.) Summerlin v. Johnson, 176 Ga. App. 336, 338-339 (335 SE2d 879) (1985). “[Disqualification is always justified and indeed mandated, even when balanced against a client’s right to an attorney of choice, [where, as here,] the appearance of impropriety [is] coupled with [an actual] conflict of interest or jeopardy to [the former] client’s confidences.” Blumenfeld v. Borenstein, 247 Ga. 406, 409 (276 SE2d 607) (1981). It follows that the trial court correctly granted appellees’ motion to disqualify appellant’s attorney.

2. Inasmuch as appellees’ motion was correctly granted, the trial court did not abuse its discretion in denying appellant’s motion for the attorney’s fees incurred in opposing that motion.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


author: Beasley, Judge.

text:
    A90A0927.
    SMITH v. THE STATE.
    (397 SE2d 9)
   Beasley, Judge.

Defendant was sentenced for possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), after he pleaded guilty to the charge. He reserved the right to appeal from the denial of his motion to suppress. Jackson v. State, 191 Ga. App. 439 (382 SE2d 177) (1989).

Athens Police were notified by a confidential informant that illegal drugs would be distributed to sellers from room 30 of a Watkins-ville motel. The informant, who had given reliable information in the past, described a red Honda Prelude with a damaged right side which would be used by a black male in his early thirties. Detectives Crews and Newson, in plain clothes and driving an unmarked car, observed such a car located in front of room 30 of the motel. Defendant and another black male were standing at the door conversing, and then defendant left in a cream-colored Ford pickup truck. The officers followed at a distance.

After traveling several miles, they came upon a traffic jam at an intersection. The officers' got out of their car and approached the pickup truck with badges held in their outstretched hands. Defendant abruptly forced his truck ahead to the turn lane of the intersection. The two detectives returned to their car and continued to follow defendant, who drove to a residence and stopped. The officers again exited their vehicle and approached the truck. Defendant drove off at a “high rate of speed” and the officers, returning to their car, pursued him about the neighborhood at speeds reaching 50 to 60 m.p.h. Defendant stopped at another house and ran from the truck. The officers followed on foot. Defendant threw a small bag containing white powder to the ground. Based on Crews’ experience, he believed it to be cocaine. Defendant was apprehended and searched.

Defendant contends that there was no basis for an articulable suspicion to justify a Terry [v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)] type investigative stop and no probable cause to justify his arrest. It is further argued that when defendant left his truck, an arrest took place for which no probable cause existed, and that his subsequent action in throwing away the cocaine bag and the consequent recovery by the police was a product of his illegal arrest.

A three-tier level of citizen-police encounters has been delineated. See Miranda v. State, 189 Ga. App. 218, 219 (1) (375 SE2d 295) (1988); Allen v. State, 172 Ga. App. 663, 665 (1) (324 SE2d 521) (1984). The detectives’ initial efforts to make contact with the defendant amount to, at the very most, a Terry-type stop, the second tier. Sultenfuss v. State, 185 Ga. App. 47, 48 (1) (363 SE2d 337) (1987); Hudgins v. State, 188 Ga. App. 798, 799 (374 SE2d 566) (1988).

Decided September 4, 1990.

Kathleen J. Anderson, Albert M. Pearson III, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

The theory that defendant was arrested the moment he bolted from his truck is not sustainable. Florida v. Rodriguez, 469 U. S. 1 (105 SC 308, 83 LE2d 165) (1984); Sultenfuss, supra. See State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989). Compare State v. Patrick, 195 Ga. App. 87 (392 SE2d 342) (1990) [physical precedent only]. Even if it were, the officers had probable cause for his arrest at that point based on his driving at excessive speed. OCGA § 17-4-60; O’Keefe v. State, 189 Ga. App. 519, 522 (1) (376 SE2d 406) (1988); Williams v. State, 171 Ga. App. 807, 809 (1) (321 SE2d 386) (1984); Walker v. State, 144 Ga. App. 838 (2) (242 SE2d 753) (1978). Crews testified that defendant was turned over to Clarke County officers for “traffic charges” and the “white powder.” Thompson v. State, 175 Ga. App. 645, 646 (2a) (334 SE2d 312) (1985).

The denial of the motion to suppress was not error.

Judgment affirmed.

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


text:
    A90A0929.
    WALTHOUR v. THE STATE.
    (397 SE2d 10)
   Cooper, Judge.

Appellant was charged by indictment with the offenses of aggravated assault (Count I), burglary (Count II), and simple battery (Count III). The jury returned a guilty verdict on the burglary charge and a not guilty verdict on the simple battery charge. On the aggravated assault charge, the jury returned a verdict of the lesser included offense of simple assault. On appeal, appellant enumerates seven errors in the trial court’s charge to the jury as well as the trial court’s refusal to admit two documents into evidence.

1. In his first enumeration of error, appellant contends that the trial court erred in not admitting into evidence two crime lab reports showing the lack of similarity between items found at the scene of the crime and physical evidence taken from the person of appellant. Appellant called as a witness the director of a branch of the State Crime Laboratory, who testified that he compared the thread of a red jacket allegedly worn by appellant during the crime with a red thread found at the scene and found that the threads were not identical and that his comparison of hairs that came from a cap left at the scene of the crime with hair from the head of appellant failed “to reveal sufficient similarities to conclude that they had a common origin.” The witness further testified that the written reports he prepared and signed were kept by him in the ordinary course of his work in the crime lab. Even if the crime lab reports were admissible under the business records exception to the hearsay rule, “their exclusion from evidence was not harmful error since the [witness] who [prepared the reports] testified in court as to [his] findings and [his] testimony was essentially repetitious of anything contained in [his report].” Smith v. State, 180 Ga. App. 309 (3) (349 SE2d 4) (1986). “ ‘Since the excluded evidence was merely cumulative, “no harmful error is shown (regardless of whether) the reasoning of the court in sustaining the objection may have been erroneous.” ’ [Cits.]” Smith v. State, supra.

2. Appellant enumerates as error the giving of a charge on voluntary intoxication. Inasmuch as there was some evidence introduced at trial that appellant had been drinking and was acting like he was drunk, we find no error with the trial court’s charge. “ ‘Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue. (Cit.)’ ” Shy v. State, 190 Ga. App. 370 (5) (378 SE2d 920) (1989).

3. In his third, fourth, and seventh enumerations of error, appellant contends that the trial court erred in not charging the jury in the exact language he requested on the presumption of innocence, reasonable doubt, and criminal intent, respectively. “If the trial court gives a full and correct charge on an issue warranted by the evidence and covers the substance of what is requested, it is never error to decline to give the charge in the exact language requested. [Cits.]” Mathis v. State, 184 Ga. App. 455 (4) (361 SE2d 856) (1987). We have reviewed the charges given by the trial court on the specific points of law enumerated by appellant and find that the charges fairly and adequately covered the law in those areas.

4. Appellant’s contention that the trial court should have given his “two theories” charge on circumstantial evidence is without merit. There was some direct evidence in the case that appellant committed the offenses with which he was charged. “[W]here there is direct evidence involved in the case, it is not error to refuse to charge on circumstantial evidence. [Cit.]” Houston v. State, 180 Ga. App. 267 (4) (349 SE2d 228) (1986).

5. Appellant’s sixth and eighth enumerations of error are that the trial court erred in failing to charge that the law does not authorize the conviction of an accused upon mere suspicion of guilt and that mere illegal entry into the dwelling of another does not satisfy the crime of burglary. The trial court instructed the jury that the State had the burden of proving appellant’s guilt beyond a reasonable doubt; the trial court also instructed the jury that in order to convict appellant of burglary they must find an intent to commit theft. “Given that the trial court’s charge covered the principles set forth in the requested charge, the court did not err by refusing to give appellant’s charge.” Fowler v. State, 188 Ga. App. 873 (1) (374 SE2d 805) (1988).

Decided September 4, 1990.

Neil L. Heimanson, for appellant.

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

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Birdsong, Judge.

text:
    A90A0934.
    ADAMS v. THE STATE.
    (397 SE2d 12)
   Birdsong, Judge.

Orville Allen Adams was indicted in three counts for possession of approximately 15 grams of cocaine with intent to distribute, possession of a firearm by a convicted felon, and possession of less than one ounce of marijuana. A fourth count charged him with being an habitual felon. The jury convicted Adams only of the cocaine offense, on a reduced count: Simple possession of a Controlled Substance.

Adams appeals on grounds the evidence was insufficient to support the verdict. Held:

Police obtained a search warrant for Adams’ home. As they arrived to execute it, they apprehended him leaving his home in a car containing five persons. Police saw Adams, who was seated in the center of the back seat, make a motion with his hand as if to stealthily hide something in the seat. A search of the seat unleashed a coin purse containing three bags of suspected cocaine and the suspected marijuana. Upon Adams’ person was found a wallet containing one smaller bag of a white substance suspected to be cocaine.

The State’s forensic expert testified that he received four bags of suspected cocaine and tested only two of the bags; that in his opinion he could tell the difference between cocaine and a substance that is not cocaine, i.e., whether it tends to be chalky or granular, very fine particles, fluffy white powder, and so forth. Those all come into play in the “chemical analysis.” By touch and feel he concluded, in his opinion, that the substance in the two accompanying bags was also cocaine.

Decided September 4, 1990.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Appellant contends the jury had a reasonable doubt whether the coin purse found in the car seat belonged to appellant, for they acquitted him of possession of marijuana which was proved to be in the purse with the three bags of suspected cocaine; thus, appellant contends that if the only two bags chemically tested by the forensic expert and found positive for cocaine were among the three found in the purse, then the smaller bag found in appellant’s wallet was one of the two bags that was never chemically tested for cocaine.

We cannot, and will not, say that an expert cannot conclude a substance is cocaine by chemically testing two bags and determining, by expert tactile observation, that the accompanying bags were identical or contained the same substance. By this record, we must conclude there is a significant point in proof by chemical analysis as well as by expert analysis of appearance, or touch and feel. The weight to be given the expert’s opinion is, in all cases, a question for the jury. See, e.g., Long v. Marion, 182 Ga. App. 361, 365 (355 SE2d 711). Particularly where the expert gives the basis for his opinion, we must accept the jury’s conclusion upon that evidence (id.); accordingly, we find upon all the evidence in this case that a rational trier of fact could find appellant guilty of possession of cocaine beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Sognier, Judge.

text:
    A90A0942.
    JACKSON v. THE STATE.
    (397 SE2d 13)
   Sognier, Judge.

Brazell Jackson was indicted for DUI, driving on the wrong side of the road, and three counts each of first and second degree vehicular homicide. After being convicted on all counts and sentenced on the first degree homicide counts, he filed this appeal.

In three enumerations of error appellant contends the trial court improperly admitted evidence of the results of a blood test performed by an emergency room physician, and that when the test evidence is properly excluded, a directed verdict of acquittal is demanded. The trial testimony established that at about 6:00 p.m. on the night of December 25, 1988, appellant was traveling on Highway 140 in Floyd County. Stanley Hinson, who testified that he was behind appellant’s truck for several miles, saw appellant repeatedly stray across the centerline, and observed appellant’s head bobbing as though he was dozing off. Appellant then crossed into the opposite lane and hit another car head on, killing three passengers and injuring himself. Hinson testified that when he approached appellant, he noticed that appellant’s speech was slurred and that he smelled of alcohol. Both police officers who investigated the collision testified that appellant smelled of alcohol, had slurred speech, and appeared confused. Additionally, Officer Mark Hamrick stated that when he asked appellant whether he had been drinking, appellant responded, “Yes, sir. I dr[a]nk a few.”

The State proffered the results of two blood-alcohol tests. The first, which indicated an alcohol level of .055 grams percent, was performed on a blood sample collected at 7:10 p.m. at the direction of Dr. Dale Menard, the emergency room physician who treated appellant. Menard testified he ordered the test because appellant smelled of alcohol and appeared to be intoxicated, and thus appellant’s blood alcohol level was relevant to Menard’s treatment decisions. It is undisputed that this test, although performed by the hospital’s state-certified laboratory, was not performed by a person holding a GBI permit as defined in OCGA § 40-6-392 (a) (1), nor was it performed on the type of machine approved by the GBI. See id. The second test admitted into evidence, which was conducted in accordance with OCGA § 40-6-392 (a), was performed on a blood sample obtained by Officer Hamrick approximately two hours after the collision and indicated an alcohol content of .015 grams percent, which the GBI chemist performing the test characterized as a “trace amount.”

Additional testimony was adduced that appellant was a “brittle” diabetic who often had extreme fluctuations in his blood sugar levels; that one whose blood sugar level is too high may experience dizziness, confusion, and slurred speech; and that when appellant was admitted to the hospital he had a blood sugar level of 375 (the normal range being 70-120). The evidence also established that appellant had cardiovascular disease and that on at least one prior occasion had an incident of dizziness and confusion while at work.

The trial court admitted the results of the blood test performed by the hospital as a business record pursuant to OCGA § 24-3-14. Appellant contends this decision was erroneous because the more specific provisions of OCGA § 40-6-392 (a) control, and that statute precludes the admission into evidence in a DUI trial of the results of tests not performed in accordance with the statutory requirements.

OCGA § 40-6-392 (a) provides in pertinent part: “Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of [OCGA §] 40-6-391, evidence of the amount of alcohol... in a person’s blood ... at the alleged time, as determined by a chemical analysis of the person’s blood . . . shall be admissible. Where such a chemical test is made, the following provisions shall apply: (1) Chemical analysis of the person’s blood, ... to be considered valid under this Code section, shall have been performed according to methods approved by the [GBI] and by an individual possessing a valid permit issued by the [GBI] for this purpose.” In Bynum v. Standard Oil Co., 157 Ga. App. 819, 820 (2) (278 SE2d 669) (1981), a civil action for damages arising out of an automobile collision, the defendant contended the plaintiff had been driving under the influence of alcohol and introduced into evidence the results of a blood test performed under circumstances identical to those in the instant case. This court concluded that the trial court properly admitted the test results as a business record of the hospital notwithstanding the lack of compliance with Ga. Code Ann. § 68A-902.1 (a) (now OCGA § 40-6-392 (a)) because the test was performed pursuant to the provision of medical treatment in the ordinary course of the hospital’s business, not for the purpose of establishing a violation of Ga. Code Ann. § 68A-902 (OCGA § 40-6-391).

We agree with the State that the analysis of Bynum is applicable here, for the test at issue also was administered for the purpose of assisting in appellant’s medical treatment. It was requested by the treating physician, not a law enforcement officer, and was not obtained for the purpose of showing that appellant was in violation of OCGA § 40-6-391. This finding also is consistent with the Supreme Court’s pronouncement in Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983) that OCGA § 40-6-392 (a) “provides for the procedures to be used where the state administers the test.” Although Bynum was a civil case, we see no reason to distinguish it on that basis because OCGA § 40-6-392 (a) by its terms applies equally to civil and criminal actions, and OCGA § 24-3-14 regularly has been applied in criminal trials. E.g., Head v. State, 246 Ga. 360, 365-366 (11) (271 SE2d 452) (1980). Accordingly, we find the trial court properly admitted the results of the blood test administered by the hospital.

Therefore, since we find no error in the admission of the test results showing a blood alcohol level of .055 grams percent, we hold that the evidence as a whole authorized a rational trier of fact to find appellant guilty of the charged crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). For the same reason, appellant’s contention that the State presented only circumstantial evidence of his alleged intoxication and did not rule out the possibility that he was suffering from transient ischemic attack as a consequence of his high blood sugar level is without merit.

Judgment affirmed.

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

Decided September 4, 1990.

Steve Bennett, for appellant.

Stephen F, Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.


author: Banke, Presiding Judge.

text:
    A90A0943.
    SOUTHERN GENERAL INSURANCE COMPANY v. SNIPES et al.
    (396 SE2d 808)
   Banke, Presiding Judge.

Southern General Insurance Company brought this action against Derrick Snipes and Daniel McGill seeking a judicial declaration that it had no obligation to defend Snipes in a suit filed against him by McGill to recover for injuries sustained in an automobile accident. It brings this appeal from the denial of its motion for summary judgment.

Snipes signed an application for motor vehicle liability insurance at the offices of Brumbelow and Associates, an independent insurance agency in Blackshear, Georgia, on November 9, 1987. Michael Anderson, the sales agent with whom Snipes dealt, testified that after all of the paperwork had been completed, Snipes stated that he did not have the money with him to cover the required $135 down payment on the $269 policy premium but that he intended to go get it and bring it back forthwith. Anderson testified that he issued Snipes an “insurance identification card” on the basis of this representation, telling him it would be valid “long enough [for him] to go over there and get the money and come back.” Southern General’s name was typed on this card identifying it as the insurance carrier, and the words “application binder” were typed in the space designated for a policy number. The card specified that the “effective date” of the coverage was November 9, 1987, and the “expiration date” was May 9, 1988. The accident took place on March 26, 1988.

Snipes did not return after leaving with the card and had no further contact or communication with the agency until after the accident. Although he did not file an answer in the present action, he evidently has some recollection of having made a payment of $119 at the time he signed the application. However, he has no receipt or other documentation to substantiate this recollection. On November 21, 1987, the sales agent wrote him a letter, which he denies having received, advising him that his application had not been forwarded to the insurance company due to his failure to pay the premium. It is apparent without dispute from the record that no application for insurance was ever submitted to Southern General on Snipes’ behalf and that no policy of insurance was ever issued to him. Held:

Decided September 4, 1990.

Newton, Smith, Durden & Kaufold, Wilson R. Smith, for appellant.

Earl D. Smith, Jr., for appellees.

Under the circumstances, there is no basis upon which Snipes could reasonably have believed he was insured at the time of the accident. The issuance of the insurance card to him constituted, at most, an indication that he had obtained a temporary binder of coverage. Pursuant to OCGA § 33-24-33 (b), such a binder, unless extended or renewed, is not valid “beyond 90 days from its effective date. . . .” Thus, even assuming arguendo that Snipes was led to believe he had obtained a temporary binder of coverage, he must, under the circumstances of this case, be charged with knowledge that the coverage had expired by the time the accident occurred, some four-and-a-half months later. Compare Home Materials v. Auto Owners Ins. Co., 250 Ga. 599 (300 SE2d 139) (1983) (where a policy was issued by the insurer, and the sales agent represented to the insured at all relevant times that this policy was still effective). Consequently, we hold that the trial court erred in denying Southern General’s motion for summary judgment.

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A0970.
    HOGAN v. DeKALB COUNTY.
    (397 SE2d 16)
   Sognier, Judge.

Jack H. Hogan brought suit against DeKalb County seeking a declaration of his rights under a county sanitation ordinance. The trial court ruled in favor of the County, and Hogan appeals.

The record reveals that in 1973, after appellant became dissatisfied with the county garbage pickup at an apartment complex he owned, he sought and received permission to collect the garbage from the complex himself and haul it to the county dump. Appellant purchased the equipment to do so, and his employees served the complex satisfactorily for three years. In 1976, appellee notified him that it would no longer permit him to collect the garbage himself. After appellant appealed to his county commissioner for help, the Board of Commissioners passed a resolution granting appellant a reprieve until December 1978, to allow him to recover the cost of the equipment purchased. Appellant received no notice of this resolution, but he was not billed by appellee for sanitary fees and continued to collect the garbage even after 1978, without protest from appellee.

In 1984, appellant developed a second apartment complex and a commercial building, and county garbage pickup was begun at those locations. After failing to resolve a dispute with appellee concerning damage to the driveways and curbing which appellant alleged was caused by the heavy garbage trucks, appellant ceased paying the sanitary fees for these two properties, and when appellee consequently stopped collecting the garbage, appellant began to service them in the same manner he was servicing the first apartment complex. Appellee then notified appellant by letter that he was in violation of a county ordinance and must cease collecting garbage at all three locations, and this action ensued.

Appellant contends the trial court erroneously ruled in favor of appellee because the sanitation ordinance does not prohibit him from collecting garbage from property he owns. We do not agree. Section 6-3009 (b) of the DeKalb County Code of Ordinances provides that “[i]t shall be a violation of this chapter for any person, not licensed by the county, to collect and haul any refuse other than that arising from his own accumulation within any areas of the county in which refuse collection service is maintained by the county.” Section 6-3003 defines “/collector” as “[a] person or persons . . . who, under agreements, verbal or written, with or without compensation does the work of collecting and/or transporting solid waste, from industries, offices, retail outlets, businesses, institutions and/or similar locations or from residential dwellings, provided however, that this definition shall not include an individual collecting and/or transporting waste from his own single family dwelling unit.” (Emphasis supplied in part.)

“ ‘It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes “in pari materia,” are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto. . . . (Cit.)’ [Cits.]” Fayette County &c. v. Ga. Utilities Co., 186 Ga. App. 723, 726 (2) (368 SE2d 326) (1988). Although not stated specifically in Section 6-3009 (b), we agree with the trial court that, construing the sanitation ordinance as a whole, it is obviously the intendment of the ordinance that only the county itself or a licensed collector may collect and haul refuse within the county, with the exception of an individual who hauls his own garbage from a single-family dwelling unit. Since appellant’s activities did not fall within that exception, the trial court correctly ruled in favor of appellee.

Judgment affirmed.

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

Decided September 4, 1990.

King, Taylor & Stovall, James F. Stovall III, for appellant.

Michael K. Dennard, Albert S. Johnson, for appellee.


text:
    A90A0997.
    MANN v. THE STATE.
    (397 SE2d 17)
   Banke, Presiding Judge.

The appellant was found guilty of trafficking in cocaine, possession of a firearm during the commission of a crime, carrying a concealed weapon, driving a motor vehicle at a time when his driver’s license was suspended, and failure to drive in a single lane. He contends on appeal that the trial court erred in refusing to suppress the contraband upon which the cocaine trafficking conviction was based.

A state trooper stopped the appellant for “weaving” in and out of his lane of traffic on 1-95 in McIntosh County. Asked for his driver’s license, the appellant responded that it had been suspended; and asked about the ownership of the vehicle, he responded that it belonged to a passenger, Jeffrey Olreidge, who had been asleep in the back seat. The trooper thereupon questioned Olreidge separately about the nature of their trip and became “suspicious” when the latter’s responses were inconsistent with those previously given by the appellant. Consequently, while radioing his headquarters to obtain a records check on the appellant, the trooper requested a backup unit. Approximately 10 to 15 minutes later, two sheriffs deputies arrived in response to this request.

Upon the arrival of the deputies, Olreidge consented in writing to a search of his vehicle, “including luggage and contents thereof.” While the trooper was preparing the consent form for Olreidge’s signature, one of the deputies asked the two suspects whether they had any weapons. Olreidge responded that there was a gun in the car, and the appellant made a statement suggesting that he had a weapon on his person. The appellant was then subjected to a patdown search, resulting in the seizure of a small handgun from a lower pocket on one of his pant legs.

While one of the deputies was removing a garment bag from the trunk during the ensuing search of the vehicle, the appellant yelled out that this bag belonged to him. The deputy in question testified that he responded by saying, “All right. All I want to do is look in it,” and that the appellant replied as follows: “Well, that’s okay. I just wanted to let you know that was my bag.” The appellant denied having made such a statement. The cocaine upon which his trafficking conviction was based was discovered during the succeeding search of this garment bag. Held:

1. The appellant contends that Olreidge’s consent to the search of the vehicle was invalid because 25 minutes had elapsed between the time the vehicle was stopped and the time he signed the consent form, thereby converting the initially lawful detention of Olreidge into an unlawful arrest. However, it is apparent from the trooper’s testimony that about half this time was occupied with the initial questioning of the two men, leaving an additional delay of only 10 to 15 minutes before Olreidge gave his consent to the search. Compare Schmidt v. State, 188 Ga. App. 85 (372 SE2d 440) (1988) (where approximately an hour elapsed between the time of the initial stop and the arrival of a drug-sniffing dog); Radowick v. State, 145 Ga. App. 231 (244 SE2d 346) (1978) (where the defendants were held for more than 40 minutes before they “consented” to the search, during which time they were assured that their vehicle would be searched before they were released). The appellant is in any event without standing to object to the search on the ground that it violated Olreidge’s Fourth Amendment rights, inasmuch as “ ‘[t]he Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387).’ ” Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989).

2. “The mere fact that defendant was under arrest at the time he gave his consent to the search [of his garment bag] does not establish the consent was made involuntarily or by coercion.” Howard v. State, 185 Ga. App. 465, 466 (364 SE2d 600) (1988). Nor is it essential to the validity of a consent search that the appellant be informed of his right to refuse. See Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689) (1975).

3. The appellant contends that “the weight of the evidence” contradicted the deputy’s testimony that he indicated it was “okay” to search his garment bag. While the testimony offered by the other deputy and by the trooper tended to corroborate the appellant’s denial that he made such a statement, “ ‘[o]n motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings . . . are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support (them).’ State v. Swift, 232 Ga. 535, 536 (207 SE2d 459) (1974).” Ward v. State, 193 Ga. App. 137, 138 (387 SE2d 150) (1989). Since the deputy who conducted the search testified positively that the appellant consented to it, we must conclude that the trial court was authorized to deny the motion to suppress.

4. The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the offenses of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 4, 1990.

Samuel G. Oliver, for appellant.

Dupont K. Cheney, District Attorney, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A1030.
    BURNS v. THE STATE.
    (397 SE2d 19)
   McMurray, Presiding Judge.

Defendant Burns appeals his conviction of a violation of the Georgia Controlled Substances Act (possession of cocaine with intent to distribute). Held:

1. There was no violation of the sequestration rule in allowing the prosecuting law enforcement officer to remain after the rule was invoked and testify after hearing the testimony of another witness. Chastain v. State, 255 Ga. 723, 724 (2) (342 SE2d 678); Day v. State, 188 Ga. App. 648, 649 (5) (374 SE2d 87).

2. Defendant’s next enumeration of error complains of portions of the State’s closing argument to which defendant objected. The transcript contains only a fragment of the last sentence of the State’s argument preceding each of defendant’s objections. In one instance the defendant objected to the State’s argument which concluded: “. . . haven’t heard him get up there and deny it.” Defendant contends that this statement was a comment on defendant’s failure to testify. Any comment by the prosecution on defendant’s silence is prohibited. Jones v. State, 185 Ga. App. 879 (366 SE2d 238).

Due to the omissions from the transcript it is impossible to conclude, without some degree of speculation, whether this phrase taken out of context actually refers to defendant or to his silence. “Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed at the trial court under the provisions of OCGA § 5-6-41 (f).” Howe v. State, 250 Ga. 811, 813 (2), 814 (301 SE2d 280). As this was not done in the case sub judice, there is nothing for this court to review. See Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779); Smith v. State, 160 Ga. App. 26, 27 (1) (285 SE2d 749).

3. There is no merit in defendant’s third enumeration of error which contends that defendant was not served with a copy of the search warrant as required by OCGA § 17-5-25. This contention is clearly refuted by the evidence presented at the motion to suppress hearing.

Decided September 4, 1990.

Tony C. Jones, for appellant.

Britt R. Priddy, District Attorney, Henry 0. Jones III, Assistant District Attorney, for appellee.

4. In his next enumeration of error, defendant contends that it was error for the trial court to overrule his objection to testimony by a State witness as to the reputation of defendant or of defendant’s house. However, the transcript fails to confirm that any such objection was made by the defendant. The absence of an objection amounts to a waiver. Stratton v. State, 257 Ga. 593, 595 (5) (362 SE2d 47).

5. Defendant’s remaining enumerations of error, being supported in his brief by neither argument nor citation of authority, are deemed abandoned. Rule 15 (c) (2) of the Rules of the Court of Appeals of the State of Georgia.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A1035.
    GREEN et al. v. PROGRESSIVE INSURANCE COMPANY.
    (397 SE2d 20)
   Banke, Presiding Judge.

This is a declaratory judgment action filed by the appellee, Progressive Insurance Company, to determine its obligations under a policy of motor vehicle liability insurance issued to one of the two appellants, Linda Green, in connection with a suit filed against her by the other appellant, Mildred Rush, to recover for personal injuries sustained while riding as a passenger in Green’s automobile. The case is before us on appeal from an award of summary judgment to the appellee insurer.

Green applied for the insurance policy in question at the office of an independent insurance agent on August 28, 1987. At that time, she remitted $106 as a 40-percent down payment on the $265 policy premium. The application specified that the coverage would be effective for a six-month period beginning at 12:30 p.m. that day and ending at 12:30 p.m. on February 28, 1988. However, the policy issued by the appellee insurer upon its receipt of the application specified that the coverage period would begin and end at 12:01 a.m. on these dates rather than at 12:30 p.m. The accident which gave rise to Rush’s personal injury claim against Green occurred on February 28, 1988, possibly before 12:30 p.m. but definitely after 12:01 a.m.

Decided September 4, 1990.

Leon A. Van Gelderen, for appellants.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellee.

Consistent with the application, the total premium charged by the appellee for the coverage was $265; however, the appellee determined that Green would be required to make a 50-percent down payment on this premium rather than a 40-percent down payment and accordingly sent her a bill for $26.50 at the address listed on her application. Due to an apparent transcription error made by the sales agent, that address was, however, incorrect; and the bill was consequently returned undelivered. The lack of a correct mailing address also prevented the independent agent from delivering a copy of the policy to Green. The appellee insurer subsequently cancelled the policy due to Green’s failure to make any further payment on it. Held:

The appellants contend that the appellee failed to present satisfactory evidence that it had mailed a cancellation notice to Green in compliance with the procedures set forth in OCGA § 33-24-44 and that the trial court consequently erred in ruling that the policy was cancelled prior to the accident. However, pretermitting whether the coverage was cancelled in accordance with the requirements of this Code section, it is apparent that the policy had expired by its own terms by the time the accident occurred. The fact that the application specified a slightly different expiration time than did the policy is irrelevant under the circumstances, since the policy superseded any temporary binder of coverage which may have existed by virtue of the application. See generally OCGA § 33-24-33 (b). Moreover, inasmuch as Green paid only 40 percent of the policy premium, she clearly is in no position to argue that she was short-changed by the 12-1/2-hour difference between these expiration times. Accordingly, we hold that the trial court did not err in granting the appellee’s motion for summary judgment. Accord Marchel v. Ga. Mut. Ins. Co., 188 Ga. App. 604 (1) (373 SE2d 787) (1988); Goodley v. Fireman’s Fund &c. Ins. Co., 173 Ga. App. 277 (1) (326 SE2d 7) (1985).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1050.
    BYRNE et al. v. REARDON et al.
    (397 SE2d 22) .
   Pope, Judge.

Responding to an advertisement in a magazine, plaintiff Norris O. Reardon telephoned the offices of defendant American Truckers Services Association Inc., predecessor in interest to defendant Ameri-. can Insurance Services, Inc. (hereinafter “agency”). At trial Reardon testified he spoke with defendant James Byrne about obtaining insurance for his trucking company. Defendant agency processed plaintiff Reardon’s application and obtained a policy of insurance covering his trucking company from plaintiff The Insurance Company of Pennsylvania. The agency accepted payment for the policy from plaintiff Reardon and forwarded its own check to a company which financed insurance premiums. On several occasions defendant agency forwarded accident reports from the insured to plaintiff insurance company. In March 1986 two lawsuits were served upon plaintiff Reardon for injuries allegedly sustained in a traffic accident involving one of Reardon’s insured trucks. At the trial of the case now before us, Rear-don testified he spoke by telephone with defendant Byrne about these lawsuits and Byrne represented to Reardon that he would “take care of it” if Reardon would mail them to him. Reardon sent the complaints to Byrne via certified mail and received a return receipt showing defendant agency received the complaints on March 28, 1986. In fact, the agency did not forward the complaints to the insurance! company until June, after the lawsuits were already in default. Plaintiff insurance company settled the lawsuits for $72,500 and incurred attorney fees of $7,265.33.

The insurance company joined with its insured in bringing this action against defendants Byrne and the agency, alleging negligence and fraud. Defendants appeal from the jury verdict awarding Rear-don $500 compensatory damages and $50,000 punitive damages and awarding the insurance company $80,000 compensatory damages and $22,500 attorney fees for bad faith and stubborn litigiousness.

1. Defendants’ first enumeration of error asserts they were entitled to directed verdict on plaintiff Reardon’s claim for actual damages. Reardon, himself, did not pay any part of the settlement of the personal injury action. Reardon testified he missed time from work in attending to the matter, costing him annual leave, but did not specify his lost wages. Thus, defendants argue he was not entitled to any award for actual damages. Though plaintiff failed to present evidence of special damages, the facts support the jury’s verdict in favor of plaintiff and, therefore, some award of nominal, general damages is also supported. See Avery v. K.I., Ltd., 158 Ga. App. 640 (281 SE2d 366) (1981); Georgia Power Co. v. Womble, 150 Ga. App. 28, 32 (3) (256 SE2d 640) (1979). Defendants were not entitled to a directed verdict on plaintiff Reardon’s claim for actual damages. See Ackley v. Strickland, 173 Ga. App. 784 (328 SE2d 549) (1985)

Decided September 4, 1990.

Fierman & Noland, Martin L. Fierman, for appellants.

Darroch & Obenshain, Robert M. Darroch, Jay L. Drew, Cynthia B. Smith, for appellees.

2. The trial court’s denial of defendants’ motion for directed verdict on plaintiff Reardon’s claim for attorney fees was harmless error since the jury did not award attorney fees to Reardon. See Ramsey Brick Sales Co. v. Outlaw, 152 Ga. App. 37 (4) (262 SE2d 227) (1979).

3. Defendants next argue they were entitled to directed verdict on plaintiff Reardon’s claim for punitive damages. Having ruled in Division 1, above, that Reardon was entitled to recover the jury’s award for nominal damages, defendants’ argument that punitive damages cannot be awarded where no actual damages are shown thus fails. We reject defendants’ argument that punitive damages are not recoverable in this case because plaintiffs’ damages arose out of a breach of contract. Exemplary damages are not allowable in cases arising on contracts, but where the gravamen of the action is the negligent breach of duty owed by defendant to plaintiff, the case does not sound in contract. Plaintiffs’ amended complaint alleged negligence, breach of fiduciary duty and fraud. Although defendants denied plaintiffs’ allegations, sufficient evidence was presented from which the jury could find wilful or wanton misconduct in the handling of Reardon’s claim. Punitive damages may be awarded for the wilful or wanton negligent acts of an insurance agent. See Speir Ins. Agency v. Lee, 158 Ga. App. 512, 514 (3) (281 SE2d 279) (1981). The trial court did not err in denying defendants’ motion for directed verdict on plaintiff Reardon’s claim for punitive damages.

4. Neither did the trial court err in denying defendants’ motion for directed verdict on the claims of plaintiff insurance company. Defendants argue they acted only on behalf of Reardon, the insured, and were not agents of the insurance company. While an independent insurance agent or broker is normally considered the agent of the insured, it can also be a dual agent for both the insurer and the insured. See National Property Owners Ins. Co. v. Wells, 166 Ga. App. 281 (2) (304 SE2d 458) (1983). Evidence was presented that the agency collected premium payments from the insured, issued a notice of policy expiration and prepared accident notices for this and other accidents reported by the insured showing the agency as the “producer.” Under the circumstances of this case it cannot be said that the agency owed no duty to the insurance company to use reasonable care to forward suit papers from the insured in a timely manner.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A1066.
    McCLANAHAN v. THE STATE.
    (397 SE2d 24)
   Beasley, Judge.

Defendant, convicted of aggravated assault, OCGA § 16-5-21 (a) (2), appeals contending he was deprived of his Sixth Amendment rights to speedy trial and effective assistance of counsel.

Defendant was indicted in February 1987. On August 21, 1989, he filed a motion to dismiss based on the Sixth Amendment and “similar provisions” of the Georgia Constitution, which was denied on August 28.

The verdict of the jury and sentence of the court, dated August 31, 1989, were filed on September 5. On September 1, defendant filed a motion for new trial challenging the sufficiency of the evidence.

New counsel, who is also appellate counsel, filed an “Amended Motion for New Trial” on January 19, 1990, alleging that failure of trial counsel to file a demand under OCGA § 17-7-170 constituted ineffective assistance of counsel. No evidentiary hearing was requested. The court’s order denying the motion was filed that same day; it is the order specified in the February 15 notice of appeal.

1. “Even without a motion to dismiss the appeal, it is the duty of the reviewing court to entertain the threshold question of its jurisdiction where there may be any doubt. [Cits.]” Shirley v. State, 188 Ga. App. 357 (373 SE2d 257) (1988); Royal v. State, 189 Ga. App. 756 (1) (377 SE2d 526) (1989).

The motion for new trial was filed before the judgment was entered, making it void. Joiner v. Perkerson, 160 Ga. App. 343 (1) (287 SE2d 327) (1981). However, “the effect of the subsequent entry of a judgment on the jury’s verdict is to render the otherwise void motion one which was only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal.” McKeever v. State of Ga., 189 Ga. App. 445, 446 (375 SE2d 899) (1988). Consequently, the order denying the motion, as amended, entered on January 19 was timely appealed.

2. Defendant enumerates error in the trial court’s denial of his motion to dismiss for lack of a speedy trial. Unspecified state constitutional grounds were only mentioned in the motion before the trial court, the enumeration addresses only the federal Sixth Amendment, and for these reasons the latter is all we consider. Statutory rights under OCGA § 17-7-170 are not involved.

“ ‘ “In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated: ... (a) [t]he length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. . . . The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.” [Cit.] As to the prejudice factor there are “three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.” (Cit.); (Cit.).’ Heinen v. State, 186 Ga. App. 373, 374 (367 SE2d 275) (1988) .” Roundtree v. State, 192 Ga. App. 803 (1) (386 SE2d 548) (1989) ; Ould v. State, 186 Ga. App. 55, 56 (2) (366 SE2d 392) (1988) (physical precedent).

(a) Length of delay. Nearly thirty-five months elapsed between defendant’s arrest and trial. While three years is hardly speedy for the charge, even longer delays have been found not to violate the right. “ ‘[M]ere passage of time is not enough, without more, to constitute a denial of due process.’ ” State v. Fields, 137 Ga. App. 726, 727 (224 SE2d 829) (1976); Roundtree, supra.

(b) Reason for delay. There was no evidence of a deliberate delay by the prosecution. Rather, because defendant was on bail, the prosecutor placed emphasis on trying jailed defendants first. In addition, counsel for defendant had discussed the case with the prosecutor several times, requesting that it be dead docketed. He told her he was in no hurry to try the case. The victim was a foreigner who had moved out of state and counsel believed there would be difficulty in locating him.

Also, defendant’s case had repeatedly been transferred to different judges and prosecutors had changed. Eventually, the case was assigned to the thirteenth Fulton County superior court judge, who had not been appointed due to litigation. These cases were handled by different sitting and visiting judges as time allowed.

(c) Assertion of right. Delay by the defendant in asserting his right can weigh against him. Haisman v. State, 242 Ga. 896, 898 (2) (252 SE2d 397) (1979). Defendant sat on his right for two-and-a-half years.

(d) Prejudice to defendant. Defendant was not incarcerated and expressed no extreme anxiety about the charges. Although he alluded to witnesses who were no longer available to him as a result of the delay, he did not know and had made no effort to find out their last names, much less their location.

Decided September 4, 1990.

Robert G. Fierer, for appellant.

Lewis R. Slaton, District Attorney, Doris L. Downs, Joseph J. Drolet, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Considering all the factors, the trial court did not abuse its discretion in denying the motion.

3. There having been no request for an evidentiary hearing on the issue of ineffectiveness of counsel when raised in the amended motion for new trial filed by appellate counsel, that issue is waived. Johnson v. State, 259 Ga. 428, 429 (3) (383 SE2d 115) (1989); Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988).

Judgment affirmed.

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


text:
    A90A1072.
    SANDERS v. ROBERTSON et al.
    (397 SE2d 26)
   Beasley, Judge.

The Robertsons sued general contractor Sanders and architect Coleman for the negligent design and construction of a residence, seeking $45,612. A verdict was directed for Coleman and the jury awarded $30,000 against Sanders. Sanders contends that the Robert-sons did not prove what damages were caused by him and that the jury verdict was not authorized by the evidence.

1. The plaintiffs presented evidence showing they paid a total of $45,612 for structural repairs to the house necessitated by Sanders’ negligent construction, engineering consultant’s fees, interest and closing costs on loans made to pay for these structural repairs, additional interest paid as a result of delays caused by Sanders, and payments for nonstructural, cosmetic repairs of defects and incompletions attributable to Sanders. Expert evidence authorized the jury to conclude that all of the appellees’ damages were incurred through Sanders’ negligent failure to possess and exercise the appropriate standard of care and skill in his occupation, by not following the architect’s plans or recognizing certain inadequacies in the plans. There was also evidence that eighty percent of the appellees’ total damages were solely attributable or apportionable to Sanders.

The measure of damages for the correction of “faulty” work is the amount necessary to repair the defective workmanship; for delay in the performance of a contract, damages usually are for loss of the use of the property involved, for which the injured party may recover damages based on interest on the value of the property. Doughty v. Simpson, 190 Ga. App. 718 (2) (380 SE2d 57) (1989). “[J]urors are not absolutely bound to accept as correct the opinions of witnesses as to the value of property, though uncontradicted by other testimony. The jury has the right to consider the nature of the property involved, together with any other facts or circumstances properly within the knowledge of the jury which throws light upon the question and by their verdict they may fix either a higher or lower value on the property than that stated in the opinions and estimates of the witnesses. [Cits.] The jury is not compelled to accept the testimony of an expert witness as to value even where there is no other evidence of facts and data upon which the jury might base an independent conclusion. [Cits.]” Gwinnett Commercial Bank v. C & S Bank, 152 Ga. App. 137, 140-141 (1) (262 SE2d 453) (1979).

Decided September 4, 1990.

Martin S. Jackel, for appellant.

George M. Rountree, C. Grant Washington, for appellees.

“Unless a jury verdict is palpably unreasonable or excessive, or the product of bias, it will not be disturbed on appeal. [Cits.] In this case the amount awarded is less than that shown by the evidence and therefore cannot be said to be palpably unreasonable or excessive, nor is there any showing that it was influenced by bias. The trial court did not err in sustaining the verdict. . . .” Thompson Enterprises v. Coskrey, 168 Ga. App. 181, 186 (3) (308 SE2d 399) (1983). It follows that “the case was not subject to directed verdict on the ground of failure to prove damages. [Cits.]” Godowns v. Cantrell, 186 Ga. App. 100, 101 (366. SE2d 415) (1988).

2. Appellees have moved for the imposition of an award of damages for frivolous appeal pursuant to OCGA § 5-6-6. As we agree that there was no arguable merit to the appeal and it appears to have been brought for purposes of delay only, appellees are awarded an additional ten percent damages, which the trial court is directed to add on remittitur. Phillips v. Plymale, 191 Ga. App. 338 (3) (381 SE2d 580) (1989). Accord Butler v. First Family Mtg. Corp., 191 Ga. App. 360 (2) (381 SE2d 551) (1989); White v. Hardegree, 190 Ga. App. 275 (3) (378 SE2d 877) (1989).

Judgment affirmed.

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


text:
    A90A1075.
    WALKER v. THE STATE.
    (397 SE2d 28)
    Decided September 4, 1990.
   Banke, Presiding Judge.

The appellant was convicted of one count of selling methamphetamine, one count of delivering cocaine and three counts of selling cocaine in violation of the Georgia Controlled Substances Act. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that he was entitled to a directed verdict of acquittal on all five counts due to the absence of proof that he was a direct participant in any of the transactions. Although the appellant, who operated a limousine service, was not physically present when any of the transactions took place, the deliveries in question were made by two of his employees, and these employees testified that they had been acting at the appellant’s direction at the time. Construed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the appellant was a party to each of the five offenses within the contemplation of OCGA § 16-2-20. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellant contends that the trial court erred in admitting, as similar transaction evidence, testimony concerning his prior procurement of cocaine for his own use. The evidence in question consisted of testimony by the appellant’s limousine driver recounting several past occasions when he had purchased cocaine for the appellant and delivered it to him while on duty. This witness had also made the deliveries involved in four of the five transactions charged in the indictment. While the ultimate purchaser in each of the latter transactions had been an undercover police officer rather than the appellant himself, the prior transactions were otherwise similar to the transactions for which the appellant was on trial in that each was conducted at the appellant’s direction, each involved the use of the limousine, and each involved the use of a beeper to contact the driver. Moreover, the supplier of the drugs for two of the prior transactions was the same individual who had supplied the drugs for four of the five transactions charged in the indictment. Under the circumstances, we hold that the prior offenses were sufficiently similar to the offenses for which the appellant was on trial to be admissible as evidence of his involvement therein. See generally Millwood v. State, 164 Ga. App. 699 (1) (296 SE2d 239) (1982).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Notte & Bianco, Guy J. Notte, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Scott A. Smeal, Assistant District Attorneys, for appellee.


text:
    A90A1087.
    CROWDER v. THE STATE.
    (397 SE2d 29)
   Carley, Chief Judge.

Appellant and four others were co-indicted for several counts of forgery, attempted forgery, and financial credit card theft. Two of appellant’s four co-indictees pled guilty prior to trial. Appellant and the two remaining co-indictees were jointly tried before a jury and found guilty of all but one count. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Appellant enumerates as error the admission into evidence of the statement of one of his co-defendants who did not testify. This enumeration of error is controlled • adversely to appellant by this court’s opinion in the appeal of one of his other co-defendants. Willingham v. State, 195 Ga. App. 595 (394 SE2d 393) (1990.)

2. Appellant’s enumeration of error as to the denial of his motion to sever his trial from that of his co-defendants is likewise controlled adversely to him by Willingham v. State, supra at 597 (5).

3. One of the co-indictees who pled guilty prior to trial testified on behalf of the State. In an unresponsive answer to a question asked on direct examination, the co-indictee mentioned that she had been smoking crack cocaine when she first met the other four members of the conspiracy. Appellant’s motion for mistrial was denied and, although the co-indictee had implicated the character of no one other than herself, the trial court nevertheless gave curative instructions to the jurors that they should disabuse themselves of any reference to illegal drugs and give no consideration to it in their deliberations. Under these circumstances, it was not error to deny appellant’s motion for mistrial. Willingham v. State, supra at 596 (3).

4. The co-indictee did make two subsequent references in her testimony to “getting high” with appellant. In each instance, the trial court denied appellant’s renewed motion for mistrial, but in neither instance did the trial court repeat the curative instructions that it had formerly given. The denial of these two subsequent motions for mistrial is also enumerated as error.

Although the co-indictee may have mentioned appellant by name in connection with “getting high,” she did not indicate that illegal drugs were necessarily involved. In any event, the co-indictee’s comment regarding “getting high” was not so inflammatory as to warrant our holding “that the trial court erred by denying [appellant’s] motion[s] for mistrial. [Cit.] Moreover, [even if] the court should have [again] instructed the jury to disregard the answer of the witness, we find that, in this case, it is highly probable that testimony that appellant [was “getting high” with the witness] did not contribute to the verdict. [Cit.] Thus we find no reversible error.” Felker v. State, 252 Ga. 351, 366 (8) (314 SE2d 621) (1984).

Decided September 4, 1990.

Altman, Lane & Lilly, V. Gail Lane, for appellant.

J. Brown Moseley, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

Judgments affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    A90A1090.
    BOZEMAN v. THE STATE.
    (397 SE2d 30)
   Banke, Presiding Judge.

The appellant brings this appeal from his conviction of possessing methamphetamine in violation of the Georgia Controlled Substances Act.

The contraband was seized from an automobile occupied by the appellant and two companions. The arresting officer testified that he observed the vehicle parked in a remote area of a Holiday Inn parking lot at about 4:45 a.m., while on routine patrol. The officer approached the vehicle, ordered the appellant, who was seated behind the steering wheel, to get out, and asked him what he was doing there. Unsatisfied with the appellant’s response that he was waiting for his girl friend, the officer then called for a back-up unit, opened the door to the passenger side of the vehicle, and asked the appellant’s companions to get out. Upon doing so, he observed a bag containing methamphetamine or “crank” in plain view inside the vehicle. Based on this discovery, he arrested all three men for possessing methamphetamine. The vehicle was then searched, resulting in the discovery of various types of drug paraphernalia. Although both of the appellant’s companions were indicted along with him, only one of them appeared for trial. Held:

1. The appellant contends that the trial court erred in denying his motion to suppress the methamphetamine as the fruit of an unlawful search. We disagree. The officer testified that numerous other crimes had occurred in the area; and we believe his observance of the appellant and his companions sitting for no apparent reason in a parked automobile in a remote part of a motel parking lot located in a “high crime area” at 4:45 a.m. was sufficient to excite a reasonable suspicion that criminal activity might be afoot. Consequently, we hold that the officer was authorized to conduct a brief on-the-scene investigative detention pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), to maintain the status quo while asking the three men what they were doing there. Upon doing so, he observed the contraband in plain view inside the vehicle. As recently stated in the United States Supreme Court in Horton v. California,_U. S. —, (110 SC 2301, 110 LE2d 112) (1990), “[i]f an article is already in plain view, neither its observation nor its seizure [involves] any invasion of privacy. . . .” We accordingly hold that the trial court did not err in denying the appellant’s motion to suppress.

2. The appellant complains that the trial court failed to instruct the jury that they were to consider and apply the evidence separately as to each defendant. However, an examination of the transcript reveals that the court did in fact give such instructions. Accordingly, this enumeration of error is without merit.

3. Relying on Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), the appellant contends that the trial court erred in allowing the arresting officer to testify that other crimes had occurred in the area where the arrest occurred. However, unlike the testimony at issue in Momon, the testimony at issue in this case did not involve hearsay, and its only purpose was to explain the officer’s conduct. Accordingly, this enumeration is also without merit.

4. The appellant contends that the trial court erred in allowing the officer to testify that he had ascertained that the appellant was not registered at the motel and had not applied for a room there. An examination of the transcript reveals that the judge in fact sustained the appellant’s objection to this testimony on hearsay grounds. As the appellant made no further objection and did not move for a mistrial, this enumeration of error establishes no ground for reversal.

5. The trial court did not err in excluding evidence of a confession which had been made by the co-defendant who failed to appear at trial. “Statements made by another person to the effect that he, and not the accused, was the actual perpetrator of the offense are not admissible in favor of the accused at his trial, and the same principle applies to the admission of confessions by one who was jointly indicted with the accused. [Cits.] The inaccessibility of the person making the confession does not alter the rule.” Vaughn v. State, 171 Ga. App. 261, 262 (2) (319 SE2d 97) (1984).

6. Likewise, the court did not err in refusing to give a jury instruction on the equal access rule. “ ‘The (equal access) rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband. (Cits.) It is simply a defense available to the accused to whom a presumption of possession flows. Because the state did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.’ [Cit.]” Akins v. State, 184 Ga. App. 441 (1) (361 SE2d 707) (1987).

Decided September 4, 1990.

Mullins, Whalen & Shepherd, Samuel H. Sullivan, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

7. The appellant contends that the court erred in charging the jury on conspiracy. It is axiomatic that a conspiracy may be proved although not alleged in the indictment, see Hart v. State, 185 Ga. App. 141 (1) (363 SE2d 599) (1987); and “where the evidence in a criminal case shows that two or more persons were concerned in the commission of an alleged crime, it is not harmful error for the trial court to charge . . . the jury on the law of conspiracy.” Battle v. State, 231 Ga. 501-502 (202 SE2d 449) (1973). Accordingly, this enumeration is also without merit.

8. Based on our review of the transcript, we reject the appellant’s contention that the trial court impermissibly commented on the evidence while summarizing to the jury the contentions of the parties.

9. The evidence presented at trial was sufficient to enable a rational trier of fact to find the appellant guilty of possessing methamphetamine beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1101.
    TORRES v. THE STATE.
    (397 SE2d 33)
   Banke, Presiding Judge.

The appellant was stopped by a state trooper while driving on I-95 in Bryan County and was given a warning ticket for improper lane usage. The trooper then searched the appellant’s vehicle pursuant to the appellant’s written consent and discovered over 500 grams of cocaine hidden behind the back seat. The trooper testified that following this discovery and after being advised of his Miranda rights, the appellant made a statement indicating that he had been aware of the presence of the cocaine. The appellant was convicted of trafficking in cocaine and brings this appeal from the denial of his motion for new trial. Held:

Decided September 4, 1990.

Jack E. Carney, Jr., for appellant.

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

1. The appellant contends that the trial court erred in failing to instruct the jury that the state had the burden of proving beyond a reasonable doubt that he had made the incriminatory statement freely and voluntarily, after being advised of his Miranda rights. This enumeration of error is without merit. The voluntariness of an in-custody statement need only be established by a preponderance of the evidence in order to be considered by the jury. See Jones v. State, 245 Ga. 592, 598 (4) (266 SE2d 201) (1980); Lawrence v. State, 241 Ga. 36, 38 (243 SE2d 78) (1978). The trial judge’s instructions on this issue were in harmony with the Suggested Pattern Jury Instructions of the Council of Superior Court Judges of Georgia (Vol. II, Criminal Cases, pp. 40-43). Cf. Leeks v. State, 255 Ga. 69 (1) (335 SE2d 387) (1985). The jury was repeatedly instructed that the state had the burden of proving the defendant’s guilt beyond a reasonable doubt, and there is no reasonable possibility that the charge complained of could have confused them in this regard.

2. The appellant contends that he was entitled to a charge on equal access, based on the possibility that the contraband might have been placed behind the back seat by a passenger who had been present with him in the vehicle at the time he was stopped and who was indicted and tried with him as a co-defendant. However, there was no evidence suggesting that this co-defendant had been in a position to place the contraband in the vehicle without the appellant’s knowledge, and the trial court in fact directed a verdict in his favor due to the lack of any evidence connecting him to the contraband. Thus, there was no evidentiary basis for a charge on equal access. Cf. Mendez v. State, 185 Ga. App. 1 (1) (363 SE2d 262) (1987).

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

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1110.
    MULLINAX v. DOUGHTIE et al.
    (396 SE2d 919)
   McMurray, Presiding Judge.

Chris S. Doughtie, R. W. Williams and J. Randall Garner (plaintiffs) brought an action against Yvonne Mullinax d/b/a Yvonne Mullinax Personnel Service (defendant) to recover unpaid rent, allegedly due as a result of defendant’s breach of a commercial lease agreement. Defendant denied the material allegations of the complaint and counterclaimed, alleging that a lack of proper ventilation in the leased premises caused an unsuitable working environment which forced defendant to move her offices and resulted in “damages in the amount of $1,600 moving costs, $34,000 in lost profits in 1988 and $75,000 in lost business opportunities.” The case was tried before a jury and the evidence revealed the following:

On February 27, 1987, defendant entered into a lease agreement with plaintiffs and agreed to pay monthly installments in exchange for use of the leased premises for “General Office” purposes. In March of 1987, defendant moved into the leased premises and began conducting business as an employment agency.

Thomas Gray Williams III was a salesman for defendant and defendant relied upon Mr. Williams for a significant volume of her business. Mr. Williams complained to defendant about the stagnant air in the office, a product of defendant and another employee’s heavy cigarette consumption, and he asked defendant to stop smoking. Defendant refused to stop smoking and she attributed the odious and stagnant office environment to poor air conditioning ventilation.

In a letter dated July 7, 1987, defendant informed plaintiffs that “ [t]he air conditioner is able to maintain a comfortable level of cool but [that] the air is so stale and odious that it is unbearable.” In a letter dated August 7, 1987, a representative for plaintiffs informed defendant that they “have hired Joel Granade, architectural engineer, to examine the heating/air conditioning in [defendant’s] office [and that defendant will be notified within] ten days ... of what improvements will be done, and when it will be done.”

Joel Granade inspected the system and “told [plaintiffs] that the air conditioning system was performing as it was intended to. [Mr. Granade] felt that to correct [defendant’s] complaints or concerns was upgrading the system and he gave [plaintiffs] specifications . . . to modify the system and [an air conditioning contractor] came up with a price which [plaintiffs] quoted to [defendant] of $4,870.” Defendant refused to pay for the modifications.

In July 1988, Thomas Gray Williams III gave up his position with defendant, explaining that “there were several reasons [for his resignation], but [that] the main reason was the smoking environment being intolerable.” Shortly thereafter, defendant vacated the leased premises and refused to pay the rent. The jury returned a verdict for plaintiffs “ ‘in the amount of $22,680 plus $1306.97 interest plus $1602 attorney fees . . .’” and defendant appeals. Held:

1. Defendant first contends the trial court erred in denying her motion for directed verdict, arguing that the lease agreement was not enforceable because the air conditioning “system design was inadequate to meet [her] needs.” More specifically, defendant argues that “there was no meeting of the minds as to what was required and what would be delivered [and, in this vein, she contends that] there was, at most, a conditional acceptance of the premises [and that a] complete acceptance could only occur when the [plaintiffs] requested and received such acceptance or when [defendant] had an opportunity to determine that she had received all that she had bargained for.” In support of this argument, defendant places significance on the deletion of an “ ‘as is’ acceptance” paragraph in plaintiffs’ form lease contract, reasoning that the absence of such language from the lease authorized her use of the office space on a trial basis to verify if it was what she intended and, if not, then she could revoke her acceptance, rescind the contract or terminate the contract for “failure of consideration.” Alternatively, defendant argues that it was plaintiffs’ duty to modify the air conditioning system because it would “necessarily enhance the value of the property.” These arguments are without merit.

“ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. (Cits.)’ Carver v. Jones, 166 Ga. App. 197, 199 (3) (303 SE2d 529) (1983). ‘The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard. (Cits.)’ United Fed. &c. Assn. v. Connell, 166 Ga. App. 329, 330 (1) (304 SE2d 131) (1983).” State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377 (1) (364 SE2d 62).

In the case sub judice, the evidence authorized findings that defendant agreed to pay monthly installments for a designated period of time in exchange for the use of plaintiffs’ office space; that plaintiffs provided the office space and that the office space was suitable for its intended use, “General Office” purposes. More particularly, the evidence showed that plaintiffs had responsibility under the lease agreement to maintain and repair the heating and cooling system at defendant’s office and that plaintiffs fulfilled this obligation by providing an air conditioning system which functioned as it was intended — heating, cooling and ventilating air. On the other hand, there is no evidence indicating that plaintiffs agreed to provide defendant with a ventilation system which would purge heavy cigarette smoke from the air. In fact, defendant points to no evidence, and we find none, which would authorize a finding that such a ventilation system is standard equipment in commercial real estate intended for “General Office” purposes. Consequently, since defendant failed to make payments to plaintiffs according to the lease agreement, the jury’s verdict was authorized and the trial court did not err in denying defendant’s motion for directed verdict.

2. Next, defendant contends the trial court erred in failing to admit a certified copy of an administrative hearing officer’s decision to affirm the denial of Thomas Gray Williams Ill’s application for unemployment compensation. Defendant argues that the trial court’s failure to admit the administrative law judge’s findings of fact was harmful error because it corroborated much of Mr. Williams’ testimony.

“[Ejvidence wrongfully withheld is harmless where admissible evidence of the same fact is introduced. [Cits.]” Patrick v. State, 150 Ga. App. 266 (1), 267 (257 SE2d 356). In the case sub judice, since the administrative law judge’s decision was offered only to corroborate evidence already before the jury, we find no harmful error.

3. In her third enumeration, defendant contends the trial court erred in excluding a letter she prepared and posted to the leasing agent who negotiated the lease agreement between plaintiffs and defendant. The trial court excluded this evidence because “[t]he contents of the letter have already been testified to in full.”

Defendant does not challenge the trial court’s finding that the contents of the letter were cumulative. Instead, she argues that the letter was “important to [her] credibility. ...” This argument is without merit for the reason stated in Division 2 of this opinion.

4. In her fourth enumeration, defendant contends “[t]he trial court erred in directing a verdict against [her] claim of total failure of consideration, rejection of the premises or constructive eviction.” Much of the argument which supports this enumeration is cumulative of the argument which supports defendant’s first enumeration and, for the reasons stated in Division 1 of this opinion, we find it fruitless. However, defendant newly argues that the trial court erred in finding that the evidence was insufficient to support her defense of constructive eviction.

“When a rented building becomes untenantable by reason of the lessor’s breach of the obligation to repair, there is said to be a constructive eviction such as will relieve the tenant of rent.” George A. Pindar’s Georgia Real Estate Law & Procedure, Vol. 1, § 11-49, p. 470 (3rd ed.). It is undisputed, in the case sub judice, that defendant’s heating and cooling system was not in need of repair. On the contrary, it was operating as intended. Further, we are directed to no evidence which could possibly support a finding that plaintiffs had a duty to provide defendant with an air conditioning system which purges heavy cigarette smoke and odors from the air. Consequently, since the undisputed evidence shows that defendant’s heating and cooling system was operating as intended and since defendant points to no evidence which could authorize a finding that plaintiffs had a duty to provide her with a more advanced air conditioning system, the trial court did not err in excluding the defendant’s constructive eviction defense.

5. Defendant contends in her fifth enumeration that the trial court erred in directing a verdict against her on her counterclaim. We do not agree.

Defendant’s counterclaim was wholly dependent upon proof of the allegation that plaintiffs breached a duty to provide an air conditioning system which would clean defendant’s smoke-permeated office. This allegation was also the basis of defendant’s defense to plaintiffs’ breach of contract claim since the jury returned a verdict for plaintiffs on their breach of contract claim, it follows that the jury rejected defendant’s contention that plaintiffs had a duty to modify the defendant’s air conditioning system. Consequently, even if the trial court erred in directing a verdict on defendant’s counterclaim, the error was harmless since the jury found that plaintiffs breached no duty in failing to modify defendant’s air conditioning system.

6. In a sixth enumeration, defendant contends “[t]he trial Court erred in charging the jury on the duty of the Landlord to repair and failure of the Landlord to repair.” Defendant argues that this charge was not adjusted to the evidence.

“A ‘charge touching on a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal. Weaver v. State, 67 Ga. App. 692 (2b) (21 SE2d 542) (1942)’ Davis v. State, 167 Ga. App. 701 (1), 702 (307 SE2d 272).” Green v. State, 190 Ga. App. 130 (1), 131 (378 SE2d 178). In the case sub judice, we have examined the trial court’s charge on a landlord’s duty to repair and find nothing which could have misled the jury. This enumeration is without merit.

7. Lastly, defendant contends “[t]he trial Court erred in failing to charge the jury on rescission by mutual mistake of fact.”

Defendant failed to make a written request to charge on “rescission by mutual mistake of fact.” “Unless the failure to give a charge is harmful as a matter of law to the extent that a gross miscarriage of justice is about to result, the absence of a written request is a waiver of the right to complain on appeal. Williams v. Kennedy, 240 Ga. 163 (2) (240 SE2d 51) (1977).” Gaines v. Crompton & Knowles Corp., 190 Ga. App. 863, 868 (12) (380 SE2d 498). In the case sub judice, we find no likelihood of a miscarriage of justice as a result of the trial court’s failure to charge the jury on “rescission by mutual mistake of fact.” This enumeration is without merit.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.

Decided September 4, 1990.

Robert C. Sacks, for appellant.

Davidson & Fuller, Stephen P. Fuller, for appellees.