text:
    A91A1357.
    FORD v. THE STATE.
    (411 SE2d 334)
   Andrews, Judge.

Ford was indicted and found guilty by a jury on one count of burglary. A passing motorist familiar with the burglarized residence notified police after he noticed a man, fitting Ford’s general description and wearing a gray jacket, standing outside the residence at a time when the residents were not home. When police arrived to investigate, they saw Ford standing on the back porch of the house wearing a gray jacket. He ran and was apprehended after a short chase. At the time of his arrest, Ford was carrying a jewelry box containing several items of jewelry. A resident of the burglarized house was contacted, and identified the jacket worn by Ford, the jewelry box, and the jewelry as items stolen from the house on the day of the arrest. At trial, Ford claimed he never entered the house. He testified that an acquaintance of his, who he believed to be doing work at the house for the residents, entered the house and brought out the jacket. Ford claimed he put on the jacket thinking it belonged to his friend, and that, when he accepted the jacket, he was unaware that the jewelry box was in the pocket. Ford’s testimony at trial conflicted with statements he gave to police after his arrest.

1. In his first enumeration of error, Ford contends the trial court erred by refusing to give his requested charge on theft by receiving stolen property because his sole defense was that he was guilty of theft by receiving stolen property rather than burglary. He does not claim that a charge on theft by receiving was required as a lesser included offense of burglary. See Faust v. State, 189 Ga. App. 426, 427 (375 SE2d 889) (1988) (theft by receiving stolen property not a lesser included offense of burglary). A defendant is not entitled to an instruction on an offense for which he is not being tried, and which is not a lesser included offense of the one he is defending. Evans v. State, 252 Ga. 312, 321 (314 SE2d 421) (1984). Given that the jury was properly instructed on the elements of the charged offense of burglary, and the necessity that every element of the offense, including entry, be proved beyond a reasonable doubt, Ford’s defense that he did not enter the house, but rather received goods stolen from the house by someone else, was adequately covered in the charge. There is no merit to Ford’s claim that the refusal to give the requested charge deprived him of his sole defense in the case. Carter v. State, 192 Ga. App. 726, 728 (386 SE2d 389) (1989). Moreover, the evidence did not support the requested charge since Ford did not contend at trial that he knew or should have known the property found in his possession was stolen. Davis v. State, 169 Ga. App. 601, 602 (314 SE2d 257) (1984) (charge on sole defense not required if not authorized by the evidence).

Decided September 30, 1991.

Timothy L. Eidson, for appellant.

David E. Perry, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.

2. In his second enumeration, Ford claims the trial court erred by charging the jury to the effect that, if it found a burglary had been committed, and certain goods were stolen, the unexplained possession of the recently stolen goods is a circumstance, along with all the other evidence, from which guilt may be inferred. This is a correct statement of law (Bankston v. State, 159 Ga. App. 342, 343 (283 SE2d 319) (1981)), supported by the evidence, and the charge was authorized. See Williamson v. State, 248 Ga. 47 (281 SE2d 512) (1981); Myles v. State, 186 Ga. App. 817, 818 (368 SE2d 574) (1988).

The evidence was sufficient for a rational trier of fact to find the defendant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A1520.
    WILLIAMS v. THE STATE.
    (411 SE2d 118)
   Birdsong, Presiding Judge.

Dewight Williams was convicted by a jury of one count of violating the Georgia Controlled Substances Act by possession of cocaine and sentenced to serve eight years in prison. On appeal he contends that the trial court’s failure to require the prosecutor to declare ready or not ready for trial as directed by OCGA § 17-7-172, operated to deny him due process of law by depriving him of the opportunity to change his plea from not guilty to guilty. Held:

The record reveals that Williams was arraigned on March 11, 1991, and his appointed counsel entered a plea of not guilty. The case was called for trial in Brooks County on April 22, 1991, at which time defense counsel announced that Williams was not present because he was purported to be in jail in Valdosta. A bench warrant was issued and Williams was subsequently arrested and brought for trial in Brooks County Superior Court on April 25, 1991. Defense counsel argues in his brief that Williams expressed a desire to enter a plea of guilty to the charge after he was incarcerated on the bench warrant, and that counsel intended to make this announcement on his behalf as soon as court opened on April 25, even though no prior announcement had been made by the State. Whatever his intentions, however, there is no indication in the record that counsel objected to any alleged statutory violation or raised this issue in the court below.

Decided September 30, 1991.

Augustus B. Jones III, for appellant.

H. Lamar Cole,, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

“ ‘ “Where appellant asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal.” (Cit.) Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. (Cit.) Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review. (Cit.)’ [Cits.]” Holland v. State, 197 Ga. App. 496, 497 (1) (398 SE2d 810). At bottom, the complaint here seems to stem from appellant’s perception that he was prejudiced by the denial of his alleged right to plead guilty (but see Harris v. State, 175 Ga. App. 134, 135 (332 SE2d 685)), because he speculates that he might have received a more lenient sentence. This is a question which might be addressed to the appropriate sentence review panel. See Gordon v. State, 190 Ga. App. 414 (1) (379 SE2d 221).

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A91A0773.
    WILLIAMS v. THE STATE.
    (411 SE2d 316)
   Pope, Judge.

Defendant Michael W. Williams appeals his conviction for selling cocaine. This case arises from the alleged sale of cocaine to an undercover Chatham County police officer. The officer to whom the drugs were allegedly sold testified that on the night of July 5, 1989, he was working undercover when he was waved down by Bobby V. Weathers, who was originally a co-defendant, who asked him what he needed. When the officer responded that he was looking for a 20, referring to $20 worth of cocaine, Weathers told him to pull over. The officer parked his automobile almost directly across from a red Chevrolet, in which the defendant was seated. Weathers talked to the defendant and returned to the officer and asked “are you the man,” that is, are you a police officer, which the officer denied. The. defendant was then waved over to the officer’s car by Weathers, and the defendant looked at the officer and said “[t]hat’s the man,” at which point he backed away from the officer’s car. The officer again assured Weathers that he was not “the man.” Weathers obtained an object from the defendant. After further deliberations, Weathers told the officer he would lay the object on the curb and the officer could put his money down beside it. The officer testified he laid down a $20 bill, the serial number of which had been recorded for later identification, and took the object, which was later determined to be cocaine. The officer left the scene and the “take down” team moved into the area and arrested the defendant and Weathers. The officer who arrested the defendant testified the defendant had $1,100 in his left front pocket, including the $20 bill the first officer had left in exchange for the cocaine.

1. The evidence in this case is sufficient to enable any rational trier of fact to find defendant guilty of the offense charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant argues that the charge given by the trial court with regard to possession was misleading and would likely lead the jury to believe that they could convict defendant of the sale of cocaine upon a showing of simple possession. “ ‘It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. (Cits.)’ Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982).” Marshall v. State, 197 Ga. App. 762, 763 (399 SE2d 555) (1990). While the better practice in this case would have been for the trial court to clarify its instruction to the jury upon defense counsel’s urging for a corrective or curative instruction, it is clear when the charge is considered as a whole that the defendant was charged with the sale of cocaine and the State had the burden of proving he sold cocaine beyond a reasonable doubt.

To the extent defendant argues the trial court also erred by not charging the jury on the lesser included offense of possession of cocaine, we find that contention to be without merit. The law is well-settled in this state that the trial judge “in his discretion, [may] charge on a lesser crime of that included in the indictment or accusation. However, his failure to do so, without a written request by the state or the accused, is not error.” State v. Stonaker, 236 Ga. 1, 2 (2) (222 SE2d 354), cert. denied, 429 U. S. 833 (97 SC 98, 50 LE2d 98) (1976). The defendant did not submit a written request to charge on any lesser included crime. Accordingly, the trial court’s failure to charge on possession of cocaine does not constitute reversible error in this case. See State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990).

3. Defendant next contends the trial court erred by refusing to grant the defendant’s motion for a continuance based upon the failure of the State to comply with the mandate of OCGA § 17-7-211 and supply him with a copy of scientific reports identifying the substance defendant was charged with selling. Defendant claims that at trial his counsel moved for acquittal or alternatively for a continuance. The trial court denied that motion. In its order denying defendant’s motion for new trial, the trial court held that the defendant did not move for a continuance and for that reason its failure to grant one to defendant was not error. A review of the record reveals that after moving for acquittal, defense counsel stated: “In the alternative, if the Court doesn’t see fit to grant that motion and exclude the evidence, I think clearly under the statute that we are entitled to ten days prior to trial to receive the notice which the Court saw us get yesterday.” Although defendant’s request could have been clearer, we find that statement is sufficient to constitute a request for a continuance.

The question remains whether the trial court committed reversible error by denying the defendant’s motion for continuance and by allowing the crime lab report and testimony relating thereto to be admitted at trial. Error must be shown to be harmful before it will be deemed to be reversible error. Rutledge v. State, 152 Ga. App. 755 (1) (a) (264 SE2d 244) (1979). Defendant filed a motion seeking a copy of all scientific tests on December 10, 1989. On February 9, 1990, a certificate of service was filed by the State in which the State certifies that a copy of the indictment, the crime lab reports in question, and all Brady material were mailed to defendant on that same day. The trial of this case began on August 29, 1990. Defense counsel stated that he did not receive a copy of the crime lab reports until the day trial began.

OCGA § 17-7-211 provides in pertinent part: “(b) In all criminal trials, felony and misdemeanor, the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal. ... If the scientific report is in the possession of or available to the prosecuting attorney, he must comply with this Code section at least ten days prior to the trial of the case, (c) Failure by the prosecution to furnish the defendant with a copy of any written scientific report, when a proper and timely written demand has been made by the defendant, shall result in such report being excluded and suppressed from evidence in the prosecution’s case-in-chief or in rebuttal.” (Indentions omitted.)

In Rodriguez v. State, 180 Ga. App. 272 (2) (349 SE2d 22) (1986), this court had an opportunity to rule upon a case involving a factual situation similar to the one presented by this case. In that case the defendant contended that the trial court had erred in allowing testimony concerning a crime lab report because that report had not been provided to defendant as required by OCGA § 17-7-211. The record in that case contained a certificate of service by the assistant district attorney indicating that service of the report had been made on defendant’s counsel on October 8, 1984. The trial in that case commenced on December 3, 1984. Id. at 272 (2). We held that “[pjroof of service may be made by certificate of service of an attorney or other proof satisfactory to the court, and when an attorney executes a certificate of service, it shall be prima facie proof of such service. OCGA § 17-1-1 (e) (1) and (2). See also Epps v. State, 169 Ga. App. 157, 158-159 (2) (312 SE2d 146) (1983).” (Emphasis omitted.) Id. at 272-273. In this case, as in Rodriguez, the assistant district attorney’s certificate of service establishes prima facie proof that a scientific report was furnished. Furthermore, because defense counsel stated that he had seen the crime lab reports when he was invited to review the State’s file in this case, there was no resulting surprise or prejudice to defendant from the introduction of this evidence. Hence, the trial court did not commit reversible error by denying defendant’s motion for a continuance and allowing the crime reports and testimony concerning those reports to be admitted at trial. See Driver v. State, 188 Ga. App. 301 (2) (372 SE2d 841) (1988) (holding that the State’s duty to furnish defendants with a copy of the indictment or accusation and a list of the witnesses against him as mandated by OCGA § 17-7-110 is satisfied when the defendant is served by any method prescribed by OCGA §■ 17-1-1); cf. Pridgett v. State, 173 Ga. App. 409, 410 (326 SE2d 581) (1985) (Beasley, J., concurring specially).

4. The defendant’s contention that the trial court erred in admitting a photostatic copy of the $20 bill allegedly used in the commission of the crime into evidence is without merit.

5. Defendant cites no authority for his position that the trial court erred by refusing to instruct the jury that they should not consider the absence of Weathers, who was originally a co-defendant. The record shows Weathers and his counsel were present during the jury selection process, but before trial began, Weathers pleaded guilty. We hold that the lack of an instruction concerning the absence of Weathers at trial in this case does not constitute reversible error.

Decided September 19, 1991

Reconsideration denied October 1, 1991.

Calhoun & Associates, John R. Calhoun, James C. Metis III, for appellant.

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

6. Defendant argues the trial court erred in allowing the State to question a character witness for defendant regarding a pending indictment of the defendant for armed robbery. In State v. Clark, 258 Ga. 464 (369 SE2d 900) (1988), the Georgia Supreme Court delineated the boundaries to be observed by district attorneys when cross-examining a defendant’s character witnesses. It held: “A district attorney must be able to show that the questions posed to the defendant’s character witness were asked in good faith and based on reliable information that can be supported by admissible evidence.” Id. In Clark, the district attorney questioned the character witness concerning information taken from reports submitted by his office investigator but did not have certified copies of the defendant’s record or witnesses who could testify concerning the defendant’s alleged acts. Clark v. State, 186 Ga. App. 106, 110 (366 SE2d 361) (1988). In this case, however, the State presented a certified copy of the defendant’s indictment to show that its inquiry would be based on reliable information. Therefore, the trial court did not err in allowing the prosecutor to cross-examine the defendant’s character witness concerning her knowledge of whether the defendant had been charged with armed robbery. See Nassar v. State, 253 Ga. 35, 36 (4) (315 SE2d 903) (1984).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Carley, Presiding Judge.

text:
    A91A1153.
    PONDER v. THE STATE.
    (411 SE2d 119)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of armed robbery. He filed a motion for new trial, raising the issue of the effectiveness of his trial counsel. After conducting a hearing, the trial court denied the motion for new trial and appellant appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict. His sole enumeration is that he was not afforded effective assistance of trial counsel.

1. “ ‘In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) “that counsel’s performance was deficient,” i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this “deficient performance prejudiced the defense,” i.e., that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Cit.] “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Cit.] The complaining defendant must make both showings. His failure “to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim.” [Cit.] A reviewing court need not “address both components if the defendant makes an insufficient showing on one,” [cit.], nor must the components be addressed in any particular order. [Cit.]’ [Cit.]” Richardson v. State, 189 Ga. App. 113, 114 (375 SE2d 59) (1988).

Appellant first contends that the failure to call two additional defense witnesses is indicative of his trial counsel’s deficient performance. “ ‘The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ [Cit.] The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. ‘[Although appellant did] subpoena his trial counsel to appear at the hearing on his motion for new trial[,] . . . appellant made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.’ [Cit.]” Harris v. State, 198 Ga. App. 503 (1) (402 SE2d 62) (1991), rev’d on other grounds, 261 Ga. 386 (405 SE2d 482) (1991). Indeed, appellant’s trial counsel was never even asked whether she had any reason for not calling the additional witnesses. Thus, there was no showing that the performance of appellant’s trial counsel was deficient.

Moreover, the failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant. McCarthy v. State, 196 Ga. App. 839, 842 (4) (397 SE2d 178) (1990). Because appellant failed, at the hearing on his motion for new trial, to make any proffer of the uncalled witnesses’ testimony, it is “impossible for appellant to show there is a reasonable probability the results of the proceedings would have been different. [Cit.] . . . [I]t cannot possibly be said . . . that . . . the [additional witnesses] would have . . . testified favorably to appellant. . . .” Stamey v. State, 194 Ga. App. 305, 306-307 (1b, c) (390 SE2d 409) (1990). Compare Richardson v. State, supra.

Finally, even accepting the truth of appellant’s unsubstantiated assertions that each of the uncalled witnesses could have authenticated an item of evidence, such testimony would have been merely cumulative. One of those two items of evidence, a photograph, was otherwise authenticated. The other item of evidence, a motel receipt, was of only minimal if any relevance to appellant’s alibi defense in that it would not preclude appellant’s participation in the crime and the alibi defense was otherwise fully presented through another witness.

Decided October 1, 1991.

Kenneth D. Kondritzer, for appellant.

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

2. Although appellant’s trial counsel filed several pre-trial motions, a motion to suppress the clothing and the gun found in appellant’s automobile at the time of his arrest was not one of them. The failure to have filed such a motion is urged as demonstrating that appellant’s Sixth Amendment rights were violated.

The question of whether the admission of reliable-but-illegally seized evidence can ever satisfy the “prejudice” component of the requisite test for ineffectiveness claims appears to be unresolved. See Kimmelman v. Morrison, 477 U. S. 365, 391 (106 SC 2574, 91 LE2d 305) (1986) (Powell, J., concurring). However, it is clearly settled that the mere “failure to file a suppression motion does not constitute per se ineffective assistance of counsel. . . .” Kimmelman v. Morrison, supra at 384.

The record in the instant case clearly shows that if the items seized from appellant’s automobile had “been suppressed, the State under the evidence in this case would still have proven each and every essential allegation of the crime alleged. Furthermore, under the evidence of this case, the search of appellant’s [automobile] was a lawful . . . search and a motion to suppress would not lie. [Cit.]” Solomon v. State, 247 Ga. 27, 30 (1) (277 SE2d 1) (1981). Under the undisputed evidence of record, the inculpatory clothing was found in plain view in appellant’s automobile. See Wiltshire v. State, 191 Ga. App. 426, 427 (1) (382 SE2d 166) (1989). The discovery of these clothes and the fact that appellant and his automobile matched the previously-obtained description of the robber and the getaway vehicle provided probable cause for his arrest as well as the subsequent search. See Cobb v. State, 244 Ga. 344, 348 (4) (260 SE2d 60) (1979). It follows that the ensuing seizure of the gun was the product of a valid search.

3. Appellant’s motion for new trial on the ground of ineffective assistance of counsel was correctly denied by the trial court.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Carley, Judge. Beasley, Judge,

text:
    A91A0729.
    KING v. THE STATE.
    (411 SE2d 278)
   Carley, Judge.

Appellant and two others were co-indicted for conspiracy to traffick in more than 400 grams of cocaine. One co-indictee pled guilty and appellant and the other co-indictee were tried before a jury. Guilty verdicts were returned and appellant appeals from the judgment of conviction and sentence entered by the trial court on the guilty verdict as to him.

1. Although the indictment otherwise clearly charged the crime of conspiracy to traffick in more than 400 grams of cocaine, it erroneously referred to former OCGA § 16-13-31 (c) rather than former OCGA § 16-13-31 (a) (1) (C). However, appellant did not file a demurrer and the misidentification of the applicable statutory provision was no basis for seeking a directed verdict of acquittal. “A motion for a directed verdict of acquittal is not the proper way to contest the sufficiency of an indictment. A motion for a directed verdict of acquittal . . . addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment. [Cit.]” Williams v. State, 162 Ga. App. 350, 351 (291 SE2d 425) (1982).

When the evidence, including appellant’s own in-custody inculpatory statement, is construed most favorably for the State, the evidence was sufficient to authorize a rational trior of fact to find proof beyond a reasonable doubt of appellant’s guilt of conspiracy to traffick in more than 400 grams of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant had subpoenaed a purported alibi witness. When this witness did not appear, appellant moved for a continuance. The trial court denied the motion on the erroneous ground that the witness had not been properly subpoenaed because fees and mileage had not been tendered. “When the subpoena is issued on behalf of ... a defendant in a criminal case, fees and mileage need not be tendered.” OCGA § 24-10-24.

A continuance would not be mandated, however, unless the absent witness’ testimony was material to appellant’s defense. OCGA § 17-8-25. Appellant urged that the absent witness would provide him with an alibi for the period between March 24 and March 26, 1990. However, appellant needed no alibi for that period. Under the evidence, the only overt act in which appellant himself had personally participated occurred on March 29, 1990. It was appellant’s co-indictees, not appellant, who needed alibis for those overt acts which they had allegedly committed during the March 24-26, 1990 period. Since the purported alibi witness was clearly not a material witness, his absence was no basis for the grant of a continuance. See Davis v. State, 153 Ga. App. 433 (265 SE2d 351) (1980).

3. The trial court did not err in denying an oral challenge to the jury array. “Under OCGA § 15-12-162, a challenge to the jury array must be in writing. [Cit.]” Sexton v. State, 189 Ga. App. 12 (2) (374 SE2d 824) (1988).

4. It appears that, by chance, one or more jurors may have seen appellant in the “custody” of police officers outside the courtroom. However, even if appellant had been handcuffed at the time of this occurrence, a mistrial would not be mandated. Morris v. State, 228 Ga. 39, 51 (18) (184 SE2d 82) (1971).

5. Alleging that a variance between the date alleged in the indictment and the date proved at trial was prejudicial to his alibi defense, appellant unsuccessfully moved for a continuance. However, the evidence adduced against appellant included his own uncontroverted in-custody inculpatory statement wherein he admitted his commission of the only overt act in which the indictment had alleged that he had personally participated. This evidence clearly established that, “regardless of the date of the [overt act attributed to appellant,] the alibi did not apply since appellant admitted [his commission of the overt act attributed to him].” Bonner v. State, 192 Ga. App. 721, 722 (2) (386 SE2d 379) (1989). Whatever defenses appellant may have had to his guilt for participation in the conspiracy, alibi obviously was not among them.

6. Appellant submitted written requests to charge on general legal principles applicable in all criminal cases and on what he characterized as his sole defense of alibi. Appellant enumerates as error the trial court’s failure to conduct a pre-argument charge conference as to these written requests to charge.

OCGA § 5-5-24 (b) provides, in part, that the trial court “shall inform counsel of its proposed action upon the requests [to charge] prior to their arguments to the jury. ...” This is a mandatory rule, designed to permit counsel to argue the case intelligently before the jury. Evans v. State, 146 Ga. App. 480, 482 (1) (246 SE2d 482) (1978). The record shows that the trial court in the instant case did err in refusing to adhere to this mandatory rule.

However, the record also shows that appellant’s counsel was not prevented from arguing the substance of any of the requests to charge. Indeed, appellant’s counsel was even allowed to argue the defense of alibi although there was absolutely no evidence to authorize a finding in favor of appellant as to that defense. After this unrestricted argument, the trial court charged on all legal principles contained in appellant’s requests, including the inapplicable defense of alibi. Having been allowed the benefit of argument as to an inapplicable defense and having been given the benefit of an unwarranted charge on that defense, appellant was clearly not harmed by the trial court’s noncompliance with OCGA § 5-5-24 (b). See generally Benson v. State, 164 Ga. App. 19 (2) (295 SE2d 579) (1982). Compare Thompson v. State, 173 Ga. App. 566 (1) (327 SE2d 236) (1985); Evans v. State, supra. Accordingly, although we strongly disapprove of the trial court’s failure to adhere to the mandate of OCGA § 5-5-24 (b), the error was harmless under the particular circumstances of the instant case and does not merit the grant of a new trial to appellant.

7. The trial court sentenced appellant to 30 years and a $500,000 fine. Pursuant to OCGA § 16-13-31 (f), the maximum prison term for the substantive offense of trafficking in cocaine is 30 years. Accordingly, pursuant to OCGA § 16-13-33, the trial court was authorized to sentence appellant to 30 years for conspiracy to traffick in cocaine. However, the trial court was not authorized to impose a fine in any amount against appellant. “[A] conviction for conspiracy under OCGA § 16-13-33 does not authorize the imposition of a fine, and . . . the fine portion of appellant’s sentence must be reversed.” Raftis v. State, 175 Ga. App. 893, 898 (7) (334 SE2d 857) (1985).

Judgment of conviction affirmed and sentence affirmed in part and reversed in part.

Pope, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

Although fully concurring in Divisions 1 through 5 and 7, I concur in Division 6 only because defense counsel was not materially hampered in the closing argument. The court advised, “I don’t know what I’m going to charge them until I hear what you argue to the jury.” Then, after counsel stated that alibi was a defense, the court responded, “If you argue it, I’ll charge it.” When counsel added that the other defense was that the incident did not happen, the court acknowledged this with “Yes, sir. If you rely on it, I’ll charge it. I’m going to listen to what you say and I’m going to try to charge on more principles of law.”

It is clear, then, that these circumstances differ from those in Evans v. State, 146 Ga. App. 480, 482 (1) (246 SE2d 482) (1978) and Thompson v. State, 173 Ga. App. 566 (1) (327 SE2d 236) (1985), where counsel did not know that the court would charge on the particular theories which defendant relied upon. Here, the defendant was permitted to take the lead, and the court followed.

Decided September 3, 1991

Drug violation. Spalding Superior Court. Before Judge Miller.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, for appellant.

W. Fletcher Sams, District Attorney, R. Javoyne Hill, Assistant District Attorney, for appellee.


text:
    A91A1245.
    GREER v. THE STATE.
    (411 SE2d 121)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of possession of cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant enumerates the general grounds.

When the exculpatory evidence is ignored and only that which was inculpatory is considered, the jury was authorized to find that appellant, who had been sitting alone in the driver’s seat of an automobile, fled upon the approach of police officers and that the officers then discovered crack cocaine on and in front of the driver’s seat of the automobile which appellant had just abandoned. This was “evidence of possession sufficient to create a jury question. We conclude that ‘ “[t]he totality of the evidence was sufficient to connect [appellant] to the possession of the drugs. . . . (Cit.)” [Cit.]’ [Cit.] . . . [Therefore], we find that the evidence was sufficient to enable a rational trier of fact to find that appellant was guilty, beyond a reasonable doubt, of possession of [cocaine]. [Cit.]” Griggs v. State, 198 Ga. App. 522, 523-524 (402 SE2d 118) (1991).

2. The trial court’s giving of a charge on flight is enumerated as error.

Appellant relies entirely upon Renner v. State, 260 Ga. 515, 518 (3b), fn. 2 (397 SE2d 683) (1990), wherein the Supreme Court held that it would be error to give a charge on flight in criminal cases tried after January 10, 1991. Although appellant’s trial was held before January 10, 1991, he urges that the substantive holding in Renner should nevertheless be followed. However, the Supreme Court having determined that its ruling was to be applied prospectively only, this court is not at liberty to give it retroactive application. There is no contention that a charge on flight was not otherwise authorized by the evidence or that the charge that was given was erroneous. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided October 2, 1991.

William A. Fears, for appellant.

Tommy K. Floyd, District Attorney, Gregory A. Futch, Charles E. Rooks, Assistant District Attorneys, for appellee.


text:
    A91A1532.
    JENKINS v. THE STATE.
    (411 SE2d 122)
   Birdsong, Presiding Judge.

Michael Anthony Jenkins appeals his conviction for armed robbery, kidnapping, possession of a sawed-off shotgun, possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon. The crimes were committed January 18, 1988. There was evidence that four men entered the tavern managed by the victim Carl Pierce, hollered out Carl Pierce’s name, and abducted him while brandishing weapons. When Pierce was put in the car by his abductors, there was no one in the car; then four men got in the car with him, two in the front seat and two in the back seat. Their vehicle was pursued by Carl Pierce’s brother and others in a truck. The vehicle containing Carl Pierce stopped and Pierce got out and got in his brother’s truck; he had been made to remove his clothes and was wearing only underwear. He and his fellows in the truck followed the abductors onto Interstate 95 and managed to attract the attention of a highway patrol officer, who gave chase to the lead vehicle. The vehicle was stopped and disgorged two persons; one ran into the woods and escaped and one jumped on the hood of the car. The car sped away, but was stopped again by a Georgia highway patrolman, Riner. Officer Riner approached the car and found appellant Michael Anthony Jenkins in the back seat alone. At his feet on the floor of the back seat were found a shotgun, shotgun shells, and credit cards and papers belonging to the victim Carl Pierce. Appellant’s statement was read to the jury; in it, he said he went to the tavern with the others but did not go inside.

Appellant complains that the evidence was insufficient to convict him of these offenses because neither Carl Pierce nor anyone else testified that appellant entered the tavern, or held a gun, or kidnapped Carl Pierce, or robbed him; and that appellant’s mere presence in the back seat where Carl Pierce had been placed in the abductors’ car is insufficient to convict him of these crimes. Appellant also complains of errors in the trial court’s charge to the jury. Held:

1. The victim testified that the abductors kicked in the door of the tavern and called out his name, and that two of them grabbed him and took him to their car. Four people got in the car after he was put in it. He did not recognize any of his abductors. The driver wore a mask; Pierce did not get a good look at the others. It was dark; there was no interior light in the car. Pierce did not see a gun while he was in the car, but he had seen one of the men with a pump gun when they abducted him from the tavern. Another witness who was in the tavern testified that four men came into the tavern, and that three of the men who kicked in the door wore stocking masks. This witness heard “guns ripping back like pump shotguns” and saw two of the men with sawed-off shotguns. Pierce was made to sit in the middle of the back seat between two of the kidnappers. While they were driving and being followed by the victim’s brother and friends in their truck, one of the kidnappers said “Shoot him,” and one said “Put him out.” The car stopped and Pierce was pushed out. A gun was shot back at the truck by someone in the kidnappers’ car and several more shots were fired as the truck pursued the car up 1-95. Officer Riner identified appellant as the person who was sitting in the back seat when the car was finally stopped; appellant was sitting in the middle of the seat or near the passenger side. Officer Riner saw only one gun left in the car. The investigating GBI officer testified he inventoried the car and found a gun in the rear floorboard of the car on the driver’s side. A photograph in evidence shows the shotgun on the floor with barrel pointed to the driver’s side rear door and the stock resting up on the hump of the floorboard, trigger side up. The gun was loaded with three shells.

This evidence is not necessarily to be characterized as entirely circumstantial, and if it is, it is amply sufficient to persuade a rational trier of fact of appellant Jenkins’ guilt of all the offenses charged at the least as a party to the crime (see OCGA § 16-2-20) beyond a reasonable doubt and to the exclusion of every reasonable hypothesis. See OCGA § 24-4-6; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). What is a reasonable hypothesis is generally a question for the jury (see Harris v. State, 236 Ga. 242 (223 SE2d 643)), and we have no yardstick to determine what is a “reasonable” hypothesis save the opinion of the jurors. Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474). On appeal the presumption of innocence no longer obtains; viewing this evidence in favor of the jury verdict as we must, we find there is no reasonable hypothesis exonerating appellant in this series of felonious crimes. Appellant admitted being outside the tavern. Four men abducted Pierce from the tavern; four men put him in the car; two men left the car during the chase but no one else was seen entering the car. Appellant sat in the back in the middle or passenger’s seat, plainly within arm’s reach of the trigger and stock of the shotgun found in the back seat floorboard (see Mitchell v. State, 150 Ga. App. 44, 46 (256 SE2d 652)), and this was the only gun found in the car when it was stopped. We do not experience the great difficulty which appellant suggests exists in tying appellant to these crimes as at least a party, and most likely a direct participant, in all the crimes alleged, and neither, evidently, did the jury. The verdict of guilty as to the crimes charged is well supported by the evidence, and appellant assuredly was not entitled to a directed verdict of acquittal under OCGA § 17-9-1.

2. Appellant contends seven errors were made in the trial court’s charge to the jury. We find the charge to have been full, fair and complete when taken as a whole; it contained correct charges as to presumptions of innocence, burdens of proof and reasonable doubt. Bartlett v. State, 196 Ga. App. 174, 175-176 (396 SE2d 31).

Appellant was not entitled to an additional charge that the presumption of innocence is “in the nature of evidence” and reasonable doubt flows as a presumption from that evidence, as he contends in enumeration 5.

In enumeration 6, he complains of the trial court’s failure to charge that where others had “equal opportunity” to commit the crimes charged, the circumstantial evidence is as consistent with the theory of innocence as with the theory, of guilt, and the defendant cannot be found guilty. See Reed v. State, 127 Ga. App. 458, 459 (194 SE2d 121). In Reed, the question was possession of contraband and others had equal opportunity to possess the contraband to the exclusion of the defendant; but the charge has no application to the crimes in this case. The evidence ties appellant Jenkins to a series of felonious crimes, and if others had opportunity to possess the weapon found in the car, such possession of others was not to the exclusion of appellant; and as a matter of fact, the theory of innocence was not as consistent with the evidence as the theory of guilt.

Appellant does not make clear in his brief what other charges he sought by his Request Nos. 14 and 15. He was not entitled to a charge that the gun found on the rear floorboard of the car was presumed to belong to the driver, for this is not a correct legal principle and is not adjusted to the evidence. And the trial court did not err in charging the State’s request to charge as to “parties to a crime,” for it was well suited to the evidence. Finally, the meaning of “within arm’s reach” as relates to possession of a firearm during the commission of a crime is pretty plain and not a confusing principle to decide; there was evidence in the case placing this weapon definitely within arm’s reach of appellant, specifically the photo exhibit showing the long shotgun with stock and trigger resting up towards the passenger side where evidence placed appellant. The failure to define “within arm’s reach” in the context of this evidence was neither error nor confusing. We find no grounds in the trial court’s charge to reverse the verdict in this case.

Judgment affirmed.

Pope and Cooper, JJ., concur.

Decided October 2, 1991.

Neil L. Heimanson, for appellant.

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


text:
    A91A1553.
    WELLS v. THE STATE.
    (411 SE2d 125)
   Birdsong, Presiding Judge.

Grady Leon Wells appeals from the denial of his motion for discharge and acquittal pursuant to OCGA § 17-7-170 (b). Held:

On April 1, 1990, OCGA § 15-6-3 (7) (C) was amended to reduce the terms of the Glynn County Superior Court from three terms a year commencing on the second Mondays of January, May and September, to two terms a year commencing on the second Mondays of March and September. The amendment was not to become effective until January 1, 1991. On October 31, 1990, the Glynn County Grand Jury returned an indictment charging Wells with committing two counts of burglary on June 7, 1990. Wells filed a demand for speedy trial on November 9,1990; by an order entered May 20, 1991, thé trial court denied Wells’ motion for acquittal and discharge for failure of the State to try him pursuant to OCGA § 17-7-170. Wells contends on appeal that since he filed his demand for trial during the September 1990 term which would have expired on January 14, 1991, prior to the amendment of OCGA § 15-6-3 (7) (C), acquittal and dismissal of the charges was required under OCGA § 17-7-170 (b) because he was not tried by a jury “when the demand [was] made or at the next succeeding regular court term thereafter.”

The record reveals that on May 20, 1991, when the trial court denied the motion for discharge and acquittal from which he now appeals, Wells pled guilty to the indictment. Such an action ordinarily results in a waiver of a defendant’s “right to rely on his demand for a speedy trial,” and a waiver of his right to a trial by jury (see Bennett v. State, 158 Ga. App. 421, 423 (2) (280 SE2d 429)) but Wells states in his brief that by agreement of counsel and order of the trial court also entered May 20, 1991, he was allowed to reserve his right to appeal from the denial of his motion. (Compare Mims v. State, 201 Ga. App. 277 (_ SE2d _).) However, no such agreement or order is exhibited in the documents contained in the record. In his notice of appeal Wells expressly requested the clerk to omit “all motions filed by the defendant except for the demand for trial filed on November 9, 1990. No transcripts of evidence or proceedings will be filed for inclusion in the record on appeal as the court can decide the issue on the record.”

Decided October 2, 1991.

Lane & Crowe, Robert L. Crowe, for appellant.

W. Glenn Thomas, Jr., District Attorney, Joanna Temple, Assistant District Attorney, for appellee.

“These bare assertions in appellant’s brief cannot be considered on appellate review. . . . Accordingly, if he desired that we consider the evidence adduced at the hearing on his [demand for trial] motion, he should have made suitable arrangement to insure that it was transcribed and forwarded to this court. It is a well-established appellate rule that ‘ “(t)he burden is on the appellant to show error by the record, and when a portion of the evidence . . . bearing upon the issue raised by the enumeration of error, is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.” ’ [Cit.]” Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418). In such case, we must assume the judgment below was correct and affirm. Taylor v. State, 197 Ga. App. 678 (2) (399 SE2d 213).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1042.
    PADGETT v. KLAUS.
    (411 SE2d 126)
   Pope, Judge.

Plaintiff Lisa H. Padgett’s left leg was fractured in an automobile collision on November 27, 1983. Defendant Richard M. Klaus, M.D., treated her for that injury from the date of the collision to April 27, 1984. The record shows that immediately upon removal of the cast in early 1984, plaintiff realized her left leg was bowed, causing it to be shorter than the other leg. According to plaintiff, defendant informed her that her condition would improve over time. She claims she did not discover the condition was permanent and would require surgical correction until she was so informed by another physician on December 9, 1987. She filed a medical malpractice complaint against defendant on December 8, 1989, alleging defendant’s representations about her condition were fraudulent. The trial court granted summary judgment to defendant on the ground that the applicable period of limitation was not tolled by the alleged fraudulent acts of defendant and therefore the complaint was barred. Plaintiff appeals.

1. “[The statute of limitation] would not begin to run if the defendant physician had assured [plaintiff] that the injuries which had manifested themselves were only slight or only temporary and assured [her she] would eventually be all right, thereby inducing plaintiff to refrain from making any further inquiry into [her] condition.” Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 774 (1) (278 SE2d 653) (1981). The record shows, however, that defendant gave the plaintiff’s agent, her attorney in another lawsuit which arose out of the automobile collision in which she sustained the injury defendant treated, a written opinion dated May 1, 1984, stating she had a permanent one-half inch leg length discrepancy which could be corrected only by surgery. The record also shows, as noted above, that her physical symptoms were obvious while she was still under the care and treatment of the defendant and, in fact, she sought a second opinion concerning her condition from another doctor before she was last treated by defendant. According to plaintiff, the second doctor agreed with defendant’s diagnosis so that she still did not discover defendant’s alleged negligence.

“The statute of limitation is tolled only if defendant is ‘guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action. . . .’ OCGA § 9-3-96. . . . Once [plaintiff] sought the diagnosis or care of another doctor who informed [her] of the existence of medical problems, [she was] no longer deterred from learning the true facts.” Cannon v. Smith, 187 Ga. App. 434, 436-437 (370 SE2d 529) (1988). This is true even if the other doctor consulted does not diagnose the medical problem as arising from the defendant’s improper treatment. See Shved v. Daly, 174 Ga. App. 209 (329 SE2d 536) (1985). The statute of limitation was not tolled by the defendant’s alleged fraud in this case because the record contains nothing to suggest plaintiff was prevented from learning of defendant’s alleged negligence. See Lasoya v. Sunay, 193 Ga. App. 814 (2) (389 SE2d 339) (1989); Hendrix v. Schrecengost, 183 Ga. App. 201 (2) (358 SE2d 486) (1987).

During the period defendant treated plaintiff she was a minor. She attained the age of majority on September 4, 1984. Thus, because the limitation period was not tolled by fraud, the two-year period of limitation which commenced running once plaintiff reached majority had expired long before she brought this action and the trial court did not err in granting defendant’s motion for summary judgment.

2. The period of limitation in this case was not tolled and expired before the July 1, 1987 effective date of the amendment to OCGA § 9-3-73 (Ga. L. 1987, p. 887, § 2), which defines the period of limitation for medical malpractice actions by minors. Thus, the 1987 amendment to the statute is not applicable to this case. See OCGA § 9-3-73 (g). We need not transfer this case to the Supreme Court to address the trial court’s conclusion that the provisions of OCGA § 9-3-73 which limit the applicability of the tolling statutes of Article 5 of Chapter 3, Title 9 of the Code of Georgia to medical malpractice actions are unconstitutional. First, the statute is inapplicable to the case and therefore that portion of the trial court’s order is merely dicta; second, plaintiff did not raise the issue below.

Decided October 3, 1991.

James C. Carr, Jr., for appellant.

Downey, Cleveland, Parker & Williams, J. Calhoun Harris, Jr., Russell B. Davis, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1587.
    BRIMER v. THE STATE.
    (411 SE2d 128)
   Birdsong, Presiding Judge.

This appeal is by John Benjamin Brimer of the trial court’s denial of his motion to suppress in a prosecution for possession of cocaine, to which Brimer pleaded guilty and the trial court permitted appellant to reserve the right to appeal the denial of his motion to suppress.

On September 23, 1990, the Heard County Sheriff’s Department received an anonymous call alleging that there was a party going on at a certain residence on Cherry Road where underage persons were drinking alcohol and using drugs. Similar calls had been received about such activities at this house in the past. Deputy John Bennaman, who was the senior officer and “supervising officer on duty” that evening, determined to set up a roadblock about 75 yards from the house on the public road between the house and Highway 34, “to protect the public, to keep anybody under the influence of drugs from getting on the public highway [and] killing or maiming anybody.” The roadblock was designed to stop vehicles traveling in either direction; each vehicle was stopped and the driver was asked for his license and proof of insurance and was observed for proof of intoxication.

Appellant was stopped at the roadblock after leaving the house. Deputy Bennaman smelled alcohol on appellant and saw appellant’s eyes were dilated; he asked appellant to get out and take a sobriety test. Another white male sat in the passenger seat of appellant’s vehicle. While another deputy gave appellant a sobriety test, Deputy Bennaman “looked over in the van for any weapons that might be used against us. And as I looked over at the driver’s seat, laying on the floor was a plastic, small plastic pouch with white powder in it; and I confiscated it.” Held-.

1. As to the procedure used by appellant of pleading guilty while reserving the issue of denial of his motion to suppress, see Mims v. State, 201 Ga. App. 277 (410 SE2d 824).

2. Appellant contends on appeal, first, that the roadblock was an improper basis for a lawful search and seizure because it was a mere pretext or subterfuge to stop vehicles and search for drugs such as is condemned in Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294), and was not properly conducted pursuant to the standard which he alleges was established in State v. Golden, 171 Ga. App. 27 (318 SE2d 693).

Georgia courts have held that the police may operate roadblocks for the purpose of checking the legality of the operation of vehicles, “without the necessity of any particularized suspicion of wrongdoing.” Kan v. State, 199 Ga. App. 170 (404 SE2d 281). In Brisbane, supra at 343, the Georgia Supreme Court in dictum expressed disapproval of the use of “license checks” as a subterfuge to stop and search vehicles “when they are under no founded suspicion.” However, that decision involved a random, discriminate stop of a vehicle; in State v. Swift, 232 Ga. 535-536 (207 SE2d 459), involving a roadblock set up at the entrance to Jekyll Island during a rock concert “to check for drivers’ licenses, for car inspection stickers ... for fugitives and for runaways,” (id. at 535), the same court said: “ ‘The state can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness. That this requires a momentary stopping of the traveling citizen is not fatal. Nor is it because the inspection may produce the irrefutable proof that the law has just been violated. The purpose of the check is to determine the present, not the past: is the car, is the driver now fit for further driving? In the accommodation of society’s needs to the basic right of citizens to be free from disruption of unrestricted travel by police officers stopping cars in the hopes of uncovering the evidence of non-traffic crimes (cits.), the stopping for road checks is reasonable and therefore acceptable. . . .’ ” Id., citing Myricks v. United States, 370 F2d 901, 904; and Connor v. State, 130 Ga. App. 74 (202 SE2d 200).

We did not establish, in State v. Golden, supra, specific immutable standards for determining the “reasonability” of a police roadblock, although we did find the roadblock in that case was reasonable. The general factors in State v. Golden were that the procedures did not involve random and arbitrary detention of vehicles, but were organized by experienced superiors for the stopping of all vehicles at the checkpoint, leaving no discretion to officers to focus randomly or discriminately on particular persons; and the stops themselves were minimal and reasonable in terms of time and intrusion. See also Evans v. State, 190 Ga. App. 856, 857 (380 SE2d 332).

We do not find the roadblock in this case was unreasonable or was itself an invasion of Fourth Amendment rights. The deputy ordering and conducting the roadblock was an experienced senior officer, and that night also was the “supervising officer on duty,” who determined that a roadblock was necessary for public safety at that place and time, to determine “whether man and machine meet the legislative determination of fitness” (State v. Swift, supra at 535); this purpose and design was neither unreasonable nor arbitrary in the facts of this case. That his reasons, as “supervising officer on duty,” for establishing the roadblock were founded upon an anonymous tip or hearsay does not give rise to a conclusion that the roadblock was an unreasonable intrusion upon citizens traveling that public roadway. See Holbrook v. State, 177 Ga. App. 318, 320 (339 SE2d 346); see Griggs v. State, 167 Ga. App. 581 (1) (307 SE2d 75). We have held an organized and non-discriminate road check to be not unreasonable where the State failed to introduce any evidence at all as to the manner in which the roadblock was implemented or conducted (Sapp v. State, 188 Ga. App. 700 (374 SE2d 114)), whereas the roadblock here was proved reasonable in purpose and reasonably conducted. The trial court expressly adopted the testimony of Officer Bennaman, whose evidence supports a finding that this roadblock was not a subterfuge or pretext to target appellant. The roadblock was established because of a “founded” concern (see Brisbane, supra) for public safety. We find no reason not to accept the findings of fact of the trial court on the motion to suppress. State v. Swift, supra at 536.

3. Appellant contends the warrantless search of appellant’s vehicle was unlawful because the contraband was not in plain view. According to appellant, “Deputy Bennaman . . . admitted in his testimony that it was necessary for him to lean into the appellant’s vehicle and look around before he actually saw the plastic pouch containing the illegal substance”; and that “the [deputy] testified that it was necessary for him to lean inside the appellant’s vehicle, look inside the driver’s seat, under the driver’s seat, and over between the driver’s seat and passenger seat before he actually saw the contraband.” (Emphasis supplied.)

We find this characterization of the evidence to be over-zealous. The deputy did not, as appellant contends, testify that he leaned into the vehicle or that it was “necessary for him to lean inside the vehicle, lean inside the driver’s seat, under the driver’s seat, and over between the driver’s seat and passenger seat before he actually saw the contraband.” He testified: “I leaned over looking in the van for any knife or gun or weapon that could be used against us. [The bag of white powder] was laying on the floorboard in plain view.” The trial court then asked the deputy: “Did you actually get in the van?” The deputy replied: “No, sir.” “You leaned in and looked?” “Yes, sir.” Then, asked if he had to lean in the van and look around the seat, the deputy answered: “I looked over on the floor for any knife or gun, and [the bag] was laying — It was not covered up, wasn’t concealed. It was just laying there.” He further testified: [The] passenger was sitting in the passenger seat. The driver’s door was open. I was at the driver’s door, and I was looking in the van around the front seat any place the passenger could reach ... if he was in the vehicle.” Bennaman also testified: “And it is our general policy to check any place anybody in the vehicle could reach for a weapon for our safety. . . . As I walked up to the van, I looked in the front of the driver’s seat, looked under, looked over between the seats, and it laid right along side the seat in plain view.” (Emphasis supplied.)

Decided October 3, 1991.

Wood, Odom & Edge, Arthur B. Edge IV, for appellant.

William G. Hamrick, Jr., District Attorney, David P. Oliver, Assistant District Attorney, for appellee.

The evidence at best shows only that the officer did not actually get in the van, but “leaned in and looked.” This could mean the officer leaned “over” without entering the vehicle, or that he stood in the open driver’s side doorway and leaned his body “in” between the open door and the door frame, “and looked.” None of the evidence indicates unequivocally that any portion of the officer’s body entered the interior of the vehicle. The evidence supports a finding that the officer was lawfully in position to obtain a view of the evidence which was immediately seen to be incriminating, and that he was where he was entitled to be and did not violate appellant’s Fourth Amendment rights in the process of establishing his vantage point. See State v. Webb, 193 Ga. App. 2, 4-5 (386 SE2d 891). This is obviously the view taken by the trial court, and we find no reason or authority to disregard it. See State v. Swift, supra at 536.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A2142.
    TRINITY v. APPLEBEE’S NEIGHBORHOOD GRILL & BAR OF GEORGIA.
    (411 SE2d 131)
   Pope, Judge.

Plaintiff/appellant Hawa Trinity brought suit against defendant/ appellee Applebee’s Neighborhood Grill & Bar after plaintiff slipped and fell in one of defendant’s restaurants. Defendant filed a motion for summary judgment, which the trial court granted on November 30, 1990. Plaintiff filed a motion for reconsideration of the trial court’s order on December 26, 1990; plaintiff filed a motion to supplement her motion for reconsideration on February 5, 1991 “by amending her prayer to ask that judgment be set aside or in the alternative that plaintiff be granted a new trial.” The trial court denied plaintiff’s motion for reconsideration on February 7, 1991 and plaintiff filed her appeal to this court on March 5, 1991. Defendant filed a motion to dismiss this appeal on September 9, 1991.

Decided October 3, 1991.

Daryl G. LeCroy, for appellant.

Duncan & Mangiafico, Royce F. Morris, for appellee.

“An appeal from a judgment denying a motion for reconsideration of a summary judgment order rendered more than 30 days before the notice of appeal is not timely. [Cits.]” Bartlett v. Hembree, 177 Ga. App. 253, 254 (339 SE2d 388) (1985). See also N. C. Constr. Co. v. Action Mobilplatform, 187 Ga. App. 507 (370 SE2d 800) (1988). Although plaintiff sought to amend her motion for reconsideration to request that judgment be set aside or that a new trial be granted, such action did not extend the time for filing the notice of appeal. Pretermitting the question of whether a motion for new trial was the proper procedural vehicle to attack the trial court’s order granting summary judgment in this case, OCGA § 5-5-40 (a) provides that a motion for new trial must be filed within 30 days of the entry of the judgment complained of; no extensions of time are permitted for the filing of such motions. OCGA § 5-6-39 (b). See Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269 (1) (329 SE2d 900) (1985). As to plaintiff’s request that judgment be set aside, “ ‘[e]ven if we were to construe [plaintiff’s] (motion for reconsideration) as a motion to set aside, this court would still have no jurisdiction over the appeal. Appeals from the denial of such motions are discretionary and [plaintiff] did not follow the applicable procedure to secure appellate review of the denial of [her] motion. (Cits.)’ [Cit.]” Alvin Lee Co. v. Garmon Elec. Contractors, 190 Ga. App. 159 (378 SE2d 384) (1989). Accord N. C. Constr. Co., supra.

Appeal dismissed.

Birdsong, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A91A0741.
    STELTS et al. v. EPPERSON.
    (411 SE2d 281)
   Beasley, Judge.

Plaintiffs, Mr. and Mrs. Stelts, appeal from the grant of defendant Epperson’s motion for summary judgment.

Epperson was a real estate agent for Metro Brokers whom the Stelts requested to locate a home for them. The Steltses attended a “seminar” conducted by Epperson at which purchasing strategies were discussed. Epperson told them, according to Stelts, that he represented them but was paid all commissions by the seller. Epperson related that the Steltses were given a letter which advised them that he represented sellers and that providing information to them did not create an agency relationship between Metro and him and the Steltses. Epperson then showed the Steltses several homes in the area of their interest.

During their search for a new home, Mrs. Stelts saw the residence of the Falcos and informed Epperson of interest in that home. He contacted the listing agent and arranged for the Steltses to see the Falco residence. According to Epperson, he informed the Steltses that the property was in a flood plain and the home backed up to Roswell Road which possibly might be widened. After the initial visit the Steltses viewed the home on several more occasions. During these visits Mr. Stelts and Mr. Falco walked the property line, recounted Epperson. Mr. Stelts denied this. The Steltses learned that the Department of Transportation had a 15-foot “buffer zone” or “green way” restriction on the property, but were not told that DOT had acquired a portion of the property for right-of-way which backed up to Roswell Road. They did know that Roswell Road might be widened.

The Steltses made an offer on the property to the Falcos and they accepted. As part of the pre-closing procedure, the Steltses’ lender, Decatur Federal, sent a letter to them outlining the conditions of closing, including the requirement that they obtain a survey showing all easements and rights-of-way on the property. The Steltses asserted a copy of the letter was sent to Epperson who did not remember receiving or seeing it. Under the Steltses’ version, Epperson volunteered to arrange for a survey; according to Epperson, Mr. Stelts requested that he obtain a survey for the property because Mr. Stelts was too busy.

In any case, Epperson contacted a surveying company and a survey was accomplished. However, the survey was a simple mortgage survey which did not uncover the presence of DOT’s right-of-way on the property. In order to discover the right-of-way a specific request would have to be made or an American Land Title Association/American Congress on Surveying and Mapping survey would have to be ordered. As a result, some months after the closing, road construction which infringed on the Steltses’ newly acquired property began. This and other lawsuits ensued.

The Steltses contend that Epperson owed them a duty which he negligently failed to fulfill by obtaining a survey which did not reveal the burden on their property. Their argument that Epperson occupied a fiduciary status with them falls. Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754, 755 (2) (371 SE2d 217) (1988); Bennett v. Clark, 192 Ga. App. 698, 699 (2) (385 SE2d 780) (1989). Compare Shaw v. Fillman, 184 Ga. App. 364 (1) (361 SE2d 518) (1987).

Decided September 3, 1991

Reconsideration denied October 7, 1991

H. Michael Dever, R. Andrew Fernandez, for appellants.

Rowe & McGarity, John M. McGarity, Stephanie V. Kandzierski, for appellee.

Nevertheless, one who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon. 65 CJS 491, Negligence, § 4 (4). Where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care. 57A AmJur 255, Negligence, § 208.

Thus, regardless of whether there was consideration for Epperson to secure a survey of the property, he was obligated to exercise due care in doing so as the Steltses’ voluntary agent for this limited purpose. Simmerson v. Blanks, 149 Ga. App. 478, 479 (2) (254 SE2d 716) (1979); Mixon v. Dobbs Houses, 149 Ga. App. 481, 483 (254 SE2d 864) (1979) ; Community Fed. S&L Assn. v. Foster Developers, 179 Ga. App. 861, 865 (3) (348 SE2d 326) (1986); Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 837 (331 SE2d 899) (1985); Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 524 (317 SE2d 853) (1984). See also Huggins v. Aetna Cas. &c. Co., 245 Ga. 248 (264 SE2d 191) (1980) . Epperson was aware of the possibility of the road adjacent to the property being widened and that plaintiffs were concerned about the effect it would have on the property they desired to purchase, yet he made no mention of this when he employed the surveyor. Whether this constituted due care on his part remains a jury question. Cunningham, supra; Simmerson, supra.

Because the evidence does not demand a finding that Epperson did exercise that degree of care which he owed plaintiffs, the grant of summary judgment was error.

Judgment reversed.

Sognier, C. J., and Banke, P. J., concur. Carley, J., disqualified'.


text:
    A91A0756.
    HUFF v. THE STATE.
    (411 SE2d 60)
   Beasley, Judge.

Appellant asserts that the court erred in denying his plea in bar for failure to try him within two terms of his demand for trial.

Appellant was arrested on October 20, 1989, by a City of McDonough police officer and charged with DUI. A uniform traffic citation commanded him to appear in the Recorder’s Court of the City of Mc-Donough on December 14, 1989.

On January 23, 1990, he filed a pleading captioned a “waiver of jury trial & demand for jury trial.” In this pleading, appellant stated that he was waiving “his right to a jury trial in order to be tried in the City Court of McDonough, but in the event his case is transferred to another Court over his objection and through no fault or action of Defendant, then Defendant demands a JURY TRIAL and ask[s] that the same be placed upon the minutes and that he be tried at this term or at the next succeeding Court term, or in default of such trial, that he be fully acquitted and discharged of said offense. This Motion made pursuant to OCGA § 17-7-170, 40-13-23. . . .”

An accusation on the charge was filed against appellant in the Henry Superior Court during its April 1990 term. See OCGA § 15-6-3 (18) (B). On July 16, in the next term, appellant filed a plea in bar on grounds that he had filed a demand for speedy trial under OCGA § 17-7-170 in January in the city court, and there were juries empaneled and qualified to try him during the January and April terms of superior court.

1. The first issue is whether the pleading filed by appellant constituted a demand for speedy trial under OCGA § 17-7-170. It did, for it was “sufficient to put the authorities on notice of . . . defendant’s intention to invoke the extreme sanction of . . . OCGA § 17-7-170.” Ferris v. State, 172 Ga. App. 729, 731 (1) (324 SE2d 762) (1984); State v. Allen, 192 Ga. App. 730, 732 (2) (386 SE2d 394) (1989). In particular, it refers expressly to the operational Code section. State v. Prestia, 183 Ga. App. 24 (1) (357 SE2d 829) (1987). Cf. Grier v. State, 198 Ga. App. 840 (1) (403 SE2d 857) (1991). The pleading served the important purpose of notifying the State and the court of “defendant’s intention to proceed to a trial, or be discharged, at a subsequent term.” Stripland v. State, 115 Ga. 578, 581 (41 SE 987) (1902).

2. The second issue is whether appellant’s demand was sufficient to invoke the extreme sanction of discharge and acquittal if he was not tried within the January or April 1990 terms of court.

Appellant argues that inasmuch as this case was transferred from recorder’s court to superior court without request by him, the demand for speedy trial filed in recorder’s court, while the superior court was in its January term, barred trying him in superior court after its April term, notwithstanding the fact that an accusation was not filed against him in superior court until the April term.

Decided September 3, 1991

Reconsideration denied October 7, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

It is questionable whether the demand had any efficacy at all, in that it was filed by appellant only in a court which did, not have terms or juries, and not refiled by appellant in the court which did have such. See Cliatt v. State, 194 Ga. App. 110 (389 SE2d 568) (1989), and special concurrence in Adams v. State, 189 Ga. App. 345 (375 SE2d 642) (1988). Even if it had breath, it could not effectively start the timing of the two-term rule until it was on record in the superior court. OCGA § 17-7-170 states: “[It] shall be binding only in the court in which the demand is filed. . . .” See State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989).

The exception which follows does not apply because, at the least, the court in which the demand was filed did not have terms or juries. Ga. L. 1981, pp. 3387, 3404-3406. As stated in Ramsey v. State, 189 Ga. App. 91, 93 (375 SE2d 63) (1988): “Implicit in the wording of this statute is that this demand is applicable only in courts which have terms and impanel juries. . . .” Ga. L. 1981, pp. 3387, 3404-3406.

Contrary to appellant’s contention, he was not entitled to acquittal in the July term, because it was only the second term after the demand was applicable, if it applied at all. Cf. O’Neal v. State, 188 Ga. App. 270 (372 SE2d 833) (1988). See Adams v. State, supra; Ramsey v. State, supra.

It must be remembered that “ ‘[t]he dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute.’ [Cit.]” Hanson v. State, 196 Ga. App. 589, 590 (1) (396 SE2d 510) (1990).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Carley, Judge.

text:
    A91A0798.
    FUDGE et al. v. WEISSINGER.
    (411 SE2d 62)
   Carley, Judge.

Appellant-plaintiffs brought suit on account against appellee-defendant and two others who are not parties to this appeal. Attached to the complaint was a statement of services rendered, which named only the other two defendants. Appellee failed to answer and the trial court entered a default judgment against him. Pursuant to OCGA § 9-11-60 (d) and Gilham v. Stamm & Co., 117 Ga. App. 846 (162 SE2d 248) (1968), however, appellee filed a motion to set aside the default judgment, which was granted by the trial court. At the subsequent bench trial, the trial court granted appellee’s motion to dismiss. See OCGA § 9-11-41 (b). Accordingly, the trial court entered final judgment and appellants appeal therefrom.

1. The trial court’s grant of appellee’s motion to set aside the default judgment is enumerated as error.

“A motion to set aside may be brought to set aside a judgment based upon ... [a] nonamendable defect which appears upon the face of the record or pleadings. Under this paragraph, it is not sufficient that the complaint or other pleading fails to state a claim upon which relief can be granted, but the pleadings must affirmatively show no claim in fact existed.” (Emphasis supplied.) OCGA § 9-11-60 (d) (3). “A default judgment rendered in a suit on account is subject to a motion to set aside under [OCGA § 9-11-60 (d) (3)] at the instance of an individual defendant sued jointly with a corporate defendant where the sworn itemized statement of the account attached to the complaint affirmatively shows that the items and services were sold and delivered to the corporate defendant only and that no claim in fact exists against the individual defendant from whom recovery is sought for the indebtedness of the corporation — ‘a clear case of non-liability.’ [Cit.]” (Emphasis supplied.) Gilham v. Stamm & Co., supra at 846-847.

A reyiew of the record in Gilham reveals that the sworn itemized statement of account that was attached to the complaint contained the explicit acknowledgment of the plaintiff that the items “composing the said account were sold and delivered to said [corporate defendant] at [its] said instance and request. . . .” In the instant case, there is no such acknowledgment on the face of the account itself indicating that appellants’ services were rendered solely at the instance and request of the other two defendants. Compare Martin v. Pierce, 140 Ga. App. 897, 898 (1) (232 SE2d 170) (1977) (“exhibit attached to the complaint states that the improvements [for which defendants were allegedly indebted] were furnished at the instance of [a non-party corporation] upon property owned by [a non-party individual]”). The mere fact that the statement for appellants’ services was addressed to parties other than appellee does not, in and of itself, affirmatively show that appellee was not also indebted on the same account. Indeed, as the other exhibits to the complaint would seem to indicate, appellants may have prepared the statement exclusively for the other two defendants at their request even though appellee had contracted with appellants as well. Thus, the statement of account attached to appellants’ complaint “was not a solemn admission in judicio that the account was not owed [by appellee].” (Emphasis supplied.) Bouldin v. Baum, 134 Ga. App. 484, 486 (3) (214 SE2d 734) (1975). The statement merely “weigh[s] against [appellants’] claim. This evidence is not conclusive upon [appellants] and does not, therefore, negate its cause of action.” Orkin Exterminating Co. v. Townsend, 136 Ga. App. 50, 52 (1) (220 SE2d 14) (1975).

It follows that appellee’s “reliance upon Gilham is not apropos. In that case, the court was confronted with a solemn admission in judicio as made by the pleadings. [Cit.] Since such a judicial admission is conclusive and cannot be disproved by the party making it ([cits.]), the Gilham defect was a nonamendable defect.” Orkin Exterminating Co. v. Townsend, supra at 52 (1). In the instant case, the mere absence of appellee’s name from the statement for services rendered “does not affirmatively establish that the appellee was not liable on the [account]. It follows that the trial court erred in granting the motion to set aside. [Cit.]” (Emphasis supplied.) Business Equip. Div., SCM Corp. v. Ransby, 160 Ga. App. 851-852 (288 SE2d 246) (1982) Cf. Pittard Machinery Co. v. Eisele Corp., 166 Ga. App. 324, 325 (3) (304 SE2d 129) (1983).

This holding is not inconsistent with the principle that exhibits attached to a complaint control over its general allegations. The instant case concerns a motion to set aside a judgment under OCGA § 9-11-60 (d) (3). Compare Martin v. Pierce, supra at 898-899 (dismissal for failure to state a claim); Jackson v. Jordan, 139 Ga. App. 469 (228 SE2d 606) (1976) (dismissal for failure to state a claim); Lawyers Co-Op. Pub. Co. v. Huff, 142 Ga. App. 45 (1) (234 SE2d 842) (1977) (judgment on the pleadings); National Advertising Co. v. North American Ins. & Realty Co., 122 Ga. App. 481 (1) (177 SE2d 510) (1970) (summary judgment); Perkins v. P. L. W., Inc., 126 Ga. App. 603 (1) (191 SE2d 482) (1972) (summary judgment). Accordingly, once the general allegations of appellants’ complaint are disregarded, it is not sufficient that the exhibits attached thereto fail to state a claim for relief as against appellee. The relevant exhibits must affirmatively show the absence of any claim before the judgment against appellee may be set aside. The exhibits fail to do so in the instant case. “[A] motion to set aside is not a proper vehicle by which one may belatedly attack the sufficiency of a complaint unless it affirmatively shows the utter lack of a claim.” (Emphasis supplied.) Johnson v. Cleveland, 131 Ga. App. 560, 562 (2b) (206 SE2d 704) (1974).

2. Appellants’ remaining enumeration of error is rendered moot by this holding.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.

Decided September 3, 1991

Reconsideration denied October 7, 1991

Winston H. Morriss, John G. Barrett, for appellants.

Slaughter & Virgin, Frank W. Virgin, for appellee.


author: Carley,'Presiding Judge.

text:
    A91A0975.
    WISE v. THE STATE.
    (411 SE2d 303)
   Carley,'Presiding Judge.

Appellant was tried before a jury and found guilty of trafficking in cocaine, escape, and obstruction of an officer. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt. Appellant filed a pretrial motion to suppress the cocaine which had been seized from his automobile. The denial of this motion is the basis for appellant’s sole enumeration of error.

Appellant urges that the initial stop of his vehicle was pretextual. However, the evidence presented at the hearing on appellant’s motion authorized the following findings: An officer received a tip that cocaine would be delivered to a certain house after midnight by someone who would be driving a green Cadillac with tinted windows. Because the tip was from an unfamiliar and uncorroborated source, it did not, in and of itself, establish probable cause. However, in an effort to corroborate the tip, the officer observed, after midnight, a blue rather than green Cadillac being driven slowly past the named location, a so-called crack house, at 20 miles per hour, 15 miles per hour below the posted speed limit. This vehicle turned onto an adjacent street, where it crossed the yellow centerline for some distance. Having observed the vehicle cross the centerline, the officer stopped the car to investigate the possibility that the driver was under the influence of intoxicants.

Appellant’s reliance on Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63) (1987) as authority for the proposition that the stop of his vehicle was pretextual is misplaced. In that case, the arresting officer “testified that at the time of the stop [the defendant was] not committing any traffic violations.” Tarwid v. State, supra at 853 (1). Here, on the other hand, the evidence supports the trial court’s finding that “the stop of the appellant’s vehicle was predicated on an actual, observed [moving] violation. . . .” Williams v. State, 187 Ga. App. 409, 411 (1) (370 SE2d 497). The fact that, at the time of the stop, the officer may have had a suspicion, short of probable cause, that the vehicle would contain contraband does not demand a finding that the stop was pretextual. “[No] officer is precluded from stopping a vehicle for an observed traffic violation [merely because] he is motivated [in part] by a suspicion, itself insufficient to justify an investigatory stop, that the vehicle might be transporting drugs.” Williams v. State, supra at 411 (1). Since the trial court’s finding that the stop of appellant’s automobile was not pretextual is amply supported by the evidence, that finding is controlling.

Decided September 13, 1991

Reconsideration denied October 7, 1991.

Hudson & Montgomery, James E. Hudson, for appellant.

Appellant further urges that, even if the initial stop of his vehicle was authorized, the subsequent seizure of the cocaine from his vehicle was not. However, the evidence presented at the hearing on appellant’s motion authorized the following findings: When the officer approached the stopped vehicle, he observed that appellant was the driver. The officer had personal knowledge that appellant had prior involvement with drugs and that, during a previous arrest attempt, appellant had escaped and fled. The officer observed, through the open window and in plain view, an open brown paper bag in appellant’s vehicle. In the bag, the officer saw a white-capped bottle wrapped in tin foil. In the officer’s prior experience, cocaine was “carried that way and distributed that way.” This evidence clearly authorized the trial court to find that the officer, having received the tip and having made his observations, had probable cause to believe that the brown bag in appellant’s vehicle contained cocaine and that its immediate seizure was authorized under the “plain view” doctrine. Texas v. Brown, 460 U. S. 730 (103 SC 1535, 75 LE2d 502) (1983); Mitchell v. State, 181 Ga. App. 470 (352 SE2d 647) (1987).

Appellant’s reliance upon Arizona v. Hicks, 480 U. S. 321 (107 SC 1149, 94 LE2d 347) (1987) is misplaced. In Hicks, the officer had no probable cause to seize stolen stereo equipment until after he had moved the equipment to observe and record the serial number. Here, unlike Hicks, the officer had probable cause to seize the paper bag containing cocaine based entirely upon his prior knowledge and upon his prior observations from his lawful vantage point outside appellant’s automobile. Accordingly, Hicks is clearly, distinguishable. See State v. Field, 188 Ga. App. 639 (373 SE2d 815) (1988). Likewise, Vincent v. State, 178 Ga. App. 199, 201 (2) (342 SE2d 382) (1986) does not compel a different result. Vincent is a physical precedent only and it does not cite Texas v. Brown, supra, which is controlling in the instant case.

Judgments affirmed.

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

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


text:
    A91A1007.
    SERRMI PRODUCTS, INC. v. INSURANCE COMPANY OF PENNSYLVANIA.
    (411 SE2d 305)
   Carley, Presiding Judge.

Appellee-defendant issued a “claims made” liability insurance policy to appellant-plaintiff. Upon a certain claim being made against it, appellant notified' appellee and sought coverage. However, appellee denied that it afforded appellant coverage for the claim. Appellant then initiated the instant declaratory judgment action, seeking a declaration that it was afforded coverage by appellee for the claim. Appellee answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

“The liability insurance policy at issue in this case is referred to as a claims-made policy (sometimes called a discovery policy) as distinct from an occurrence policy. An occurrence policy is a policy in which the coverage is effective if the negligent act or omission occurs within the policy period, regardless of the date of discovery or the date the claim is made or asserted. [Cits.] ... A claims-made policy is a policy ‘wherein the coverage is effective if the negligent or omitted act is discovered and brought to the attention of the insurer within the policy term.’ [Cits.] The essence, then, of a claims-made policy is notice to the carrier within the policy period.” Gulf Ins. Co. v. Dolan, Fertig and Curtis, 433 S2d 512, 514 (2, 3) (Fla. 1983).

The instant policy provided coverage for such claims as were made against appellant between March 1, 1987 and March 1, 1988. However, it is undisputed that the claim that is here at issue was not made against appellant and reported to appellee until after March 1, 1988.

The instant policy also provided for a general 60-day “automatic limited Extended Reporting Period” which commenced “with the end of the policy period.” Under this provision, a claim which was first made during that 60-day period would be “deemed to have been made on the last day of the policy period. . . .” However, it is undisputed that the claim that is here at issue was not made against appellant and reported to appellee within the 60-day period following March 1, 1988.

The instant policy also provided for a limited two-year “automatic limited Extended Reporting Period” which was applicable “only to claims as a result of an ‘occurrence’ covered by this policy which [had] been reported to [appellee] . . . not later than 60 days after the end of this policy.” (Emphasis omitted.) Although the claim that is here at issue had been made against appellant and reported to appellee within the two-year period following March 1,1988, it is nevertheless undisputed that that claim was not itself based upon a covered “occurrence” which appellant had caused to be reported in writing to appellee within the 60-day period following March 1, 1988. The policy clearly required the insured to “see to it that [appellee was] notified promptly in writing of an ‘occurrence’ which may result in a claim.” (Emphasis in original.)

It follows that, under the unambiguous terms of the policy, appellant is afforded no coverage for the claim that is here at issue. “We are fully aware of the rule of construction that requires ambiguities in an insurance policy to be construed in favor of the insured and against the insurer who wrote the policy. . . . But an equally valid rule is that an unambiguous policy requires no construction, and its plain terms must be given full effect even though they are beneficial to the insurer and detrimental to the insured. [Cits.]” Woodmen of the World Life Ins. Society v. Etheridge, 223 Ga. 231, 235 (154 SE2d 369) (1967). “ ‘It is the function of the court to construe the contract as written and not to make a new contract for the parties. [Citl]. . . An unambiguous contract will be construed to carry out the literal intent of the parties.’ [Cit.]” Dixon v. Midland Ins. Co., 168 Ga. App. 319, 322 (3) (309 SE2d 147) (1983). “Ambiguity is not to be created by lifting a clause or portion of the contract out of context. [Cit.]” Dickert v. Allstate Ins. Co., 121 Ga. App. 760, 761 (175 SE2d 98) (1970). As held by the trial court, “the two-year extended reporting period applies only to [claims based upon] ‘occurrences’ reported [to appellee by appellant in writing] no later than 60 days after the end of the policy period.” (Emphasis supplied.)

“With claims-made policies, the very act of [excusing the insured from the reporting provision or] giving an extension of reporting time after the expiration of the policy period [and any extended reporting period] . . . negates the inherent difference between the [’occurrence’ and the ‘claims made’] contract types. Coverage depends on the claim being made and reported to the insurer during the policy period. Claims-made or discovery policies are essentially reporting policies. ... If a court were [to excuse the insured from the reporting requirement or] to allow an extension of reporting time after the end of the policy period [and any extended reporting period], such is tantamount to an extension of coverage to the insured gratis, something for which the insurer has not bargained. This extension of coverage, by the court, so very different from a mere condition of the policy, in effect rewrites the contract between the two parties.” (Emphasis in original.) Gulf Ins. Co. v. Dolan, Fertig and Curtis, supra at 515-516.

Decided September 13, 1991

Reconsideration denied October 7, 1991

Orr & Edwards, W. Fred Orr II, James G. Edwards, for appellant.

Goldner, Sommers & Scrudder, Stephen L. Goldner, C. G. Jester, Jr., for appellee.

The instant policy contained a provision whereby appellant, in consideration of an additional premium, could have secured an optional extended reporting period of 24 months, without any requirement that the underlying occurrence have been reported to appellee within 60 days. If appellant had exercised this option, the instant claim would presumably be covered. “But [it] did not, and consequently [appellee] was obligated neither to defend the pending negligence action nor to pay any judgment obtained against [appellant] therein.” Gereboff v. Home Indem. Co., 383 A2d 1024, 1027 (R.I. 1978). “ ‘(T)he insured received what (it) paid for by the present policy, with premiums presumably reduced to reflect the limited coverage.’ [Cit.] [Appellant] cannot now be heard to complain.” Gulf Ins. Co. v. Dolan, Fertig and Curtis, supra at 516.

Under the unambiguous terms of the policy and the undisputed evidence of record, appellant is afforded no coverage and the trial court correctly granted summary judgment in favor of appellee. See Dixon v. Midland Ins. Co., supra at 323 (4).

Judgment affirmed.

Sognier, C. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A1565.
    WILLIAMS v. THE STATE.
    (411 SE2d 310)
   McMurray, Presiding Judge.

Defendant was convicted of aggravated assault (with a deadly weapon) and aggravated assault upon a peace officer. He was sentenced to serve consecutive ten year prison terms. He appeals, following the denial of his motion for a new trial. Held:

1. A review of the evidence demonstrates that as he was squabbling with his girl friend, defendant fired two shots from a .25 caliber automatic pistol into the ground. The girl friend called the police and a police officer spoke with her at the scene of the crime. At that point, defendant fired a shot at the girl friend and the police officer. Thereupon, defendant fled into a nearby wooded area.

The evidence was sufficient to enable any rational trier of fact to find defendant guilty of aggravated assault (with a deadly weapon) beyond a reasonable doubt and also guilty of aggravated assault upon a peace officer beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Defendant’s contention that the State failed to prove that the pistol was capable of inflicting serious bodily injury is not meritorious. “[T]he deadly force of a gun is known to all.” Crawford v. State, 245 Ga. 89, 94 (263 SE2d 131).

Decided September 16, 1991

Reconsideration denied October 7, 1991

Cramer & Shepherd, Randall E. Brown, for appellant.

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

2. Inasmuch as defendant was tried on June 20, 1990, it cannot be said that the trial court erred in charging the jury on flight. The rule announced in Renner v. State, 260 Ga. 515, 518 (397 SE2d 683), “it shall be reversible error for a trial court in a criminal case to charge the jury on flight,” did not go into effect until after that case appeared in the advance sheets on January 10, 1991.

3. Relying on Paxton v. State, 160 Ga. App. 19, 22 (6) (285 SE2d 741), defendant contends the trial court erred in permitting a photostatic copy of a .25 caliber automatic pistol to be introduced in evidence. We disagree. Unlike Paxton, there was no dispute in the case sub judice that defendant had a pistol in his possession during the relevant time period. Inasmuch as defendant’s girl friend testified that the photostatic copy of the .25 caliber automatic pistol was similar to the pistol which defendant had in his possession, it cannot be said the trial court erred in admitting the photostatic copy of the pistol in evidence. Compare Paxton v. State, 160 Ga. App. 19, 22 (6), supra, with Gunn v. State, 245 Ga. 359, 362 (4) (264 SE2d 862). See also Duvall v. State, 238 Ga. 325 (232 SE2d 918).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.