author: Deen, Presiding Judge.

text:
    A90A0802.
    PAYNE v. THE STATE.
    (394 SE2d 781)
   Deen, Presiding Judge.

The appellant, Jonathan Payne, was convicted of several traffic offenses and aggravated assault with a deadly weapon, all charges stemming from a State trooper’s attempt to pull Payne over for speeding. At the trial, the State trooper testified that he pursued Payne after clocking him on the radar travelling 71 miles per hour in a Jeep. The trooper chased him more than 15 miles, over paved highway and dirt roads, with blue light on and siren sounding, and struck Payne’s Jeep with the patrol car on 5 occasions. Three of those collisions occurred when Payne cut in front of the trooper and applied his brakes to prevent the trooper from passing him. The other two occurred when the trooper deliberately rammed Payne’s Jeep in an attempt to get the vehicle off the road before Payne could injure anyone. Payne explained at trial that he had tried to prevent the trooper from passing him in hopes that the trooper would follow him home so they could discuss the matter there. Held:

1. Payne was arraigned on April 29, 1988, at which time the trial court orally informed him that his trial was set for May 9, 1988. When the case was called for trial, defense counsel moved for continuance on the grounds that he had not had adequate time to prepare and that neither Payne nor he had received a copy of the trial calendar at least 7 days before trial, as required by Rule 32.1 of the Uniform Superior Court Rules.

Denial of a motion for continuance will not be disturbed on appeal in the absence of abuse of discretion. Raines v. State, 186 Ga. App. 239 (1) (366 SE2d 841) (1988). In the instant case, defense counsel was retained around the date of arraignment,, and the evidence was not particularly complex. Concerning the violation of Rule 32.1, “noncompliance ... is to be assessed under the circumstances of each case. . . .” Osborne Bonding Co. v. Harris, 183 Ga. App. 764, 766 (360 SE2d 32) (1987). Since Payne was informed by the trial court at arraignment time of the trial date, the obvious purpose of the rule was satisfied. Under these circumstances, we find no abuse of discretion in the denial of the motion for continuance.

2. After the close of the evidence, the prosecutor moved to have a juror removed because defense counsel had previously, albeit briefly, represented that juror. The juror had raised his hand when asked about such during voir dire, but the prosecutor had turned away and had not seen the response. Consequently, the trial court discharged the juror and replaced him with an alternate, which Payne contends was error.

OCGA § 15-12-167 provides that “[i]f known to a party or his counsel, any objections to a juror for cause shall be made before the juror is sworn in the case. After a juror has been found competent, no other or further investigation before triers or otherwise shall be had, provided that newly discovered evidence to disprove the juror’s answer or to show him incompetent may be heard by the judge at any time before the prosecuting counsel submits any of his evidence in the case. If the juror is proved incompetent, the judge shall order him to withdraw from the jury and shall cause another juror to be selected.” However, that statutory provision must be balanced with two other considerations: (1) the general authority under OCGA § 15-12-172 to discharge a juror at any time for illness, inability to perform duty, or other legal cause; and (2) Payne’s failure to show how he was prejudiced by use of an alternate, since under OCGA § 15-12-169 alternates are qualified in the same manner as the selected jurors. See Forney v. State, 255 Ga. 316 (1) (338 SE2d 252) (1986). All things considered, we find no reversible error resulting from the discharge of the juror and replacement with an alternate in this case.

3. The trial court gave the standard definition of crime as “a union and a joint operation of act or an omission to act and intention or criminal negligence.” The court subsequently instructed the jury that “[c]riminal negligence is defined as reckless conduct such as shows an indifference to the injurious result of the negligent acts and indifference to the safety of others and a lack of consideration for the welfare of others.” Contrary to Payne’s contention on appeal, this instruction on criminal negligence was a correct statement of law, see Cain v. State, 55 Ga. App. 376 (1) (190 SE 371) (1937), and was appropriate under the evidence.

Decided April 19, 1990

Rehearing denied May 4, 1990.

Brace W. Luquire, for appellant.

Douglas C. Pullen, District Attorney, Charles E. Bagley, Jr., Assistant District Attorney, for appellee.

4. Payne contends that he was entitled to directed verdict of acquittal on the aggravated assault charge because there was no evidence of an assault in that the State trooper was not in fear of being injured, and no evidence of use of a deadly weapon. “An automobile is not per se a deadly weapon, but may become one depending upon the manner and means of the vehicle’s use.” Blalock v. State, 165 Ga. App. 269, 270 (299 SE2d 753) (1983). Payne’s quickly cutting his vehicle in front of the State trooper’s patrol car just as the trooper was about to pass him during a relatively high speed chase was sufficient evidence of use of an automobile as a potentially deadly weapon. Further, the State trooper’s defensive driving necessitated by Payne’s maneuvers, and the trooper’s decision to ram Payne’s vehicle in an attempt to disable it and prevent injury to anyone, was evidence of a reasonable apprehension of violent injury, which may be inferred from the conduct of the victim. Hurt v. State, 158 Ga. App. 722 (282 SE2d 192) (1981).

Not only was there evidence concerning these issues, but it also authorized a rational trier of fact to find Payne guilty beyond a reasonable doubt as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, Payne’s motion for directed verdict was properly denied.

Judgment affirmed.

Pope and Beasley., JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A90A0389.
    SHULTS v. THE STATE.
    (394 SE2d 573)
   McMurray, Presiding Judge.

Defendant was charged, via an “amended” accusation, with driving “a moving vehicle while under the influence of alcohol to the extent that it was less safe for [her] to drive.” The case was tried before a jury on March 22 and 23, 1989, and the evidence revealed the following:

At about 4:00 in the afternoon on September 5, 1988, Deputy Charles Britt of the Spalding County Sheriffs Department responded to an accident call. When Deputy Britt arrived at the scene, he observed a vehicle in a ditch on the wrong side of the road. Defendant was standing with another woman in the ditch outside the vehicle. Both women stated that defendant had been driving the vehicle.

Deputy Britt approached the women and noticed a strong odor of alcohol. He also noticed that the women were steadying themselves against the disabled vehicle. The deputy then looked in the car and saw “some wine coolers” and a “fifth” of vodka. The bottle of vodka was “three-quarters . . . gone” and as Deputy Britt helped defendant out of the ditch, he became aware that his support was essential to keep defendant on her feet. In fact, after defendant had reached the road, the deputy “had to hold onto her to keep her from falling back into traffic. . . .” Deputy Britt suspected that defendant had been driving while intoxicated so he advised defendant of her options under Georgia’s Implied Consent law. Defendant agreed to submit to a State administered breath test, but she later refused to take the test. Defendant was found guilty and this appeal followed the denial of her motion for new trial. Held:

1. In her first enumeration, defendant contends the trial court erred in failing to quash the accusation.

Deputy Britt issued a uniform traffic citation and charged defendant under OCGA § 40-6-391 (a) (4), i.e., driving with an alcohol concentration of .12 grams or more. On March 14, 1989, an amended accusation was filed charging defendant under OCGA § 40-6-391 (a) (1), i.e., driving a motor vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive. The amended accusation recited that it was predicated upon the affidavit of Deputy Britt. An examination of the record does not reveal Deputy Britt’s affidavit.

Defendant argues that the State’s failure to produce Deputy Britt’s affidavit is fatal to the accusation. Defendant also argues that the amended “accusation could not completely change [the] charge [as alleged in the uniform traffic citation] to a new crime without being based on a valid affidavit.” These arguments are without merit.

“ ‘Since 1980 an accusation “need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.” Ga. L. 1980, pp. 452, 453 (now OCGA § 17-7-71 (a)); see Evans v. State, (168 Ga. App. 716, 717 (310 SE2d 3) (1983)).’ King v. State, 176 Ga. App. 137, 138 (2) (335 SE2d 439) (1985), overruled on other grounds, Copeland v. White, 178 Ga. App. 644 (344 SE2d 436) (1986).” Manley v. State, 187 Ga. App. 773, 774 (2) (371 SE2d 438). In the case sub judice, there is no question that defendant was arrested in conjunction with the transaction charged in the accusation. Consequently, Officer Britt’s affidavit was not critical to support the charge of the amended accusation. Next, defendant argues that she was “without appropriate notice . . .” of the “whole new” charge of the amended accusation.

First of all, defendant had more than ample time to prepare for trial under the charge of the amended accusation. The amended accusation was filed eight days before trial. Further, OCGA § 17-7-71 (f) vests the prosecuting attorney with authority to amend the accusation prior to trial. This Code subsection also provides that, “[o]n motion, the court shall grant the defendant a continuance which is reasonably necessitated by an amendment.” An examination of the trial transcript shows that defendant did not move for a continuance based on the “whole new” charge of the amended accusation. Consequently, defendant cannot complain for the first time on appeal that she was “without appropriate notice . . .” of the charge of the amended accusation. See Fatora v. State, 185 Ga. App. 15, 17 (2) (363 SE2d 566). This argument presents nothing for review.

Finally, defendant challenges that portion of the amended accusation which provides as follows: “That [defendant] of said county, is guilty of the offense of misdemeanor. . . .” (Emphasis supplied.) Defendant argues that the emphasized “phrase presupposes guilt [and caused] the confusion of the jury and prejudice. . . .” We do not agree.

The trial court informed the jury that “the accusation is no evidence of this defendant’s guilt. You should not consider the accusation as evidence or implication of guilt. Neither is the plea of not guilty to be considered by you as evidence. This defendant is presumed to be innocent until proven guilty. The defendant enters upon the trial of the case with the presumption of innocence in her favor. This presumption surrounds her and protects her until it is overcome by the State with evidence which is sufficient to convince you beyond a reasonable doubt as to the guilt of the accused.” In light of these instructions, we find it highly unlikely that the language of the amended accusation confused the jury or prejudiced defendant. (See OCGA § 17-7-71 (d) for recommended accusation form.) This enumeration is without merit.

2. In her second enumeration, defendant contends the trial court erred in failing to require compliance with her OCGA § 24-10-26 notice to produce.

An examination of the record shows that defendant filed a broadly drafted notice to produce. Immediately before trial, a hearing on the notice to produce was conducted. The trial court examined the State’s file and found no exculpatory information. The State’s file was then opened to defense counsel and, after examining the State’s file, defense counsel complained of the State’s failure to produce police “case reports and summaries.” The State’s attorney stated that the police reports were not in his file and showed that no police reports would be used by the State at trial. Defense counsel argued that the police “case reports and summaries” were easily accessible to the State and, without specificity, argued that the reports were relevant to defendant’s case.

Decided May 4, 1990.

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

John T. Newton, Jr., Solicitor, for appellee.

First, “a notice to produce ‘will not reach material which is not in the state’s possession.’ Young v. State, 146 Ga. App. 167, 168 (245 SE2d 866) (1978).” Patterson v. State, 154 Ga. App. 877 (2), 878 (270 SE2d 86). In the case sub judice, the police “case reports and summaries” were not in the State’s file and defendant failed to show how the production of these documents would have materially affected her case. Consequently, the trial court’s refusal to compel production of the police summaries and reports was not error.

3. Next, defendant contends “[t]he trial court should have suppressed any reference to [her] alleged refusal to take an intoximeter test.” This contention is without merit.

“In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.” OCGA § 40-6-392 (c). The evidence shows that defendant was properly advised of her options under Georgia’s Implied Consent law and that she opted not to take the State administered breath test. Evidence of defendant’s refusal to submit to the test was admissible.

4. In her final enumeration, defendant challenges the sufficiency of the evidence.

Defendant admitted that she had been driving the wrecked vehicle. Deputy Britt testified that defendant smelled of alcohol and that defendant was unsteady on her feet. This evidence, evidence that defendant refused to take the State administered breath test and evidence showing that alcoholic beverages were in defendant’s vehicle was more than sufficient to authorize the jury’s finding that defendant was guilty beyond a reasonable doubt of operating a motor vehicle while under the influence of alcohol to an extent which rendered her a less safe driver. See OCGA § 40-6-391 (a) (1); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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


author: Sognier, Judge.

text:
    A90A0529.
    MYERS et al. v. MYERS.
    (394 SE2d 374)
   Sognier, Judge.

Doyle A. Myers, as administrator of the estate of his mother, Ophia D. Myers, brought suit against two of his brothers, Clarence and Harold Myers, to recover for the estate certain funds which, prior to Ophia’s death, had been placed in accounts or certificates held jointly by Ophia and either Clarence or Harold. A jury awarded the administrator all sums prayed for except punitive damages and awarded attorney fees, and judgment was entered on the jury’s verdict. Clarence and Harold filed a motion for new trial, which was dismissed by the trial court approximately eight months later. This appeal ensued.

1. We first address appellants’ contention that the trial court erred by dismissing their motion for a new trial. The trial court dismissed appellants’ motion for new trial approximately eight months after the time for filing the transcript had expired. Although appellants had prepared and submitted a motion for an extension of time for filing the transcript, that motion was never ruled on, and the time specified in the motion had expired several months before appellee moved the court to dismiss the motion for new trial. Contrary to appellants’ argument, however, the motion was not dismissed because the court reporter took longer than planned to prepare the transcript, but because appellants failed to protect themselves against such an event by following the correct procedure and either seeking and obtaining an extension of time for filing the transcript or ensuring the transcript was filed as required by OCGA § 5-5-40 (c). That statute clearly places the granting of an extension within the sound discretion of the trial court, and “[w]e will not substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion. [Cits.]” Cohutta Mills v. Bunch, 166 Ga. App. 395, 397 (304 SE2d 431) (1983).

Although the trial court properly dismissed appellants’ motion for a new trial, nevertheless, pursuant to Gold Kist, Inc. v. Stokes, 235 Ga. 643, 644 (2) (221 SE2d 49) (1975), we will “consider the [remaining] enumerations of error in accordance with the rulings of [the Supreme Court] . . . , and the opinion of [this] court in Checker Cab Co. v. Fedor, [134 Ga. App. 28, 29 (213 SE2d 485) (1975)].” Id.

2. Appellants contend the trial court erred by allowing into evidence a certified copy of the death certificate of Ophia D. Myers because it contained matters other than the fact of death and the immediate agency of death. It is true, as argued by appellants, that “a death certificate serves as prima facie evidence only of (1) the death itself and (2) the immediate agency of the death. Other conclusions, such as those regarding the events leading up to the death or whether the cause of death was intentional or accidental, are not admissible.” King v. State, 151 Ga. App. 762, 763 (261 SE2d 485) (1979). The immediate cause of death, however, is listed on the certificate in question as “[rjespiratory arrest . . . due to . . . [p]robable aspiration pneumonia . . . due to . . . [s]enile dementia, far advanced, secondary to Alzheimer’s disease.” The diagnoses in question here are not impermissible conclusions, such as that on the certificate in King that the decedent was shot by another, and we find no error in their admission into evidence here.

Moreover, even if erroneously admitted, the matter objected to as prejudicial — the reference to senile dementia and Alzheimer’s disease — was cumulative of other evidence because the other heirs testified to their mother’s confusion, loss of memory, and delusions in the years preceding her death. “ ‘The admission of improper evidence is harmless when the fact sought to be shown is otherwise fully and properly established. [Cit.]’ [Cit.]” Brewer v. Williams, 167 Ga. App. 151, 153 (305 SE2d 891) (1983).

3. Appellants raise the same objection with regard to the admission into evidence of certified copies of the decedent’s medical records, which they allege contained hearsay conclusions and opinions. Although appellants objected at trial to the admission of these records, the transcript shows the objection made was based upon the documents’ qualification as business records and the lack of signatures thereon. “ ‘Where evidence is admitted over objection and, on appeal, new grounds for objection are raised for the first time, those new grounds for inadmissibility are not reviewable. (Cit.)’ [Cit.]” Sun v. Bush, 179 Ga. App. 80, 82 (7) (345 SE2d 85) (1986).

4. Appellants’ third enumeration of error challenges the admission into evidence, purportedly in violation of OCGA § 24-3-37, of documents which appellants maintain are physical evidence of propositions made with a view to compromise. The documents are unsigned memoranda of proposals pursuant to which the appointment of appellee as administrator would be satisfactory to appellants. We find no error in their admission, for two reasons. First, these proposals were not made within the confines of this litigation but rather were made during the course of the probate court administration proceedings and thus were properly admissible here. See Ostroff v. Coyner, 187 Ga. App. 109, 116 (5) (369 SE2d 298) (1988). Second, they do not reflect offers to compromise a claim for less, but rather constitute proposals to settle the administration, and contain admissions against appellants’ interest that the certificates of deposit, held jointly, belong to the estate. Absent an effort to compromise, admissions against interest are admissible. Id. See also Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497, 498 (1) (300 SE2d 328) (1983).

5. Appellants contend the trial court erred by denying their motion for a directed verdict because the presumption raised by OCGA § 7-1-813 (a) was not overcome by appellee’s evidence in his case in chief. OCGA § 7-1-813 (a) provides in pertinent part that “[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.”

Reviewing the denial of appellants’ motion for a directed verdict under the “any evidence” test, Stratton Indus. v. Northwest Ga. Bank, 191 Ga. App. 683, 685-686 (1) (382 SE2d 721) (1989), we find appellee presented evidence that the decedent intended to divide her estate among her children equally and did not intend for appellants, her two youngest sons, to have the funds in the joint accounts at her death. Appellee also presented evidence of undue influence in the creation of the accounts, and a presumption of undue influence also arises as a matter of law where the grantee of a gift stands in a confidential relationship with the grantor, and the grantor is of weak mentality. See, e.g., Trustees of Williams Hosp. v. Nisbet, 191 Ga. 821, 838, 839 (2) (14 SE2d 64) (1941). As there was some evidence to overcome the presumption arising from OCGA § 7-1-813 (a), a directed verdict was inappropriate. Stratton, supra. Appellants’ contention is, in actuality, an argument concerning the weight of the evidence, and “[t]he review of an appellate tribunal ... is confined to errors of law and the sufficiency, rather than the weight, of the evidence. [Cit.]” Snipes v. Mack, 191 Ga. App. 233, 234 (381 SE2d 318) (1989). As the jury had before it evidence sufficient to overcome the presumption in the statute, we may not disturb that verdict.

6. Appellants enumerate as error the trial court’s admission into evidence of a document not listed in the pretrial order and objected to on the basis of surprise. The record reveals, however, that appellants failed to provide the court with their portion of the pretrial order and as a result no pretrial order was entered. Moreover, the record establishes that appellants conducted no pretrial discovery aimed at obtaining documents to be used at trial, and appellee was consequently not obligated to provide them with the document. Thus, unlike the appellant in Hanna &c. Enterprises v. Alterman Foods, 156 Ga. App. 376, 377-378 (2) (274 SE2d 761) (1980), who had served the appellee in that case with discovery pleadings requiring the production of documents, appellants here cannot complain of surprise at trial, and their reliance on Hanna is misplaced.

7. Appellants contend the trial court erred by failing to charge the jury that where a bona fide controversy exists, no attorney fees may be awarded pursuant to OCGA § 13-6-11. Attorney fees are awardable pursuant to OCGA § 13-6-11 where the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. “Recovery of attorney fees for stubborn litigiousness is not authorized where there is a ‘bona fide controversy.’ [Cits.]” (Emphasis supplied.) Nestle’ Co. v. J.H. Ewing & Sons, 153 Ga. App. 328, 333 (4) (265 SE2d 61) (1980). No such restriction exists with regard to an award of attorney fees for bad faith. Appellee presented evidence to show that appellants admitted the certificates held jointly with their mother rightly belonged to the estate, but protracted the litigation in order to deplete the estate’s assets rather than see them turned over to appellee for distribution to the other heirs. This evidence was sufficient to support an award of attorney fees for bad faith. The award of attorney fees being supported by some evidence of bad faith, the trial court’s failure to charge on bona fide controversy was not error.

Decided May 4, 1990.

John E. Mahan, for appellants.

Swift, Currie, McGhee & Hiers, Jane C. Barwick, for appellee.

Judgment affirmed.

McMurray, P. J., concurs. Carley, C. J., concurs in the judgment only.


text:
    A90A0933.
    BROWN v. THE STATE.
    (394 SE2d 378)
   McMurray, Presiding Judge.

Via indictment, defendant David Wayne Brown was accused of committing the offense of arson in the first degree in that on or about January 3, 1989, he set fire to “a mobile home used as a dwelling house of Lucille Brown . . . without her consent. . . .” A jury found defendant guilty and he was sentenced to serve eight years in confinement. Following the denial of his motion for a new trial, defendant appealed. Held:

1. Contending the prosecution failed to prove lack of consent, defendant enumerates error upon the general grounds. We acknowledge the absence of direct evidence regarding the lack of consent to the burning of the mobile home. We note, however, that the lack of such consent can be established by circumstantial evidence. See, e.g., In re M. E. H., 180 Ga. App. 591, 594 (3) (349 SE2d 814). The trial revealed the following facts in the case sub judice:

Defendant occupied the mobile home with his wife, Lucille Brown. He and his wife were experiencing marital difficulties and, about two weeks before the fire, defendant told a neighbor that he was going to burn the mobile home. On the night in question, defendant’s wife was not home. She was staying with her mother and defendant was home alone.

Decided May 4, 1990.

Jerry W. Loftin, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

The fire was started in the early morning hours. The fire inspector opined that it was set deliberately.

A neighbor testified that he saw defendant in the front door of the mobile home as the fire burned; and that, when defendant saw the neighbor, he ran out the back of the mobile home. A fireman testified that defendant repeatedly asked if the fire was “arson.” At the scene, defendant told the firemen that he was sleeping when the fire broke out. Testifying at trial, defendant admitted that he lied to the firemen; that, indeed, he was awake when the fire started.

“A person commits arson in the first degree when by means of fire or explosives he knowingly damages ‘any dwelling house of another without his consent . . .’ Code Ann. § 26-1401 [now OCGA § 16-7-60]. . . . The offense is committed whether the dwelling house is occupied, unoccupied, or vacant and whether the premises are the property of the defendant or of another. Lawful occupancy by one in charge constitutes ownership as contemplated by the statute, and the question of legal title is not involved. [Cits.]” Tukes v. State, 125 Ga. App. 831 (189 SE2d 135).

In the case sub judice, we find the circumstantial evidence sufficient to enable any rational trier of fact to find defendant guilty of knowingly damaging the dwelling of Lucille Brown by means of fire without her consent. See Metts v. State, 162 Ga. App. 641 (1) (291 SE2d 405).

2. Defendant contends the trial court erred in failing to assign him an appointed attorney because he was indigent. Inasmuch as defendant was ably represented by counsel at trial, we fail to see how defendant was harmed by the failure to appoint an attorney to represent him. This contention is without merit.

Judgment affirmed.

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


text:
    A90A0016.
    GLANTON v. THE STATE.
    (394 SE2d 577)
   McMurray, Presiding Judge.

Defendant was indicted in four counts for criminal attempt (to commit burglary), possession of a knife during the commission of a crime, misdemeanor obstruction of a law enforcement officer and recidivism. The evidence adduced at a jury trial revealed the following:

Decided May 7, 1990.

James G. Meeks, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

Two boys, one 13 years of age and the other 7 years of age, observed defendant attempting to gain access to the home of Michael Adcock through a window. The. boys saw that defendant was wielding a knife and the 13-year-old went home and informed his mother of his observations. The police were summoned and Officer Donnie Canada of the Rome Police Department arrived at the scene and observed defendant “walking from the front porch of the [Adcock] residence. . . .” As Officer Canada approached, defendant “uttered a couple of real vulgar words . . . and took off running.” A chase ensued with Sergeant William Hibberts of the Rome Police Department joining Officer Canada. Defendant was ultimately subdued; however, he struggled and resisted “[handcuffing].” A search of defendant revealed “a rather large pocket knife, a tuberculin syringe, a spoon, and ... a couple of gold watches.” It was later determined that a screen had been cut and that a door had been damaged at the Adcock house and that defendant did not have authority to enter the house. Defendant was found guilty of criminal attempt (to commit burglary), possession of a knife during the commission of a crime and misdemeanor obstruction of a law enforcement officer. Defendant’s motion for new trial was denied and this appeal followed. Held:

Defendant asserts the general grounds, arguing that the eyewitness testimony of the two minor children was unbelievable; that his explanation of presence at the scene of the crime and flight from law enforcement officers outweighed the State’s inculpatory evidence and that his presence at the scene of the crime was insufficient to support the convictions. These arguments are without merit.

The evidence was more than sufficient to authorize the jury to find the defendant guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). “We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal we are bound to construe the evidence with every inference and presumption in favor of upholding the jury’s verdict. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). Where the testimony of the State and that of the defendant is in conflict, the jury is the final arbiter. Sims v. State, 137 Ga. App. 264 (223 SE2d 468).” Roberson v. State, 183 Ga. App. 268 (1), 269 (358 SE2d 659).

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A90A0043, A90A0237.
    THE STATE v. MARSHALL; and vice versa.
    (394 SE2d 379)
   Cooper, Judge.

Case No. A90A0043 is an appeal by the State of Georgia asserting, in a single enumeration of error, that the sentence entered by the trial court was void in that a life sentence was not imposed on Robert Marshall pursuant to OCGA § 16-13-30 (d). Case No. A90A0237 is an appeal by Robert Marshall asserting three enumerations of error relating to a police officer’s testimony, sequestration of witnesses, and the chain of custody of certain evidence. Robert Marshall was indicted in one indictment on four counts for four separate sales of cocaine to an undercover deputy, was convicted by a jury on each count and was sentenced to serve fifteen years concurrently on each count.

I. Case No. A90A0043

1. The State contends that the trial court entered a void sentence by failing to impose a life sentence for appellee’s second, third and fourth convictions for the sale of cocaine as required by OCGA § 16-13-30 (d). Since this court has held that void sentences are appealable by the State, the appeal is properly before us for review. State v. Johnson, 183 Ga. App. 236 (358 SE2d 840) (1987); State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978).

OCGA § 16-13-30 (d) provides, in pertinent part: “Except as otherwise provided, any person who violates subsection (b) [making it unlawful to sell any controlled substance] . . . shall be guilty of a felony. . . . Upon conviction of a second or subsequent offense, he shall be imprisoned for life.” The State relies upon State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984), which held that there being no statutory prerequisite of a conviction which antedates the offense for which the accused is sentenced, this language “is merely a direction as to the imposition of punishment under specified aggravated circumstances and does not create a separate and independent offense which must be alleged in an indictment.” Taylor v. State, 186 Ga. App. 113 (3) (366 SE2d 422) (1988). The State further points out that other mandatory minimum imprisonment laws such as OCGA §§ 16-7-1 (burglary) and 17-10-7 (recidivists) show a specific legislative intent that there be convictions prior to the offense for which enhanced punishment is to be imposed; and that since no such language appears in OCGA § 16-13-30 (d), it must be assumed that the General Assembly did not intend that a life sentence be imposed only for offenses occurring after a prior conviction or it would have worded the statute accordingly.

Appellee contends that the holding in Grant v. State, 258 Ga. 299 (368 SE2d 737) (1988) makes it clear that the legislature intended a “conviction” to mean a separate offense for which a sentence has previously been imposed pursuant to OCGA § 16-13-30 (d). Grant quoted the United States Supreme Court in Rummel v. Estelle, 445 U. S. 263, 284-285 (100 SC 1133, 63 LE2d 382) (1980), which stated that the purpose of a recidivist statute is to deter, punish and segregate repeat offenders “based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.” Grant, supra at Division 2. Appellee also argues that McCoy v. State, 168 Ga. App. 598 (310 SE2d 2) (1983) and Croker v. Smith, 225 Ga. 529 (4) (169 SE2d 787) (1969) require a conviction as contemplated in the recidivist statutes to be final, but a jury verdict still subject to review and possible reversal is not final and thus cannot be included in a recidivist indictment.

Pretermitting these arguments, however, we conclude that Hendrixson is controlling for another reason. The Hendrixson court held that consideration of any recidivist sentence must comply with OCGA § 17-10-2 (a) so that “only such evidence in aggravation as the [S]tate has made known to the defendant prior to his trial shall be admissible.” Hendrixson, supra at 854-855. As explained by this court in Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985), under Hendrixson “[t]he trial court in sentencing cannot consider prior offenses unless the same was made known to defendant prior to trial . . . ; [but] notice to defendant of intent to prosecute as a recidivist performs the function of any such notice in an indictment.” In the instant case there is nothing in the record showing that the State apprised appellee or his attorney that it intended to demand recidivist punishment if he were convicted of more than one count of the indictment. Therefore, the State’s position that the trial court was required to impose a mandatory life sentence and that the sentence imposed was void, is in error, consequently, this appeal is hereby dismissed.

II. Case No. A90A0237

2. Appellant first enumerates error in the denial of his motion for a mistrial when a police officer testified in response to a question about how he identified appellant that he “was able to run a criminal history” on appellant. Appellant argued that this placed his character into evidence, yet the trial court denied appellant’s motion for a mistrial and gave curative instructions to the jury. In Ogles v. State, 238 Ga. 716 (235 SE2d 384) (1977), the Supreme Court determined that a very similar response by a testifying police officer did not place the character of the defendant in issue. “This passing reference [to appellant’s record] made in response to a question by [the State] provides no ground for overturning appellant’s conviction or granting a new trial.” Herndon v. State, 187 Ga. App. 77 (3) (369 SE2d 264) (1988). Boyd v. State, 146 Ga. App. 359 (246 SE2d 396) (1978), relied on by appellant, is inapposite, involving a different reference that was not responsive to a question posed.

Decided May 7, 1990.

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

Elizabeth C. Calhoun, for appellee.

3. Appellant’s second assertion based upon a violation of the rule of sequestration of witnesses pursuant to OCGA § 24-9-61 is without merit. The presence of the undercover police deputy in the courtroom during the testimony of the forensic drug chemist “goes to the credibility rather than the admissibility” of the deputy’s testimony. O’Kelley v. State, 175 Ga. App. 503 (1) (333 SE2d 838) (1985). Furthermore, the deputy’s testimony subsequent to the chemist’s testimony was not impacted by her presence in the courtroom. See Hayes v. State, 175 Ga. App. 135 (332 SE2d 917) (1985). It also appears from the trial transcript that appellant waived any objection he had on this issue.

4. Appellant finally asserts, without success, that the trial court erred in admitting the cocaine into evidence because the chain of custody had not been established. Upon a review of the testimony at trial, it is clear to us that the State met its burden “ ‘to show with reasonable certainty that the evidence [was] the same as that seized and that there [had] been no tampering or substitution.’ [Cits.]” Anderson v. State, 247 Ga. 397 (2) (276 SE2d 603) (1981).

Appeal dismissed in Case No. A90A0043. Judgment affirmed in Case No. A90A0237.

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


text:
    A90A0132.
    WARNOCK v. THE STATE.
    (394 SE2d 382)
   McMurray, Presiding Judge.

Defendant was convicted of sodomy (two counts), cruelty to children (three counts) and terroristic threats. This appeal followed the imposition of sentence. Held:

1. Upon direct examination, one of the victims, defendant’s older daughter, testified that she was awake when her father entered her room on the night in question. She also testified that defendant spoke to her, offering to give her a back rub. Upon cross-examination, the victim admitted that she previously gave a sworn statement stating she was not awake when defendant entered her room. In this connection, the victim read a portion of the statement to the jury: “It says ‘I woke up. I believe he did not know that I was awake because he did not say one word to me. I woke up to him masturbating.’ ”

Pointing to the discrepancy between the victim’s testimony and her previous sworn statement, and citing Hill v. State, 159 Ga. App. 489, 490 (2) (283 SE2d 703), defendant asserts the trial court erred in failing to charge the rule that “the testimony of a witness who swears wilfully and knowingly falsely is to be disregarded unless corroborated by circumstances or by other unimpeached evidence.” Hill v. State, 159 Ga. App. 489, 490 (2), supra. See OCGA § 24-9-85. This assertion is without merit.

“In order to make this provision [OCGA § 24-9-85] applicable ‘it must appear, among other things, that the witness admits, on the trial, that he wilfully and knowingly swore falsely, or the testimony must be such as to render the purpose to falsify manifest.’ Smith v. State, 74 Ga. App. 777 (2) (41 SE2d 541) (1947). ‘Under this rule . . . it has several times been held, that if a witness swears at the trial to a certain state of facts in a material matter, and he has previously sworn to the contrary in the same case, and where he admits that his testimony was false, this constitutes a wilful and knowing false swearing, and requires the jury to reject his testimony entirely, unless it be “corroborated by circumstances or other unimpeached evidence.” In such a case it has been held that the judge should so charge the jury, even without a request.’ (Emphasis supplied.) Smaha v. George, 195 Ga. 412, 418 (24 SE2d 385) (1943).” Hill v. State, 159 Ga. App. 489, 490 (2), supra. See also Fugitt v. State, 256 Ga. 292, 298 (6) (348 SE2d 451).

The circumstances in the case sub judice did not require the trial court to find that the victim testified wilfully and knowingly falsely to a material matter. Accordingly, in the absence of a request, the trial court did not err by failing to charge the language of OCGA § 24-9-85. Fugitt v. State, 256 Ga. 292, supra.

2. In this second enumeration of error, defendant contends the trial court improperly ruled that the State was entitled to open and conclude the argument to the jury. In this regard, he maintains he was entitled to open and conclude the argument because he introduced no evidence. See OCGA § 17-8-71.

During cross-examination of defendant’s older daughter, counsel marked the daughter’s previous sworn statement as an exhibit. The daughter was questioned about the sworn statement and she read excerpts from it to the jury. Thereafter, the prosecutor inquired whether the sworn statement had been admitted in evidence and defense counsel responded: “If he has any question about it, we move that it be admitted.” The trial judge stated he did not know if the statement would go out with the jury but added that “for purposes of cross-examination of the witness —.” At that point defense counsel interrupted to announce the statement was withdrawn. The trial court followed up: “Well, you’ve already asked the question. . . . It’s in for the purpose of cross-examination.” Thereupon, the prosecutor questioned defendant’s older daughter about the statement. And, when he finished, defense counsel questioned the witness about the statement further.

“Which party is entitled to open and close is oftentimes unclear, based on whether or not any admissible testimony or documentary evidence has been introduced by the accused. It is beyond question in this state that where an accused offers no testimony or evidence into the trial of a case, other than his own testimony, he has the right to the opening and closing arguments.” Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698). Did defendant introduce evidence into the trial of the case? We think he did. In our view, defendant clearly offered evidence for impeachment purposes and the trial court admitted the evidence for that purpose. See in this connection Johnson v. State, 244 Ga. 295, 296 (3) (260 SE2d 23), in which it was held that written documents admitted in evidence for impeachment purposes may not be taken into the jury room.

Defendant argues the sworn statement should not have been admitted in evidence because he attempted to withdraw it before the trial court made its ruling. We disagree. Defendant could not withdraw the sworn statement after the trial court telegraphed its intention to admit it. See Nations v. State, 234 Ga. 709, 710 (4) (217 SE2d 287) and Freeney v. State, 129 Ga. 759, 764, 766 (59 SE 788) holding that evidence introduced by defendant cannot be withdrawn in order to regain the right to open and conclude. Because defendant introduced evidence into the trial of the case, the trial court properly ruled that the State was entitled to the opening and concluding arguments.

3. The victims testified that defendant used Vaseline and Noxema to perpetrate the acts of cruelty to children. In closing argument, the prosecutor placed these products on the table, prompting a motion for mistrial. The trial court overruled the motion for mistrial but directed the prosecutor to remove the products from the jury’s sight. Defendant did not seek further instruction; nor did he renew the motion for mistrial.

Defendant asserts the trial court erred in overruling the motion for mistrial. We disagree. The products were exhibited to the jury for the purpose of illustration only. See Williams v. State, 164 Ga. App. 621, 623 (3) (298 SE2d 306); McClure v. State, 163 Ga. App. 236, 237 (3), 238 (293 SE2d 496). Besides, defendant failed to seek further instruction or renew the motion for mistrial after the trial court took corrective action. See Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158). The third enumeration of error is without merit.

Decided May 7, 1990.

Andrew J. Hill, Jr., Floyd W. Keeble, Jr., for appellant.

Michael H. Crawford, District Attorney, E. Jay McCallum, Assistant District Attorney, for appellee.

4. In his final enumeration of error, defendant contends the evidence was insufficient to support the terroristic threat conviction. In this regard, he points out that the person to whom the threat was communicated (the husband of defendant’s ex-wife) did not testify and he argues that he was convicted on uncorroborated testimony.

OCGA § 16-11-37 (a) provides, in part: “No person shall be convicted under this subsection on the uncorroborated testimony of the party to whom the threat is communicated.” This section requires corroboration if the State offers only the testimony of the party to whom the threat is communicated. It does not require that party to testify and it does not require corroboration of the testimony of a non-party.

In the case sub judice, defendant’s younger daughter testified that defendant went to his ex-wife’s house with a .22 caliber pistol, called his ex-wife’s husband outside to “settle” matters, ejected a round from the pistol and threatened to kill his ex-wife’s husband. She also testified that responding to the threat, defendant’s ex-wife’s husband took out a gun of his own; that the police were called to the scene; and that defendant left the scene with the police. We find this evidence sufficient to support the jury’s conclusion that the threat was made with intent to terrorize. See Boone v. State, 155 Ga. App. 937, 939 (2) (274 SE2d 49). Corroboration of the younger daughter’s testimony was not required because she was not the person to whom the threat was communicated. OCGA § 16-11-37 (a).

Assuming, arguendo, that OCGA § 16-11-37 (a) requires the corroboration of a non-party’s testimony, only slight corroborating circumstances would need to be shown. See Mitchell v. State, 187 Ga. App. 40, 42 (369 SE2d 487). We find sufficient corroboration of the younger daughter’s testimony in the testimony of the older daughter who also testified about the incident in question.

Judgment affirmed.

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


text:
    A90A0205.
    HOLLAND v. THE STATE.
    (394 SE2d 578)
   McMurray, Presiding Judge.

Defendant was charged via accusation with being in actual physical control of a moving vehicle while under the influence of alcohol and with operating a motor vehicle on the wrong side of the road. The evidence adduced at a jury trial revealed the following:

At about 2:20 in the morning on January 1, 1988, Officer William James Motos of the Gwinnett County Police Department was on patrol when he observed “a 1985 Cadillac” traveling on the wrong side of the roadway in Gwinnett County, Georgia. Officer Motos followed the Cadillac and observed it “weaving . . . back and forth on the shoulder and crossing the centerline.” As the errant vehicle approached an intersection where another vehicle was stopped, Officer Motos witnessed a near collision when the Cadillac failed to yield for the stopped car. “ [I]t appeared to [Officer Motos] that [the driver of the Cadillac] didn’t see the vehicle until the last minute. He slammed on his brakes and when he did, his car, the wheels locked and he skidded, and his car turned a little bit to the sideways in that intersection.” Officer Motos then stopped the Cadillac and approached the driver’s window. He there observed defendant in the driver’s seat and next to defendant there was “a bottle of Jack Daniels whiskey which had been partially consumed.” The odor of alcohol permeated defendant’s automobile. Defendant’s “speech [was] slurred,” he had “dilated pupils” and defendant was “slow” retrieving his driver’s license. Defendant asked Officer Motos “to let him go.” The officer advised defendant that he “was not going to let him go, [but that he] was going to [place] him under arrest for driving under the influence of alcohol and . . . driving on the wrong side of the road. ...” Defendant was then asked to exit his car and Officer Motos noticed that defendant was unsteady on his feet and that defendant supported himself by holding onto the Cadillac. At that point, Officer Motos administered a series of field sobriety tests. Defendant failed the tests and the officer placed defendant in the patrol car and “read him his rights under the Georgia Implied Consent law. ...” Defendant refused to submit to a State administered chemical test. Defendant was found guilty on both counts of the accusation and this appeal followed the denial of his motion for new trial. Held:

1. In his first and fifth enumerations, defendant contends the trial court erred in allowing Officer Motos’ testimony regarding certain circumstances surrounding his arrest. In his fourth enumeration, defendant contends the trial court erred in allowing into evidence the “ ‘mug shot’ ” which was taken of defendant after his arrest.

An examination of the trial transcript shows that defendant did not complain when the evidence was offered at trial. “[I]t is well set-tied that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. [Cits.]” Jefferson v. State, 157 Ga. App. 324, 325 (2), 326 (277 SE2d 317). Consequently, these enumerations are without merit.

Decided May 7, 1990.

Richardson, Chenggis & Constantinides, George G. Chenggis, for appellant.

Gerald N. Blaney, Solicitor, Robert Greenwald, Assistant Solicitor, for appellee.

2. In his second enumeration, defendant contends the trial court erred in failing to give the following requested jury instruction: “Ladies and Gentlemen of the Jury, I charge you that the fact that a Defendant refused to permit a chemical analysis of his blood, breath or urine to be done does not raise a presumption that the Defendant was under the influence of alcohol while driving or being in actual physical control of a motor vehicle.”

Defendant cites no authority in support of this charge and offers no specific argument in support of his enumeration. “Thus, it is deemed abandoned pursuant to Rule 15 (c) [(2)] of the Rules of the Court of Appeals of the State of Georgia. See Pennsylvania Millers Mut. Ins. Co. v. Davis, 186 Ga. App. 301 (3) (367 SE2d 91) (1988).” Motes v. State, 189 Ga. App. 430 (1) (375 SE2d 893).

3. In his third enumeration, defendant contends the evidence was insufficient to support the jury’s verdicts. We do not agree. The evidence adduced at trial was more than sufficient to enable the jury to find that defendant was guilty, beyond a reasonable doubt, of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Lancaster v. State, 189 Ga. App. 149 (1) (375 SE2d 281).

Judgment affirmed.

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


author: Birdsong, Judge.

text:
    A90A0285.
    BATTLE v. THE STATE.
    (394 SE2d 788)
   Birdsong, Judge.

Otis Battle was convicted of burglary and statutory rape. On appeal, his counsel enumerates five asserted errors below and appellant pro se submits a separate “supplemented” enumeration of error arguing ineffectiveness of counsel. Appellant asserts generally that the verdict was contrary to the evidence and to the law, and is not supported by the evidence. He urges mainly that head hairs removed from radio earphones the rapist allegedly used and pubic hairs removed from the victim did not match his own, according to scientific testing; and that he was proved by his uncle to have been in Florida on June 27, 1987, at the time the rape occurred. Held:

1. The verdict is not contrary to the evidence or to justice and law. The victim, who was fourteen at the time of trial, testified that she and her mother, Mrs. Williams, encountered appellant, whom she knew as “Bud,” on a city bus. Mrs. Williams knew Bud, having met him before and seen him on the street. The victim, then twelve, also recognized Bud, having seen or met him before. Appellant told Mrs. Williams that he knew her husband Terry while they were in jail together and Terry had asked him to check up on her and see that she was all right. Appellant got off at the bus stop with the victim and her mother near Mrs. Williams’ home where the child was visiting for the summer. Appellant and Mrs. Williams engaged in conversation on the porch of her home for about 30 minutes or less; appellant then left and the victim and her mother went inside their apartment. During this encounter, appellant wore a rag on his head under a hat embellished with the word “Cagle’s,” and had a small goatee. That night, the victim’s mother went out with her brother-in-law. The victim left the door unlocked so her mother could get in. At about midnight, the victim emerged from the bathroom and saw “Bud” standing in the hallway. He threatened her and then forcibly raped her on the bed. After a few minutes, she begged to go to the bathroom and escaped, wearing nothing below the waist. She ran next door and a neighbor admitted her; she was screaming that she had been raped and named the rapist, but the neighbor testified she did not remember what name the victim called out. The victim was distraught and evidently in physical distress, blood was running down her legs, and she begged to go to the bathroom.

At Grady Hospital, the victim was thoroughly examined and found to have a long tear or rip into her vagina near the anus; the doctor characterized this as a sign of very forcible rape, and an injury which the doctor had not encountered before with rape victims. The victim also had a fresh bruise on her neck. She indicated to the doctor the rapist’s name, but the doctor did not remember it at the trial two years later.

The victim immediately, at all stages of encounter after the rape, told each person the name of the rapist and indicated she knew him. She told her mother it was “Bud.” A rape scene investigator found a “Cagle’s” hat at the scene and a Walkman radio with earphones. Later investigators showed her a series of photographs of appellant and others with similar features and skin tone; the victim unhesitatingly pointed out appellant’s photo as that of the rapist.

Appellant’s uncle’s testimony that appellant was with him in Florida on about June 27 was not conclusive or precise. Evidently the jury found inconclusive as well the fact that appellant’s head and pubic hair did not match the hair found on the radio earphones left behind, and in the victim’s pubic combings. Viewing all the evidence in the light most favorable to the verdict, particularly the precise and consistent identification testimony, we find the evidence is sufficient to enable a rational trier of fact to find appellant guilty of burglary and statutory rape beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant contends he was erroneously denied a mistrial on account of the character defamation arising from Mrs. Williams’ volunteered statement that appellant had told her he knew her husband “in jail.” We find no error. This evidence was a spontaneous reply to the question as to what appellant said to her on the bus. The evidence was relevant not only to identify appellant, but to explain why he followed the victim and her mother home, i.e., to make sure they were all right as her husband Terry had allegedly requested. The fact that it incidentally placed appellant’s character in issue does not render it inadmissible. Brown v. State, 257 Ga. 330 (357 SE2d 563). Moreover, appellant refused the offer of curative instructions, thus making it impossible for the trial court to repair the alleged prejudice and waiving the grounds to assert mistrial error on appeal. See Williamson v. State, 188 Ga. App. 307 (372 SE2d 685).

3. We find no fatal material variance in the fact that Count One of the indictment charged appellant with burglary with intent to commit rape and child molestation, while Count Two charged him with burglary with intent to commit statutory rape. These allegations could leave no doubt as to the charges against appellant. Proof that a crime was committed in one of the ways alleged in the indictment is sufficient to sustain the guilty verdict. Castillo v. State, 178 Ga. App. 312 (1) (342 SE2d 782).

4. There was no error in allowing the doctor’s statement that she had never seen a rape victim who had sustained this type of injury. Appellant contends this presumes an “ultimate fact” — that the victim was raped. However, the statement on its face assumes no such thing. If the victim had been proven not to have been raped at all, the doctor’s statement would be no less true.

5. Appellant contends it was fatal and incurable error for the trial court to charge that if the jury should “believe from the entire evidence that the defendant is guilty beyond a reasonable doubt, [then] it [is] your duty to convict.” (Emphasis supplied.) This has been held to be not an incorrect charge (Noggle v. State, 256 Ga. 383 (2) (349 SE2d 175)); moreover, the charge as a whole correctly informed the jury as to the State’s burden of proof. At the jury’s request, the trial court recharged the jury on the general principles of criminal proof and reasonable doubt, and stated that if no reasonable doubt existed, “you should convict him.” No objection was made to this instruction and it was not, in fact, error.

Decided May 7, 1990.

Leigh B. Finlayson, for appellant.

Otis Battle, pro se.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Katherine E. Beaver, Assistant District Attorneys, for appellee.

6. Appellant pro se submits his own amended enumeration of error for having been denied effective assistance of counsel. We are prohibited from addressing or reviewing this question by the Supreme Court’s ruling in Dawson v. State, 258 Ga. 380 (369 SE2d 897) and other earlier cases cited therein. Whether appellant’s trial or appellate counsel was ineffective, apparently even in the face of substantial injustice, the right to claim ineffective assistance of counsel is waived by the failure to raise it at the trial level, i.e., at the “earliest practicable moment.” See, e.g., Washington v. State, 193 Ga. App. 823 (389 SE2d 407) (1989).

Judgment affirmed.

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


text:
    A90A0430.
    OWEN v. OWEN.
    (394 SE2d 580)
   McMurray, Presiding Judge.

Chester W. Owen, Jr. (plaintiff) and Gail Lynn Owen (defendant) were divorced in the Superior Court of Muscogee County on May 31, 1985. The issue of custody of their minor child was referred to the Juvenile Court of Muscogee County. After the parties consented to a joint custody agreement with physical custody of the child in the mother and specified visitation privileges to the father, these arrangements were incorporated into the final decree of divorce. On December 17, 1987, defendant filed a petition in the Superior Court of Muscogee County, seeking sole permanent custody due to an alleged change of circumstances adversely affecting the welfare of the minor child. Defendant denied the material allegations of the complaint and counter-claimed for contempt and for a modification of child support. The superior court ruled on the motion for contempt and, in an order entered July 21, 1988, “referred and transferred” the matters of child custody and visitation to the Juvenile Court of Muscogee County. The superior court “held in abeyance” the issue of child support modification “until the determination of the Juvenile Court on the issues of custody and visitation.”

Decided May 7, 1990.

Turner, Turner & Turner, Anne H. Jarrett, for appellant.

On December 20, 1988, the superior court entered the following order: “THE ABOVE-STYLED CASE HAVING BEEN PUBLISHED IN ACCORDANCE WITH RULE 8.3 OF THE UNIFORM COURT RULES FOR PUBLICATION OF COURT DOCKETS ON A TRIAL DOCKET SCHEDULED FOR CALL AT 9:00 O’CLOCK, AM., ON THE 5TH DAY OF DECEMBER, 1988.

“WHEREUPON, ON CALL OF SAID DOCKET AS SCHEDULED, NO APPEARANCE WAS MADE BY PLAINTIFF OR PLAINTIFF’S COUNSEL, OR COUNSEL PRESENT REPRESENTING PLAINTIFF, [sic] MOVED FOR DISMISSAL;

“IT IS HEREBY ORDERED THAT THE ABOVE-STYLED CASE BE, AND THE SAME IS HEREBY DISMISSED WITHOUT PREJUDICE, AND THE CLERK OF THE COURT IS HEREBY DIRECTED TO ENTER THIS DISMISSAL OF RECORD AND TO DESIGNATE SAID CASE CLOSED.

“IT IS FURTHER ORDERED THAT ALL ACCRUED UNPAID COSTS IN THIS CASE BE, AND THE SAME IS, HEREBY CAST UPON THE PLAINTIFF.”

Plaintiff filed a motion to set aside the dismissal, arguing that the superior court had no jurisdiction to dismiss the case because the issues of child custody and visitation remained in the juvenile court at the time of the dismissal. The trial court denied this motion and we granted plaintiff’s application for discretionary appeal. Held:

“ ‘ “A Court, having obtained jurisdiction, retains it until the final disposition of the cause.” (Cit.)’ Slater v. Slater, 216 Ga. 242, 245 (115 SE2d 353) (1960). See also Brewer v. Williams, 210 Ga. 341 (1) (80 SE2d 190) (1954); Terhune v. Pettit, 195 Ga. 793 (25 SE2d 660) (1943).” Mitchell v. Mitchell, 184 Ga. App. 903, 904 (1), 905 (363 SE2d 159). In the case sub judice, the superior court was without jurisdiction to dismiss plaintiff’s complaint for modification of child custody. The issue of child custody had been properly referred to the juvenile court for determination pursuant to OCGA § 15-11-5 (c) and the juvenile court had not resolved the issue of child custody at the time the superior court dismissed plaintiff’s complaint. Consequently, the superior court’s order of dismissal was void and it was error to deny plaintiff’s motion to set aside.

Judgment reversed.

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

Gail L. Owen, pro se.

       This case first appeared in this Court in Owen v. Owen, 183 Ga. App. 472 (359 SE2d 229). A judgment of the Juvenile Court of Muscogee County, denying plaintiff’s motion for change of custody, was reversed because the juvenile court was not properly delegated jurisdiction of the matter as required by the provisions of OCGA § 15-11-5 (c).


text:
    A90A0971.
    STARLING v. THE STATE.
    (394 SE2d 581)
    Decided May 7, 1990.

      Laurens C. Lee, for appellant.
   Deen, Presiding Judge.

The appellant, Walter Starling, was convicted of aggravated assault, stemming from an incident where he. stabbed a man who was attempting to escort home a lady whose company Starling himself wanted to enjoy. On appeal, he contends that the trial court erred in allowing the State to impeach its own witness, and that the evidence was insufficient to support the conviction.

The stabbing incident occurred around midnight near an establishment called the Chicken Shack, where the victim had been drinking. Although the victim’s memory of the event was somewhat limited because of his intoxication at the time, he remembered a discussion between himself, Starling, whom he knew as “Buttermilk,” and the lady who shared their attention, concerning which man would walk the lady to her home. The victim remembered suggesting to Starling that he should go home to his wife, and getting stabbed when he started to walk away. He did not remember threatening Starling, but thought he might have pushed him.

The lady, in testifying at trial about the discussion regarding which gentleman was to see her home, remembered that the victim had threatened Starling and reached in his pocket before Starling stabbed him. She admitted, however, that in her written statement previously given to the police, she had not mentioned the victim’s threatening conduct. She also acknowledged that she had been dating Starling since the incident. Held:

1. The trial court properly allowed the State’s inquiry into the prior inconsistent statement of the witness regarding the victim’s conduct immediately prior to being stabbed by Starling. Evidence of prior inconsistent statements is now admissible as substantive evidence, not merely as impeachment material. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982).

2. Considered in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find Starling guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.

Willis B. Sparks III, District Attorney, Wayne G. Tillis, Assistant District Attorney, for appellee.


text:
    A90A1120.
    SIZEMORE v. THE STATE.
    (395 SE2d 669)
    Decided May 8, 1990.
    Johnny Sizemore, pro se.

      John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.
   Deen, Presiding Judge.

The appellant, Johnny Sizemore, was convicted of driving with a suspended license. In this pro se appeal, Sizemore does not clearly state an enumeration of error, but he seems to contend that the evidence did not support his conviction.

The trial was not reported, and there is no transcript. In the absence of a transcript, or a record prepared from recollection or a stipulation of the case pursuant to OCGA § 5-6-41 (g, i), we cannot consider enumerations of error based on the evidence. Dean v. State, 188 Ga. App. 128 (372 SE2d 286) (1988). Accordingly, the judgment of the trial court must be affirmed.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Carley, Chief Judge.

text:
    A90A0156.
    MARTIN v. THE STATE.
    (394 SE2d 551)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of speeding and driving under the influence in violation of OCGA § 40-6-391 (a) (4). He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. “Defense counsel has concluded his arguments as to each enumeration of error by stating the trial court’s action violated defendant’s rights under certain designated sections of the United States and Georgia Constitutions. It behooves counsel appearing before this court to recognize that rote repetition of constitutional provisions is totally ineffective in raising a constitutional issue for this court’s determination. [Cits.] A constitutional issue cannot be considered when asserted for the first time on appeal but must be clearly raised in the trial court and distinctly ruled upon there. [Cit.] Contentions regarding a constitutional issue which were not made below are thus not passed upon here.” Harbin v. State, 193 Ga. App. 248-49 (1) (387 SE2d 367) (1989).

2. The trial court’s denial of appellant’s motion to quash the accusation is enumerated as error.

The traffic citations were sufficient to inform appellant of the charges against him, even though they merely referred to the applicable statutes by number. “[T]he accusation [s] in effect incorporated the terms of the applicable code section [s] that [appellant] was charged with having violated. [Appellant] could not admit the allegation^] that his acts were ‘in violation of [the specified code sections],’ and yet not be guilty of the offense [s] of [speeding and driving under the influence]. [Cit.]” (Emphasis in original.) State v. Howell, 194 Ga. App. 594, 595 (391 SE2d 415) (1990). “Every accusation which states the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct.” OCGA § 17-7-71 (c). This statute “and the standards of due process, govern the requirements of the [accusation] . . . , and these requirements were satisfied in the accusations in question.” State v. Military Circle &c. No. 94, 257 Ga. 388, 390 (360 SE2d 248) (1987).

Appellant’s further contention that the accusation failed to charge him with the crime of driving under the influence is without merit. “[T]he intent of the legislature in amending OCGA § 40-6-391 was clearly not the repeal of criminal sanctions for driving under the influence of alcohol. Appellant[’s] defense based thereon was properly rejected by the trial court.” Proo v. State, 192 Ga. App. 169, 170 (384 SE2d 197) (1989).

3. Seeking to exclude the results of his intoximeter test, appellant filed a motion to suppress and motion in limine. The failure of the trial court to hold a hearing on this motion is enumerated as error.

“Appellant was clearly not entitled to a pre-trial hearing on such grounds of his motion as had alleged the State’s non-compliance with either OCGA § 40-6-392 or administrative regulations concerning the administration of a blood test. Such grounds for holding evidence to be inadmissible may be raised only by way of a motion in limine. [Cit.] ‘ “The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. [Cits.]” [Cit.]’ [Cit.] At the trial itself, appellant did not renew his motion for an evidentiary hearing outside the presence of the jury on such grounds of his pre-trial motion as had alleged non-compliance with OCGA § 40-6-392 or the administrative regulations concerning the administration of a blood test. Accordingly, the trial court did not err in failing to hold such a hearing to determine the admissibility of the evidence and testimony as against such contentions.” Sapp v. State, 184 Ga. App. 527, 530 (6) (362 SE2d 406) (1987).

Likewise, appellant was not entitled to a pre-trial hearing pursuant to OCGA § 17-5-30. That statute “ ‘furnishes a procedural device for the protection of constitutional guarantees against unreasonable search and seizure only.’ [Cit.]” State v. Johnston, 249 Ga. 413 (1) (291 SE2d 543) (1982). The trial court correctly relied upon Cadle v. State, 131 Ga. App. 175 (205 SE2d 529) (1974) and concluded that appellant’s “motion to suppress did not state facts showing that the search and seizure were illegal. Rather the motion contains only a series of conclusions unsupported by statements of fact. Accordingly, the motion did not meet the statutory requirements of OCGA § 17-5-30 (b), and the trial court did not err in its disposition of the motion. [Cits.]” Boatright v. State, 192 Ga. App. 112, 118 (8) (385 SE2d 298) (1989).

4. The denial of the motion to suppress and motion in limine is also separately enumerated as error. As discussed in Division 3, however, the trial court did not, and was not required to, rule on the merits of the motions before trial. Appellant never renewed the motions during trial. It follows that the motions were never denied and that this enumeration is without merit. See Lightsey v. State, 188 Ga. App. 801, 803 (2) (374 SE2d 335) (1988).

5. The trial court’s refusal to require the State to produce a radio log and an intoximeter log pursuant to OCGA § 24-10-26 is enumerated as error.

OCGA § 24-10-26 applies only to material which is in the possession, custody or control of another party. The materials at issue here are not of the type reasonably expected to be found in the custody of the assistant solicitor who was preparing the case against appellant. The assistant solicitor stated that he did not possess the requested materials and appellant made no showing to the contrary. Accordingly, this enumeration is without merit. See Ross v. State, 192 Ga. App. 850 (2) (386 SE2d 721) (1989); Calloway v. State, 191 Ga. App. 383, 384 (2) (381 SE2d 598) (1989).

6. The trial court’s imposition of limitations on the testimony of certain defense witnesses is enumerated as error.

A defense witness was not allowed to testify that, after ingesting acetone, an intoximeter test of his breath showed an alcohol concentration of 0.05 grams. It is clear, however, that this particular test “would not prove that the machine gave an inaccurate reading for [appellant] on [the date of his arrest], since the original test conditions . . . could not have been duplicated.” Kuptz v. State, 179 Ga. App. 150, 152 (9) (345 SE2d 670) (1986). Not only was appellant not the subject of the excluded test, there was also no evidence that appellant had ingested acetone prior to his arrest.

The trial court refused to qualify a defense witness as an expert on the Intoximeter 3000. However the only proffer made by appellant was of testimony which the trial court excluded on grounds other than the witness’ lack of qualification as an expert. The absence of any further proffer precludes appellate review of this enumeration. See Bowman v. State, 186 Ga. App. 544, 549 (6) (368 SE2d 143) (1988) rev’d on other grounds, 258 Ga. 829 (376 SE2d 187) (1989).

Insofar as appellant’s remaining contentions are concerned, “[o]ur review of the record reveals no evidence of the trial court’s having discredited . . . appellant’s primary defense.” Kuptz v. State, supra at 152 (8).

7. On voir dire, appellant’s counsel sought to ask the prospective jurors the following question: “If the Judge were to give you an instruction of law that disagrees with some teaching of the Bible, is there anybody that would follow the instruction of the law the Judge gave you and disregard what you believe to be in the Bible?” The trial court’s refusal to permit the prospective jurors to answer this question is enumerated as error.

“While a party is entitled to ask whether or not a juror would be able to follow the court’s instructions, the court need not allow questions which ask jurors to weigh the relative merits of various laws. [Cit.]” Williams v. State, 249 Ga. 6, 7 (1) (287 SE2d 31) (1982). Moreover, the question constituted a mere general, hypothetical inquiry and was not otherwise phrased or designed so as to elicit or reveal any actual bias or prejudice against appellant or any interest in the cause. See generally Ponder v. State, 194 Ga. App. 446 (4) (390 SE2d 869) (1990); Watkins v. State, 191 Ga. App. 87, 90 (5) (381 SE2d 45) (1989). It follows that the trial court did not abuse its discretion in refusing to permit the prospective jurors to answer this question.

8. The trial court’s denial of appellant’s motion to disqualify the assistant solicitor is enumerated as error.

Appellant’s contention that the assistant solicitor was subject to disqualification because he had not taken the oath of office “is refuted by [OCGA § 45-3-10] which provides ‘the official acts of an officer [shall be valid regardless of] his omission to take and file the oath, except in cases [where so specially] declared.’ ” Little v. State, 157 Ga. App. 462, 463 (2) (278 SE2d 17) (1981). Furthermore, “[i]t not appearing how this prejudiced the defendant, the failure of the court to require [the assistant solicitor] to be specifically sworn was not reversible error. [Cits.]” Mach v. State, 109 Ga. App. 154, 158 (1b) (135 SE2d 467) (1964).

Appellant’s remaining contentions regarding the purported disqualification of the assistant solicitor were not timely made. “Due diligence would have required that inquiry be made at the time of the trial as to [the lack of local law authorization, the failure to post a bond, and] the source of employment and compensation of the [assistant solicitor] if the defendant desired to make an issue on this question. [‘]Mere irregularities in the conduct of a trial, not vitally affecting the merits of the case or the rights of the parties, will be held to have been waived if no objection was made to them at the time.’ [Cit.]” Howington v. State, 84 Ga. App. 324, 328 (3) (66 SE2d 175) (1951). See also Bowen v. State, 144 Ga. App. 329, 334 (241 SE2d 431) (1977) (motion in arrest of judgment, due to the purported disqualification of a juror, must fail).

Decided April 23, 1990

Rehearing denied May 9, 1990

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

John T. Newton, Jr., Solicitor, Griffin E. Howell III, Assistant Solicitor, for appellee.

Judgments affirmed.

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


text:
    A90A0308.
    BEHLING v. RUCKSTAETTER.
    (394 SE2d 539)
   Deen, Presiding Judge.

Appellee Ruckstaetter contracted with appellant Behling, a builder, to construct a two-story log house according to custom plans drawn by Behling’s architect and based on a drawing of a log house supplied to Behling by Ruckstaetter. The specifications called for, inter alia, a roof with a pitch of 10/12 “plus or minus,” so as to allow for a certain amount of usable space on the second floor. Behling warned Ruckstaetter that it might be difficult to obtain timber of sufficient length to serve as rafters for a house of the specified size and with a roof pitch of approximately 10/12. According to the record, however, such timbers were obtained. On a number of occasions during the construction process, Mrs. Ruckstaetter visited the house and observed the workmen.

When the house was nearly completed, appellee discovered that the floor space on the second floor was much less than expected, and that the pitch of the roof was in fact 7/12. Ruckstaetter then sued Behling for breach of warranty, breach of contract, and negligence, seeking as damages the difference in value of the house as it actually was and as it should have been according to the specifications attached to the contract. She also sought costs of completion.

Behling countersued for sums due and owing under the contract. In a bench trial the court found that defendant/appellant had breached the contract in that the 7/12 roof allowed “substantially less usable space” than would a 10/12 plus-or-minus pitch. The trial court also awarded plaintiif/appellee “other credits and costs of completion” in a total amount of $17,070.44. He awarded Behling $2,925 as due and owing under the contract. Behling appeals, enumerating as error (1) insufficient evidence to support a finding of breach of contract and (2) the award of damages for the diminished floor space, alleging that appellee had approved the design of the roof. Held:

Decided April 17, 1990

Rehearing denied May 9, 1990

Porter & Doster, Sidney R. Barrett, Jr., for appellant.

Stewart, Melvin & House, George W. Brinson, J. Douglas Stewart, for appellee.

1. Our review of the record indicates that there was sufficient competent evidence to support a finding of breach of contract. It was undisputed that the roof as built had a pitch of 7/12; it was also undisputed that the contract called for a pitch of approximately 10/12. There was testimony that the timbers employed as rafters could have been used to construct a roof with a 10/12 pitch, and that, although roofs could be constructed with a rather wide range of pitches, 9/12 was the industry standard. Thus there was sufficient competent evidence to support the trial court’s ruling. We will not disturb the factual finding of the trial court absent plain error, and we find none here. Weathers v. Foote & Davies Transport Co., 189 Ga. App. 134 (375 SE2d 97) (1988). This enumeration is without merit.

2. An expert witness testified for plaintiff/appellee that Ruckstaetter’s house as built was worth $15,000 less than it would have been worth had the low-pitched roof not caused the diminution in usable second-story floor space. There was other evidence tending to corroborate this point. There was also testimony to the effect that Mrs. Ruckstaetter, as a layperson, had not understood, and could not be expected to understand, the implications of the various deviations from the specifications, as Behling mentioned them to her. Again, as in Division 1, we find no error. Simmons v. Boros, 255 Ga. 524 (341 SE2d 2) (1986).

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Banke, Presiding Judge.

text:
    A90A0453.
    FORT & TURNER ENTERPRISES, INC. et al. v. SCROCCA.
    (394 SE2d 364)
   Banke, Presiding Judge.

The appellants in this case are three separate corporations engaged in the business of selling insurance under the trade name, “Esquire Insurance Agency.” The appellee obtained a verdict against them for actual and punitive damages and attorney fees on a claim that they had negligently and fraudulently failed to procure a policy of motor vehicle insurance for which she had paid a premium. This appeal is from the denial of their alternative motions for new trial or judgment notwithstanding the verdict.

The action originated with the filing of a complaint by “Esquire Insurance Agency” against three companies which are not parties to this appeal to recover approximately $40,000 in insurance premiums which had allegedly been paid by or on behalf of Esquire to secure motor vehicle insurance for various of its customers, but which had allegedly been wrongfully appropriated without such coverage being issued. As a defense to this action, two of the named defendants asserted that Esquire was not a legal entity but only a trade name with no power to sue. The complaint was thereafter amended to substitute as plaintiffs, in place of Esquire, the three appellants herein, to wit: Fort and Turner Enterprises, Inc., individually and d/b/a Esquire Insurance Agency; Emmett & Emmett Enterprises, Inc., individually and d/b/a Esquire Insurance Agency; and Esquire Insurance Agency, Inc., individually and d/b/a Esquire Insurance Agency.

Prior to the substitution of the three appellants as plaintiffs, the appellee, Arlene Scrocca, was granted permission to intervene in the action. She sought actual and punitive damages against Esquire or, in the alternative, against the three companies which Esquire had sued, based on allegations that she had paid Esquire a premium of $383 on May 17, 1985, to obtain physical damage coverage on her automobile; that she had been assured by Esquire, both on that date and on subsequent occasions, that such coverage was in effect; that on October 22, 1985, during the ostensible term of the policy, her automobile was damaged in an accident; and that after attempting to recover for this damage under her supposed policy she learned that no policy had in fact been issued. The case was tried before a jury, which awarded the appellee actual damages in the amount of $15,836, punitive damages in the amount of $100,000, and attorney fees in the amount of $17,312 on her claim against the appellants, while returning verdicts in favor of the original defendants on all the claims against them. Held:

1. While the appellants do not contest the sufficiency of the evidence to support an award of actual and punitive damages and attorney fees against Emmett & Emmett Enterprises, Inc., they contend that the evidence does not support an award of damages against Fort & Turner Enterprises, Inc., and Esquire Insurance Agency, Inc., because it was established without dispute that the appellee had not dealt with those companies but had dealt exclusively with Emmett & Emmett. However, it was further shown that all three appellants had the same majority shareholder, president, vice-president, secretary, and general manager; that they held themselves out to the public as being components of a single business operation, i.e., Esquire Insurance Agency; that they collectively entered into contracts for their common benefit under that name; and, of course, that they collectively initiated this litigation under that name on the theory that the money allegedly owed to them by the defendants was owed to them collectively. On the basis of this evidence, we conclude that the appellants could be held jointly liable to the appellee under the theory that they were joint participants in a common business enterprise. We thus hold that appellants Fort & Turner Enterprises, Inc., and Esquire Insurance Agency, Inc., were not entitled to a directed verdict or to judgment notwithstanding the verdict based on their lack of direct involvement with the appellee. Accord DeJong v. Stern, 162 Ga. App. 529, 531 (3) (292 SE2d 115) (1982). The appellants’ reliance on such authorities as Farmers Warehouse of Pelham v. Collins, 220 Ga. 141 (2) (d) (137 SE2d 619) (1964), and Florida Shade Tobacco Growers v. Duncan, 150 Ga. App. 34 (256 SE2d 644) (1979), is misplaced, as those cases dealt with the entirely different issue of whether the corporation’s separate identity could be disregarded, so as to render it liable for the acts of its shareholders, or vice versa.

2. The appellants contend that in charging the jury the trial court erroneously referred to them collectively as “Esquire” or “Esquire Insurance Agency,” rather than identifying them as separate corporate defendants. However, the appellants’ counsel did not object to the charge on this ground and in fact affirmatively represented to the trial court that the appellants had no exceptions to the charge. Consequently, this enumeration of error presents nothing for review. See Irvin v. Oliver, 223 Ga. 193 (2) (154 SE2d 217) (1967); Brown v. Garcia, 154 Ga. App. 837 (1) (270 SE2d 63) (1980).

3. The appellants similarly contend that the verdict form was defective in that it lumped all of them together under the category, “Plaintiffs doing business as Esquire Insurance Agency,” rather than providing the jury the option of dealing with them as separate entities. Again, however, “appellants] made no timely objection to the form or content of the verdict form submitted to the jury and therefore [their] objection in this regard is waived.” Henderson v. Glen Oak, Inc., 179 Ga. App. 380, 382 (346 SE2d 842) (1986), aff'd 256 Ga. 619 (351 SE2d 640) (1987).

4. The appellants contend that the judgment did not conform to the verdict because “the court opted to ignore the specific awards of the verdict and instead entered a general judgment in the amount of $132,548 reflecting the sum total of the amounts awarded by the jury.” The appellants have not suggested how they were harmed by this, and we do not perceive how they could have been harmed. Accordingly, this enumeration of error establishes no ground for reversal.

Decided April 27, 1990

Rehearing denied May 9, 1990

Lane, OBrien & Coburn, Eugene O’Brien, Stephen J. Caswell, for appellants.

Greene, Buckley, DeRieux & Jones, Cathleen M. Devlin, Daniel A. Angelo, Frank C. Schenck, Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, for appellee.

Judgment affirmed.

Birdsong and Sognier, JJ., concur. Cooper, J., disqualified.


text:
    A90A0656.
    SWIFT LOAN & FINANCE COMPANY, INC. v. DUNCAN.
    (394 SE2d 356)
   Deen, Presiding Judge.

Duk Soon Duncan leased a portion of a building owned by Swift Loan Co., Inc., to operate as a restaurant. After Duncan opened her business, Pawelski, the owner of Swift Loan, became dissatisfied with certain factors associated with the operation of a restaurant (heat from the cooking equipment, food odors, etc.) and decided to install a larger air-conditioning unit on the premises. He demanded that Duncan pay $1,050 toward the installation of the unit. There was no lease requirement that Duncan pay for the air-conditioner, and when she objected, Pawelski ordered her not to set foot on the premises until she heard from his lawyer. Believing that she had been evicted, Duncan treated the lease as terminated and began removing her property from the premises. Before she could remove it all, Pawelski changed the locks, although her rent had been paid through the end of the month. Swift Loan brought suit against Duncan for four months’ rent that had accumulated after the locks were changed. Duncan filed a counterclaim for trespass, abusive litigation, and attorney fees. The jury verdict awarded Duncan $607.99 on her trespass claim, $14,000 in punitive damages, and $500 for abusive litigation. Swift Loan appeals following the entry of this judgment.

1. Swift Loan contends that the trial court erred in denying its motion for a directed verdict on Duncan’s claims for trespass and breach of contract.

A review of the trial transcript reveals that there was evidence that Pawelski attempted to impose financial obligations on Duncan which were beyond the scope of the contract, ordered her out of the building when she objected, and changed the locks although her rent was paid through the end of the month. Pawelski claims that he changed the locks because Duncan had damaged the premises when removing her property from the building because a sink had been removed without disconnecting the water. He admitted, however, that he had not filed a claim against his insurance carrier, made a police report, or sought damages in his lawsuit.

A landlord can be subject to an action for trespass because his remedy for taking repossession of the premises is codified at OCGA § 44-7-50. (Demand for possession; procedure upon tenant’s refusal.) A landlord may not forcibly dispossess a tenant without subjecting himself to an action for trespass even if the tenant is holding over beyond his term, is in arrears in his rent, and has received legal notice to vacate. Forrest v. Peacock, 185 Ga. App. 189 (363 SE2d 581) (1987); Teston v. Teston, 135 Ga. App. 321 (217 SE2d 498) (1975).

There was ample evidence presented at trial from which a jury could conclude that Pawelski had no authority to order Duncan off the premises or to change the lock on the door while she was still entitled to possession. A jury could also find that Pawelski’s actions constituted a trespass and a tortious interference with her right to enjoyment of the premises.

Evidence was also presented from which a jury could find that Swift Loan breached its lease with Duncan.

2. A landlord may be liable for actual and punitive damages for a trespass upon a tenant’s property. Teston v. Teston, supra. The evidence in the instant case showed that the landlord harassed the tenant and that she was intimidated by him. A jury could find that she reasonably believed that she had been evicted when Pawelski ordered her off the premises and later locked the doors against her. It could further find that this latter action was an attempt to convert her personal property which remained inside, and that suing her for unpaid rent which accrued after she was locked out was malicious. The court therefore properly denied Swift Loan’s motion for a directed verdict on the issue of punitive damages and did not err in charging the jury on this issue.

3. From the facts as set forth above, the jury had evidence from which it could find that the dispossessory warrant and claim for unpaid rent was used as a device to extract money from Duncan and to harass her, and that she therefore had a viable claim under OCGA § 9-15-14. See also Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). We find no error in the trial court’s denial of Swift Loan’s motion for a directed verdict on Duncan’s claim of abusive litigation, attorney fees, and expenses of litigation. (We note that the court reserved ruling on the motion for attorney fees.)

4. The court’s charge on eviction was adjusted to the evidence as presented at trial and was appropriate.

5. The trial court refused to accept the jury’s first verdict as to punitive damages because it was vague. The jury retired to reconsider its verdict and reached the verdict entered as a judgment in the case. On appeal, Swift Loan argues that the court’s charge on mental pain and suffering was reversible error because there was no evidence to support such a charge and that Duncan sustained no special damages as a result of the litigation. As the transcript is replete with evidence of Pawelski’s harsh treatment of Duncan, a jury could conclude that she suffered the requisite mental anguish.

6. As appellant submitted no written request for a jury charge on nominal damages, he cannot now complain of the court’s failure to provide a definition of this term to the jury. Meeks v. State, 178 Ga. App. 9 (341 SE2d 880) (1986).

7. The first verdict returned by the jury on Duncan’s claim of abusive litigation was vague, and the jury indicated that it was not a unanimous verdict. The court then asked it to retire to clarify the verdict, and one juror requested clarification of the issue and a recharge. The court declined to recharge the jury, stating that it did not wish to influence it, but the judge did clarify the type of verdict that it could return. Swift Loan objected to the colloquy between the jury and the court and to permitting the jury to reconsider its verdict. We find no error. Appellant’s reliance upon Brown v. City of Fitzgerald, 177 Ga. App. 859 (341 SE2d 476) (1986), is misplaced. In Brown, the jury was confused on certain points of law and the court refused a recharge. In the instant case, the court realized that the jury verdict was not unanimous because it was confused as to the type of verdict it was to return and gave clarifying instructions. It is not error for the trial court to refuse to receive an improper verdict and to cause the jury to retire and put its verdict in proper form. Neiman-Marcus v. Gammage, 191 Ga. App. 510 (382 SE2d 208) (1989).

8. The trial court did not err in charging the jury as to the landlord’s duty to repair. Pawelski insisted that Duncan was obligated to pay for the installation of the air-conditioner. As the alleged obligation was not contained in the lease or other writing between the parties, the. tenant had no duty to pay for the air-conditioner. Assuming that it was error to give the charge, Swift Loan has not shown how it was harmed by it. The party claiming error must show that it was harmful. Bellamy v. Edwards, 181 Ga. App. 887 (354 SE2d 434) (1987).

Decided April 19, 1990

Rehearing denied May 9, 1990.

Hatcher, Stubbs, Land, Hollis & Rothschild, Jerry A. Buchanan, for appellant.

Harry Dicus, Samuel W. Oates, Jr., for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0671.
    WISE v. CITY OF ADEL et al.
    (394 SE2d 540)
   Deen, Presiding Judge.

The appellant, William Wise, injured his left elbow during his employment as a captain of the appellee’s fire department, and received workers’ compensation benefits. Eventually, he returned to work, but he continued to experience pain and stiffness in the injured elbow; his treating physician recommended a change to light work, and the appellee consequently offered to employ Wise as a radio dispatcher for the appellee’s police department. This shift would have involved a salary reduction, but the appellee also indicated that it would pay Wise temporary partial disability benefits and transfer him back to the fire department when he was physically able to return to normal duty. Wise refused this offer of light duty, because it would have required giving up a part-time job at a bank that he had been able to maintain with the work schedule of the fire department (on 24 hours, off 48 hours). Even including receipt of temporary partial disability benefits, the proposed job transfer to the police department would have resulted in an income reduction of $163 per week.

When Wise refused the police department dispatcher job, the appellee suspended all benefits, and the administrative law judge denied Wise’s claim for recommencement of disability income benefits. The full board, however, reversed, after finding that the police dispatcher job was not suitable employment and that Wise had been justified in refusing it. The superior court in turn found as a matter of law that the light duty job offered to Wise was suitable employment, and reversed the full board. We granted this discretionary appeal, and reverse the superior court.

OCGA § 34-9-240 provides that “[i]f an injured employee refuses employment procured for him and suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.” In Clark v. Ga. Kraft Co., 178 Ga. App. 884, 885 (345 SE2d 61) (1986), this court emphasized that “the board is vested with a broad discretion in determining whether proffered employment is refused justifiably.” In Clark, this court found no abuse of discretion in the board’s determination that the employee justifiably refused proffered employment that presented no challenge or opportunity for advancement. Similarly, we find no abuse of discretion in the board’s determination of that issue in the instant case. Cf. McDaniel v. Roper Corp., 149 Ga. App. 864 (256 SE2d 146) (1979).

Decided April 19, 1990

Rehearing denied May 9, 1990

Judgment reversed.

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

Beasley, Judge,

concurring specially.

It should be noted that what we are holding is that the justification for the employee’s refusal need not be a lack of physical capacity for the job in its circumstances. In Clark v. Ga. Kraft Co., 178 Ga. App. 884 (345 SE2d 61) (1986), the refusal was based on mental capacity; the employee was physically capable for the job, but his mental capacity exceeded its demands and career potential, so the board could find it not “suitable to his capacity.”

In McDaniel v. Roper Corp., 149 Ga. App. 864 (256 SE2d 146) (1979), on the other hand, the refusal was not related to capacity at all; the employee was physically capable, and the refusal related not to mental incapacity or over-capacity, but to the employee’s mere desire not to work the time offered. Such a refusal would have to be regarded as unjustified under the law. Poulnot v. Dundee Mills Corp., 173 Ga. App. 799 (328 SE2d 228) (1985), cited by appellee, involves physical incapacity, but its holding does not mean that the statute contemplates physical capacity exclusively. There is a correlation in the statute between the job’s being suitable to the employee’s capacity and the reason for the employee’s refusal of employment. If the reason is related to the employee’s “capacity” in the broad sense of the word, then the board has discretion to use its judgment to decide whether the reason is “justified.” If the reason is not related to such capacity, and the board finds the job in its circumstances to be suitable to that employee, it would be compelled to reject the refusal as unjustified.

In the instant case, the job offered was physically suitable for the employee, but his capacity for additional gainful employment which conflicted with the job offered authorized the board to find that the job was not suitable “to his capacity.” That being the case, it had discretion to accept the refusal as justified.

Morris & Webster, Craig A. Webster, for appellant.

Young, Young & Clyatt, Robert M. Clyatt, for appellees.