text:
    A98A1827, A98A1942.
    CAGLE et al. v. DAVIS et al. (two cases).
    (513 SE2d 16)
   Smith, Judge.

These related appeals arose from a claim of legal malpractice brought by appellant Carolyn Cagle, an attorney, against Baxter Davis, her former counsel in a divorce action. We find the trial court properly granted summary judgment to Davis and his law firm on Cagle’s legal malpractice claim, and we therefore affirm the judgment in Case No. A98A1827. We also affirm the trial court’s judgment in Case No. A98A1942 denying Cagle’s motion for contempt. And in the latter case, we impose upon Cagle and her counsel, J. Calhoun Barrs a/k/a Jack C. Barrs, penalties pursuant to Court of Appeals Rule 15 (b), because that motion and Cagle’s appeal are entirely frivolous.

Case No. A98A1827

The first appeal, A98A1827, is from a summary judgment granted in favor of appellees Baxter Davis and his law firm (“Davis”) on Cagle’s claim of legal malpractice. Davis briefly represented Cagle in defending a divorce action brought by her husband. During the litigation, the husband’s attorney, Robert Boyd, learned from his client that Cagle held a number of joint certificates of deposit. Believing that she might have liquidated one or more of them, Boyd asked Davis for an accounting, and Davis questioned his client about the CDs. At Cagle’s deposition, she produced a cashier’s check drawn on SunTrust Bank, marked “TO REDEEM CD” and made out jointly to Cagle and her husband. With both parties present, Boyd agreed with Davis that Davis’s law firm would hold the CD proceeds in escrow pending resolution of the divorce.

After approximately three months, disagreements arose regarding the conduct of the litigation, and Davis requested that Cagle find other counsel. Cagle’s new counsel, Barrs, requested that the CD proceeds be turned over to him. Davis asked Boyd if he objected to this, and Boyd responded that he did object. Davis then filed a motion seeking the trial court’s direction as to handling of the CD proceeds. At the hearing on this motion, Barrs stated that he no longer wanted to hold the proceeds, and the trial court entrusted them to Boyd.

Thereafter, and while the divorce action remained pending, Cagle filed this civil action alleging legal malpractice in the disclosure of privileged information. In support of her claim, she filed an affidavit pursuant to OCGA § 9-11-9.1. The attorney giving the affidavit stated “I have been asked to assume the following facts to be true,” including that “Mr. Davis or a member of his firm provided information directly to the counsel for the plaintiff . . . concerning the defendant’s case.” The affidavit did not specify the information Davis was supposed to have provided.

Davis filed a motion for summary judgment, attaching numerous exhibits and affidavits. Cagle’s response did not include any affidavits, but she asserted for the first time — citing no authority other than the general confidentiality statute, OCGA § 15-19-4 (3) — that Davis’s disclosure to Boyd of the fact that Cagle’s new counsel had requested delivery of the CD proceeds constituted divulging confidential information.

1. Cagle contends the trial court erred in granting Davis’s motion for summary judgment, asserting that disputed issues of material fact exist. In her appellate brief, she continues to insist that the proceeds of the CD were “her property,” but this contention is belied on the face of the document itself by the designation of joint payees, as Cagle, herself an attorney, should know. OCGA § 11-3-116 (b). The CDs were identified as assets in the divorce action by Cagle, as required by Uniform Superior Court Rule 24.2. Moreover, as the trial court correctly observed, Davis was not authorized unilaterally to terminate a fiduciary agreement with Cagle’s husband and his counsel without seeking their permission or the guidance of the court, which would require notice to the other parties to the agreement. Cagle was fully aware of the fiduciary agreement; the undisputed facts leave no doubt that she was present when it was created and consented to it. Cagle also has failed to show any damages resulting from the disclosure.

In her brief in response to Davis’s summary judgment motion, Cagle for the first time asserted a number of additional claims of professional malpractice sounding in negligence. Those claims were not addressed in her OCGA § 9-11-9.1 affidavit or in her complaint, and it does not appear from the record that the complaint was ever amended to state any claims for negligence. Cagle has shown no injury from the alleged negligence, and “where as in this case the viable underlying action remains pending, plaintiff can prove no such injury because the action may terminate favorably for the client.” (Citation and punctuation omitted.) Mauldin v. Weinstock, 201 Ga. App. 514, 518 (411 SE2d 370) (1991).

In addition, the belated claims are wholly without merit. Cagle first claims that Davis failed to enter an appearance or file an answer on her behalf. But an answer is not essential in a domestic relations case because a default judgment may not be entered. OCGA § 19-5-8; Benefield v. Benefield, 224 Ga. 208 (2) (160 SE2d 895) (1968). And Cagle has shown no resulting prejudice. Cagle also claims that Davis failed to respond to discovery requests, but unopposed affidavits from both Davis and the husband’s counsel show that, in the short period of time Davis represented Cagle, counsel agreed to an informal exchange of documents with a view to a quick settlement and that Cagle consented to this arrangement. Moreover, Cagle’s deposition was taken by agreement, and the financial records provided in discovery, including the CDs, were discussed at some length. The discovery period had not expired at the time Davis’s representation of Cagle ended, less than six months after the complaint was filed. Uniform Superior Court Rule 5. While Cagle initially alleged that Davis’s failure to respond had resulted in a motion to compel, Barrs eventually acknowledged under questioning by the trial court that he, not Davis, had failed to respond, resulting in the motion. Finally, while Cagle stated in her brief that Davis’s bills were excessive, she agreed in her retainer contract to dispute any bills in writing within 30 days. As the trial court observed, “Particularly as an attorney licensed to practice under the laws of Georgia she knows, I would hope, what a contract is and what the obligations are under the contract.”

2. Cagle also appeals the imposition of sanctions under OCGA § 9-15-14 in the amount of $26,533.50 for attorney fees and $1,586.32 for expenses of litigation, for a total of $28,119.82. Subsection (b) allows the trial court sua sponte to assess attorney fees and expenses of litigation when a party has brought an action that “lacked substantial justification” or “was interposed for delay or harassment.” The standard of review under OCGA § 9-15-14 (b) is abuse of discretion. Bass v. Pearson, 219 Ga. App. 487, 488 (466 SE2d 17) (1995).

In its ruling from the bench, the trial court succinctly outlined the serious deficiencies in Cagle’s case. Her counsel acknowledged in response to the court’s questioning that he failed to contest any of the affidavits placed on the record by Davis or opposing counsel Boyd, although he continued to insist that material issues of fact remained. But Cagle never presented any evidence in response to the motion. “In response to a properly supported motion for summary judgment which pierces the pleadings, plaintiffs may not stand upon their allegations, but must come forward with evidence to contravene defendants’ proof or suffer judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Bowden v. Pryor, 215 Ga. App. 351-352 (450 SE2d 845) (1994). As discussed above, Cagle did not make any specific allegations of malpractice until she responded to Davis’s motion, and even then she never demonstrated any legal basis for her claim that a communication regarding a check held in an escrow agreement, which was known and consented to by all parties, constituted a breach of confidentiality.

The trial court also found that the action “was brought for, I would assume, purposes of harassment, perhaps as [trial counsel] says because a phone call wasn’t returned.” While Cagle asserts in passing that the amount assessed against her is unreasonable, she cites no legal authority and does not indicate the specific items or amounts she contends are improper. Her assertion that the amount is excessive because her complaint should have been dismissed earlier for insufficiency of the expert affidavit is not only disingenuous but incorrect. See Bala v. Powers Ferry Psychological Assoc., 225 Ga. App. 843, 845 (491 SE2d 380) (1997) (assertion that defendant disclosed unspecified confidential information meets requirements of OCGA § 9-11-9.1). We cannot say that the trial court abused its discretion in finding that Cagle’s suit lacked substantial justification.

Case No. A98A1942

3. Cagle’s second appeal, A98A1942, is from the trial court’s later order denying Cagle’s motion to hold Davis and his firm in contempt and again assessing attorney fees, in this case pursuant to Davis’s motion under OCGA § 9-15-14 (a) in the amount of $1,240. Judgments for attorney fees are ordinarily reviewable only on application for discretionary appeal, OCGA § 5-6-35 (a) (10), but appellees’ motion to dismiss is without merit in this instance because the Supreme Court of Georgia has held that an award of attorney fees need not be appealed through the discretionary application process when a direct appeal from the underlying judgment is pending. Mitcham v. Blalock, 268 Ga. 644, 647 (4) (491 SE2d 782) (1997). Accordingly, Davis’s motion to dismiss the appeal is denied.

4. The contempt motion filed by Cagle arose from the drafting and circulation of the summary judgment order in Case No. A98A1827. After a hearing on attorney fees and expenses, the trial court’s law clerk notified counsel for Davis that the full amount requested by Davis would be awarded. Counsel was instructed to draft a proposed order and forward it to Barrs for approval as to form and did so by letter of January 23, 1998. Barrs responded on January 27 with a letter accusing the trial court of ignoring his arguments, declining to consent to the proposed order “as to form or otherwise,” and reserving his objections until appeal. Davis’s counsel then sent the proposed order to the trial court as directed. Despite the refusal to participate in the drafting process, as stated in his letter of January 27, Barrs wrote the court on January 30 claiming that the order was not sent to him as instructed and demanding an in camera hearing “due to the serious nature of this incident.” Davis’s counsel then called Barrs attempting to find out what the problem was with the order, and Barrs refused to tell her. At the hearing on the motion for contempt, Barrs admitted to the trial court that he refused to tell Davis’s counsel what the problem was, explaining that he did not want to do her work for her. As the trial court correctly observed, the “problem” was that “the word processor had a glitch and added some inadvertent words . . . [that] didn’t make any sense.” But this error did not “add or subtract from anything” and “was obviously a mistake.”

After finding the problem herself, Davis’s counsel corrected the proposed order and forwarded copies to Barrs and to the trial court, pointing out the correction she had made. The original order containing the error had never been signed, because the trial court had also noticed the error. The trial court signed and entered the corrected order and notified Barrs. Barrs, unmollified, telephoned the law clerk and demanded a hearing, which was refused by the trial court.

Barrs then filed a motion for contempt. Davis’s counsel responded with a motion for attorney fees and expenses of litigation under OCGA § 9-15-14 (a). After a hearing, the trial court denied Barrs’s motion and granted Davis’s, awarding additional attorney fees and expenses.

Cagle does not appeal the denial of her motion for contempt, nor does she appeal the assessment of attorney fees and expenses of litigation under OCGA § 9-15-14 (a). Instead, her only enumerations of error on appeal are that the trial court erred in “communicating with opposing counsel ex parte” and in failing to hold a separate hearing on the amount of reasonable and necessary fees and costs. Both assertions are meritless.

(a) While Cagle, or, more properly, her counsel Barrs, does not clearly identify the allegedly improper communications, the record reveals only three possibilities. First, the judge’s law clerk telephoned Davis’s counsel and instructed her to draft an order. But Barrs acknowledged on the record that he was also telephoned by the clerk. Second, Barrs contended he was never informed of the typographical or clerical error in the proposed order or its correction. But the record demonstrates that he was notified by Davis’s counsel by letter and copy of the corrected order. Finally, Barrs complained that he was never informed that the order had been signed. But, again, he acknowledged on the record that the law clerk also telephoned him, although he stated “she may have told me that the order was going to be signed, but she didn’t tell me that the order was signed.” Moreover, all these communications must be considered in the context of his earlier refusal to participate in reviewing the order for form and his statement that he would “reserve my objections until this matter is appealed.”

Black’s Law Dictionary defines “ex parte” in this context as “a judicial proceeding, order, injunction, etc. . . . taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested. [Cits.]” (Emphasis supplied.) Black’s Law Dictionary (6th ed. 1990), p. 576. Both the record and Barrs’s own testimony demonstrate that Cagle, through her counsel, was given notice of each of these communications. Moreover, Canon 3 (B) (7) (a) of the Code of Judicial Conduct explicitly provides that “ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized” if the communication is reasonably believed to provide no unfair advantage and all parties are promptly notified, as was the case here.

(b) Cagle’s final contention is that a separate hearing should have been held on the amount of attorney fees to be awarded on Davis’s motion. The trial court held a joint hearing on the pending motions and heard evidence concerning the hours and expenses incurred by Davis’s counsel in responding to the contempt motion. But we need not consider whether a separate hearing was required or whether the expenses were reasonable, because Barrs expressly waived these issues in open court. After the trial court received evidence (in the form of a statement in counsel’s place and billing documents) concerning Davis’s expenses, it asked Barrs for a response. He replied, “I’m not going to question the fees if your honor finds me liable in that situation” and declined to cross-examine. “[I]ssues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken. One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.” (Citations and punctuation omitted.) Angell v. Hart, 232 Ga. App. 222, 223 (2) (501 SE2d 594) (1998).

We find no merit in Cagle’s assertions on appeal, and we therefore affirm the judgment of the trial court. The conduct of Cagle and Barrs in pursuing a motion for contempt based upon a mere typographical or clerical error which was quickly corrected is without merit and wholly frivolous. The motion was particularly frivolous in light of Barrs’s earlier refusal either to participate in drafting the order or to reveal to opposing counsel the basis for his complaint. We agree with the trial court that the conduct of Cagle and Barrs here was “beyond the pale in my experience” and demonstrates “an utter and complete lack of judgment.” We also commend the trial court for its remarkable patience and restraint in dealing with these baseless claims.

Moreover, the appeal of the denial of Cagle’s contempt motion was based on wholly meritless allegations, one of which was waived below. Under these circumstances, it is apparent that this appeal is wholly without merit and was undertaken primarily, if not entirely, for purposes of delay. As a member of the Bar, Cagle is or should be aware of the frivolity of this appeal even though she is represented by counsel. Accordingly, we impose a penalty of $1,000 against Cagle and a penalty of $1,000 against Barrs pursuant to Court of Appeals Rule 15 (b).

Decided February 17, 1999

Reconsideration denied February 26, 1999

J. Calhoun Barrs, for appellants.

Hawkins & Parnell, Christine L. Mast, Howell Hollis III, for appellees.

Judgments affirmed.

Johnson, C. J, and Barnes, J., concur.

       A standing order issued in Fulton County, where the divorce action was filed, forbids the litigants in any domestic matter “[f]rom selling ... or otherwise disposing or removing from the jurisdiction of the Court, any of the property belonging to the parties.”


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A98A2113.
    USHER v. THE STATE.
    (512 SE2d 380)
   Smith, Judge.

Steven Usher was indicted on four counts of violation of the Georgia Controlled Substances Act by selling cocaine, one count of trafficking in cocaine, and one count of possession of a firearm by a convicted felon. The State entered a nolle prosequi on two of the counts of selling cocaine, and Usher pled guilty to the count of firearm possession. At trial, a jury convicted him of trafficking in cocaine and the remaining two counts of selling cocaine. His motion for new trial as amended was denied, and he appeals. Finding no error, we affirm.

1. Usher asserts the general grounds. Construed in favor of the jury’s verdict, the evidence shows that Usher made two sales of cocaine to a confidential informant. On May 14, 1996, the confidential informant was searched for money and drugs, then given a remote microphone or “body bug” and a sum of money. Meanwhile, other officers were observing the area from concealed positions on the ground and from the air.

An officer in an airplane watched through binoculars as the informant stopped at a garage, picked up a black male in a light-colored shirt, and drove to a house known as “the kitchen” at 220 Jackson Road in Henry County. There, the passenger got out of the vehicle and went into the woods, emerging three or four minutes later with a “white-colored bag in his hands.” Both individuals went into the house for a few moments; then the informant came back to his vehicle and left the area. The officer observed the informant’s vehicle until other officers made contact with him.

The ground surveillance officer identified Usher as the man he saw leave the truck, walk in the direction of the woods, walk up the steps of the house with a light-colored bag, and hand something to the driver of the truck. A videotape of this surveillance was played for the jury. The informant returned to the monitoring officers and turned over a quantity of cocaine. The informant told the monitoring officers he had purchased the cocaine from Usher.

On May 17, 1996, the police supplied the informant with money that had been photocopied to record its serial numbers. The informant paged Usher, met him at a food store, and followed him back to “the kitchen.” He returned with a quantity of cocaine, which he delivered to the officers.

On May 23, 1996, after obtaining a warrant, officers searched “the kitchen” and Usher’s nearby residence at 241 Jackson Road. An officer conducting surveillance saw a man he identified in court as Usher leave “the kitchen” with a light-colored package in his hand and go into nearby woods. A videotape made by this officer was played for the jury. A second officer on aerial surveillance saw an individual with a light brown bag enter the woods and “put something into the brush.” No other person entered or left that area before the first officer was able to point the location out to officers executing the search warrant. They discovered there a bag containing suspected cocaine. A well-traveled trail with a footbridge ran from within five feet of the point at which the drugs were found to Usher’s residence. Officers searching Usher’s residence found a gym bag containing $35,135 in cash in a compartment under a table. The cash included 17 of the photocopied bills delivered to the confidential informant.

The informant appeared at trial and recanted his earlier statements to police, contending that he did not purchase cocaine from Usher but from another unidentified individual “that had purchased four and a half ounces from him.” He contended that he gave the identified currency to Usher in payment for “some transmission work.” But he testified that he gave the currency to Usher on May 14, while the officers testified that the identified currency was used on May 17.

The informant acknowledged, however, that he picked up Usher in his truck on May 14 and followed him to “the kitchen” on May 17. He also testified that he “pulled [his] shirt up to let Mr. Usher know that I wasn’t wired up,” and that he went to the house to purchase cocaine from Usher. He acknowledged that he told the officers on both occasions that he had purchased the cocaine from Usher, but contended that he lied. On further questioning, he repeatedly stated that he could not remember any additional details of his visits to “the kitchen.”

“[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence.” Gibbons v. State, 248 Ga. 858, 862-864 (286 SE2d 717) (1982). “If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.” (Citation and punctuation omitted.) Id. at 864. The jury was authorized to believe the informant’s earlier inculpatory statements rather than his present exculpatory testimony. These statements, in combination with the multiple observations of Usher’s behavior during the “controlled buys,” the discovery of contraband near a well-beaten path to his house after he was observed placing an object there, and the discovery of identified currency in his house, were sufficient to authorize a rational trier of fact to find him guilty of the offenses charged beyond a reasonable doubt under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Flanders v. State, 230 Ga. App. 316, 317-318 (1) (496 SE2d 344) (1998).

2. Usher contends the trial court erred in denying his motion to suppress the evidence obtained by the search of his residence pursuant to a warrant, contending the affidavit did not set forth sufficient probable cause. He contends that some of the information was stale, that the affiant’s testimony was merely conclusory, and that the description of the items sought under the warrant was so broad it constituted a “general warrant.” These contentions are without merit.

“A general warrant is of course void. By definition it is one which does not sufficiently specify the place or the person to be searched. A search warrant is not invalid for want of description of the premises to be searched if the description sufficiently permits a prudent officer executing the warrant to locate the premises, person or property definitely and with reasonable certainty, and without depending upon his discretion. If a search warrant, read as a whole, points out the premises, person or property to the exclusion of all others, and on inquiry leads the officers unerringly to them, it meets the description requirement.” (Citations and punctuation omitted.) Minter v. State, 206 Ga. App. 692, 693 (1) (426 SE2d 169) (1992).

In the present case, the search warrant described the property to be searched by address and physical description. It listed 17 specific categories of items believed to be located on the premises, including “United States currency, specifically monies belonging to the Henry County Police Department, see attached Exhibit A, which were used to conduct controlled narcotics purchases.” “This warrant sufficiently points out the premises to be searched and names the type of property to be seized.” Conrad v. State, 217 Ga. App. 388, 390 (2) (457 SE2d 592) (1995) (warrant describing “ ‘[m]ethamphetamine, other drugs/controlled substances, and other items indicative of the sale/ distribution of controlled substances/dangerous drugs which are being possessed in violation of Georgia Law’ ” sufficient). Compare Dobbins v. State, 262 Ga. 161,164 (3) (415 SE2d 168) (1992) (warrant leaving determination of whether described items were “ ‘of a pornographic nature’ ” entirely to officers’ discretion invalid).

The affidavit supporting the warrant described in considerable detail the affiant’s factual investigation into cocaine sales conducted by Usher, including the extensive surveillance described above and four “controlled buys” other than those for which Usher was indicted. This information was obviously factual and not conclusory. Even if the affidavit contained some stale information, that alone did not invalidate the warrant. Brannon v. State, 220 Ga. App. 572, 575 (3) (469 SE2d 716) (1996).

3. Usher also contends the trial court erred in admitting evidence of similar transactions. “Similar transactions need not be identical to the crime charged to be admissible. Rather, the evidence must show that the defendant committed the other crimes and that sufficient similarity between the crime charged and the prior crimes exists, so that proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Hammonds v. State, 218 Ga. App. 423, 425 (4) (461 SE2d 589) (1995). The State offered evidence that Usher pled guilty to charges arising from the sale of cocaine to a private individual in two other “controlled buys” under the supervision of Henry County authorities. On one occasion, there was a rendezvous and “pick up” in a vehicle, as in the May 14 incident in this case; on the other occasion, the participants met at a public place, as in the May 17 incident. The fact that these sales of cocaine occurred approximately eight years earlier does not render them inadmissible. Gilstrap v. State, 261 Ga. 798, 799 (1) (b) (410 SE2d 423) (1991) (lapses of 11 and 19 years do not demand inadmissibility). This is particularly true when a portion of that time was spent in confinement. Gonzalez v. State, 213 Ga. App. 667, 668 (1) (445 SE2d 769) (1994). The trial court did not err in admitting evidence of the similar transactions.

4. Relying on Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693) (1997), and Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157) (1997), Usher contends that the trial court erred in failing to give a sua sponte limiting instruction contemporaneously with the introduction of similar transaction evidence. But this issue has now been decided adversely to Usher in the Supreme Court of Georgia’s decisions in State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998), and State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998), reversing this court’s decisions in Hinson v. State and Belt v. State and holding that absent a request, it is not reversible error to fail to give a similar transaction limiting instruction.

Decided February 17, 1999

Reconsideration denied February 26, 1999

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

Tommy K. Floyd, District Attorney, Thomas R. McBerry, James L. Wright III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

       The “body bug” did not function properly during either transaction.


author: Johnson, Chief Judge.

text:
    A99A0375.
    WILLIAMS v. THE STATE.
    (512 SE2d 363)
   Johnson, Chief Judge.

A jury found Willie Earl Williams guilty of child molestation. He appeals, and we affirm.

1. Williams claims the trial court erred in not allowing him to introduce evidence of a prior molestation against the victim. We disagree.

The record shows that a man named Buddy Dale previously pled guilty to molesting the victim. The state filed a motion in limine seeking to prohibit Williams from introducing any evidence of molestation of the victim by Dale. The trial court granted the state’s motion. Williams contends the evidence was relevant to explain to the jury the source of the victim’s shocking knowledge of sexual acts.

It is well established that evidence of a prior unrelated molestation generally is not admissible. Blackwell v. State, 229 Ga. App. 452, 454 (2) (494 SE2d 269) (1997). The few recognized exceptions include: (a) to show that someone other than the defendant caused the injuries to the child; (b) to show lack of victim credibility if the victim’s prior allegations of molestation were false; and (c) to show other possible causes for the symptoms exhibited. Wand v. State, 230 Ga. App. 460, 462 (2) (b) (496 SE2d 771) (1998) (physical precedent only); Wilson v. State, 210 Ga. App. 705, 706-707 (1) (436 SE2d 732) (1993). None of these exceptions to the general rule of inadmissibility applies in the present case.

Furthermore, this Court has previously rejected similar arguments regarding a child victim’s knowledge of sexual acts. In McGarity v. State, 224 Ga. App. 302, 303 (1) (480 SE2d 319) (1997), the defendant sought to introduce evidence of a child’s prior sexual activities “in order to counter any belief by the jury that a child of that age would not know of such matters unless she had in fact been molested by the defendant.” Id. We rejected this argument, finding that the rape shield statute barred such evidence. Likewise, in Washington v. State, 225 Ga. App. 262, 263 (2) (483 SE2d 683) (1997), we held that “knowledge of a crime gained through being a victim of that crime at the hands of others can have no relevance to the issue of guilt or innocence of the defendant on trial. The past sexual experience of a child in a case such as this is irrelevant to the issue of whether molestation was committed by the defendant on trial.” (Citation and punctuation omitted.) See also Cantrell v. State, 225 Ga. App. 680, 681 (484 SE2d 751) (1997). The trial court correctly excluded any reference to the past molestation of the victim.

Decided February 15, 1999

Reconsideration denied February 26, 1999

McGee & McGee, James B. McGee III, for appellant.

2. Williams claims he was denied effective assistance of counsel based on trial counsel’s failure to present evidence that the victim had previously been molested by Dale. Trial counsel testified at the motion for new trial hearing that he was aware that Dale had been convicted of molesting the victim and that he had even brought Dale from prison to testify. However, he was not able to present this evidence because the trial court granted the state’s motion in limine excluding the evidence. Based on our holding in Division 1 that the trial court correctly excluded any reference to past molestation of the victim, this enumeration of error lacks merit.

3. Williams claims the trial court erred by admitting similar transaction evidence that he sexually molested the six-year-old daughter of a previous wife. However, Williams has waived this argument. Although the record shows that Williams’ trial counsel objected to the evidence at the similar transaction hearing, he did not object when the evidence was introduced at trial. The failure to object to the introduction of the similar transaction evidence when it is offered at trial waives this claim. Baise v. State, 232 Ga. App. 556, 561 (3) (502 SE2d 492) (1998); Jackson v. State, 223 Ga. App. 207, 208 (1) (477 SE2d 347) (1996).

Judgment affirmed.

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

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A98A1833.
    MACON-BIBB COUNTY HOSPITAL AUTHORITY v. REECE et al.
    (513 SE2d 243)
   McMurray, Presiding Judge.

OCGA § 42-5-2 (a) imposes “the responsibility [on] the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention.” Plaintiff Macon-Bibb County Hospital Authority (“the Hospital”) brought this action on an account against defendants Jones County, Georgia, and Jones County Sheriff Robert N. “Butch” Reece, seeking to recover the expenses of medical treatment to gunshot wounds provided to three men brought to the Hospital by Jones County Sheriff’s Deputy Guy Mosteller. In a prior appeal, the grant of summary judgment to defendants was reversed, but the denial of summary judgment to plaintiff Hospital was affirmed. Macon-Bibb County Hosp. Auth. v. Reece, 228 Ga. App. 532 (492 SE2d 292). Viewed in the light most favorable to the party prevailing before the trier of fact, the evidence at a subsequent jury trial revealed the following:

Throughout the spring of 1995, the Jones County Sheriff’s Office and the Georgia Bureau of Investigation investigated Larry J. Palmer for suspected drug selling. At approximately 2:00 a.m. on May 25, 1995, Jones County Sheriff’s Deputy Guy Mosteller was dispatched to the Palmer residence to investigate a reported “burglary in progress [with] shots fired.” Deputy Mosteller was subsequently informed that “three . . . males had left [Palmer’s] in a small white car . . . traveling at a high rate of speed [,] coming towards Gray highway. . . . [Deputy Mosteller] clocked their vehicle on radar at 75 miles per hour.” Deputy Mosteller activated his “lights and siren . . . and [followed the 1989 white Nissan 240SX] for at least two miles before the car [containing three males] stopped. . . . [The driver, Robbie Freeman,] opened the door, stepped out and staggered. It didn’t look like he could stand up too well. . . . [Deputy Mosteller] asked . . . why was he going so fast, and [Robbie Freeman] said he’d been shot.” Officer Bloodworth from the City of Gray arrived, and the two officers removed the other two occupants, Antonio Hughes and Handy R. Taylor. “Officer Bloodworth patted down Mr. Taylor, found a gun in his pocket and . . . immediately handcuffed Mr. Taylor. Mr. Taylor [was] pleading [for] help. He said that he had been shot and his brother [, Robbie Freeman,] had been shot. . . . He wanted us [the officers] to get him help. He said that, ‘My brother’s been shot. He’s going to die. He wants help.’ ”

A second handgun was discovered in the car, and both weapons were confiscated. Deputy Mosteller noticed that Antonio Hughes was bleeding in the neck area, that Handy Taylor’s right hand was bleeding, and that Robbie Freeman had been wounded in the knee. Robbie Freeman and Antonio Hughes were handcuffed by Deputy Mosteller, and an ambulance was summoned. Deputy Mosteller “never formally booked the three men or charged them with any crime” arising out of this encounter. Specifically, he exercised his discretion not to charge the driver with exceeding the posted speed limit because they “needed medical treatment.” Deputy Mosteller “had no idea [just what had occurred at the Palmer residence. He] didn’t know if these guys may have been victims or if they may have shot each other or how they got hurt. [He] just knew they were shot. . . . When Officer Bloodworth arrived, [the officers] were still outnumbered three to two. . . . [Freeman’s] hand gun was visible from the side of the road from [Deputy Mosteller’s] standpoint. [The three men from the car were handcuffed for the officers’] safety, [because Deputy Mosteller] didn’t know if they might have had another gun or if they might try to attack us [the officers]. [So exercising prudence, the officers] handcuffed them and set them down in the . . . median [to await the ambulance].”

The three men remained in handcuffs while in the ambulance until they got to the hospital, where Deputy Mosteller removed the cuffs from all three men. He never placed them in handcuffs again. Deputy Mosteller received plaintiff’s Exhibits 1, 2, and 3 from a “lady in the emergency room.” These pre-printed forms are captioned “LAW ENFORCEMENT AGENCY APPROVAL FOR INITIAL MEDICAL TREATMENT OF PRISONERS.” Line four contains the preprinted statement: “The patient is a prisoner of _ [blank].” In response to this inquiry, Deputy Mosteller filled in “Jones County S. O.” but “explained to her, . . . ‘These subjects are not prisoners.’ . . . ‘They’re not Jones County prisoners.’ . . . [0]n the form [Deputy Mosteller noted:] that the patient will be responsible for the bill and, at the bottom, send the bill to the patient because [Deputy Mosteller knew of] no reason to send it to [the Jones County Sheriff’s Office].”

The jury found for defendants. Plaintiff’s motion for new trial was denied, and this appeal followed. Held:

1. Plaintiff first contends the trial court erred in refusing to give the following written requests to charge:

No. 6: “ ‘(when) Mosteller handcuffed the men and sat them down in the median of the road, he placed them under arrest.’ ”

No. 7: “‘[T]he facts clearly indicate that the men were under arrest when they entered the hospital in handcuffs with Deputy Mos-teller.’ ”

Plaintiff argues these charges are correct statements of the law because they are the law of the case, as quoted from the prior appeal. We disagree.

“A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased so as to have tendency to confuse and mislead the jury or to becloud the issues in the case.” (Citations and punctuation omitted.) Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 147 (4) (497 SE2d 679). “Even though language used by an appellate court in a decision may embody sound law, it is not always appropriate to employ such language in instructing the jury. Such an instruction may be helpful in explaining a principle of law but ambiguous to a jury.” Davis v. Cincinnati Ins. Co., 160 Ga. App. 813, 815 (1) (288 SE2d 233).

The requested instructions are indeed based on statements in the prior appeal, but there they occur in the context of this Court’s de novo review of all the evidence on appeal from the grant of summary judgment to defendant-appellees. “‘[I]f subsequent to an appellate decision, the evidentiary posture of the case changes in the trial court, the law of the case rule does not limit or negate the effect that such change would otherwise mandate.’ [Cit.]” Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 779 (2) (a) (386 SE2d 696). The statements from our prior decision as relied on by plaintiff do not constitute the law of the case as to what the evidence demanded but determined only what the trier of fact was authorized to conclude, after drawing all reasonable inferences in favor of the Hospital as the non-movant. The trier of fact is under no such obligation to view the evidence in the light most favorable to the Hospital upon the trial of the case. The question whether these three individuals were, for purposes of OCGA § 42-5-2 (a), inmates subject to the physical custody of the Jones County Sheriff’s Office involves an examination of all the surrounding circumstances, but “the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (Citations and punctuation omitted.) McConville v. State, 228 Ga. App. 463, 465 (1) (491 SE2d 900). Thus, the fact that the three men had been handcuffed for transportation to the hospital is not determinative of their subsequent status, when the handcuffs were removed. Consequently, it is our view that plaintiff’s written requests are argumentative, incomplete and impermissibly seek an expression of opinion on the evidence from the trial court. The trial court did not err in refusing to give requests which were argumentative. Gen. Ins. Svcs. v. Marcóla, 231 Ga. App. 146-147 (4), supra. This is so even though the language of the request is drawn from an opinion of this Court. Ellerbee v. State, 215 Ga. App. 102, 105 (6) (449 SE2d 874).

Decided February 26, 1999

2. Plaintiff’s second enumeration complains of the denial of its motion for partial directed verdict as to whether “the three men were under arrest from the time the Jones County Sheriff’s Deputy removed them from their vehicle, patted them down, and placed them in handcuffs at least until such time as the handcuffs were removed.” Plaintiff again relies on the law of the case rule to fix this evidentiary point.

OCGA § 9-11-60 (h) provides: “The law of the case rule is abolished; . . . provided, however, that any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.”

In the prior appeal, this Court affirmed the denial of plaintiff’s motion for summary judgment. Macon-Bibb County Hosp. Auth. v. Reece, 228 Ga. App. 535 (2), supra. This Court also expressly concluded that “a jury could also find from this evidence that the men were not in custody when medical care was rendered, [in which] case, the county would have no liability for the medical expenses incurred.” Id. at 534 (1). Thus, if the “law of the case” applies to this appeal in any fashion, it requires a ruling that the jury should determine whether the three men were inmates under the physical custody of the Jones County Sheriff’s Office because the evidence did not demand a finding either way. See Goodyear Tire &c. Co. v. Johnson, 120 Ga. App. 395, 396 (1) (170 SE2d 869); King v. Simmons, 110 Ga. App. 494, 495 (138 SE2d 919). The trial court correctly refused to direct a partial verdict, to the effect that the men were in fact under arrest at any particular time.

3. The third enumeration is rendered moot by our holdings in Divisions 1 and 2.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Sell & Melton, John A. Draughon, Kevin T. Brown, for appellant.

Groover & Childs, Duke R. Groover, Frank H. Childs, Jr., for appellees.

       We express no opinion whether the three passengers met the statutory definition of “inmate” applied in Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App. 530, 531 (1) (428 SE2d 374). See also Macon-Bibb County Hosp. Auth. v. Reece, 228 Ga. App. 535 (2), supra.

       Any question whether this procedure was a subterfuge designed to avoid the financial responsibility imposed by OCGA § 42-5-2 (a) also is for the trier of fact.


text:
    A98A1892.
    GRAHAM v. THE STATE.
    (512 SE2d 921)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with aggravated assault, theft by receiving stolen property (motor vehicle), theft by receiving stolen property, namely, a motor vehicle license plate and tag, possession of a firearm by a convicted felon, criminal trespass, and the discharge of a firearm on the property of another. The evidence adduced at his jury trial, viewed in the light most favorable to the jury’s verdicts, revealed the following:

On March 9, 1997, Kathy K. Rider of Henderson, North Carolina, reported her car stolen. The vehicle was a black 1994 Mazda 626, with a North Carolina tag. She had not given anyone permission to borrow the car, and she still had the key on her key ring. Reba Gail Waycaster told Hall County Sheriff’s Deputy Donna Nipper Welch she thought it was defendant who, on March 12, 1997, drove up to Waycaster’s residence in a dark-colored car, playing the radio too loud, and revving the motor. She described the vehicle as a small, four-door, “black car with a busted windshield and ... no hubcaps.” Defendant appeared intoxicated, and suddenly he became verbally abusive. Waycaster thought she heard “a firearm being discharged while he was on [her] property. . . . She [only saw] something black laying on the car [but later] found a pellet gun in the ditch that looked like the gun [she] thought [she] had seen.” Although Way-caster’s recollection at trial was weak and contradictory on the identification of defendant as the perpetrator, Deputy Welch confirmed it was Waycaster who gave the deputy defendant’s name; that Way-caster “was standing at the doorway” of her residence; and that Way-caster stated she “saw it herself,” as opposed to relying on the statempTiti fif nPT nimnsTiH

Patrol Officer Morris W. Kelly of the Hall County Sheriff’s Department responded as a backup officer to Deputy Welch’s initial response to the report of a discharged firearm at the Waycaster residence. Shortly after hearing this description of the vehicle, Officer Kelly left the Waycaster residence. Within a five-mile radius, he passed a black, four-door smaller vehicle and “noticed that the windshield on the passenger side . . . was just shattered, not just cracked or spiderwebbed, the whole passenger side of the vehicle was busted.” Officer Kelly turned his vehicle around but was unable to catch that vehicle. When Officer Kelly began the 6:00 a.m. shift on March 13, he was alerted to the impoundment of a black four-door Mazda 626 fitting the general description of the vehicle he had passed the night before. A check through the National Crime Information Center computer network indicated that “the vehicle had been taken from North Carolina or was registered in North Carolina, but at the time of discovery the vehicle had a tag on it from Alabama.” Upon inspection of the vehicle, Officer Kelly noted “that the air bags . . . were blown out[;] that the windshield on the right-hand side . . . [was entirely] busted [and] that it was missing all four hubcaps.” Inside the vehicle, Officer Kelly discovered “a black leather wallet” on the floorboard, containing “several personal items of identification,” such as defendant’s State-issued Georgia ID card, his social security card, and defendant’s Georgia hunting and fishing license. Officer Kelly photographed the impounded vehicle, and Waycaster “identified the vehicle in the photographs as the vehicle that was at her residence the previous day and driven by [defendant].”

On the afternoon of March 13, 1997, Derrick Baldwin backed his diesel truck up to some public telephones to make a call. Defendant was already at one telephone. As Baldwin tried to make his call, defendant “was [belligerently] complaining of [Baldwin’s] noisy diesel truck and the backup signal. . . . [Defendant] said, You know, that [d — ] truck is pretty loud, I can’t even hear over here on this phone.’ . . . [Baldwin] was blunt [in reply] and [he] said [to defendant,] ‘Well, it’s not running now so get over it.’ . . . [Baldwin] continued to try and talk with [his] party [but] was interrupted again for the same reason by [defendant, who said,] ‘Don’t you have any (mouths the word [“f — ing”]) courtesy for anyone over here?”’ This second objection was raised despite the fact that Baldwin’s truck “had been off, . . . since [he] got out and used the telephone.” After this second comment, Baldwin “hung the phone up and went over there and got in his [defendant’s face] and told him to get over it. . . . [Defendant then] said, ‘Well, you’re just a damn bully, I’ll blow your GD head off’ . . . [Defendant] just kind of turned away and proceeded towards a white Ford truck. . . . And then out of the corner of [his] eye [Baldwin] noticed [defendant] shuffling around in the front seat of the truck . . . [a]nd [then] coming out of the truck with ... a Smith & Wesson, at least a .38 caliber . . . double action revolver.” When Baldwin realized defendant was “coming out with a pistol, [Baldwin] got over behind [his] truck and picked up a pipe fitting, an elbow, and told [defendant] to put the gun down.” When another car came into the parking lot, Baldwin got behind this vehicle, “jumped up on the porch of the Country Cupboard and went in and called the police. . . . [Defendant] got in his truck and [drove] away headed south on Price Koad.” Baldwin described defendant and his truck to Deputy Welch and identified State’s Exhibit P-5 (a photograph) as “the person [he] saw that day with the gun.”

The jury acquitted defendant of theft by receiving the stolen license tag and criminal trespass but found him guilty of aggravated assault, theft by receiving stolen property (motor vehicle), and discharge of a firearm on the property of another. Once the jury returned its verdicts, defendant entered a guilty plea to possession of a firearm by a convicted felon. This direct appeal followed. Held:

1. Defendant first complains of the overruling of his motion for directed verdict as to the aggravated assault charge, arguing the evidence of identity is insufficient.

On appeal from a criminal conviction the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hawkins v. State, 230 Ga. App. 627, 629 (3) (497 SE2d 386). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld. Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489).

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. In the case sub judice, Baldwin’s in-court identification of defendant as the assailant was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that defendant committed aggravated assault with a handgun, a deadly weapon, as alleged in the indictment. OCGA § 16-5-21 (a) (2); Ringo v. State, 236 Ga. App. 38 (510 SE2d 893) (1999). See generally King v. State, 213 Ga. App. 268, 269 (444 SE2d 381).

2. Next defendant contends the evidence is insufficient to support either of his convictions for receiving stolen property and for discharging a firearm over the property of another.

(a) “A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen.” OCGA § 16-8-7 (a). “Knowledge that goods are stolen is an essential element of the crime of receiving stolen goods, and this knowledge on the part of the accused must be proved, to warrant a conviction under the Penal Code (OCGA § 16-8-7 (a)); but it may be inferred from circumstances, where the circumstances would excite suspicion in the minds of ordinarily prudent persons.” (Citations and punctuation omitted.) Leach man v. State, 226 Ga. App. 98, 100 (485 SE2d 587).

“The fact that the car was a stolen car and that the defendant had possession of same is not alone sufficient to authorize a conviction for the offense of theft by knowingly receiving stolen property. Johnson v. State, 122 Ga. App. 769 (178 SE2d 772); Gaskin v. State, 119 Ga. App. 593, 594 (168 SE2d 183); Bird v. State, 72 Ga. App. 843 (4) (35 SE2d 483).” Heard v. State, 126 Ga. App. 62, 68 (10) (189 SE 895). But guilty knowledge may be inferred from such possession in conjunction with other evidence. Abner v. State, 196 Ga. App. 752-753 (1) (397 SE2d 36). In the case sub judice, Deputy Welch’s testimony about Waycaster’s prior inconsistent statements was admissible as substantive evidence (see Hayes v. State, 268 Ga. 809, 812 (4) (493 SE2d 169)), that defendant possessed Kathy Rider’s stolen car within seventy-two hours after the loss was reported and the car at that time had a shattered windshield and was missing all four hubcaps. In addition to the strange appearance of the vehicle, defendant abandoned the car after being spotted by the police, apparently in such haste that he left behind his wallet containing his identification. Someone had attempted to conceal the nature of the property as stolen by substituting an Alabama license plate for Rider’s North Carolina tag. The next day, defendant was driving a different vehicle, also with a stolen Alabama tag. This evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s verdict that defendant possessed the motor vehicle under circumstances where he knew or, in the exercise of ordinary prudence, should have known the vehicle was stolen. Fair v. State, 198 Ga. App. 437, 438 (4) (401 SE2d 626).

(b) “It shall be unlawful for any person to fire or discharge a firearm on the property of another person, firm, or corporation without having first obtained permission from the owner or lessee of the property.” OCGA § 16-11-104 (a). In this case, the evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the jury’s conclusion that it was defendant who fired the pellet gun found on Waycaster’s property, without having first obtained permission from either Waycaster or her husband.

3. The third enumeration of error argues defendant’s trial was “plagued by the ineffective assistance of counsel” in four specified instances. But for aught that appears of record, defendant never urged this special ground in any motion for new trial, even though new counsel entered in time to file the same. “By proceeding directly with this appeal without pursuing an evidentiary hearing on trial counsel’s alleged ineffectiveness, we conclude the issue has been procedurally defaulted and presents nothing for review. Glover v. State, 266 Ga. 183 (2) (465 SE2d 659).” Gantt v. State, 229 Ga. App. 207, 209 (3) (493 SE2d 608).

4. Defendant next contends his guilty plea to Count 4, possession of a firearm by a convicted felon, was not informed, willing, and voluntary due to allegedly misleading instruction to defendant by the trial court. We quote the verbatim transcript at length:

After the jury returned verdicts finding defendant guilty of aggravated assault, theft by receiving (motor vehicle), and discharging a firearm on the property of another, the following transpired: “[DEFENSE COUNSEL]: I have explained the ramifications to [defendant] and he indicates to me his willingness to enter a plea on the last offense, with the understanding that any sentence on that would be concurrent with ones that he will have on the other offenses. [THE COURT]: And that would be my inclination, that’s what I would do. . . . [Addressing defendant,] there’s an additional offense that the jury did not try because it’s Count Four, possession of a firearm by a convicted felon, charging you [defendant] with that offense in Hall County, Georgia between March 12, 1997 and March 13, 1997. You’ve been through that criminal charge and discussed that criminal charge with your attorney, ... is that correct? [DEFENDANT]: Yes, sir. [THE COURT]: And you understand that criminal charge; is that correct? [DEFENDANT]: Yes, sir. [THE COURT]: Do you have any questions you want to now stop and ask [your attorney] about that specific criminal charge before we go forward? [DEFENDANT]: No, sir. [THE COURT]: All right. Then let me ask you as to the possession of a firearm by a convicted felon how you’re going to plead, guilty or not guilty? [DEFENDANT]: Guilty. [THE COURT]: I’m going to accept your plea of guilty, . . . and find you guilty of possession of a firearm by a convicted felon. I’m going to find that you’ve entered your plea of guilty freely, voluntarily and intelligently; would you agree with me on that? [DEFENDANT]: Yes, sir. [THE COURT]: And [defense counsel], after your representation of [defendant] would you agree with that assessment? [DEFENSE COUNSEL]: Absolutely. [THE COURT]: And [defendant], you had the right to have that charge tried by the jury and that jury has just returned a verdict in all other counts and [the court] was prepared to have that jury consider your possession of a firearm by a convicted felon case. . . . [The Court stated it] asked [defense counsel] to talk to you about how you’d like to close that, indicating to [defense counsel] that it would not impact [sic] your sentence, that is a maximum sentence of five years, and [the Court] was of the bent of mind that if [the Court] had the opportunity to sentence you for that offense [the Court] would run that sentence concurrent, that is at the same time, with any other sentences imposed in any of the other counts. That was acceptable to you, is that correct? [DEFENDANT]: Yes, sir. [THE COURT]: All right. And you’re not being forced into pleading guilty, is that correct? [DEFENDANT]: Yes, sir. [THE COURT]: All right. You understand you’re not being forced. [DEFENDANT]: Yes, sir.”

Whereupon, the State’s attorney submitted for the record certified copies of the prior convictions that were the basis for Count 4, possession of a firearm by a convicted felon.

(a) Defendant first argues that the admonitions of the court, as well as those of his appointed counsel affected the sentence and the possibilities of an appeal by failing to “consider the ‘impact’. . . that a plea of guilty to a charge to which there had been little evidence adduced at trial would have upon the possible appeal of this case.”

To the extent defendant challenges the voluntariness of his guilty plea because the evidence is insufficient, this contention is without merit. Any convicted felon “who receives, possesses, or transports any firearm commits a felony.” OCGA § 16-11-131 (b). Defendant’s two prior guilty pleas to felony violations as a habitual violator under OCGA § 40-5-58 (c) (2) established his status as a convicted felon. This is a necessary element to prove unlawful possession by a felon. Belt v. State, 225 Ga. App. 813, 814 (2) (485 SE2d 39). Even without any admission by defendant, the evidence adduced at trial is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize a jury’s conclusion that defendant illegally possessed and transported the pellet gun found at the Waycaster residence after defendant’s appearance there.

(b) “So long as the substantive requirements of Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) concerning the defendant’s guilty plea are met, there is no procedural requirement that the trial judge personally make all the inquiries established by [Uniform Superior Court Rules] 33.7 through 33.9. See State v. Germany, 245 Ga. 326, 328 (265 SE2d 13). ‘It is presumed that counsel will fulfill the role in the adversary process that the Sixth Amendment envisions, and has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U. S. 668, 688, 690 (104 SC 2052, 80 LE2d 674). Accordingly, when the hearing record affirmatively reflects that a defendant has consulted with trial counsel regarding his guilty plea, and on appeal an ineffective assistance of counsel claim is not timely asserted in regard to the plea, it may be presumed (subject to rebuttal) that counsel has adequately advised (the) client regarding the meaning and effect of the subsequently offered plea. And such consultation constitutes an additional factor which may be considered in determining plea validity. [Cit.]’ (Emphasis omitted.) Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255).” Brown v. State, 216 Ga. App. 312, 313-314 (1) (454 SE2d 596). In the case sub judice, defendant’s separate enumeration directly raising ineffective assistance of counsel was procedurally defaulted. Nevertheless, once defendant raises a question concerning the validity of a guilty plea, the State bears the burden of showing that the guilty plea was knowingly, voluntarily, and intelligently entered. Bowers v. Moore, 266 Ga. 893, 894-895 (1) (471 SE2d 869).

Decided February 26, 1999.

John D. Burroughs, Rex J. McClinton, for appellant.

Lydia J. Sartain, District Attorney, J. Philip Milam, Allison B. Goldberg, Assistant District Attorneys, for appellee.

In our view, this record affirmatively demonstrates the trial court adequately complied with the procedural protections mandated by USCR 33.7, 33.8, and 33.9. Defendant consulted with his attorney, understood the charge against him and the possible sentence, and waived a jury trial (such as he had just undergone) with the attendant right to challenge the documentary evidence against him. He confirmed his guilty plea was not forced or coerced. The trial court confirmed it would make the five-year sentence concurrent with those imposed for the other offenses. There is nothing misleading in that. “An accused, having participated in the court’s inquiry into the voluntariness of a guilty plea and having approved ' “in the presence of the court while his attorney entered a plea of guilty in his behalf and the court acting thereon imposed the sentence, (is not permitted) to deny thereafter the authority of his attorney to enter the plea or to deny his approval of such action by his attorney. Had he had any objection, he should have made it known at the time and before the court acted thereon.” (Cits.)’ ” Paino v. State, 209 Ga. App. 87, 88 (432 SE2d 599).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: McMURRAY, Presiding Judge.

text:
    A98A2156.
    ANDERSON v. THE STATE.
    (513 SE2d 235)
   McMURRAY, Presiding Judge.

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

1. Defendant was charged in a seven-count indictment with offenses arising from three incidents separated in time by two weeks or more. On defendant’s motion for severance, a separate trial was granted as to the two most recent offenses which occurred on June 22, 1995. These were Count 1, charging a robbery of victim Morgan by use of force, and Count 2, an obstruction of a law enforcement officer charge arising in connection with defendant’s arrest on the same day. Defendant enumerates as error the trial court’s refusal to sever for trial purposes the charges arising from the two remaining incidents.

The charges tried together included an armed robbery and an aggravated assault alleged to have been perpetrated upon Kelvin Evans on May 10, 1995. The State’s case was based on evidence that at approximately 1:00 a.m., Evans drove himself to “a rolling store” located on a street in Bowen Homes. Evans got out of his car and was accosted by defendant, who was accompanied by his brother and another individual. Defendant made no attempt to conceal his identity, and Evans recognized him from seeing him around the neighborhood. After some cursing and name calling, defendant pulled a handgun and robbed Evans before shooting him, causing a wound in the thigh.

Defendant was also charged with armed robbery of victims Bailey and Williams on May 24, 1995, and with aggravated assault upon Williams. This incident was a daytime home invasion of an apartment at Bowen Homes during which defendant was aided by one accomplice. In this instance the robbers attempted to conceal their identities. Nonetheless, Williams attempted to foil the robbery and scuffled with defendant, partially removing his mask so that she was able to identify defendant at trial. Bailey also recognized defendant as she knew him from the neighborhood. Defendant shot Williams in the thigh, took the victims’ money, and fled with his accomplice.

“ ‘Two or more offenses may be tried together if they: “(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” (Cits.)’ Gober v. State, 247 Ga. 652, 653 (1) (278 SE2d 386). ‘Where two or more offenses are joined only because they are of the same or similar character, the trial court, upon motion of the defendant, must order separate trials for each of the offenses. (Cit.) But when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, “. . . the court in the interest of justice may order that one or more of such charges be tried separately.” (Cit.)’ (Emphasis in original.) Id.; compare Matula v. State, 264 Ga. 673, 675 (4) (449 SE2d 850). Moreover, “ ‘(w)here . . . the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance.” (Cit.)’ Dennis v. State, 263 Ga. 257, 260 (6) (430 SE2d 742).” Morrow v. State, 226 Ga. App. 833, 834 (1) (487 SE2d 669).

The partial denial of defendant’s severance motion as to the two incidents which were tried together was authorized since these incidents were shown to be of a similar character and each would have been admissible to prove the other. Both incidents occurred not only in the same county but in the same housing project two weeks apart. In both instances, the victims were robbed of money by a group of perpetrators of which defendant was conspicuously the aggressive leader, that is, the perpetrator who initiated and controlled the tenor of the encounters with the victims, the armed perpetrator, and the perpetrator who in each instance shot a victim, each time wounding the injured victim in the thigh.

Defendant was acquitted of the charges connected with the robbery of Kelvin Evans and maintains that he was convicted of the charges arising from the home invasion incident because the jury must have assumed, based on the number of charges against him, that he was guilty of something. Defendant also argues that he was harmed by having to give up his right to remain silent in order to present his defense to the charges arising from the Evans’ incident.

However, it appears highly probable that the trial court’s refusal to sever did not affect the result. Even if severed, the jury would have learned of the other incident via similar transaction evidence. And defendant’s silence with regard to the home invasion incident would have only served to leave the victims’ positive identification of him unrebutted. The trial court has wide discretion in severance motions, and the record fails to support defendant’s contention that the trial court abused its discretion in the partial denial of his motion for severance.

2. Nor did the trial court err in admitting similar transaction evidence. The similar transaction witness testified as to an incident in Bowen Homes where he had seen defendant around the neighborhood and knew his first name but was not personally acquainted with him. This witness testified that his brother had gotten into a fist fight with defendant, that he along with others broke up the fight, that as he was walking away afterwards defendant approached him with a pistol, that he had gotten into a scuffle with defendant, and that defendant had shot him in the leg.

Defendant argues that the similar transaction evidence was introduced solely to impeach his character. At the pre-trial hearing, the prosecution offered the similar transaction evidence to show scheme, course of conduct and bent of mind along with defendant’s propensity to use a firearm with little or no provocation. We find no error in the trial court’s ruling that the prosecution had articulated an appropriate purpose for admitting the evidence. McBee v. State, 228 Ga. App. 16, 18 (1) (491 SE2d 97).

The evidence of the similar transaction does not reveal an incident so dissimilar as to preclude its admission. The similar transaction incident tends to show defendant’s propensity to use a gun and may suggest some attempt by defendant to display a trademark injury to his victims since the victim of the similar transaction shooting along with the two victims of the aggravated assault charges tried were all shot in the left thigh. While the underlying incident in the similar transaction evidence was different in that it was not involved with an attempted armed robbery, the scuffle with the similar transaction witness was similar to that which occurred when victim Williams attempted to resist an armed robbery while the shooting of victim Evans involved even less provocation. Willis v. State, 214 Ga. App. 479, 480 (3) (448 SE2d 223).

3. The trial court did not err in limiting defendant’s voir dire. “Voir dire should allow both parties an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination. Whitlock v. State, 230 Ga. 700 (198 SE2d 865) (1973). However, no question should require a response from a juror which might amount to a prejudgment of the case. Jones v. Parrott, 111 Ga. App. 750 (2) (143 SE2d 393) (1965). Since the distinction between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear, the ‘control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion.’ Lamb v. State, 241 Ga. 10, 12 (243 SE2d 59) (1978).” Waters v. State, 248 Ga. 355, 363 (3) (283 SE2d 238). See also OCGA § 15-12-133; Pinion v. State, 225 Ga. 36, 37 (165 SE2d 708); Stell v. State, 210 Ga. App. 662 (1) (436 SE2d 806).

In the case sub judice, defendant was not permitted to ask “ [i] s there anyone who believes that just because he’s charged with two different offenses he must, therefore, be guilty” or “is there anyone who believes because he was involved in [trouble three years ago as shown by similar transaction evidence] that he must be guilty?” We find no abuse of discretion in the trial court’s refusal to allow these questions which ask the jurors to prejudge the case.

4. “ ‘As a general rule, all the circumstances connected with a defendant’s arrest are admissible as a part of the res gestae.’ Crowe v. State, 193 Ga. App. 385 (388 SE2d 24). Where evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded merely because it incidentally shows the commission of another crime. Sapp v. State, 184 Ga. App. 527, 528 (362 SE2d 406). Although evidence may incidentally put character in issue or may be prejudicial, it may be admitted if otherwise relevant. Coney v. State, 198 Ga. App. 272, 274 (401 SE2d 304).” Hutson v. State, 216 Ga. App. 100, 101 (5) (453 SE2d 130). Evidence which is “otherwise relevant” is that which is relevant to the issues on trial. See DeCastro v. State, 221 Ga. App. 83, 85 (1) (470 SE2d 748). Thus in Crosby v. State, 269 Ga. 434, 435 (3) (498 SE2d 62), a small amount of marijuana found on that defendant at the time of an arrest was held to be irrelevant to the issues in that murder trial. We do not view Crosby as standing for the proposition for which it is cited by defendant, that is, that circumstances surrounding an arrest other than for the crime for which a defendant is on trial are irrelevant and prejudicial.

Defendant was arrested due to the charges contained in one of the counts which was severed pursuant to defendant’s motion. The second charge severed arose in connection with the arrest. Prior to admitting any evidence as to defendant’s arrest, the trial court conducted a hearing during which the testimony to be submitted in regard to the arrest was limited. Consequently, the jury heard only that an officer went to an address to back up another on a 911 call and, based on information provided by witnesses, went to a certain apartment to find defendant where defendant attempted to flee. It was not error to allow an officer to testify concerning defendant’s attempt to flee at the time of his arrest. Claypool v. State, 188 Ga. App. 642-643 (2) (373 SE2d 765). Furthermore, while the general rule permits admission of evidence establishing the commission of other crimes when such are within the circumstances connected with an accused’s arrest (Wright v. State, 210 Ga. App. 616, 617 (436 SE2d 783)), the trial court imposed a more restrictive standard and did not allow the State to show that police went to Bowen Homes in response to a robbery call or that defendant was arrested because he was a robbery suspect. Nonetheless, the circumstances surrounding the arrest were properly admitted since defendant’s flight was relevant to show his state of mind and consciousness of guilt. Newman v. State, 239 Ga. 329, 330 (236 SE2d 673); Bixby v. State, 234 Ga. 812, 813-814 (1) (218 SE2d 609).

Furthermore, the trial court did not err in permitting the prosecution to argue inferences from this evidence admitted at trial in closing argument. McClain v. State, 267 Ga. 378, 383 (3) (b) (1) (477 SE2d 814); DeCastro v. State, 221 Ga. App. 87-88 (3), supra. Contrary to defendant’s argument, the prosecution argument was not based on evidence excluded by virtue of the partial grant of defendant’s motion to sever, but consisted only of inferences which reasonably can be drawn from evidence properly admitted at trial.

5. Defendant argues, and the prosecution concedes, that the trial court erred in restricting defendant’s closing argument so as to prohibit him from commenting on the prosecution’s failure to produce certain witnesses. Morgan v. State, 267 Ga. 203 (476 SE2d 747); Smith v. State, 231 Ga. App. 68, 70 (2) (498 SE2d 561). Evidence was presented that another female named “Stacey” was present when defendant committed the armed robberies and aggravated assault of which he was convicted and that the prosecution did not call this witness at trial.

Nonetheless, defendant has not shown that he was prejudiced by the denial of the opportunity for his counsel to comment on the prosecution’s failure to call “Stacey” as a witness. The trial evidence controverts any argument that “Stacey” would have given exculpatory testimony since it was she who informed victim Williams of defendant’s name after apparently recognizing him during the crimes. Under these circumstances, defendant has failed to show the requisite harm to reverse a conviction. Smith v. State, 268 Ga. 860, 861-862 (2) (494 SE2d 322); Kendrick v. State, 224 Ga. App. 72, 74-75 (6) (479 SE2d 464).

6. The severed offenses were Counts 1 and 2 on the indictment. Before the indictment was permitted to go out with the jury, it was redacted by removing the pages containing these counts and by blacking out portions of the cover page which referenced the severed offenses and also the names of witnesses on the severed counts as well as four similar transaction witnesses who did not testify. The jury was instructed that “Counts 1 and 2 are not before you and they are of no concern to you and you should draw no inferences either for or against the state or for or against the defendant or in any way. Those are just matters that have been removed totally from your consideration.” Defendant maintains that the effect of the absent Counts 1 and 2, along with the blacking out with a marker made it apparent that additional criminal charges had been removed from the indictment thereby putting defendant’s character in issue. However, we find the trial court’s removal of all references to the severed charges along with instructions to the jury that they were to draw no inference from the redacting of the indictment to be sufficient to avoid any impermissible reflection on defendant’s character. Defendant’s reliance upon Morrow v. State, 229 Ga. App. 242, 245 (4) (493 SE2d 616), is misplaced as there is no indication that the indictment in that case was redacted.

The present case does not address whether an indictment should be redacted or which information should be removed, but involves the trial court’s range of discretion with regard to the manner in which such is accomplished. Undoubtedly, the circumstances will vary widely, but we are aware of no requirement that a document be redacted in such a fashion as to obscure the fact that it has been redacted.

7. Pursuant to the trial court’s grant of defendant’s motion in limine, the prosecutor was ordered to instruct prosecution witnesses against making certain references regarding defendant’s character, including to defendant being a member of a robbing crew. Thereafter, the prosecution rested its case without calling as a witness a police detective assigned to the case. The police detective was called as a witness by the defense. When asked how victim Evans had said that he knew defendant, the detective answered that he said he knew him from the neighborhood. Defense counsel then inquired and established that this response was not contained in the detective’s official report or handwritten notes. Defense counsel proceeded to ask the detective what victim Evans had actually told him, to which the detective replied: “He told me that he knew him from the neighborhood as being one of the robbery crew.” Defense counsel objected and moved for mistrial, maintaining that the detective’s response improperly placed defendant’s character in issue and violated the trial court directions on the pre-trial motion in limine. The trial court denied defendant’s motion for mistrial, cautioned the witness, and gave curative instructions to the jury. Defense counsel did not renew the motion for mistrial following the curative instructions and thereby waived appellate review of the denial of the motion for mistrial. Weems v. State, 268 Ga. 515, 516 (2) (491 SE2d 325); Jones v. State, 265 Ga. 84, 86-87 (5) (453 SE2d 716); Warren v. State, 232 Ga. App. 488, 491 (5) (502 SE2d 336); Daniel v. State, 224 Ga. App. 673, 676 (6) (482 SE2d 409).

Decided February 26, 1999.

Avis K. Hornsby, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

In this regard we reject defendant’s argument that any issue was preserved for appellate review by the colloquy between defense counsel and the trial court. Defense counsel opined that no curative instructions would be sufficient to remedy the allegedly improper introduction of evidence of defendant’s character, yet preferred that such curative instruction be given rather than waived. There is nothing in the trial court’s statement reaffirming that it was making defense counsel’s objection part of the record along with her position that curative instruction could not remedy the basis for the motion for mistrial which excuses defense counsel from renewing the motion for mistrial after the instructions in order to preserve the issue for appeal. Nor could this be accomplished solely by defense counsel’s statements.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.


author: Judge Harold R. Banke.

text:
    A99A0132.
    STRANGE et al. v. BARTLETT et al.
    (513 SE2d 246)
   Judge Harold R. Banke.

After a rainy day rear-end collision, David C. Strange and Eileen Strange sued the driver of the truck, John Michael Bartlett, and Bartlett’s employer, Bartlett Heating & Cooling, Inc. The Stranges sought special damages in excess of $100,000. They appeal the defense verdict.

The underlying events arose as David Strange was proceeding northbound in the right lane behind a taxi. After the taxi driver turned on his left turn signal and moved into the center lane, Strange did likewise. After moving into the center lane, the cab driver braked then slowed to a stop. Strange came to a stop behind him. As Strange waited for the taxi to complete its turn and looked to see if he could go around it, Bartlett rear-ended him, knocking his vehicle into the taxi. An ambulance transported Strange to a hospital. The responding officer ticketed Bartlett for “following too closely.” Bartlett entered a guilty plea and paid the fine for that offense.

At trial, Strange and Bartlett vigorously contested the road and weather conditions at the time of the collision. Their testimony completely diverged as to whether the roadway had any standing water and whether it had been raining heavily. Strange testified that just moments before the impact, he had had no difficulty stopping behind the taxi in the “light rain.” According to Strange, due to the downhill grade, there was no standing water. Although Bartlett testified that from 100 to 200 feet he saw that traffic ahead had stopped, he also claimed that he “could barely make the image out,” because of an “extremely heavy downpour.” Bartlett claimed that standing water prevented his tires from grabbing the pavement so that when he braked, his truck hydroplaned. Bartlett admitted that traffic around them “seemed to be flowing fairly well.”

The investigating officer testified that he had interviewed all three drivers at the scene. Bartlett told him that after he saw the vehicle up ahead, he was not able to stop in time. According to the officer, in recounting the events, Bartlett made no mention whatsoever about having hydroplaned. The officer testified that this portion of roadway had good drainage due to its downhill slope. When writing his incident report, the officer did not consider the rain so unusual as to have been a contributing factor to the collision. According to the officer, had unusual weather or standing water created a road hazard, he would have indicated that in his report and he did not do so.

Enumerating six errors, David and Eileen Strange (collectively “Strange”) appeal the jury verdict. Held:

1. In two enumerations, Strange contends that the court erred by instructing the jury over objection on an “act of God” based on OCGA § 1-3-3 (3) and on “impeding the flow of traffic” based on OCGA § 40-6-184.

Jury charges must be legal, apt, and adjusted to the evidence or some appropriate legal principle. Mattox v. MARTA, 200 Ga. App. 697, 698 (2) (409 SE2d 267) (1991). Where any portion of a requested charge is inapt or incorrect, the trial court should refuse to give it. Id. at 699 (4). Accord Byrd v. Daus, 218 Ga. App. 145, 148 (4) (460 SE2d 819) (1995) (requested charge should not becloud the issues).

By definition, the legislature constricted an “act of God” to mean “an accident produced by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death or illness. This expression excludes all idea of human agency.” OCGA § 1-3-3 (3). Plainly, the statutory definition incorporates three basic elements: (1) an accident produced by (2) an irresistible or inevitable force of nature or God, (3) which excludes all idea of human agency or conduct. OCGA § 1-3-3 (3). In other words, an “act of God,” not an act of man, must solely cause the accident.

But here, the trial court altered and expanded the statutory definition. Instead of instructing that an act of God excludes all human agency, the court charged that an act of God “is not due to any human agency.” The court added: “[a]cts of God are events of nature, which are so extraordinary in character that human scale and foresight by the exercise of proper care and caution cannot provide against them.” By modifying the statutory definition, the court improperly injected consideration of human factors into the calculus. But where damages are caused by the combination of an act of God and the fault of man, such damages must be attributed entirely to human error. Western & Atlantic R. v. Hassler, 92 Ga. App. 278, 280-281 (1) (88 SE2d 559) (1955). “The presence of the one excludes the existence of the other.” Id. at 281.

Even had the trial court not misstated the law, the applicability of such an instruction is problematic. Bartlett did not testify that he was unable to stop because the roadway had been washed away or a current swept up his truck, but because he could not control his vehicle while he braked. See Sampson v. Gen. Elec. Supply Corp., 78 Ga. App. 2, 8 (3) (50 SE2d 169) (1948) (“act of God” applies in the legal sense only to climatic variations and the like). See Central Ga. EMC Corp. v. Heath, 60 Ga. App. 649, 652 (4 SE2d 700) (1939) (“[a]n act which may be prevented by the exercise of ordinary care is not an act of God”).

Notwithstanding Bartlett’s claim to the contrary, Jump v. Benefield, 193 Ga. App. 612, 614 (2) (388 SE2d 864) (1989), is distinguishable both on its facts and on the law in its instruction. In Jump, unlike here, the court charged: “the term ‘act of God’ in its legal sense applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them.” (Punctuation omitted.)

Similarly, Bartlett’s reliance on Feathers v. Wilson, 157 Ga. App. 753, 754 (2) (278 SE2d 434) (1981), is misplaced. In Feathers, the trial court defined “an act of God” as follows: to mean “‘generally speaking, some unnatural phenomena and totally unexpected in the natural world, such as lightning striking places where lightning doesn’t usually strike, a meteor falls, a tidal wave and earthquake. Those things which are called act of God. Some unusual unnatural phenomena.’ ” Id. at 754 (2). Here, the instruction diverged from these basic concepts.

Further, the instruction on impeding the flow of traffic did not conform to the evidence adduced at trial. Gaffron v. MARTA, 229 Ga. App. 426, 431 (2) (494 SE2d 54) (1997). The court charged, “[t]he law in Georgia also states that no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.” Here, Strange was not driving slowly but had come to a complete stop behind a taxi which had halted to execute a left turn. Compare Hall v. Buck, 206 Ga. App. 754, 756 (2) (426 SE2d 586) (1992) (tractor-trailer had not reached a safe speed after pulling out).

Notwithstanding Bartlett’s contrary claim, the transcript of the charge conference establishes that Strange articulated precise and specific reasons for excepting to these two charges. Compare Allstate Ins. Co. v. Justice, 229 Ga. App. 137, 140 (3) (493 SE2d 532) (1997) (objections must enable trial court to evaluate nature of points raised). Strange then properly renewed his objections after the court instructed the jury. Smith v. Curtis, 226 Ga. App. 470, 471 (1) (486 SE2d 699) (1997).

Based on the record before us, we cannot say that these charges did not prejudice and becloud the jury’s determination of fault. Silvers v. Kimhell, 219 Ga. App. 482, 484 (465 SE2d 530) (1995); Byrd, 218 Ga. App. at 148 (4). Therefore, we reverse. Gaffron, 229 Ga. App. at 432.

2. In light of the above holding, we need not reach the remaining enumerations of error.

Judgment reversed.

McMurray, R J., and Andrews, J., concur.

Decided February 26, 1999.

Joseph M. Todd, for appellants.

Downey & Cleveland, Russell B. Davis, for appellees.

       It further charged, “[i]f you find that the incident or damages for which the Plaintiff seeks recovery resulted from an act of God, then the Plaintiff would not be entitled to recover. And it would be your duty to return a verdict in favor of the Defendants. There can be no recovery against the Defendants for damages or injury caused by an act of God.”


author: Andrews, Judge.

text:
    A98A1686.
    PEACHTREE CASUALTY INSURANCE COMPANY v. KIM et al.
    (512 SE2d 46)
   Andrews, Judge.

Peachtree Casualty Insurance Company (Peachtree), having filed a declaratory judgment action regarding coverage, appeals from the trial court’s grant of summary judgment to its insured Young Ho Kim and State Farm Insurance Company (State Farm) and its insured and claimant under UM coverage, Chan Woo. Hyun and So Young Na, in this suit arising from an accident between Kim’s automobile and that of Hyun and Na.

Peachtree contends that the following exclusion in its policy precludes liability coverage and its duty to defend because, at the time of the accident, Kim’s license had been revoked. “Liability coverage and duty to defend does not apply to: . . . 13. Bodily injury or property damage caused by your insured car when it is driven, operated or used with your permission by a person whom you know:. . . d. Has a revoked driver’s license.” The definitions section states that “ ‘\y]ou’ and ‘your’ mean the ‘named insured’ shown on the Declarations Page and spouse, if a resident of the same household.”

As used in the liability part of the policy, “ ‘[i]nsured person’ or ‘insured persons’ means: a. You or a relative with respect to an accident involving your insured car, b. You or a relative while driving a non-owned car with permission, c. Any other person driving your insured car with your permission.” (Underlined provisions in bold in policy.)

The issue, then, is whether the insured, under this exclusion, can be considered a “permissive user,” i.e., does one give oneself permission to drive without a license so as to trigger the exclusion?

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

“In Georgia, an insurer may fix the terms of its policy as it wishes, insuring against certain risks and excluding others, provided the terms are not contrary to law. Hulstzman v. State Farm Fire &c. Co., 188 Ga. App. 12 (2) (372 SE2d 9) (1988). Where an insurer grants coverage to an insured, any exclusions from that coverage must be defined clearly and distinctly. American Southern Ins. Co. v. Golden, 188 Ga. App. 585, 586 (373 SE2d 652) (1988). Insurance in Georgia is a matter of contract and the parties to the contract of insurance are bound by its plain and unambiguous terms. Richards v. Hanover Ins. Co., 250 Ga. 613 (1) (299 SE2d 561) (1983). However, if a provision of an insurance contract is susceptible of two or more constructions, even when the multiple constructions are all logical and reasonable, it is ambiguous (Lakeshore Marine v. Hartford Accident &c. Co., 164 Ga. App. 417 (2) (a) (296 SE2d 418) (1982)), and the statutory rules of contract construction will be applied. Pursuant to the rule of construction set forth at OCGA § 13-2-2 (5), the contract will be construed strictly against the insurer/drafter and in favor of the insured. See American Southern Ins. Co. v. Golden, supra, 188 Ga. App. at 586.” Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996).

The clause at issue is not the newer “easy reading” clause addressed in Hurst, but the older “omnibus” clause. Id. at 713 (1). The newer clause uses “any person” instead of you and would, without question, include an unlicensed insured. Cincinnati Ins. Co. v. Plummer, 213 Ga. App. 265, 266 (1) (444 SE2d 378) (1994), overruled on other grounds, Hurst, supra at 717.

We need not determine whether the clause includes or does not include the insured as a matter of law, however, because, as concluded by the trial court, the clause is subject to more than one reasonable interpretation which requires that it be interpreted in favor of the insured, Kim.

While Peachtree argues vigorously that it is implicit in the policy that the driver/insured must be licensed and, therefore, the exclusion applies, that is not clear from the policy as a whole. Had Peachtree, as drafter of the policy wanted to include such a requirement, it should have definitively done so. See Brown v. North American &c. Ins. Co., 235 Ga. App. 299 (1) (508 SE2d 741) (1998).

Decided February 8, 1999

Reconsideration denied March 1, 1999

Hertz & Link, Houston D. Smith III, for appellant.

Rowe & Lawler, William P.Rowe III, for appellees.

Therefore, summary judgment was properly granted to State Farm and Kim.

Judgment affirmed.

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

       At the time he obtained the insurance, Kim was a licensed driver.

       There is no Georgia case on point, since most such cases have involved a separate person. See Southeastern Security Ins. Co. v. Empire Banking Co., 230 Ga. App. 755 (498 SE2d 282) (1998). The Wisconsin Court of Appeals has concluded that one cannot give permission to oneself to drive a car under these circumstances. Loewenhagen v. Integrity Mut. Ins. Co., 164 Wis.2d 82, 90 (473 NW2d 574) (1991).