author: Banke, Presiding Judge.

text:
    A90A0280.
    SMITH v. THE STATE.
    (392 SE2d 56)
   Banke, Presiding Judge.

The appellant brings this appeal from the denial of his motion for new trial following his conviction of trafficking in cocaine. The appellant lived in a boarding house which was searched pursuant to a warrant in which it was stated that he and another individual were storing and concealing cocaine in “the last room on the right downstairs.” While the search was being carried out, Officer Dix saw a woman knock on the door to the appellant’s room (which adjoined the room referenced in the warrant) and heard her speak with him about retrieving her baby from his room. Dix testified that he saw the appellant open the door at this time and recognized him as being one of the persons named in the search warrant. He stated that he approached the appellant, advised him that he was identified in the warrant as having drugs concealed on the premises, advised him of his Miranda rights and asked him to surrender any drugs which were in the room. According to the officer, the appellant responded by revealing the location in the room where 85.7 grams of cocaine was concealed. At trial, the appellant denied having cooperated with Dix, testifying that the police kicked in the door to his room and conducted the search without consulting him. On appeal, however, he contends that the search was unlawful because it was based on coerced consent. Held:

Decided March 14, 1990.

Lori Spielberger, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Linda Finley, Assistant District Attorneys, for appellee.

1. OCGA § 17-5-21 (b) provides that “[w]hen the peace officer is in the process of effecting a lawful search, nothing in this Code section shall be construed to preclude him from discovering or seizing . . . any item, substance, object, thing or matter, the possession of which is unlawful. . . .” However, it has been held that “[t]he discovery of the item must . . . have resulted from a bona fide search for the items named in the warrant.” Cayce v. State, 192 Ga. App. 97, 98 (383 SE2d 648) (1989).

In the present case, the contraband was not discovered in the room named in the warrant but in an adjoining room; however, inasmuch as the appellant was occupying the room, and inasmuch as he was named in the warrant as one of the persons believed to be concealing cocaine on the premises, we conclude that the search of the room was authorized by the warrant. We accordingly hold that the appellant’s consent to the search was not necessary, with the result that his motion to suppress was properly denied.

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

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A90A0353.
    TAYLOR v. THE STATE.
    (392 SE2d 57)
   Sognier, Judge.

Joemo Taylor, a juvenile, was tried as an adult and convicted of kidnapping with bodily injury, aggravated assault, and aggravated child molestation, and sentenced to life plus fifteen years to serve. He appeals from the denial of his motion for a new trial as to his convictions for kidnapping and child molestation.

The evidence adduced at trial revealed that on October 20, 1988, appellant, who was thirteen years old, led the victim, a five-year-old boy, into a densely wooded area. There appellant hit the victim on the head with a stick, pulled down the victim’s pants and attempted to anally sodomize him, and left the victim in the bushes, where he was found the following morning after an all night search instituted in response to a missing persons report. The victim suffered a fractured skull, rectal lacerations, and multiple contusions.

Appellant was informed of his constitutional rights and signed a waiver of counsel form when he was questioned by the police in the presence of his guardian. He identified the clothing shown to him as that worn by the victim, and gave a statement in which he admitted hitting the victim in the head with a stick and attempting sodomy. Appellant then led the police to the scene of the crime.

Doris Hughes, who lived near the wooded area, testified that she saw an older boy lead a younger boy into the woods, and identified appellant as the older boy she saw, as well as identifying a photograph of the victim as the younger boy. After being questioned by the trial court and found to be competent to testify, a ten-year-old girl testified that two months prior to the date on which the charged offenses took place, she had been sexually molested in a local schoolyard by a boy she did not know at the time but later identified as appellant.

1. Appellant enumerates the general grounds. We find the evidence as related above sufficient to authorize the jury to convict appellant of kidnapping with bodily injury and aggravated child molestation under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We note that the trial court did not sentence appellant on his conviction for aggravated assault and appellant has not appealed from that conviction.

2. Appellant contends the trial court erred by denying his motion for a directed verdict as to the kidnapping charge made on the ground that no evidence was introduced that the victim was held against his will, a required element of the crime. OCGA § 16-5-40 (a). We find no merit in this enumeration. First, the evidence permits the inference that the victim would not willingly have remained with appellant after being harmed. Second, appellant admitted that he hit the victim on the head, and the medical testimony was that the force of the blows to the head was sufficient to cause a skull fracture and loss of consciousness. Thus, insofar as a five-year-old child can be said to have gone with appellant “willingly” or “voluntarily” because of enticement by appellant, when he was hit on the head and lost consciousness the victim was deprived of the capacity to choose to remain with appellant voluntarily, and thus was held against his will.

Decided March 14, 1990.

John W. Davis, for appellant.

Glenn Thomas, Jr., District Attorney, Keith C. Higgins, Assistant District Attorney, for appellee.

3. Appellant enumerates as error the trial court’s sentencing appellant for both kidnapping and child molestation because the kidnapping was included in the child molestation as a matter of fact. Appellant has not supported this enumeration with argument or citations of authority and it is, therefore, deemed abandoned pursuant to Rule 15 (c) (2) of this court. Brooks v. State, 191 Ga. App. 705 (2) (382 SE2d 432) (1989). We note, however, that the offense of kidnapping with bodily harm was proved by showing asportation of the victim and the blow to his head, and was completed prior to the sodomy. Thus, there was no merger as a matter of fact because the facts used to prove the crime of aggravated child molestation were different from those used to show the essential elements of kidnapping. See Olsen v. State, 191 Ga. App. 763, 764-765 (1) (382 SE2d 715) (1989).

4. Appellant asserts the trial court erred by overruling his plea in bar to the prosecution of these offenses in superior court, made on. the ground that appellant was a juvenile and OCGA § 15-11-39 had not been complied with. OCGA § 15-11-5 (b) provides that the juvenile court “shall have concurrent jurisdiction with the superior court over a child who is alleged to have committed a delinquent act which would be considered a crime if tried in a superior court and for which the child may be punished by loss of life or confinement for life in a pénal institution.” Kidnapping with bodily injury is a capital crime. OCGA § 16-5-40 (b). “[T]he concurrent jurisdiction of the superior court over capital felonies committed by juveniles must necessarily extend to related lesser crimes which are part of the same criminal transaction.” Worthy v. State, 253 Ga. 661, 662 (1) (324 SE2d 431) (1985). Here, either the juvenile court or the superior court properly could have exercised jurisdiction. Since no petition alleging delinquency was ever filed in juvenile court, and the superior court first took jurisdiction through indictment, jurisdiction properly vested in the superior court and no transfer hearing pursuant to OCGA § 15-11-39 was required. Lewis v. State, 246 Ga. 101, 102-103 (1) (268 SE2d 915) (1980).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A89A1619.
    BISHOP v. MANGAL BHAI ENTERPRISES, INC.
    (392 SE2d 535)
   Beasley, Judge.

Bishop appeals the grant of summary judgment to Mangal Bhai Enterprises, Inc., d/b/a Passport Inn, and the denial of his motion for summary judgment. Bishop’s motion dealt solely with his status, whether invitee or licensee, which was also at issue in Mangal’s motion.

1. Inn owner Patel’s deposition was filed of record before the order was entered, although it was not ordered unsealed until later, for delivery to this court. The order granting summary judgment stated that it was entered “after careful review of the record and all briefs and affidavits submitted.” The Supreme Court set the policy that: “If a trial court indicates in his order granting a motion for summary judgment that the motion is being granted after a review of the record, this court will not hold that he failed to review the relevant portions of a deposition simply because the original of the deposition on file in the case remained sealed and was not opened until after the order granting the motion was entered.” General Motors v. Walker, 244 Ga. 191, 193 (259 SE2d 449) (1979); Bailey v. Johnson, 245 Ga. 823, 829 (6) (268 SE2d 147) (1980). This court follows the same policy. See, e.g., Light v. Equitable Mtg. &c., 191 Ga. App. 816, 817 (1) (383 SE2d 142) (1989); compare Maddox v. Brown, 188 Ga. App. 728 (374 SE2d 222) (1988). Even absent such a recital, there is the legal presumption that the trial court considered the entire record before rendering its decision. Calhoun v. Bone, 189 Ga. App. 396, 398 (1) (375 SE2d 871) (1988). That case illustrates the awkward problems caused by failure to incorporate into the open record all documents upon which a ruling on summary judgment depends.

The deposition of Bishop, referred to by both parties, could not have been considered by the trial court. It was not filed with the court below and ordered unsealed until after the grant of summary judgment. It may be considered here, however, to determine whether there remains an issue of material fact for determination below. Miller Grading &c. v. Ga. Fed. &c. Assn., 247 Ga. 730, 733 (3) (279 SE2d 442) (1981). To a great extent, summary judgment appeals are de novo reviews because summary judgment rulings are strictly matters of law and are not based at all on findings of fact, made by court or jury, nor on weighing of evidence, nor on credibility of witnesses. Summary judgment rulings are based on undisputed facts.

2. As to the grant of summary judgment to Mangal, the evidence is viewed with all inferences and reasonable doubts in favor of Bishop. Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981). “ ‘To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence (cits.) and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff.’ [Cit.]” (Emphasis omitted.) Waller v. Transworld Imports, 155 Ga. App. 438, 439 (271 SE2d 1) (1980); Tolbert v. Tanner, 180 Ga. App. 441, 444 (2b) (349 SE2d 463) (1986). “ ‘Summary judgment should be granted only in those cases where . . . undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached.’ [Cit.]” Indian Trail Village v. Smith, 139 Ga. App. 691, 693 (2) (229 SE2d 508) (1976).

Bishop was manager of the Country Cupboard Restaurant adjacent to the Passport Inn. The restaurant premises were leased from Patel and were connected to the lobby. On March 26, 1987, Hutton was the clerk at the Passport Inn at the Locust Grove exit on 1-75. She had been in training for two weeks and had come on duty that night at 10:00 p.m. Bishop came to the lobby to inquire about a package for the restaurant which had been delivered to the motel and signed for by Hutton. After discussing this, Hutton asked Bishop to bring her a soft drink from the restaurant. After 11:00 p.m., a man walked into the lobby and asked for a room. As she turned to get the key, a second man entered the lobby just as Bishop was approaching with the soft drink. The second man directed Bishop to crawl over the counter. As he was doing so, the man, a robber, shot him in the back with a shotgun.

Patel, one of the two stockholders in Mangal, lived on the premises and oversaw the motel business, including hiring all employees. Hutton had asked him what to do in the event of a robbery but had never been given any instructions. She had not been told to lock the front doors to the lobby at night, nor how to use the night window. It had been installed to preclude robbers’ access to the lobby after the doors were locked but still allow the transaction of business with customers.

Patel had worked in the motel business since 1983, owning and operating other motels, including the Locust Grove Scottish Inn, before buying the Passport Inn. He knew many motel owners on 1-75 and was aware that there had been armed robberies at some of them. The practice in the industry is to lock the lobby at 11:00 p.m. and use the night window to protect against robberies. There had been, robberies in 1983 at the Passport Inn when it was a Holiday Inn before Patel bought it, and there had been robberies at the Scottish Inn and Red Carpet Inn in the same area, although Patel disclaimed knowledge of them.

Defendant’s motion was premised on Bishop’s being a mere licensee at the time of the injury. His status would be determinative of the standard of care owed him by defendant. An owner/occupier has the duty to an invitee to exercise ordinary care to keep premises safe. OCGA § 51-3-1. As to a licensee, however, there is liability only for wilful or wanton injury. OCGA § 51-3-2.

“The accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or whether his presence was for his own convenience, or was for business with one other than the owner or occupier. [Cits.]” Savage v. Flagler Co., 185 Ga. App. 334, 337 (2) (364 SE2d 52) (1987); Lee v. Myers, 189 Ga. App. 87, 88 (1) (374 SE2d 797) (1988).

Plaintiff Bishop’s status is an issue of disputed material fact, making denial of his motion for summary judgment appropriate. Phillips v. Lindsey, 184 Ga. App. 728, 729 (362 SE2d 491) (1987); North v. Toco Hills, 160 Ga. App. 116, 117 (286 SE2d 346) (1981). Likewise, it also precludes the grant of summary judgment to defendant on the same issue. Id.

3. Defendant Mangal’s motion contained alternative bases. The court’s order granting summary judgment does not show the ground upon which it was based and the second ground must be addressed. Hill v. Century 21 &c., 187 Ga. App. 754, 756 (2) (371 SE2d 217) (1988). The other ground was that the intervening criminal act of the robbers was the sole and proximate cause of plaintiff’s injuries and that there was no superior knowledge of the owner/occupier shown by prior armed robberies of the premises while owned by him.

“ ‘It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence.’ Ga. Bowling Enterprises v. Robbins, 103 Ga. App. 286, 288 (119 SE2d 52) (1961). Ordinarily, even where the proprietor’s negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. See Gallovitch v. Ellis, 55 Ga. App. 780 (191 SE 384) (1937). ‘However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed.’ Warner v. Arnold, 133 Ga. App. 174, 177 (210 SE2d 350) (1974). See generally Code § 105-401 [OCGA § 51-3-1].” McClendon v. C & S Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592) (1980); Winkler, Inc. v. Vilston, N.V., 172 Ga. App. 686, 687 (324 SE2d 542) (1984).

Patel, an owner, acknowledged awareness of the danger of robbery from motel lobbies and of the night window’s purpose, to provide protection to employees and invitees in the lobby. He also was aware of similar robberies at other motels along 1-75 owned by friends.

“It is important to the resolution of this case that it does not involve a factual situation wherein, at the time and place of the criminal occurrence, there was a failure to provide any security to hotel patrons [and other invitees.] Compare McClendon v. C & S Nat. Bank, 155 Ga. App. 755 (272 SE2d 592) (1980); McCoy v. Gay, [165 Ga. App. 590, 591 (302 SE2d 130) (1983)]; Tolbert v. Captain Joe’s Seafood, 170 Ga. App. 26 (316 SE2d 11) (1984); Donaldson v. Olympic Health Spa, 175 Ga. App. 258 (333 SE2d 98) (1985); Washington Rd. Properties v. Stark, 178 Ga. App. 180 (342 SE2d 327) (1986). In cases of that type, a showing that the defendant-landowner had prior “knowledge” that the presence of third persons had created a “dangerous condition” for his patrons on a portion of the premises would be necessary, in order to show the existence of even an initial duty on the part of the defendant to provide preventive security measures. Absent the defendant’s prior knowledge of the alleged “dangerous condition,” there would be no duty to protect patrons against it. See generally Rhodes v. B. C. Moore & Sons, 153 Ga. App. 106 (264 SE2d 500) (1980). Absent such a duty, the random unforeseeable criminal act would be the sole proximate cause of the patron’s injury and insulate the defendant from liability for his alleged prior act of negligence. See generally McCoy v. Gay, supra; Tolbert v. Captain Joe’s Seafood, supra. In direct contrast, the evidence in the instant case shows that appellant had undertaken to provide security to its patrons [and other invitees] using its [lobby]. Accordingly, even assuming that there might otherwise have been no initial duty to provide security to [invitees] such as [appellant], [appellee] having undertaken that very duty, was required to perform it in a non-negligent manner. See Shirley Cloak &c. Co. v. Arnold, 92 Ga. App. 885, 892 (90 SE2d 622) (1955); Mixon v. Dobbs Houses, 149 Ga. App. 481, 483-484 (254 SE2d 864) (1979); Georgia-Car. Brick &c. Co. v. Brown, 153 Ga. App. 747, 755 (266 SE2d 531) (1980); Cunningham v. Nat. Sue. Indus., 174 Ga. App. 832, 834-839 (331 SE2d 899) (1985). Thus, it is this duty undertaken by [appellee] to provide security which [appellant] assert[s] was performed in a negligent manner. Compare McCoy v. Gay, supra. Construing the evidence most strongly against [appellee] and in favor of [appellant], whether, under the existing circumstances, [appellee] was negligent in its performance of the duty of providing adequate security for its guests [and other invitees] is not an issue which has been eliminated as a jury question. The mere fact that [appellee] had provided some form of security would not show, as a matter of law, that any issue as to its negligence has been eliminated. Such security as [appellee] did provide would have to have been adequate and also have been utilized in a non-negligent manner. On the record before us, the adequacy and non-negligent utilization of [appellee’s] security remain as jury issues. ‘Questions of negligence will not be decided by the court as a matter of law except in “clear and indisputable” cases. [Cit.]’ Thompson v. Walker, 162 Ga. App. 292, 293 (290 SE2d 490) (1982). Thus, in view of [the] remaining issue of fact as to [appellee’s] negligence with regard to security, the only basis for the grant of summary judgment in favor of [appellee] would be that the intervening criminal act against [appellant] was unforeseeable and insulates it from liability. ‘(U)nder the circumstances of the instant case (this) would not be unlike (an assertion) that one who negligently inspects a malfunctioning burglar alarm system might not foresee that the probable result would be a successful burglary of the premises.’ Evans Cabinet Corp. v. “Automatic” Sprinkler Corp., 167 Ga. App. 502, 506 (306 SE2d 750) (1983).” (Indention omitted.) Atlanta Center v. Cox, 178 Ga. App. 184,185 (341 SE2d 15) (1986) (physical precedent); Burdine v. Linquist, 177 Ga. App. 545, 546 (340 SE2d 198) (1986).

Decided February 20, 1990

Rehearing denied March 15, 1990

David H. Fink, for appellant.

Saveli & Williams, Task J. Van Dora, Michael Ryder, William S. Goodman, for appellee.

Defendant knew of the risk of robbery in a motel lobby late at night. He averred that he had instructed Hutton concerning locking lobby doors and use of the night window which had been installed as a security device and could have averted the robber’s entry into the motel. She swore that he had not and that her question of what to do during a robbery had never been answered. Compare Grandma’s Biscuits v. Baisden, 192 Ga. App. 816, 818 (2) (386 SE2d 415) (1989).

The question of reasonable foreseeability and the statutory duty to exercise reasonable care to protect the plaintiff in the circumstances of this case is for a jury’s determination rather than summary adjudication by the court. Lay v. Munford, Inc., 235 Ga. 340, 341 (219 SE2d 416) (1975).

Judgment reversed.

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


author: Pope, Judge.

text:
    A89A1792.
    TURNER v. THE STATE.
    (392 SE2d 256)
   Pope, Judge.

Defendant Steven Keith Turner was convicted of theft by taking, aggravated sodomy, rape and kidnapping with bodily harm. Evidence was presented that defendant grabbed the victim, a pizza restaurant employee, when she came to his door to make a delivery. He threatened her with a pistol and made her crawl into the bedroom where he tied her to the bed with ropes, causing injury to her wrists, forced her to commit oral sex upon him and then raped her. Defendant left the house and when the victim was able to free herself she discovered the automobile she had driven to the house was missing. The automobile was later found abandoned a few miles from the defendant’s house.

1. Defendant first argues the trial court erred in failing to give his request to charge on the law of circumstantial evidence. “An instruction on circumstantial evidence is required only when the case is totally dependent upon circumstantial evidence.” (Citation and punctuation omitted.) Arnett v. State, 245 Ga. 470, 474 (265 SE2d 771) (1980); accord Lee v. State, 177 Ga. App. 8 (2) (338 SE2d 445) (1985). Direct evidence was presented in regard to the instances of aggravated sodomy, rape and kidnapping with bodily harm. However, only circumstantial evidence was presented in regard to the offense of theft of the automobile. In regard to an offense for which the only evidence presented is circumstantial, the court has a duty to charge the law relating to circumstantial evidence and when it is not charged the conviction as to that offense must be reversed. Todd v. State, 184 Ga. App. 750 (4) (362 SE2d 400) (1987); Jones v. State, 91 Ga. App. 662 (86 SE2d 724) (1955). Thus, the conviction for the offense of theft by taking must be reversed. However, no error is shown in regard to the convictions for the remaining offenses.

2. A rented videotape, described by the trial court as a “sex and violence tape,” was found in the defendant’s home by officers conducting a search pursuant to a search warrant on the evening the offense took place. The movie was shown to the jury in its entirety. The movie portrayed the kidnapping of a young girl by strangers who planned to use her, against her will, in pornographic films. The movie portrayed scenes involving violence, physical threats and the use of guns including one scene in which a woman is thrown on a bed and violently threatened with rape before being rescued by the police. In the final scene the young victim is shown shooting her assailant. Defendant contends the trial court erred in showing the movie to the jury because, he argues, it was inflammatory and glorified the taking of revenge on the assailant. Defendant argues no foundation was laid for showing the movie to the jury because no evidence was presented that defendant rented or viewed the movie. Moreover, he argues showing the movie to the jury improperly raised the issue of his character, as prohibited by OCGA § 24-9-20 (b).

The evidence shows defendant lived alone. Moreover, defendant did not raise an objection at the time of trial to the foundation laid for the showing of the movie. “ ‘There was no error in admitting the [movie] ... as the jury may have made the permissible inferences that viewing [a movie involving kidnapping and attempted rape] may have encouraged defendant’s initial perpetration of the crimes of kidnapping and sodomy [and rape], or, at least aided in showing his intent thereof.’ [Cit.] ” Watson v. State, 147 Ga. App. 847, 850 (250 SE2d 540) (1978). The movie was admissible to show the bent of mind of defendant toward the activity with which he was charged. See Wilcoxen v. State, 162 Ga. App. 800 (1) (292 SE2d 905) (1982). We reject defendant’s argument that showing the movie in its entirety was unnecessarily inflammatory. We note that defendant made no request for instruction to the jury on the relevance of the movie.

Decided February 20, 1990

Rehearing denied March 15, 1990

Davis, Brofman, Zipperman & Kirschenbaum, E. Marcus Davis, Steven A. Suna, for appellant.

3. We reject defendant’s argument that the offense of kidnapping with bodily harm merged with the offense of rape in this case. “In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of OCGA § 16-1-6, we look to the actual evidence introduced at trial. If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.” (Citation and punctuation omitted.) Morris v. State, 179 Ga. App. 228, 229 (345 SE2d 686) (1986). This was not a case where one crime was included in the other or where the crimes differed only in that one prohibited conduct generally and the other prohibited a specific instance of such conduct, as defined by OCGA § 16-1-7 (a). Here, the evidence used to establish the offense of kidnapping with bodily harm was the bruising and abrasions suffered by the victim when she was tied to the bed with ropes. The offense of rape, including the element of force, was amply proved by testimony concerning subsequent events. “Thus, the jury was authorized to. conclude that two separate and distinct offenses were committed.” Love v. State, 190 Ga. App. 264, 265 (378 SE2d 893) (1989). The offenses of kidnapping with bodily harm and rape were not merged in this case because under the facts of this case neither offense is included in the other as a matter of fact nor as a matter of law. See Thomas v. State, 237 Ga. 690 (3) (229 SE2d 458) (1976); Clark v. State, 166 Ga. App. 366 (2) (304 SE2d 494) (1983).

Judgment affirmed in part and reversed in part.

Banke, P. J., and Sognier, J., concur.

Frank C. Winn, District Attorney, for appellee.


author: Birdsong, Judge.

text:
    A89A2057.
    HORTON v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    (392 SE2d 25)
   Birdsong, Judge.

Summary judgment was granted to United States Fidelity & Guaranty Company (USF&G) on its third-party claim against the general contractor of a building project for indemnification, pursuant to their Master Agreement, on an amount paid to a supplier by USF&G under its surety bond.

On appeal, appellant James A. Horton d/b/a J & J Construction Company contends genuine issues of fact remain as to whether USF&G had paid the claim in good faith after proper investigation, and whether the supplier had complied with the notice requirements of the bond. Further, J & J contends the trial court erroneously considered a supplemental affidavit filed by USF&G less than 30 days prior to issuance of judgment (see Wall v. C & S Bank of Houston County, 145 Ga. App. 76 (243 SE2d 271)), which affidavit contained “some illegible exhibits containing totally new evidence which purported to settle the issues [referred to above],” and to which J & J had inadequate time to respond. Held:

We find no merit in this appeal. J & J does not show any purported fact raising an issue that the claims were not properly paid. See OCGA § 24-4-1, cited by J & J. The senior claims representative of USF&G stated by original affidavit that USF&G’s evaluation of the claim revealed documentary evidence that the supplier had given proper notices; and that, in USF&G’s consideration, USF&G had no defenses to the claim. J & J has shown no fact, including any referencé to any specific deficiencies in any claim notice, which refutes these affirmations. See Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173); Ga. Prac. & Proc., § 9-11 (4th ed.)

Further, appellee USF&G asserts that its supplemental affidavit included copies of the actual notice letters sent by the supplier. There is no indication the trial court relied upon this supplemental affidavit in granting judgment, but it does support the judgment.

On motions for summary judgment, all questions as to issues of fact are to be resolved in favor of the respondent, and the benefit of every doubt is indulged in his favor. See generally Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442). Appellant J & J makes no showing that this procedure was not followed in this case, in rule or substance. All the assertions made by J & J on appeal are extremely general in nature: where J & J asserts the proper notices were not sent and that USF&G abandoned good faith in paying the claim and that the claim itself was not valid, J & J provides no single fact, nor any evidence of fact to support these allegations. Indeed, we cannot conclude from J & J’s brief that there is any evidence the claim was not valid and was not properly paid.

Decided February 27, 1990

Rehearing denied March 15, 1990.

McRae, Lambrecht & Wagner, C. David Johnston, Benjamin H. Pruett, for appellant.

Zachary & Segraves, Finn Duerr, Sidney R. Barrett, Jr., for appellee.

If any error was committed below by consideration of the late affidavit, J & J has not borne its burden to prove such error was harmful. The burden of appellant on appeal is not only to show actual error, but to show error which harmed him. Graves v. United States Auto. Assn., 190 Ga. App. 690 (379 SE2d 638); Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (378 SE2d 510). Appellant’s inability to demonstrate in its brief to this court any specific evidence that the claim was paid wrongfully and that any consideration of USF&G’s late affidavit led to an unjust result, only underscores its inability to muster such evidence below in response to USF&G’s motion for summary judgment. Accordingly, we cannot find the trial court’s grant of summary judgment was error. See Balke v. Red Roof College Park Co., 190 Ga. App. 779, 781 (380 SE2d 61).

Judgment affirmed.

Deen, P. J., and Cooper, J., concur.


author: Carley, Chief Judge.

text:
    A89A2176.
    OSWALD v. AMERICAN NATIONAL CAN COMPANY.
    (392 SE2d 26)
   Carley, Chief Judge.

Until February 28, 1987, appellant-plaintiff was employed by appellee-defendant. Although Federal law required that appellee furnish appellant a W-2 form by January 31, 1988, she did not receive such a form from appellee by that date. Alleging that appellee had willfully refused to provide the W-2 form to her in a timely manner, appellant filed suit. According to appellant’s complaint, appellee’s alleged willful refusal constituted “the violation of a legal duty owed to [her], which supports a tort action under the laws of the State of Georgia.” Appellee answered appellant’s complaint and subsequently moved for summary judgment. Appellant appeals from the trial court’s grant of summary judgment in favor of appellee.

Decided March 2, 1990

Rehearing denied March 15, 1990

S. Robert Hahn, Jr., for appellant.

Powell, Goldstein, Frazer & Murphy, Dara L. Dehaven, E. A. Simpson, Jr., Bret J. Pangborn, Frederick A. Stuart, for appellee.

The only “duty” to provide a timely W-2 form to appellant is that which is imposed upon appellee by the Federal Internal Revenue Code. The willful breach of that duty can result in criminal liability. 26 USCA §§ 6674; 7204. “[T]he violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who is injured thereby.” Sparks v. Thurmond, 171 Ga. App. 138, 142 (5) (319 SE2d 46) (1984). An employer’s alleged willful breach of the penal provisions of the Federal Internal Revenue Code regarding the timely provision of a W-2 form will not support an employee’s civil action for damages. Turner v. Unification Church, 473 FSupp. 367, 376 (19) (D. R.I. 1978), aff’d 602 F2d 458 (1st Cir. 1979). Accordingly, the trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A2193.
    A89A2196.
    ARENA v. THE STATE. DUNN v. THE STATE.
    (392 SE2d 264)
   Birdsong, Judge.

Vito Arena and Sherrill Bryant Dunn filed separate appeals of convictions arising out of their arrest following a traffic stop at Interstate 95 near Richmond Hill in Bryan County, Georgia, on October 5, 1987.

Vito Arena, the driver of the vehicle, was indicted for and found guilty of trafficking in cocaine, possession of ethchlorvynol, possession of diazepam, possession of marijuana; speeding and improper lane usage. Sherrill Bryant Dunn, the passenger, was indicted and found guilty of all but the traffic offenses and possession of marijuana.

Despite contradictory testimony by appellants, the evidence as to the traffic stop, detention and arrest, and the discovery of contraband authorized the trial court at the motion to suppress to conclude, and we must concur (see Williams v. State, 251 Ga. 749, 791-792 (312 SE2d 40)), as follows: On the morning of October 5, 1987, Bryan County Sheriff’s Deputy Suggs was patrolling 1-95. At about 5:10 or 5:14 a.m., Suggs saw a white Oldsmobile traveling north. Suggs followed the vehicle for three miles, saw it cross over and “straddle” the centerline, and observed it alternately speed up and then slow down a couple of times, from 55 mph to 65 mph. Because of the improper lane usage and the otherwise erratic driving, Suggs stopped the Oldsmobile. Although Arena produced proper driver’s identification and spoke coherently, he had the odor of alcohol on his breath. He appeared to Suggs to be nervous and “jumpy,” and would not make eye-to-eye contact. He told Suggs he and Dunn were going to Hilton Head, South Carolina, just to “take a little break.” Suggs determined not to perform field tests for sobriety because Arena seemed not to be impaired, but Suggs became suspicious of illegal activity because of Arena’s nervous, jumpy behavior and inability to make eye contact. Suggs asked Arena to get back into the car, and asked the passenger to get out. When Suggs asked where they were going, Dunn told him they were going to Myrtle Beach, South Carolina to his father’s funeral. Because of the discrepancy in appellants’ stories as to their destination, Officer Suggs asked both to remain in their car and he radioed for back-up assistance.

Officer Long arrived five or six minutes later. Suggs got appellant Arena from the car and Long asked for permission to search the vehicle. Neither officer had a standard consent-to-search form in his possession, so Officer Long wrote out this statement: “I, Arena Vito, voluntarily give Deputy D. R. Suggs and Cpl. Mark Long of [Bryan County Sheriff’s Department] and [Richmond Hill Police Department] permission to search my vehicle. I understand that I have the right to refuse this search, and that I may be prosecuted if any illegal items are found. I further understand that I will be given a receipt for anything removed from my vehicle. [Signed] Vito Arena.” Beneath this, Cpl. Long wrote “Cpl. Mark Long 10-5-87[;] 0529 Hours.” The initials “V. A.” appear twice, beneath the notation of date and beneath the notation of hour. Officer Long testified he explained the consent to search form to Vito Arena. Appellant Arena was coherent; he signed the form and made no objection either to signing the consent form or to the search.

While Arena and Dunn sat in separate police cars, Officer Long looked into the vehicle interior and Officer Suggs opened the trunk. The officers saw a great deal of coffee grounds spread on the floor of the trunk, and a five-pound coffee can. Deputy Suggs opened the plastic lid of the coffee can and saw the can was “almost level or full of coffee.” Both he and Officer Long were “baffled” because there was so much coffee spilled in the trunk, yet the coffee can was still full. Officer Long picked up a screwdriver and stuck it down into the coffee can. The screwdriver went down about an inch deep until it made a “thump noise.” Suggs and Long emptied the coffee and found a white plastic material, sealed with a wax-like substance, under which was a white powdery substance inside clear plastic. Long and Suggs placed Arena and Dunn under arrest and called the GBI. A GBI agent arrived at the scene; she was given the consent to search form signed by Arena. She advised him of his rights under Miranda but Arena refused to make a statement.

At the sheriff’s jail, Arena pulled a bag of marijuana out of his pants and gave it to the officers. The vehicle was impounded and a subsequent search of it revealed amounts of ethchlorvynol and diazepam.

Both appellants complain of the trial court’s denial of their motions to suppress, and each complains of the denial of his motion to sever trial, and of other errors. Held:

1. We have carefully considered both appellants’ varied grounds for complaint of the search and seizure. We find that the initial traffic stop was clearly valid. The continued detention and further questioning, or “secondary detention,” was authorized as a Terry-type stop based upon the “articulable suspicions” aroused by Arena’s behavior. See Watson v. State, 190 Ga. App. 696 (379 SE2d 817). This continued detention was not an illegal arrest, and is not invalidated merely because there was no probable cause at that point to suspect illegal activity, i.e., drug possession and trafficking. See Clinkscale v. State, 158 Ga. App. 597 (281 SE2d 341). The secondary detention, following the aroused suspicions, was not a de facto arrest. Appellants were briefly detained while a search was made pursuant to consent, but they were not arrested until contraband was discovered. It is irrelevant to this analysis that Arena was never charged with a traffic violation; all that is necessary is that the initial stop be valid, and that the continued Terry-type detention was based upon articulable suspicion. The officer was then authorized to make a brief intrusion short of arrest to maintain the status quo and investigate the circumstances that provoked the suspicions. See Radowick v. State, 145 Ga. App. 231, 233-234 (244 SE2d 346), cert. den.; cited with approval, State v. Hughes, 189 Ga. App. 671 (377 SE2d 192); Hudgins v. State, 188 Ga. App. 798, 799 (374 SE2d 566); State v. Bassford, 183 Ga. App. 694, 698 (359 SE2d 752).

In State v. Golden, 171 Ga. App. 27, 30 (318 SE2d 693), a valid stop had already been made when articulable suspicion was raised. We held the search proper, for “ [i]t is well established that the police may ‘seize’ an individual for a brief period of time without probable cause to make an arrest, provided there exists a reasonable and articulable suspicion that the person is involved in criminal activity. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The purpose of such a detention is to maintain the status quo while investigating the circumstances which give rise to the suspicion of criminal wrongdoing. [Cits.] The validity of an officer’s investigative or protective conduct upon making a ‘Terry stop’ is determined in each case by balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced. [Cits.]”

Balancing “the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced” (id.), we find as a matter of law that the recurring and well-known practice of transporting illegal drugs through this state north from the bordering state of Florida, which is itself a well recognized depot of drug contraband, presents a circumstance of vital immediacy and importance in crime prevention, which in this case justified the further brief detention based on distinct “articulable suspicion.”

Thereafter, the consent to search authorized the entire search, including the opening of the coffee can which the officers had strong probable cause to believe contained contraband. See Anderson v. State, 123 Ga. App. 57 (179 SE2d 286); and see Mooney v. State, 243 Ga. 373 (254 SE2d 337). And, the continued search was further authorized by the fruitful development, within the bounds of the consent, of probable cause to believe the coffee can contained contraband. Williams v. State, 171 Ga. App. 934 (321 SE2d 429); Smith v. State, 160 Ga. App. 690 (287 SE2d 44); Meneghan v. State, 132 Ga. App. 380, 382 (208 SE2d 150); see Medlin v. State, 168 Ga. App. 551 (309 SE2d 639).

As for appellants’ dispute of any facts, the trial court has already determined these issues of fact. On appeal of denial of a motion to suppress, the evidence is construed most favorably to the upholding of the trial court’s findings, and they must be adopted unless they are clearly erroneous. Watson v. State, supra. They are not so in this case. The trial court did not err in denying the motions to suppress and in admitting the evidence.

2. No harmful error accrued to either appellant by the State’s alleged failure to produce the GBI’s notes which were allegedly exculpatory in that they noted Arena had said he put the can in the trunk, and not that he put the cocaine in the trunk, as the agent later testified. The evidence was overwhelming that whether Arena said “can” or “cocaine,” he was fully engaged with Dunn in the transport of illegal drugs, including some cocaine found in Arena’s vehicle’s glove compartment, and, by reasonable deduction, that he knew the can contained cocaine, or was at the very least a party to the crime. We conclude any error probably did not affect the verdict. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Decided February 27, 1990

Rehearing denied March 15, 1990

Cook & Palmour, Bobby Lee Cook, Jake Arbes, for appellant (case no. A89A2193).

Robert A. Harper, Jr., William J. Sheppard, for appellant (case no. A89A2196).

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assis tant District Attorney, for appellee.

3. The trial court did not err in denying appellants’ motions to sever trial. The evidence was overwhelming that the crimes were committed by both appellants, in collusion; we have analyzed the possibilities of prejudice to one or the other, and do not find that a separate trial would have gained either appellant an advantage of acquittal. The defenses which allegedly could have been asserted are not “mutually exclusive” (Satterfield v. State, 256 Ga. 593 (351 SE2d 625)); particularly considering the volume of drugs found and all the circumstances of Dunn’s and Arena’s trip, the evidence of joint action was overwhelming and any evidence of exculpation was not sufficient to overcome that evidence of guilt and create compelling prejudice. Clearly each appellant would attempt to blame the other, but the fact that such a tactic could be made does not by itself require a severance.

4. The indictment incorrectly charged Dunn with possession of a substance composed of a purity of .10 percent or more of cocaine, that is, one-tenth of a percent of cocaine. Appellant Dunn moved to dismiss the indictment, but the trial court refused and “constructively amended” the indictment before the jury to read “ten percent.” We find no error. The error in the indictment was clearly a typographical error or misprint, and did not intend to charge Dunn with trafficking in “one-tenth percent” cocaine. The meaning of the language was clearly meant to reflect “10 percent,” pursuant to OCGA § 16-13-31, but its form was in error. Dunn waited until trial to complain of the form of the indictment. This was too late. OCGA § 17-7-113. Demurrers, motions to quash, and pleas in abatement must be entered before trial, or they are waived. Sheffield v. State, 235 Ga. 507 (220 SE2d 265). This was obviously a clerical error in an otherwise good indictment. See Lewis v. State, 55 Ga. App. 743 (191 SE 278). It was not fatally defective but was easily amendable; therefore, the indictment was not void, and was not subject to an arrest of judgment (see Curtis v. State, 102 Ga. App. 790 (118 SE2d 264)), which has not been moved for in any case.

Judgments affirmed.

Deen, P. J., and Cooper, J., concur.


text:
    A89A2294.
    In the Interest of R. M. et al., children.
    (392 SE2d 13)
   Sognier, Judge.

The Fulton County Department of Family & Children Services of the State Department of Human Resources (hereinafter “DFCS”) petitioned for termination of the parental rights of the mother and father of R. M., C. M., and J. M., children under the age of ten. The juvenile court terminated the mother’s parental rights upon a finding of abandonment, but dismissed the petition as to the father (although the court did find that DFCS should retain custody of the children). DFCS appeals from the court’s dismissal of its petition to terminate the father’s rights.

The record reveals that the children have been in the custody of DFCS since a finding of deprivation was made in 1985 based upon evidence of physical and sexual abuse of the children and an emotional disturbance suffered by the father. On April 27, 1989, a hearing was held on DFCS’s petition for termination of parental rights. Evidence was adduced that since the 1987 deprivation hearing, the father had undergone two years of mental health treatment as required by prior court orders, completed a parenting course, regularly visited the children, and paid court-ordered child support of $200 per month, and that he had regular employment. A report prepared by a psychologist engaged to evaluate the father indicated that he continued to suffer from a “moderately severe paranoid personality disorder” for which he would need ongoing treatment. This psychologist concluded that full custody of the children by the father was not advisable, while the mental health clinician who had treated the father opined that with the assistance of DFCS through a less adversarial relationship, he was “capable of successfully rearing his children.” Additional evidence established that J. M. suffers from cystic fibrosis for which she requires regular medical attention, and that C. M. and R. M. have emotional and behavioral problems for which they continue to receive treatment. Their mental health clinician testified that the children are frightened of their father, that they appear to have established no bond with him, and that returning them to their father’s care would not be in their best interest.

1. DFCS enumerates as error the court’s exclusion from evidence of a supplemental report prepared by Hilary Slavin, the clinical psychologist engaged by DFCS to evaluate the father pursuant to prior court order. Slavin interviewed and tested the father in one five-hour session in 1987, and the father signed a release authorizing distribution of the results to DFCS. The report Slavin initially prepared after this evaluation was admitted into evidence by stipulation of the parties. DFCS then sought to introduce a supplemental report written by Slavin in 1989 after DFCS provided Slavin with additional evidence of the father’s prior sexual abuse of C. M., but the court refused, citing the psychologist-patient privilege, which it found had not been waived by the father as to the supplemental report.

We agree with DFCS that the court’s ruling was erroneous because the psychologist-patient privilege set forth in OCGA § 43-39-16 arises only when the patient voluntarily seeks treatment from the psychologist, whereas here the father saw Slavin only at the instigation of DFCS and received no treatment. See Massey v. State, 226 Ga. 703, 704-705 (4) (177 SE2d 79) (1970); compare Kimble v. Kimble, 240 Ga. 100, 101 (1) (239 SE2d 676) (1977) and Wilson v. Bonner, 166 Ga. App. 9, 16-17 (5) (303 SE2d 134) (1983). However, we find this error was harmless because the report’s discussion of child molestation was cumulative of other evidence admitted without objection, see Wilson, supra at 17 (5), and the report was not relevant to the court’s determination of termination of parental rights because in the report Slavin expressed an opinion only regarding returning custody to the father. Compare OCGA § 15-11-81 with OCGA § 15-11-34.

2. DFCS also contends the court erred by excluding from evidence any matters addressed in the earlier deprivation hearings. This enumeration is without merit, as the transcript reveals that DFCS made no attempt to introduce transcripts of prior hearings or any evidence adduced therein. Further, the juvenile court judge, who had presided at the prior hearings, indicated he did not want to retry issues established in prior proceedings because he was familiar with that evidence.

3. DFCS’s final enumeration concerns the court’s dismissal of the petition for termination of the father’s parental rights. DFCS contends it demonstrated by clear and convincing evidence that deprivation was continuing and that termination was in the best interest of the children.

“A termination of parental rights because of parental misconduct or inability is a remedy of last resort which can only be sustained after ‘clear and convincing’ evidence that ‘(t)he child is a deprived child . . .; (that) lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (that such) cause of deprivation is likely to continue or will not likely be remedied-, and (that the) continued deprivation will cause or is likely to cause serious physical, mental, emotional or moral harm to the child.’ . . . [Cits.]” In the Interest of K. E. B., 190 Ga. App. 121, 124 (378 SE2d 171) (1989). “ ‘There is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. When we do this, we make a decision on human frailties and their consequences. It becomes an agonizing undertaking.’ [Cit.] Accordingly, ‘(c)ompelling facts are required to terminate parental rights. (Cits.)’ [Cit.]” In re N. F. R., 179 Ga. App. 346, 348 (346 SE2d 121) (1986). Moreover, “[a] finding of unfitness must be based on present circumstances. [Cits.]” Id.

Decided February 7, 1990

Rehearing denied March 15, 1990.

Robert E. Hall, Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Carol A. Cosgrove, William C. Joy, Senior Assistant Attorneys General, Bradley J. Boyd, for appellant.

Thomas H. Antonion, for appellee.

In the case at bar, the juvenile court found that the father had shown “remarkable interest” in his children throughout the long period of DFCS’s custody and had complied with every directive of the court, and that while the father had some difficulties which warranted a continued finding of deprivation, the evidence suggested that with assistance and guidelines, he could learn to care properly for his children in the future. The evidence presented by DFCS relating to the father’s behavior concerned incidents that had occurred five years earlier, and the experts were not in agreement as to the likelihood of repeat incidents. We agree with the father that the evidence indicated the emotional problems of R. M. and C. M. could be attributable to the disruptive effect of frequent changes in foster homes and the separation from other family members rather than to the father’s prior behavior. As we find “no compelling evidence presented which would clearly convince a rational trier of fact that the [children’s] past deprivation will continue so as to authorize the total termination of the [father’s] parental rights, [cits.],” id. at 348-349, we affirm the juvenile court’s decision.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A1859.
    WIDEN v. ATLANTA HOSPITAL SUB ISSUE B, INC.
    (392 SE2d 60)
   McMurray, Presiding Judge.

Plaintiff Widen, a doctor of podiatric medicine, entered into an employment contract with defendant Atlanta Hospital Sub Issue B, Inc., whereby plaintiff would perform professional duties assigned to him as a resident in podiatric medicine. The two-year term of the contract began on July 1, 1986. On June 24, 1987, plaintiff met with the defendant’s residency committee. During this meeting several allegations concerning deficiencies in plaintiff’s work were discussed. On July 1, 1987, plaintiff was informed of the defendant’s decision to terminate his contract and of his right to appeal that decision. On August 4, 1987, defendant’s “judicial review committee” assembled at plaintiff’s request to consider his appeal. This committee briefly reconvened on August 18, 1987, and subsequently determined to uphold the decision of the residency committee terminating plaintiff’s contract. A further appeal by plaintiff to defendant’s board of directors was also unsuccessful.

Thereafter, plaintiff filed this breach of contract action. Plaintiff appeals from the grant of defendant’s motion for summary judgment. Held:

Paragraph six, of the contract between the parties, provides that defendant may terminate the contract where in its opinion plaintiff has not met its standards of professional ability. In paragraph seven, defendant’s right to cancel the contract is limited by “assurance that due process has been granted to the Doctor.” While such language does not obligate a private institution, such as defendant, to provide the full panoply of due process protection which would be applicable to tax supported institutions, defendant must avoid subjecting plaintiff to arbitrary and capricious treatment and must afford plaintiff those procedures specifically provided by the contract. Life Chiropractic College v. Fuchs, 176 Ga. App. 606, 607 (1), 608 (337 SE2d 45).

While plaintiff’s contract did not set forth any specific procedure concerning termination, plaintiff contends that defendant was required to provide him with the procedural protection required under defendant’s bylaws. Assuming for purposes of this appeal that this contention is correct, we proceed to consider whether the procedure followed in connection with the termination of plaintiff’s contract was in compliance with defendant’s bylaws.

Plaintiff contends that there was no compliance with the portion of the bylaws which requires that the grounds of his termination be stated in concise language. Yet, the hearing before the judicial review committee began with the statement into the record of eight areas of concern which contributed to the decision to terminate plaintiff’s contract. These areas of concern, ranging from tardiness to potentially lethal medication errors, satisfied the notice requirement of the bylaws. Nor can plaintiff complain of the short notice provided under the prescribed procedure, particularly since the hearing was reconvened after a recess of two weeks in order to permit plaintiff a further opportunity to present his case. Additionally, it is apparent that plaintiff had substantial actual notice of the concerns of the hospital from his conversations with the residency committee prior to the decision to terminate his contract.

Decided March 15, 1990.

Novy & Jaymes, Eugene Novy, R. Craig Henderson, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Pat M. Anagnostakis, for appellee.

Under the bylaws, the chairman of the judicial review committee is given a broad discretion in the conduct of the hearing, including construction of the bylaws and determination of evidentiary questions. It is explicitly provided that “[t]he hearing shall not be conducted according to rules of law relating to the examination of witnesses or presentation of evidence.” Accordingly, plaintiff’s various contentions as to evidentiary rulings by the chairman present nothing for review.

Plaintiff was permitted to respond on a point-by-point basis to the grounds stated for his termination. He presented his own testimony, which incidentally, repeatedly conceded significant errors in his performance of his duties at the hospital. The testimony of the one witness offered by plaintiff was admitted, and plaintiff was permitted some cross-examination of a representative of the residency committee, although such was limited to some degree by the chairman of the judicial review committee. The chairman of the judicial review committee also determined that under the bylaws the burden of proof rested upon plaintiff and the committee determined that plaintiff failed to satisfy his burden of proof.

We conclude that the procedure afforded plaintiff was in substantial compliance with the provisions of defendant’s bylaws. The superior court did not err in granting defendant’s motion for summary judgment.

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    A89A2074.
    BARNETT v. THE STATE.
    (392 SE2d 322)
   McMurray, Presiding Judge.

The State brought this probation revocation proceeding against defendant alleging he violated the terms and conditions of his probation in a number of particulars. Specifically, it was alleged that defendant violated the rules of the Athens Diversion Center (“ADC”) as follows: “Violation ADC Rule #6 Failure to be at assigned destination 4-7-89 and 4-10-89. Violation ADC Rule #3 Fired from job 4-11-89. Violation ADC Rule #4 Failure to turn in pay to center 4-14-89. Violation ADC Rule #1 Failure to obey order of staff member 4-18-89. Violation ADC Rule #3 Fired from job 4-28-89. Violation of ADC policy to submit to urine test when ordered on 5-16-89. Disorderly conduct 5-17-89.” Following a hearing, the trial court determined that defendant violated “the terms of probation contained in the sentence imposed upon him ... as alleged in the petition for revocation of probation except the alleged discharge of the Defendant on April 28, 1989. ...” Based on the alleged violations, the trial court modified defendant’s probation in certain particulars. We granted defendant’s application for a discretionary appeal. Held:

With regard to a majority of the allegations set forth in the petition, the only evidence introduced by the State was hearsay evidence. Although jurisdictions differ, see Annot., Admissibility of Hearsay Evidence in Probation Revocation Hearings, 11 ALR 4th 999 (1982), in this jurisdiction hearsay evidence is inadmissible in a probation revocation proceeding. See Holbrook v. State, 162 Ga. App. 400, 402 (2) (291 SE2d 729). See generally Yarber v. State, 162 Ga. App. 475 (291 SE2d 780); Bradshaw v. State, 163 Ga. App. 819, 821 (3) (296 SE2d 119).

Of course, hearsay evidence is without probative value. Collins v. State, 146 Ga. App. 857 (1), 860 (247 SE2d 602). Thus, such evidence is incapable of supporting a trial court’s findings whether or not objection was lodged.

In relying upon hearsay evidence to support the majority of its findings in the case sub judice, the trial court erred. See Mills v. Bing, 181 Ga. App. 475, 477 (2) (352 SE2d 798). However, inasmuch as some of the allegations in the petition were supported by probative evidence (e.g., the failure to submit to a urine test on May 16, 1989, and the disorderly conduct on May 17, 1989), it cannot be said the trial court erred in modifying defendant’s probation. See Allen v. State, 172 Ga. App. 323 (323 SE2d 242).

Judgment affirmed.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

I dissent because, based on the ruling that the court took into account inadmissible evidence in determining to revoke probation and in fashioning a modified sentence, the case should be remanded for the trial court’s reconsideration of the modified sentence. Since this court cannot substitute its judgment for that of a trial court in determining what is an appropriate sentence when a defendant has violated probation, it cannot assume that the court would have set the same sentence had it not considered the alleged infractions for which there was no competent evidence.

Decided March 15, 1990.

Kathleen J. Anderson, for appellant.

Harry N. Gordon, District Attorney, for appellee.

Appellant had originally negotiated pleas of guilty to entering an auto and theft by taking of an auto. He had been sentenced to serve three years, to be followed by five years of probation with certain conditions. After imprisonment, probation was started but was revoked and appellant was sent to the local diversion center. Alleged violations in that environment brought another revocation hearing, and we have now ruled that “a majority of the allegations” were inadequately proven. Thus the modification of sentence must be based on the failure to submit to a urine test and an instance of disorderly conduct the next day; allegations concerning employment and a staff member’s order remain unproven and are not to be taken into account. Whether the appropriate disposition for the properly established violations is to be the same, i.e., 120 days at the detention center and then residence at a different diversion center, is problematic. The decision is up to the sentencing court, to be reached after a consideration of the proved violations which were proved, the circumstances presented, and the available resources.

By affirming without an opportunity for the trial court to exercise its own judgment to tailor the sentence to fit the proved allegations of misbehavior, this court usurps the trial court’s function. OCGA §§ 42-8-34.1 (b); 42-8-38 (c). This is not to say that the trial court could not impose the same terms upon reconsideration.

Allen v. State, 172 Ga. App. 323 (323 SE2d 242) (1984), is distinguishable, at least in that the trial court revoked Allen’s probation altogether. In this case the court continued defendant on probation and transferred him to a certain detention center for 120 days, with the balance of the sentence remaining in accordance with the original sentence as previously modified, except that his next residence following the detention center was to be a different and particular diversion center.

Also in Allen, the burden of proof of violation was only “slight evidence,” whereas now it is “preponderance of the evidence.” OCGA § 42-8-34.1 (a).


author: Cooper, Judge.

text:
    A89A2086.
    BUTLER v. THE STATE.
    (392 SE2d 324)
   Cooper, Judge.

Appellant was indicted on seven counts, five of which are involved in this appeal. Count 3 alleged assault with a knife; Count 4 alleged assault with a stick by forcing it into the victim’s anus; Count 5 was for assault with a stick by forcing it into the victim’s vagina; Count 6 was a charge of assault with intent to rape; and Count 7 alleged false imprisonment. Appellant was tried by a jury and convicted on all counts. Appeal is taken from the convictions and sentences on Counts 4, 5, 6 and 7. Because the issue of the sufficiency of the evidence has been raised, it is necessary to recount the acts for which appellant was tried.

At 10:15 a.m. on August 30, 1988, the victim, a 29-year-old married mother with two children who worked as a sales representative for a trucking company, went to the Atlanta-Fulton County Stadium to buy baseball tickets for her customers. As she returned to her locked car, appellant approached her from behind, put his arm around her shoulders and stuck something hard in her rib cage. Telling her that he had a knife and not to scream, appellant forced the victim into the car. He told her that if she listened to him and did not scream or try anything, she might live. Holding the knife at her side, he ordered her to drive, and he directed her to an undeveloped wooded area. Pulling and jerking her into the woods, appellant ordered the victim to get down on her knees and pray that he was in a “nice” mood. He then ripped off her skirt, slip and pantyhose, and hitting her in the back several times with a large stick he pulled off a tree and kicking her, appellant forced the victim to “get on all fours.” Appellant began to repeatedly ram the stick into the victim’s anus, telling her to “shit until it hurts” because he wanted to see if hers “stunk as bad as his.” He did not stop moving the stick until she defecated. Next, appellant jerked the victim back on her feet and ripped off her sweater and bra. Telling her he would cut off her breasts because they were so small she did not need them, appellant tortured the victim by circling her breasts with the knife and running it up and down her body. After he cut her leg, he told her that “everybody deserved one more fling before they died,” and threw the victim down on the ground again. He got down on the ground with her, and using the same stick, shoved it into the victim’s vagina several times. While still sitting on the victim’s face with the knife at her throat, appellant forced the victim to masturbate. Appellant then ordered the victim to dress, and shoved and jerked her out of the woods and across the street. When she fell down a hill into a drainage pool of filthy water, appellant held her head under water. Appellant suddenly released her and the victim saw him running away. When she struggled up the hill, the victim spied a telephone company employee who then summoned police. The victim described her assailant as wearing a red T-shirt with a gold eagle emblem and some writing on it.

On August 25, 1988, a residential burglary had been reported to the DeKalb County police in which a number of T-shirts for a company softball team had been taken from the team manager’s house. The shirts, which were specially designed for the manager’s team, were either red or white, and some of the red shirts had an eagle emblem on the front. When the softball team manager filed an itemized list of the items taken in the burglary with the police, they realized that these red shirts were similar to the one described by the victim, and subsequent investigation led to appellant becoming a suspect. On the day of the incident, the victim tentatively identified appellant as the man who attacked her from a display of black and white photographs, and shortly thereafter, at a subsequent display of color photographs, she immediately and unequivocally identified appellant. Appellant was arrested at his apartment on August 31, 1988, two miles from the area where he took the victim and a block from where the burglary occurred. A red T-shirt and a knife as described by the victim were found there and seized by the police. On September 6, 1988, the victim identified the appellant as her attacker at a physical lineup.

1. Appellant contends that Counts 4 and 5, both of which charge him with aggravated assault with a stick, albeit involving separate orifices, constitute only one offense. We do not agree. In Davis v State, 186 Ga. App. 491 (2) (367 SE2d 884) (1988), relied on by appellant, a series of shots fired by the defendant while chasing the victim was held to be a continuous and uninterrupted act. Here, however, the act of brutalizing the victim with the stick in her anus was a completed crime before the assault with the stick in her vagina began. Appellant’s avowed purpose in the anal assault was accomplished when the victim defecated. The victim was then jerked off the ground, further unclothed, taunted, tortured and injured before being pushed back to the ground and vaginally assaulted. Thus, “the jury was authorized to find from the victim’s testimony that each episode was a separate and complete offense [and] that each episode of [aggravated assault] had ended and was followed by some other activity before the next episode began. ‘The . . . crimes charged here were completed one after the other, but are separate and distinct. (Cit.) Although occurring sequentially, one after the other, each of these transactions constituted a separate offense since each was established by proof of different facts; i.e., each offense was a completed crime when the next was perpetrated upon the victim. (Cit.) Under the circumstances of this case, the same conduct is not being punished twice nor is one act included in the other so as to proscribe the separate conviction and punishment for each act. (Cit.)’ [Cit.]” Cardoza v. State, 183 Ga. App. 170, 171 (1) (358 SE2d 315) (1987).

2. In response to appellant’s second enumeration, we conclude that the evidence was sufficient to support the verdict of guilt for assault with intent to commit rape. Notwithstanding our disagreement with appellant that the crime of rape is sexually motivated, the fact that appellant did not actually have carnal knowledge of the victim as defined by OCGA § 16-6-1 is immaterial to his conviction of aggravated assault with intent to commit rape. “(S)ince assault is an ‘attempted’ battery, there must be a substantial step toward committing a battery before there can be an assault [OCGA § 16-4-1]. The ‘substantial step’ requirement thus relates to the first essential element of [OCGA § 16-5-21], the assault, and not to the second element, the intent to rape. The crime of aggravated assault with intent to rape is complete when there is a ‘substantial step’ toward a battery of the victim, i.e., an assault, coupled with intent to rape . . . [Cits.]’ [Cits.]” (Punctuation and emphasis omitted.) Young v. State, 181 Ga. App. 587, 588 (353 SE2d 82) (1987). “ ‘It is not necessary for the [S]tate to show that appellant expressed an intent to (rape) in so many words, or declared a purpose to carry the intent into effect, for the jury to arrive at the conclusion he so intended. The intention may be gathered from the circumstances of the case as proved.’ [Cit.]” Rucker v. State, 177 Ga. App. 779, 781 (2) (341 SE2d 228) (1986). Whether appellant intended to rape the victim was a matter for the jury to determine and, as a general rule, the State must of necessity rely upon circumstantial evidence. Kinney v. State, 155 Ga. App. 95 (1) (270 SE2d 209) (1980). Here, not only did the appellant tell the victim that “everybody deserved one more fling before they died,” he ripped off all her clothes and made disparaging remarks about the size of her breasts, as well as forcing her to masturbate. Thus, “[t]here was evidence, although circumstantial insofar as intent is concerned, sufficient to establish that the defendant assaulted the victim with intent to commit rape; a rational trier of fact was authorized to find the defendant guilty of the crime charged beyond a reasonable doubt. [Cits.]” Williams v. State, 185 Ga. App. 633, 634 (3) (365 SE2d 491) (1988).

Nor do we agree that Count 6 merged with Counts 3, 4 and 5, because there was sufficient evidence of four separate assaults based on multiple instances of criminal behavior. Based on the evidence, we conclude that appellant’s acts which we have held above constitute an assault with the intent to commit rape are separate and distinct from each separate assault with the stick as well as from the acts constituting an assault with a deadly weapon, the knife. “The conclusion to be drawn from the fact that [none of these offenses] can be proved by only the same facts proving the other [’s] is that [none] is included in the other [’s] as a matter of law.” Kirby v. State, 187 Ga. App. 88, 89 (2) (369 SE2d 274) (1988).

Decided March 15, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, R. Stephen Roberts, Desiree L. Sutton, Assistant District Attorneys, for appellee.

3. Finally, appellant argues that the count of false imprisonment was merely incidental to the other crimes charged in the indictment and is not a distinct offense which can be punished separately. This contention is clearly belied by the evidence. There was false imprisonment shown as contemplated by OCGA § 16-5-41 (a) in that appellant “confined” and “detained” the victim from the time he grabbed her from behind and stuck the knife in her ribs until he began the actual physical assaults upon her. “Under these circumstances, it cannot be said that the [S]tate ‘used up’ the evidence establishing false imprisonment in proving the [other charges]. [Cits.] Each offense was established by proof of separate and distinct facts . . . .” Gilbert v. State, 176 Ga. App. 561, 563 (2) (336 SE2d 828) (1985). Appellant’s enumerations of error are without merit.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


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    A89A2338.
    BURNS et al. v. PUGMIRE et al.
    (392 SE2d 62)
   Cooper, Judge.

Appellants, unable to obtain financing from a lending institution to purchase a house owned by appellees, entered into a contract for the sale of realty with appellees. The contract, executed by the parties without the assistance of an attorney, provided that the purchase price of said property was $79,500, to be paid as follows: “Six Hundred Seventy-Five and 00/100 Dollars ($675.00) per month, including taxes and insurance for mortgage holder’s contract period remaining, or until buyer elects to refinance.” The contract specifically acknowledged appellees’ receipt of $4,000 earnest money from appellants, to be applied as part payment of the purchase price at the consummation of the sale, but was silent as to a closing date.

The record reflects that upon execution of the contract appellants took possession of the property and made monthly payments of $675 for approximately nine months, at which time appellees requested that appellants increase their payments to $792.25. Appellants made these increased payments for approximately one year, and appellees asked appellants to increase their monthly payments again. Appellants refused and notified appellees of their belief that the terms of the original contract were not changeable; and that by paying $792.25 for several months they had overpaid appellees by $1,524.25, which meant they made the next two months’ payments in advance. Appellants received a letter from appellees’ attorney giving them 60 days to vacate the property and by separate letter refunded the earnest money less an amount due which represented rent for two months. After 60 days had elapsed appellants were served with a dispossessory action. Appellants, contending that they were not tenants, answered and counterclaimed on the ground that they had equitable title in the property. Both parties filed motions for summary judgment. The trial court granted appellees’ motion on the main claim and the counterclaim, and appellants bring this appeal.

1. Appellants’ first two enumerations of error can be addressed by determining whether the trial court’s grant of summary judgment to appellees was proper. The material facts are not in dispute; therefore, appellees were entitled to a judgment as a matter of law if a landlord-tenant relationship existed.

We agree with appellants that where a party enters upon land under a contract of purchase, the relationship of landlord and tenant does not come into existence. MacKenna v. Jordan, 123 Ga. App. 801 (1) (182 SE2d 550) (1971). However, it is axiomatic that a contract for the sale of real property is unenforceable if it is vague, indefinite and uncertain. Collins v. Wright, 119 Ga. App. 4 (165 SE2d 878) (1969); Hicks v. Stucki, 109 Ga. App. 723 (1) (137 SE2d 399) (1964). “The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance, where these are essential.” Green v. Zaring, 222 Ga. 195 (1) (149 SE2d 115) (1966). “ ‘Where the amount of the purchase price fixed by the contract is certain and definite, but the terms of payment are indefinite and uncertain, the writing is not a contract and confers no rights and imposes no liability.’ [Cits.]” Zappa v. Basden, 188 Ga. App. 472, 475 (373 SE2d 246) (1988). The contract in the case at bar provides for monthly payments for the mortgage holder’s contract period remaining, or until buyer elects to refinance. Neither party attached a copy of the mortgage to the contract, nor is the document a part of the record. Thus, it is impossible to determine whether appellants’ $675 monthly payments for the mortgage period remaining will total $79,500, or whether there will be a balance due at the end of the mortgage period remaining. No provision is made as to the method of payment if a balance remains. Furthermore, the contract does not specify the closing date, which party was to pay closing costs, and when transfer of title and delivery of a deed from appellees to appellants will take place. Although in the absence of a closing date a reasonable time will be implied (Rowland v. Hunt, 172 Ga. App. 895 (324 SE2d 826) (1984)), here, neither party took any action to consummate the sale for almost two years. Therefore, we conclude that the trial court correctly found the contract to be too vague, indefinite and uncertain to be enforceable.

Decided March 15, 1990.

Bonald B. Walker, Nancy H. Murphy, for appellants.

Fletcher Thompson, for appellees.

There being no valid contract for the sale of the property, the trial court’s ruling that appellants were tenants at will was not error. “When, in an action for rent, title is shown in the plaintiff and occupation by the defendant is proved, an obligation to pay rent is generally implied.” OCGA § 44-7-5. Accordingly, the trial court’s grant of summary judgment to appellees on the main claim was not error.

2. Appellants contend in their third enumeration of error that the trial court erred in granting appellees’ motion for summary judgment on appellants’ counterclaim. Appellants’ counterclaim is premised upon the existence of a valid and enforceable sales contract. Because of our holding in Division 1, we find no error with the trial court’s grant of summary judgment to appellees on appellants’ counterclaim.

3. In their fourth enumeration of error, appellants contend that the trial court erred in denying their motion for summary judgment. For the reasons stated in Division 1 of this opinion, the trial court’s denial of summary judgment to appellants was not error.

Judgment affirmed.

Been, P. J, and Birdsong, J., concur.


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    A90A0284.
    STATE WHOLESALERS, INC. et al. v. PARKS et al.
    (392 SE2d 64)
   Birdsong, Judge.

We granted discretionary appeal in this case to determine whether the trial court erred in assessing against appellants State Wholesalers, Inc. (employer) and its workers’ compensation carrier (The Atlantic Companies), an award amounting to $32,633.29 payable to Blue Cross/Blue Shield of Georgia. The award was granted for medical expenses incurred by Blue Cross as the group health insurer for employer, prior to the date any workers’ compensation claim was ever filed, and prior to the date The Atlantic Companies became the workers’ compensation insurance carrier for the employer. The claimant was first injured in 1985 and neither sought nor received any workers’ compensation benefits, but his medical expenses were paid by employer’s group health insurance carrier, Blue Cross/Blue Shield. In 1987, claimant filed a claim for workers’ compensation benefits against employer’s former workers’ compensation carrier, Royal Insurance Company, which the board dismissed as barred by the statute of limitations. Appellant Atlantic was employer’s workers’ compensation insurer in July 1987, when claimant sustained, and filed a claim for, a “new injury,” according to the board’s finding of fact.

After claimant’s filing of a claim for his “new injury” in 1987, Blue Cross/Blue Shield in 1988 interposed a claim by letter, as a “Party at Interest” pursuant to OCGA § 34-9-206, asking for reimbursement of $32,622.29 which it had paid as group carrier for medical expenses. The board ordered appellants “to pay the employee, or reimburse the provider as may be appropriate, for the cost of any and all medical treatment which is reasonable in amount and necessary to effect a cure and/or give relief to the employee’s injury resultant [sic] condition. . . . [T]he term ‘provide [r]’ includes but is not limited to Blue Cross/Blue Shield of Georgia, Inc. ...” Held:

1. OCGA § 34-9-206 provides: “(a) A group insurance company or other health care provider who covers the costs of medical treatment for a person who subsequently files a claim under [Title 34, Chapter 9] may give notice in writing to the board at any time during the pendency of proceedings before the board that such provider is a party at interest, (b) . . . [T]he board shall be authorized to order the employer or insurance carrier to repay the group insurance company or other health care provider the funds it has expended for the claimant’s medical treatment, provided that such employer or its workers’ compensation . . . carrier is liable under this chapter for such medical treatment. . . .” (Emphasis supplied.)

The board specifically found that by virtue of statutory limitations (OCGA § 34-9-82 (a)) the employer and its former workers’ compensation carrier, Royal Insurance Company, were not liable for any claim arising from claimant’s 1985 injury, and for which he sought no treatment until at least October 12, 1986. The board further found that since the claimant had never filed a workers’ compensation claim prior to November 1987, nor been given a workers’ compensation award, he could not be found to have suffered a “change in condition,” but that he did suffer a “new injury” on July 24, 1987, when he was forced to cease work. See Central State Hosp. v. James, 147 Ga. App. 308, 309 (1) (a) (248 SE2d 678). Upon this basis alone, the board found Atlantic responsible to pay benefits under this claim.

We agree with appellants that they cannot be liable for an award of reimbursement to Blue Cross/Blue Shield for medical expenses incurred by claimant prior to the date of the “new injury” on July 24, 1987. OCGA § 34-9-206 (b) provides specifically that they are entitled to reimbursement only if the employee and insurer are liable for such treatment. OCGA § 34-9-206 (b). Inasmuch as appellants have been found liable for benefits only for, and by virtue of, the occurrence of a “new injury” on July 24, 1987, they could not be liable for any expenses incurred prior to that date, or for any expenses not reasonable and necessary for treatment of the “new injury.” Blue Cross/Blue Shield is therefore not entitled to reimbursement for any benefits incurred prior to that date, or on account of any prior injury or condition.

Decided March 15, 1990.

Lowendick, Sligh, Presmanes & Speed, H. Durance Lowendick, James G. Jackson, for appellants.

Steven A. Westby, John A. Moore, E. Lee Southwell III, for appellees.

Blue Cross/Blue Shield has filed no brief in this court seeking to prove the legality of the award. The board made no attempt to distinguish or find whether any of the charges were related to the “new injury” alone. Appellants are not liable to reimburse Blue Cross/Blue Shield for any medical expenses incurred prior to July 14, 1987, or on account of any previous injury or condition. Accordingly, the board must reconsider the specific evidence and render appropriate findings of fact.

2. We are bound by the “any evidence” rule (Jackson v. Peach-tree Housing &c., 187 Ga. App. 612, 615 (371 SE2d 112)) to uphold the superior court’s affirmance of the “new injury” award of liability. See, as the finding of “new injury,” Atlanta Care Convalescence Center v. Travelers Ins. Co., 187 Ga. App. 283, 284 (370 SE2d 40).

The case is to be remanded to the board for reconsideration of the evidence offered by Blue Cross/Blue Shield, for findings not inconsistent herewith.

Judgment affirmed in part and reversed in part with direction.

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


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    A90A0375.
    DAVIS v. THE STATE.
    (392 SE2d 327)
   Birdsong, Judge.

Appellant, John James Davis, Jr., appeals his conviction of burglary and his sentence.

Appellant admitted being at the scene of the burglary, but claimed he had taken a man, with the nickname “L. A.,” to the house, as L. A. said he was going there to see his boss. Appellant testified that while he waited for L. A., the latter committed the burglary without appellant’s knowledge or assistance.

Appellant’s fingerprints were found on broken glass lying inside and outside the house near the broken back window. Appellant further testified he had become tired of waiting and had gone to the rear of the house to look for L. A. He noticed the broken window, and innocently placed his hands on the glass while looking into the house to see what was going on. When he returned to the front of the house, L. A. was loading stolen property into appellant’s vehicle. Appellant asserts that after he discovered what happened and that L. A. was armed, he was afraid to stop the crime or to report it. L. A. gave him a stolen radio and a watch as payment for the ride to the burglarized premises.

The rear window was about five feet from the ground, and a heat pump switch box near the window was pulled from the building. The perpetrator had stepped upon the central air and heating unit to break out the window.

Appellant was identified as the man who attempted to sell the stolen watch approximately ten days after the burglary, and he admitted to the sale at trial. Held:

1. Appellant asserts that the evidence was insufficient to support the finding of guilty of burglary beyond a reasonable doubt.

An appellate court determines sufficiency of evidence; it neither weighs evidence nor determines witness credibility. Smith v. State, 192 Ga. App. 768 (1) (386 SE2d 530); Banks v. State, 185 Ga. App. 851 (3) (366 SE2d 228).

To support the verdict of guilty of burglary, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt.

Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts that the trial court erred in overruling his objection to State Exhibit No. 4 on the grounds that a proper foundation had not been laid for its admissibility.

We are satisfied that an adequate foundation was laid for the admission of State Exhibit No. 4 within the meaning of OCGA § 24-3-14 (b). See generally Suarez v. Suarez, 257 Ga. 102 (2) (355 SE2d 649).

The trial record reflects that “everybody that is arrested has a folder on them and the fingerprints are kept in the folder.” The fingerprint card is a part of the record and is generally made at the time of a subject’s arrest during the booking procedure. The name of the person who took the prints is on the card, and the card normally is maintained in the file jacket of the subject’s arrest record at the sheriff’s department. The fingerprint card was routinely kept as part of the arrest record and used routinely for “latent comparisons.” The State’s witness further testified that he was one of the custodians of the arrest records which contained the fingerprint cards, that the record was routinely kept in the normal course of business in the operation of the sheriff’s department, that it was normal procedure to make this type of prints when someone is arrested, and that these prints were made as a result of an arrest in 1986. Although the witness had been with the sheriff’s department for less than a year and did not personally observe the taking of appellant’s prints or their placement on State Exhibit No. 4, “[a]ll other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight; but they shall not affect its admissibility.” OCGA § 24-3-14 (c). OCGA § 24-3-14 is to be liberally interpreted and applied. OCGA § 24-3-14 (d).

A witness identifying business records under OCGA § 24-3-14 does not have to have personal knowledge of the correctness of the records or have actually made the entry himself. Murphy v. State, 182 Ga. App. 791 (1) (357 SE2d 147).

Moreover, assuming arguendo error had occurred, it would be harmless, as appellant admitted in judicio that he had touched the broken window with his hands.

3. Appellant asserts that the trial court erred in overruling his objection to the recharging of the jury as to the legal theory of party to a crime, because the court failed to remind the jury of the other parts of the charge and that they must give due consideration to the charge as a whole.

“ ‘ “Where the jury requests further instructions upon a particular phase of the case, the court in his discretion may recharge them in full, or only upon the point or points requested.” ’ ” Lobdell v. State, 256 Ga. 769, 776 (13) (353 SE2d 799); compare Welch v. State, 257 Ga. 197 (1) (357 SE2d 70).

Appellant argues that in Burgan v. State, 258 Ga. 512 (4) (371 SE2d 854), the court held there was no abuse of discretion where the appellant failed to request a full recharge or to object to the recharge as given and where the judge cautioned the jury to recall and apply equally the other portions of his original charge that were not recharged. Appellant asserts that in this case, as timely objection was made to the recharge and no contemporaneous charge was given to the jury to recall the original charge and apply it in its entirety, the trial court abused its discretion within the meaning of Burgan.

Decided March 15, 1990.

James P. Brown, Jr., for appellant.

Tommy K. Floyd, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

We do not interpret the holding in Burgan, as mandating such a result. Less than two hours before the recharge was given, the trial court in its original charge instructed the jury that “[t]he charge of the court should be received and considered by you in its entirety, as a whole, as one body of law that applies to this case.” Nothing is contained in the recharge to negate this instruction. Before recharge, the trial court expressly asked the jury if they desired any other portions of the instruction to be repeated and was informed by the foreman that the only question raised by the jury concerned the charge pertaining to the instruction as to parties; and, following the recharge, the jury foreman confirmed that the area of inquiry had been completely covered.

We find the trial court did not breach its discretion.

Judgment affirmed.

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