text:
    A93A0604.
    WILSON v. SOUTHERN RAILWAY COMPANY et al.
    (431 SE2d 383)
   Birdsong, Presiding Judge.

Appellant/plaintiff Willie W. Wilson, Jr. filed a complaint, as amended, against appellees/defendants Southern Railway Company (Southern), Cannon Express Corporation (Cannon), Jeffrey R. Walsh (Walsh), and National Continental Insurance Company (National). Appellant alleges that the combined negligence of appellees caused him to sustain severe injuries as a result of a railroad crossing collision between a Southern train and a tractor-trailer owned by Cannon, driven by Walsh, and insured by National.

Plaintiff was a brakeman employed by Southern. The train crew and engineer (crew) noticed a tractor-trailer rig stopped on the railroad crossing. The train was approximately one-and-one-half miles from the crossing at that point and traveling approximately 40 mph; it was over a mile in length. When the train was between one and one-and-one-half miles from the crossing, the crew observed that the rig still was not moving and the engineer applied the train brakes. Although the conductor estimated that he first observed the rig about three-quarters of a mile away from the crossing, it then appeared to be stopped and he could tell it was unable to move. Approximately one-quarter of a mile from the crossing, it appeared to the engineer that the rig was not going to move and that normal braking would not suffice; the engineer applied the emergency brakes. The train collided with the rig, injuring appellant.

The trial court granted National’s, Cannon’s, and Walsh’s motion for directed verdict at the conclusion of plaintiff’s case; the jury returned a verdict in favor of appellee Southern. This appeal is from the judgment granting said motion for directed verdict, and from the jury verdict in behalf of Southern. Held:

1. Appellees Cannon, Walsh and National assert that the appeal should be dismissed because appellant filed his notice of appeal prematurely. Judgment was filed and entered on the jury verdict in favor of Southern on July 14, 1992; judgment was filed and entered on July 23, 1992, granting in writing the motion for directed verdict in favor of Cannon, Walsh and National; on July 17, 1992, a notice of appeal was taken from the order of July 14, 1992, and from the oral order of the trial court on July 8, 1992, granting the motion for directed verdict on the record. The notice of appeal was not premature as to the appeal of the judgment entered on July 14, 1992. Accordingly, “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law.” (Emphasis supplied.) OCGA § 5-6-34 (d), as amended. Moreover, assuming arguendo the notice of appeal, as filed, was technically defective, it was “sufficient to notify the opposing party that an appeal was being taken [and] it was not so defective as to mislead or prejudice him,” within the meaning of Steele v. Cincinnati Ins. Co., 252 Ga. 58, 60 (311 SE2d 470). Compare Realty Trading Co. v. Fiduciary Leasco, 200 Ga. App. 261 (1a) (407 SE2d 486). Additionally, if the appeal had been premature by attempting to appeal the oral order granting directed verdict, the notice of appeal would have “ripened” when the written order thereof subsequently was entered. See O’Kelly v. State, 196 Ga. App. 860 (1) (397 SE2d 197). For each of these reasons, appellees’ assertion of lack of appellate jurisdiction is without merit.

2. The trial court did not err in granting the motion for directed verdict in favor of appellees Cannon, Walsh, and National. “ ‘It is not error to direct a verdict if the evidence and all reasonable deductions therefrom, considered in the light most favorable to the respondent to the motion, demands the verdict and fails to disclose any material issue for jury resolution.’ [Cits.] A directed verdict is proper even where there is conflicting evidence where the plaintiff simply failed to prove his case.” (Emphasis omitted.) Chester v. Bouchillon, 253 Ga. 175, 177 (3) (317 SE2d 525). “Negligence is not to be presumed, but is a matter for affirmative proof.” Johnson v. Critter Getters Exterminating Co., 194 Ga. App. 314, 316 (390 SE2d 434). Thus, as a general rule, “[t]he mere fact of injury or damage does not give rise to a presumption or inference of negligence.” Housing Auth. &c. v. Famble, 170 Ga. App. 509, 524 (317 SE2d 853). “In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence.” Johnson, supra.

Hardy v. Brooks, 103 Ga. App. 124 (2) (118 SE2d 492) involved an appeal from a judgment overruling general demurrers to an amended petition, and is distinguishable factually from the case at bar. Moreover, there exists no evidence in the record that the dangerous situation of the rig being stalled on the railroad crossing was “created” by any act or omission, negligent or otherwise, of appellee Walsh within the meaning of Hardy, supra. See also Chastain v. Fuqua Indus., 156 Ga. App. 719, 721 (1) (275 SE2d 679). Secondly, the existence of the rig was apparent immediately to the engine and train crew as soon as the train rounded a curve in the track, and the conductor realized the truck was stopped and unable to move when he saw it about three-quarters of a mile from the crossing. There exists no duty to warn of the obvious. See generally Soto v. Roswell Townhomes, 183 Ga. App. 286, 287 (358 SE2d 670).

Additionally, there exists no evidence which affirmatively establishes that, under the attendant emergency conditions, appellee Walsh could have provided a warning to the crew adequate to avoid the collision. The law will not require a useless act (Southern R. Co. v. Lawson, 256 Ga. 798, 800 (1b) (353 SE2d 491)). Cf. Hildebrand v. Los Angeles &c. R. Co., 350 P2d 65, 67 (2) (SC Calif.) (any warning by the crew under the circumstances would have been futile to prevent the collision at the crossing with the oncoming motorcycle). Unless there exists some evidence of record, albeit slight, from which a factfinder could reasonably infer or directly find that an adequate warning could have been given that would have avoided the collision, the lack of a warning would not preclude the granting of a directed verdict in favor of appellees Cannon, Walsh, and National.

Appellant testified without objection that the engineer could have stopped the train a long way from the crossing if he knew what was happening. However, he also testified that, even assuming a person knew the correct number to call in Atlanta, a warning radio call could not have been relayed to the train in two or three minutes and probably not even in ten or fifteen minutes. No evidence of record establishes that the truck driver knew whom to call in Atlanta or the dispatcher’s number, or that he had access to a phone; there was no emergency phone at the crossing. Further, it would only take between one and two minutes for the train to reach the crossing after it rounded the curve, and appellant was unaware how long the rig had been stalled at the crossing before the train appeared in view. Appellant testified that before he was two or three train car lengths from the crossing, he saw a man at the crossing, who he believed to be the driver, waving a warning signal. Appellant further testified that if the man had come down the tracks for an unspecified distance and given the same warning signal, the collision “probably would have not happened.” However, appellant also testified that right after the train rounded the curve the crew saw the truck; shortly thereafter, the conductor said the truck may not move so the engineer “started throttling off” (slowing the train); a little further down the track, the conductor said they ought to get some brakes, so the engineer “started putting the brakes on.” The brakes were initially applied one-half to one mile from the crossing. Appellant made an admission that he knew there was a “pretty good danger” when the train reached the brick yard (about a quarter of a mile from the crossing), and at that point the emergency brakes were applied. Even then the train went at least three to four cars beyond the crossing after striking the truck. From this testimony, it is established without contradiction that anyone giving an adequate warning would have had to have been far enough up the tracks and in a visible location so as to alert the crew and allow them enough reaction time to apply their emergency brakes more than four car lengths beyond the brick yard. There exists no evidence of record from which the jury could conclude that appellee Walsh had the time and opportunity, under the existing emergency conditions, to position himself in such a manner as to give an adequate warning.

Additionally, after testifying that if the emergency brakes had been applied when the crew first saw the truck and that the train would have stopped short of it, appellant gave the following vague and equivocal testimony: “If we was in emergency when we first come around [the curve], we would have got stopped probably right at it or may have still got to it. It is hard to say what a train [is] going to do.” (Emphasis supplied.)

In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion. Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267). In Douglas v. Sumner, 213 Ga. 82 (3) (97 SE2d 122), however, the Supreme Court applied the established rule that “ ‘[t]he testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal,’ ” and concluded the trial court did not err in granting nonsuit at the conclusion of plaintiff’s testimony. (Emphasis supplied.) In Marett v. Professional Ins. Careers, 201 Ga. App. 178 (1c) (410 SE2d 373), this court expanded upon and applied this rule holding: “ ‘The law in this state is that the testimony of a party offering himself as a witness in his own behalf is to be construed most strongly against him when it is contradictory, vague or equivocal [cit.]; even as against a directed judgment, [cits.], and that construction most unfavorable to his position should generally be adopted. [Cit.] If that most unfavorable position shows that the party is not entitled to prevail, unless other evidence shows compellingly that he should prevail, he must lose. [Cit.]’ Veal v. Fraser, 155 Ga. App. 157, 161 (2) (270 SE2d 250).” (Emphasis supplied.) See Johnson v. Curenton, 127 Ga. App. 687, 690 (195 SE2d 279). However, if a reasonable explanation is subsequently offered by the witness as to why his testimony was contradictory, vague, or equivocal, the testimony will not be construed against the party-witness; the burden rests upon the party giving such testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680). Appellant’s testimony regarding whether the train could have been stopped, by immediate application of emergency brakes as soon as it rounded the curve and the truck was seen, is both vague and equivocal. We find, as a matter of law, that no reasonable explanation was given by appellant for such vagueness and equivocation. Accordingly, we will construe the testimony against appellant in the manner most unfavorable to his position, and we conclude that the train could not have been stopped before hitting the truck even if the emergency brakes had been applied as soon as the train rounded the curve and the vehicle was in view (about one-and-one-half miles away). Moreover, there exists no evidence of record as to when or why the truck stopped on the crossing tracks. In view of the posture of the record, the trial court did not err in granting a directed verdict in behalf of appellees Cannon, Walsh, and National, where as here, “ ‘ “plaintiff simply fails to prove his case” ’ ” (Neal v. Miller, 194 Ga. App. 231, 233 (390 SE2d 125)).

3. Appellant asserts the trial court erred in admitting surveillance tapes that appellant had requested and of which he was not informed or given access to until the evening of the second day of trial, notwithstanding appellant’s pretrial request by interrogatories for the disclosure of any surveillance or tapes of appellant. Although Southern’s written response to the interrogatories is not included in the record, counsel for Southern stated on the record, without contradiction by appellant, that in response to these questions Southern objected to the question and declined to answer for the reasons stated in their objection, and that they neither admitted nor denied having appellant under surveillance or having tapes of him. The record fails to establish and support a claim that Southern in fact deliberately withheld information as to the surveillance and tapes to prejudice appellant. Compare Jones v. Atkins, 120 Ga. App. 487, 490-491 (171 SE2d 367). In the absence of a deliberate withholding for improper purposes, it is the general rule that “[w]hen a party proffers at trial evidence which should have been disclosed during discovery, exclusion of the proffered evidence is not an authorized sanction. The proper sanction is to order a postponement or a mistrial.” White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5) (417 SE2d 383); compare Jones, supra at 491 (exclusion proper only where party deliberately withholds).

Moreover, appellant was given three full days in which to prepare before the tapes were admitted in evidence. When the tapes were admitted, appellant did not request a postponement. Although appellant did state that he was renewing his motion for mistrial, just before the jury was recalled and the tapes introduced when trial resumed following weekend recess, the record reveals that the only prior motion for mistrial made by appellant was in regard to the issue addressed in Division 5, infra, and was not related to the ruling regarding the videotapes. Appellant’s renewal of a mistrial motion, if intended to relate to the issue of admissibility of the tapes, was not in proper form. Cf. Gully v. Glover, 190 Ga. App. 238, 241 (4) (378 SE2d 411) (objection not in proper form). Appellant made no prior motion for mistrial regarding the tapes; he could not renew a motion which he had not made. Further, in view of the time given appellant’s counsel to review the tapes, and no claim by counsel following the weekend recess that he had been unable to complete his review of the videotapes, there would have been no breach of discretion in denying a motion for mistrial due to admission of the tapes even had one been properly made. Further, appellant elected not to make any request for postponement after the weekend recess, either before the special investigator testified concerning the videotapes or before the admission of the tapes in evidence. While appellant did assert that he had. not seen one particular tape, it was merely an edited version or summary of scenes from the other tapes appellant had been given, and no request for postponement was made for time to review the summarized tape before it was shown to the jury.

Under the above circumstances, the trial court did not abuse its discretion in refusing to exclude the testimony. City of Monroe v. Jordan, 201 Ga. App. 332, 336 (4) (411 SE2d 511); compare Sackett v. L. L. Minor Co., 244 Ga. 375 (1) (260 SE2d 37); Nathan v. Duncan, 113 Ga. App. 630, 631 (7) (149 SE2d 383).

4. Appellant asserts the trial court erred in admitting the videotapes because they were irrelevant, biased, unfair, and highly prejudicial. The tapes were offered as rebuttal evidence of appellant/plaintiff’s testimony regarding the nature and extent of his injuries. The tapes showed appellant engaged in various activities requiring movement of his neck, arms and back, and his driving an automobile. Thus, the tapes had some logical relevance as to the scope of appellant’s injuries and as to the issue of damages. “Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value ‘[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.’ ” West v. Nodvin, 196 Ga. App. 825, 828 (3b) (397 SE2d 567); compare McEachern v. McEachern, 260 Ga. 320, 321 (1) (394 SE2d 92). “ ‘[A]bsent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal.’ ” Friedman v. Friedman, 259 Ga. 530 (3) (384 SE2d 641). The trial court did not abuse its discretion when it overruled the objection to admissibility on the grounds of relevancy. Moreover, assuming without deciding that appellant properly raised an objection based on legal relevance (that the relevance of the evidence outweighed its prejudicial impact), we also find the trial court did not abuse its discretion (see generally Carroll v. State, 261 Ga. 553 (2) (408 SE2d 412)) in overruling that portion of the motion based on the grounds the evidence was biased, unfair, and highly prejudicial. Further, having examined the tapes in question, we are satisfied that the relevance of the tapes did outweigh any prejudicial impact thereof. Additionally, before the tapes were offered, the special investigator for the insurance company testified and proceeded without objection to lay a foundation for the admission of the videotapes which included stating briefly what the tapes depicted. In the course of this foundation testimony, the investigator testified as to which tapes showed appellant with an unidentified woman, which tapes showed him exiting or entering a motel with an unidentified woman, and which tapes showed him in the company of two unidentified women in one day. No objection was made to these testimonial descriptions as to the content of the various tapes; and “ ‘[a] 11 evidence is admitted as a matter of course unless a valid ground of objection is [timely] interposed.’ ” Scott v. State, 206 Ga. App. 23, 26 (1c) (424 SE2d 328). As the jury thus had testimonial evidence before it regarding appellant’s various meetings with unidentified women, and his entry and exiting of a motel with an unidentified woman, any pictorial representation of this conduct in the videotapes would merely be cumulative of the testimony to this effect and previously received in evidence without objection. Thus, if error had occurred due to the pictorial representation of such conduct, it would be harmless. See Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642) (evidence harmless where admissible evidence of same fact is before jury); Platt v. National Gen. Ins. Co., 205 Ga. App. 705, 710 (1) (423 SE2d 387).

5. Appellant asserts the trial court erred in recognizing before the jury one of the senior partners of the firm representing Southern thereby exemplifying a biased attitude on the part of the court toward Southern. This incident was not transcribed, and this court cannot therefore review the verbatim exchange which occurred. On the record, appellant made a belated objection to the colloquy.

We find that the objection was not timely, and that by failing to call for an immediate out-of-court hearing on the matter, the trial court was deprived of an opportunity to give the jury prompt corrective instructions concerning the exchange. Appellant also made a motion for mistrial (and apparently subsequently renewed said motion), which the trial court denied. We find no abuse of discretion on the part of the trial court.

The record reflects the following offer by appellant: “The judge addressed the senior partner of the defendant’s law firm when he came in the courtroom and had a seat in the back of the courtroom. . . . ‘Hey, here comes a young lawyer, a good friend of mine.’ All of this is taking place during direct examination while the plaintiff is putting up his case. . . . [T]he senior partner of defendant’s law firm stands up and says: ‘During my whole 58 years of practice of law I never learned nothing as a lawyer. . . .’ And these comments go back and forth. At that time the judge should have recused himself . . . because it appears he’s biased and partial toward the defense. Since the plaintiff’s counsel made that motion, the judge has made just about every ruling against the plaintiff. His rulings have been punitive.” (Emphasis supplied.)

The record provides no support for the claim that the trial court thereafter made punitive rulings against appellant. Further, nothing in this offer of proof establishes the senior partner was addressed by name or, in fact, was identified by the trial judge to the jury as the senior partner of Southern’s law firm. Appellant did not request any voir dire of the jury concerning their knowledge of these matters. Error must be established affirmatively by the record and we will not presume error. Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (1) (386 SE2d 709); Williams v. State, 188 Ga. App. 496 (3) (373 SE2d 281); see Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688). Moreover after the close of argument, the trial court charged the jury, inter alia, that: “I have not intended to do or say anything during the trial of this case . . . which would hint or suggest to you which of the parties I feel should prevail or what your verdict should be. My interest in this case has been to see that it was fairly presented . . . according to the law.”

Decided April 14, 1993 —

Reconsideration denied May 5, 1993

Hillman J. Toombs, for appellant.

Neely & Player, Edgar A. Neely, Jr., William C. Thompson, Laura A. Shaw, Webb, Carlock, Copeland, Semler & Stair, D. Gary Lovell, Jr., Christopher G. Moorman, for appellees.

“Although Canon 3 (C) (1) of the Code of Judicial Conduct indicates a judge should disqualify himself in any proceeding in which his ‘impartiality might reasonably be questioned,’ the conversation between the judge and plaintiff in this case did not raise a reasonable question of the judge’s impartiality.” Von Hoff v. Carmichael, 204 Ga. App. 760, 762 (420 SE2d 643). Further, we find the trial court did not abuse its discretion in denying appellant’s motions for mistrial.

6. Appellant’s enumeration of error “E” asserts therein more than one separate charging error in violation of OCGA § 5-6-40. Accordingly, we elect not to review any of these claims of error. Murphy v. State, 195 Ga. App. 878 (6) (395 SE2d 76); compare Morris v. State Farm &c. Co., 203 Ga. App. 839, 841 (6) (418 SE2d 119) and Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820).

Judgment affirmed.

Andrews, J., concurs. Pope, C. J., concurs in Divisions 1, 4, 6, and in judgment.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A0781.
    HOLTAPP v. CITY OF FAYETTEVILLE.
    (431 SE2d 403)
   Johnson, Judge.

Collin Holtapp was charged on a uniform traffic citation with speeding and driving under the influence of alcohol. After waiving her right to a trial by jury, the case was tried in the Municipal Court of the City of Fayetteville. The speeding charge was dismissed because the city was unable to produce the applicable ordinance which was in effect at the time of the arrest. Holtapp was found guilty of driving under the influence and appeals the affirmation of her conviction on appeal by the Superior Court of Fayette County.

1. In her first enumeration of error, Holtapp asserts that the DUI conviction is void because the uniform traffic citation alleged violation of a local ordinance and there was no evidence or proof that the City of Fayetteville had enacted such an ordinance. The citation notes a violation of OCGA § 40-6-391 (a) (4), and indicates with an “x” that this offense is a local ordinance rather than state law. Holtapp did not question whether the prosecution was proceeding on the DUI charge under state law or local ordinance. In numerous pre-trial motions Holtapp asserts that she was charged with the offense of violating OCGA § 40-6-391. Similarly, the city referred to OCGA § 40-6-391 (a) (4) in its responses. Therefore we must conclude that Holtapp believed that she was charged with violation of OCGA § 40-6-391 (a) (4) and acquiesced to be tried on that charge. “An appellant cannot complain of a result his own procedure or conduct aided in causing. [Cits.]” Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889) (1991). At trial, all of the elements of OCGA § 40-6-391 (a) (4) were proven and a conviction rendered. “When trial has been had . . . where no prejudice to defendant has occurred though the indictment or accusation or citation is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. . . . Upon a proceeding after verdict, no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment or accusation or citation. Thus, a defendant who was not misled to his prejudice by any imperfection in the indictment or accusation or citation cannot obtain reversal of his conviction on that ground.” (Citations and punctuation omitted.) Broski v. State, 196 Ga. App. 116, 118 (1) (395 SE2d 317) (1990). We can find no prejudice to Holtapp from the failure to try her on a “perfect” uniform traffic citation. We also note that Holtapp did not raise the issue of whether the DUI charge was premised on a valid city ordinance prior to the appeal to the superior court. “Grounds enumerated as error but not raised during trial may not be raised for the first time on appeal. Enumerated errors which raise issues for the first time on appeal present nothing for review.” (Citations and punctuation omitted.) Thrasher v. State, 204 Ga. App. 413, 415 (4) (419 SE2d 516) (1992).

2. Holtapp contends that the evidence was insufficient to support the verdict because the prosecution failed to prove that she was driving the car. Holtapp and her sister testified at trial that Holtapp was not the driver. The arresting officer, however, testified that he observed Holtapp get out of the driver’s side of the vehicle when it came to a stop and further testified that no one suggested until the day of the trial that anyone other than Holtapp was driving. Holtapp stipulated to the results of an intoximeter test indicating a blood-alcohol level of .16. Construing the evidence in the light most favorable to the verdict, we find that there was sufficient evidence to support the court’s finding that Holtapp was guilty of driving under the influence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 27, 1993 —

Reconsideration denied May 5, 1993

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

Oliver, Duckworth, Sparger & Winkle, David P. Winkle, for appellee.

3. Holtapp is correct in suggesting that the sentence imposed violates the ex post facto protections afforded by Article I, Sections 9 and 10 of the United States Constitution and Article I, Section I, Paragraph 10 of the Constitution of the State of Georgia of 1983. Holtapp committed the DUI offense on November 11, 1990. The enhanced sentencing provisions contained in OCGA § 40-6-391 (c) (3) (A) (under which Holtapp was sentenced) did not become effective until January 1, 1991. “ ‘It is the settled law of this State that where a crime is committed on a certain date, the penalty which attached to the crime on that date is the penalty exacted by our law . . . [T]he ex post facto laws prohibited by the State and Federal Constitutions refer .. . to laws which . . . increase the punishment ... It was mandatory for the trial court to impose the sentence provided for by the law in force at the time of the commission of the crime.’ Barton v. State, 81 Ga. App. 810, 814 (60 SE2d 173) (1950).” Hahn v. State, 166 Ga. App. 71, 74 (1) (303 SE2d 299) (1983). The sentence is vacated and the case remanded to the trial court for resentencing with direction that the new sentence be in accordance with the provisions of statute in effect on November 11, 1990.

Judgment affirmed in part, reversed as to the sentence and case remanded with direction.

Blackburn, J., and Senior Appellate Judge John W. Sognier concur.


author: Birdsong, Presiding Judge.

text:
    A93A0323.
    DAY v. THE STATE.
    (431 SE2d 416)
   Birdsong, Presiding Judge.

Dennis Day appeals his conviction of burglary. He asserts the general grounds for appeal. Held:

Although Day denies committing the burglary, the record shows he was in the victim’s home the day before it was burglarized, the victim’s next-door neighbor identified Day as the person she saw taking items from the home and putting them in a truck, and the victim testified that on the date in question her home was broken into and several items were stolen or destroyed. This evidence is sufficient to support Day’s conviction.

Decided May 5, 1993.

Gwyn P. Newsom, for appellant.

Douglas C. Pullen, District Attorney, for appellee.

On appeal the evidence must be viewed in the light most favorable to the verdict, appellant no longer enjoys the presumption of innocence, and appellate courts determine the sufficiency of the evidence and not its weight. Grant v. State, 195 Ga. App. 463 (393 SE2d 737). Further, we do not speculate which evidence the jury chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498). Therefore, having reviewed the evidence in that manner, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Witherspoon v. State, 262 Ga. 2 (412 SE2d 829).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Judge John W. Sognier.

text:
    A93A0004.
    GREEN v. THOMPSON.
    (431 SE2d 390)
   Judge John W. Sognier.

Seeking to recover for personal injuries allegedly sustained in a motor vehicle mishap, appellant-plaintiff initiated separate lawsuits against each of two drivers. In the instant action it was alleged that appellee-defendant and the other driver were racing and that, acting in concert, they drove appellant’s vehicle off the road. Appellee denied the material allegations of the complaint and defended on the basis that the other driver’s negligence was the cause of any injury sustained by appellant. After discovery, appellee moved for summary judgment on the basis that, as a result of the separate suit against the other driver, appellant had obtained a verdict in his favor and that the judgment rendered on that verdict had been satisfied. The trial court granted appellee’s motion and appellant appeals from that judgment.

In support of his motion for summary judgment, appellee introduced the complaint, judgment, and the acknowledgment of satisfaction of that judgment, from the prior action brought by appellant against the other driver, in which appellant recovered for the same injuries for which he now seeks to hold appellee liable. “The trial court was correct in concluding that the [prior] judgment was conclusive and binding upon [appellant as to the amount of his damages], even though, strictly speaking, [appellee] was not in privity with the [defendant] in that action. The modern trend in applying the [doctrine] of . . . collateral estoppel [or issue preclusion] is to confine the privity requirement to the party against whom the plea is asserted, so as to permit one who is not a party to the judgment to assert the judgment against a party who is bound by it, and thus to preclude relitigation by that party of issues which have been determined adversely to him in the prior action, even though if the issue had been decided in his favor in the prior action, he would not have been entitled to assert the prior adjudication in a subsequent action against a stranger to the judgment. [Cits.]” Watts v. Lippitt, 171 Ga. App. 578, 579 (320 SE2d 581) (1984). See also Jordan Trucking v. Wiley, 199 Ga. App. 635, 636 (2) (405 SE2d 734) (1991). “A plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them.” OCGA § 9-2-4. This section prohibits double recovery. Olden Camera & Lens Co. v. White, 179 Ga. App. 728, 729 (1) (347 SE2d 696) (1986). Satisfaction of the prior judgment extinguished appellant’s cause of action for any injuries received from the motor vehicle incident. McLendon Bros. v. Finch, 2 Ga. App. 421, 422 (3a), 426-427 (3) (58 SE 690) (1907) (decided under former Civil Code § 4945). The trial court correctly granted appellee’s motion for summary judgment.

Decided April 14, 1993 —

Reconsideration denied May 6, 1993

Allen W. Johnson, for appellant.

Dye, Tucker, Eueritt, Wheale & Long, Benjamin H. Brewton, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A93A0601.
    BRASWELL v. WALTON.
    (431 SE2d 417)
   Beasley, Presiding Judge.

Braswell, an employee of a subcontractor, was injured on the job during the construction of a house on a lot owned by Walton. He appeals from the grant of Walton’s motion for summary judgment.

Walton contracted orally with Vietor, a local contractor, to build a house on his lot. It is undisputed that during the construction Walton surrendered possession and control of the premises to Vietor, the general contractor. Walton visited the construction site weekly or biweekly to view the progress and pay Vietor.

Vietor hired Fantastic Fans, Inc. to install a fireplace on the second floor of the residence under construction. Braswell was employed by Fantastic Fans as an installer and worked on the fireplace installation at the Walton construction site. He visited the construction site three times before the date of his injury. On each occasion he used a temporary staircase to get to the second floor. On the day he was injured, he noticed that the staircase, which had previously been “toenailed” to the wall to render it more stable, was no longer attached to the wall. Nevertheless, he and a co-worker ascended the stairway. The có-worker led, carrying a pipe. Braswell followed, carrying a toolbox. He noticed that the stairway was shaky and hesitated, but his co-worker assured him that if he had made it, Braswell could, too. Braswell continued his ascent and was almost at the top when the staircase folded and Braswell fell to the floor. Braswell’s medical bills were paid by workers’ compensation through Fantastic Fans, which also paid disability wages during the time he was out of work.

The trial court granted Walton’s motion for summary judgment on the ground that under Modlin v. Swift Textiles, 180 Ga. App. 726 (350 SE2d 273) (1986), Walton’s virtually complete surrender of possession and control of the premises to Vietor rendered him not liable for Braswell’s safety.

Braswell contends this ruling was erroneous because in Modlin a written contract provided specifically that safety was the responsibility of the general contractor, and this court held only that under those circumstances the owner could not be held responsible. He argues that the silence of the oral contract between Walton and Vietor as to which of them was responsible for worker safety during construction creates a material issue of fact as to their intention on that question.

However, the facts in Modlin represent but an expressly provided-for example of the principle that when an owner makes a complete, albeit temporary, surrender of possession and control of premises to a contractor, the owner cannot reasonably be expected to exercise precautions to protect the contractor’s invitees. Butler v. Lewman & Co., 115 Ga. 752, 756-757 (2) (42 SE 98) (1902). See Newburn v. Healey Real Estate &c. Co., 17 Ga. App. 217, 224-225 (1) (86 SE 429) (1915). Compare Towles v. Cox, 181 Ga. App. 194, 195-198 (1) (351 SE2d 718) (1986) (jury authorized to conclude that full possession and complete control of premises not surrendered by owner of shopping center to contractor during installation of new water and sewer lines).

Where the owner employs a general contractor to construct a residence on his lot, and places the general contractor in temporary exclusive possession and control of the premises, a subcontractor employed by the general contractor to perform certain work in connection with the construction is the invitee of the general contractor, to whom the general contractor owes the duty of ordinary care. Braun v. Wright, 100 Ga. App. 295, 296 (111 SE2d 100) (1959). Thus, Vietor and not Walton had the duty to insure that the premises were safe for Braswell.

Decided May 6, 1993.

Carl A. Veline, Jr., for appellant.

Jones, Cork & Miller, John T. Mitchell, Jr., for appellee.

As Braswell’s statutory employer, Vietor could be held liable under the Workers’ Compensation Act. OCGA § 34-9-8. The Act, which provides the exclusive remedy against those within its purview, also provides tort immunity for Vietor. OCGA § 34-9-11 (a). Although Walton, as the owner, is not immune from liability, the record conclusively shows that he breached no duty to Braswell. Braswell’s injury occurred while the house was being framed; Walton had surrendered complete control over the premises and visited the site only to observe progress and pay the contractor; it was understood to be the contractor’s responsibility to provide workers’ compensation for the construction workers; and Walton understood that the contractor would be responsible for worker safety.

The evidence shows without a genuine issue of material fact that Walton had no duty to keep the premises safe for the contractor’s invitees, and the court properly granted summary judgment to Walton.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A0768.
    REED v. THE STATE.
    (431 SE2d 419)
   Beasley, Presiding Judge.

Reed appeals from the denial of his motion for new trial and from the judgment of conviction and sentence entered for selling methamphetamine in violation of OCGA § 16-13-30 (b). He enumerates as error the introduction of similar transaction evidence in the absence of notice under USCR 31.1 and 31.3. We affirm.

The transcript shows that appellant manufactured methamphetamine in the kitchen of his home and sold a quantity of the drugs to an undercover agent. The State advised the court outside the presence of the jury of its intention to introduce evidence that minutes before the sale was consummated, the undercover agent observed appellant inject himself with some of the drug. It sought to introduce the evidence as part of the res gestae of the crime, acknowledging that it had not provided notice of this conduct as a similar transaction under USCR 31.3. Appellant objected to the failure to provide the requisite pre-trial notice. The court ruled the evidence admissible, not as a similar transaction, but as part of the res gestae of the charged offense, and offered to so instruct the jury upon request.

Appellant’s former wife testified before the jury that she was present while the undercover purchase took place and she observed appellant inject himself with drugs. No objection was asserted. The undercover officer testified that she also observed appellant inject himself on that occasion, assisted by his wife. This occurred just prior to concluding the undercover sale. Appellant renewed his previous objection but declined the court’s offer to give limiting instructions. Instead, he requested that the jury be instructed in this regard at the conclusion of the case, which was done as follows: “[T]he defendant is charged with the sale of methamphetamine and not with possession or the use of methamphetamine, and you should not consider testimony of that nature to convict him of the charges contained in the indictment, but it was admitted for your consideration only to show the surrounding circumstances of the offense charged.” The jury charge is not challenged.

“ ‘Under Uniform Superior Court Rule 31.3 the (plaintiff) must give a defendant notice of its intent to present evidence of similar transactions or occurrences and seek the prior approval of the trial judge before presenting such evidence.’ [Cit.]” Baker v. State, 193 Ga. App. 498, 499 (2) (388 SE2d 402) (1989). However, USCR 31.3 (E) provides in pertinent part: “Nothing in [USCR 31.3] is intended to prohibit the state from introducing evidence of similar transactions or occurrences which are . . . immediately related in time and place to the charge being tried, as part of a single, continuous transaction.”

“When transactions involving other crimes and the alleged bad character of appellant are so connected in time and event as to be part of the same transaction as that for which the accused is being tried, they are admissible as a clear exception to the general rule of inadmissibility of other transactions.” Kennedy v. State, 193 Ga. App. 784, 785 (1) (389 SE2d 350) (1989). Compare Baker, supra (where evidence of four meetings between defendant and an undercover drug agent, over a three-month period subsequent to the charged sale of drugs, was held inadmissible in the absence of notice under USCR 31.3); Baptiste v. State, 190 Ga. App. 451 (1) (379 SE2d 165) (1989) (in the absence of notice it was error, albeit harmless, to introduce evidence that defendant was a “source” of cocaine prior to the incident for which he was arrested); Davis v. State, 260 Ga. 338 (393 SE2d 260) (1990) (where reversal was mandated because the trial court erroneously refused to instruct the jury to limit its consideration to the one purpose for which the evidence was admissible).

Decided May 6, 1993.

Albert C. Palmour, Jr., for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Grover W. Hudgins, Assistant District Attorney, for appellee.

The evidence of appellant’s use of the very drug he was charged with selling, contemporaneously with the sale, constituted part of a continuous course of conduct, closely connected in time and place so as to be admissible as part of the same transaction as that for which he was being tried. Moreover, the final charge contained a proper instruction as to the purpose for which the evidence could be considered.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A0131.
    TMS INSURANCE AGENCY, INC. v. MITCHELL.
    (431 SE2d 391)
   McMurray, Presiding Judge.

Plaintiff TMS Insurance Agency, Inc., an insurance agency, entered into a written independent contractor agreement with defendant Mitchell. The agreement provided that plaintiff was to train and provide certain resources to defendant who would sell insurance. The contract contained three provisions relevant to this action.

Section 5 provided that defendant was to be compensated at the rate of “forty (40%) percent of all commission revenue or other compensation” derived from business initiated or procured by defendant. Section 6 provided that on termination of the agreement defendant would be entitled to purchase her book of business (i.e., accounts she had initiated or procured) from plaintiff for an amount determined by a formula based on the amount of commissions generated by the accounts. Section 7 provided that should defendant not purchase her “book of business,” she would not solicit for a period of two years following the termination of the agreement for the sale of any form of insurance to any client of plaintiff with whom defendant had substantial business contact, and provided a formula for liquidated damages should defendant violate this provision.

The relationship between plaintiff and defendant terminated. Within the following two years defendant solicited and sold insurance to several clients and former clients of plaintiff with whom she had contact during the period covered by the contract with plaintiff.

Plaintiff filed a multi-count action against defendant. Defendant counterclaimed and filed a third-party action against Donald W. Hampton, plaintiff’s president. This appeal is concerned only with the superior court’s grant of defendant’s motion for partial summary judgment as to the issues raised by plaintiff’s Count 2, which seeks damages for an alleged breach of contract by defendant soliciting clients of plaintiff which she had serviced or secured pursuant to the contractual relationship with plaintiff and in violation of the terms of that agreement. Held:

Defendant’s motion for partial summary judgment was predicated on the supposition that plaintiff had breached the contract with defendant prior to the termination of that agreement and prior to any of the acts which plaintiff contends were breaches of the agreement by defendant. Along with other acts alleged to be breaches of the agreement by plaintiff, defendant directed attention to plaintiff’s sale of accounts initiated or procured by defendant to other insurance agencies. Defendant argued that plaintiff thus placed itself in a position where it could not comply with its obligation under the contract to sell these accounts to defendant, if she wished, at the termination of the agreement.

“OCGA § 13-4-23 provides that ‘(i)f the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.’ Accordingly, ‘ “(w)here a contract provides that there must be a tender of money or a performance of some obligation, the party bound to make the tender or perform the obligation may be relieved, and the tender and obligation held to have been waived, where the other party to the contract repudiates it, by act or word, or takes a position which would render tender or performance of the obligation imposed useless or impossible.” ’ Stokes v. Walker, 131 Ga. App. 550, 552 (1) (206 SE2d 564); accord Rives E. Worrell Co. v. Key Systems, 147 Ga. App. 383, 386 (4) (248 SE2d 686).” Southern Business Machines of Savannah v. Norwest Financial Leasing, 194 Ga. App. 253, 254 (1) (390 SE2d 402). See also Ott v. Vineville Market, Ltd., 203 Ga. App. 80 (1) (416 SE2d 362) and Rollins v. Gault, 153 Ga. App. 781, 782 (266 SE2d 560).

The superior court adopted the view advocated by defendant that plaintiff by placing itself in a position where it could not perform its part of the contract had released defendant from any obligation to comply with the condition precedent of a tender for the already sold accounts. To some degree the superior court’s conclusions may be predicated on an erroneous understanding of the facts since it has recited in its order that plaintiff sold defendant’s “book of business” prior to the termination of defendant’s employment. In fact, the evidence shows that at the termination date, plaintiff had sold a portion of defendant’s book, including all of her trucking business, but had retained approximately 90 percent of her total “book.”

On appeal, plaintiff has presented a substantial performance argument suggesting that the sale of so small a portion of defendant’s “book” did not amount to a breach of the contract on its part. Not unexpectedly, defendant urges a more stringent construction of the contract and argues that any sale of a portion of her “book of business” by plaintiff amounted to a breach of the contract.

These arguments direct our attention to the terms of the contract between the parties and we find there at least a question of fact as to whether the contract contemplated a sale of all or a portion of defendant’s “book of business” prior to termination of her employment. The contract provides that clients secured by defendant are clients of plaintiff and not of defendant, and there is no explicit prohibition of plaintiff selling an account initiated or procured by defendant. Section 5 of the contract providing for compensation of defendant addressed the division not only of commission revenues but also of “other compensation received by” plaintiff from insurance business initiated or procured by defendant. This could include proceeds from the sale of an account. Thus for purposes of review of the grant of partial summary judgment to defendant we must reject the supposition that plaintiff’s sale of a portion of defendant’s “book of business” constituted a breach of the contract.

When the contract is thereby viewed as contemplating a sale by plaintiff of some or all of defendant’s “book of business” prior to termination, defendant’s right to purchase her “book” at termination must be construed as being limited to her “book” as it existed at the time of termination. Under this view of the facts, plaintiff could have fulfilled its obligation to sell defendant’s “book” to her at the time of termination of employment and defendant was not excused from making the tender required under the contract if she wished to solicit plaintiff’s clients within two years after the termination. The additional issues thus raised as to the effect of any breach of contract by plaintiff in failing to share with defendant the proceeds from the sale of a portion of her “book” and whether any such breach was waived by defendant remain to be resolved by a trier of fact. Genuine issues of material fact remain for resolution by a jury, therefore the superior court erred in granting defendant’s motion for partial summary judgment. Re/Max Specialists v. Kosakai, 202 Ga. App. 871, 872 (415 SE2d 698).

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.

Decided April 15, 1993 —

Reconsideration denied May 7, 1993.

Friedman & Montalto, Steven Montalto, Jill A. Barker, for appellant.

Branch, Pike, Ganz & O’Callaghan, Gregory J. Digel, Barry G. Roberts, for appellee.


text:
    A93A0292.
    PRATT v. THE STATE.
    (431 SE2d 397)
   Beasley, Presiding Judge.

Pratt appeals from the denial of her motion for new trial and the judgments of conviction and sentences entered for driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), driving with an unlawful blood alcohol level, OCGA § 40-6-391 (a) (4), and speeding, OCGA § 40-6-181.

1. Appellant contends that results of a breath test performed on an Intoximeter 3000 should have been excluded because the State failed to introduce documentation of the examiner’s permit to operate the machine at the time the test was administered.

The State established that the examiner was a certified peace officer employed by the Gwinnett County Sheriff’s Department, that he possessed a valid permit to operate the Intoximeter 3000 machine issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation as required under OCGA § 40-6-392 (a) (1), that he continuously maintained that permit since it was issued to him two- and-one-half years earlier, and that his permit was in effect on the day he administered the test to appellant. A permit in effect at the time of trial was introduced into evidence, to which appellant objected on relevancy grounds. As in Koulianos v. State, 192 Ga. App. 90 (2) (383 SE2d 642) (1989), “the officer testified that he was a licensed intoximeter operator and that he performed the test in accordance with what he had been taught . . . the copy of the test result printout showed his name and operator permit number.” A proper foundation was established for admission of the test results. The evidence was not inadmissible for the reasons advanced.

2. Appellant contends the trial court erred in sustaining the State’s objections on relevancy grounds to certain expert testimony directed at challenging the validity of the Intoximeter 3000 test results.

Appellant attempted to question the witness concerning his study of test results obtained-from women subjects, “with respect to sex bias that is built into the machine.” The court sustained the State’s objection on the basis of Burks v. State, 195 Ga. App. 516 (4) (394 SE2d 136) (1990). It upheld the exclusion of expert testimony regarding an intoximeter machine experiment conducted on himself after ingesting acetone, which produced a .05 measurement, “ ‘since the original test conditions, including [defendant’s] own physical condition, could not have been duplicated.’ [Cit.]” Id. at 518.

Decided April 19, 1993 —

Reconsideration denied May 7, 1993.

Spruell & Dubuc, Billy L. Spruell, Brian M. Dubuc, for appellant.

Gerald N. Blaney, Jr., Solicitor, Rosanna Szabo, Assistant Solicitor, for appellee.

However, appellant was not attempting to compare her test results with a dissimilar experimental test result, as was disallowed in Burks. Instead, she was attempting to challenge the accuracy of the Intoximeter 3000 machine as used to test all female subjects. If, in fact, it was established with sufficient scientific certainty that the machine produced inaccurate results on all women tested, those findings would have been relevant to challenge the accuracy of the intoximeter results of this female defendant. An accused may introduce evidence “to demonstrate that the blood-alcohol test was inaccurate.” Lattarulo v. State, 261 Ga. 124, 125 (1, 3) (401 SE2d 516) (1991).

Nevertheless, defendant made no request to proffer the witness’ expected testimony or to establish a foundation for its admissibility. This inaction waived the point. “If the defendant desired to complain of rulings of the court refusing to allow [certain testimony] ... he should have made an avowal of the evidence which he proposed to offer, in the absence of which this court cannot determine whether the testimony would have been material or that its rejection was sufficiently prejudicial to the defendant to warrant a reversal of the conviction.” Yeomans v. State, 116 Ga. App. 199, 200 (156 SE2d 658) (1967). Accord Ingram v. State, 201 Ga. App. 646 (411 SE2d 790) (1991).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A93A0259.
    BAUMAN et al. v. QUIKTRIP CORPORATION.
    (431 SE2d 704)
   McMurray, Presiding Judge.

This appeal is from the grant of summary judgment to QuikTrip Corporation (“QuikTrip”) in an action against William M. Bauman and Richard S. Blumenfeld (defendants) for collection of amounts due on a promissory note. Held:

Decided May 7, 1993.

Gershon, Olim, Katz & Loeb, Jay E. Loeb, for appellants.

Branch, Pike & Ganz, Cathleen M. Devlin, Robert J. Augustine, for appellee.

1. Defendants contend the trial court erred in granting summary judgment because QuikTrip failed to report and pay all intangible taxes as required under OCGA § 48-6-32. Specifically, defendants argue that QuikTrip’s “tax return must include all accounts receivable and unsecured notes generated within the State of Georgia and not just the obligation sued on.” This contention is without merit.

OCGA § 48-6-32 does not require proof of reporting and payment of intangible taxes on all property subject to such taxation, it provides that “[w]illful failure to return any property to the commissioner for taxation . . . shall be a bar to any action upon the property [subject to intangible taxation].” See Peters v. Thomason, 157 Ga. App. 513, 514 (2) (277 SE2d 798). In the case sub judice, QuikTrip filed the undisputed affidavit of a corporate officer (Terry L. Carter) showing that QuikTrip had paid all Georgia intangible tax due on the promissory note. Consequently, the trial court did not err in granting QuikTrip’s motion for summary judgment.

2. In light of our holding in Division 1, defendants’ second enumeration provides no basis for reversal.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Pope, Chief Judge.

text:
    A92A0111.
    GOODWIN v. THE STATE.
    (432 SE2d 272)
    Decided May 10, 1993.
   Pope, Chief Judge.

Our judgment in this case at 204 Ga. App. 209 (419 SE2d 39) (1992) has been reversed by the Supreme Court on certiorari. Goodwin v. State, 262 Ga. 903 (427 SE2d 271) (1993). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is reversed.

Judgment reversed.

Johnson, J., and Senior Appellate Judge John W. Sognier concur.

Russell C. Gabriel, for appellant.

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


text:
    A93A0044.
    STEPHENS v. THE STATE.
    (431 SE2d 422)
   Birdsong, Presiding Judge.

Reginald Stephens was indicted and convicted of robbery with “an offensive weapon, to-wit: a large blade screwdriver.” On the night of January 11, 1991, the victim met Stephens in a convenience store in Paulding County. Stephens asked the victim for a ride; they left in the victim’s truck and ended up on a dirt road in a sparse area where the victim saw no houses with lights. In the victim’s truck, Stephens put his hand on the victim’s neck and raised a screwdriver to the victim’s chest as a weapon to rob him. The victim could see the screwdriver in the dark and knew it as one which had been in the truck. Stephens took $18 from the victim and some tools.

According to Stephens, the victim asked Stephens to buy some marijuana and gave Stephens $18. Stephens went to a nearby house to buy the marijuana but he was $2 short; when he returned to give the money back the victim was gone. The victim admitted he “may have mused about [marijuana]” with Stephens in the store and that because he had only $18, “the offer was” discussed that Stephens would add $2 to buy marijuana. Defense counsel attempted to show the victim could not account for an hour during the episode, indicating he waited for Stephens and got angry because he had no money and no marijuana. Stephens raises three errors. Held:

1. Appellant contends the trial court erred in denying a continuance for appellant to hire new counsel. Appellant asserts he had only seven days’ notice of the trial date, but the record shows counsel was appointed in May 1991; counsel conferred with appellant several times and not until the day of trial in September 1991, did appellant try to employ new counsel. Appellant told the court that the new attorney “[is] supposed to come over to the jail to see me today.” His reason for wanting new counsel was that he felt “mighty incompetent with my attorney.” Pressed further, appellant said, “Well, I feel that I need another attorney to represent me because ... I just feel totally unsafe with him.” The trial court ruled this an insufficient basis for granting a continuance.

The grant or denial of a continuance, including on grounds of absence of counsel, is within the discretion of the trial court and will not be disturbed unless it clearly appears the trial court abused that discretion. Pope v. State, 256 Ga. 195, 207 (345 SE2d 831); Wood v. State, 199 Ga. App. 252, 253 (404 SE2d 589); Huckaby v. State, 127 Ga. App. 439 (194 SE2d 119). Appellant gave no reason why he waited until the day of trial to hire new counsel. Denial of continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears he is using the tactic for delay. Wallis v. State, 137 Ga. App. 457, 459 (224 SE2d 91). There is no indication in the record that appellant’s tactic was other than an attempt to delay trial. Moreover, the trial court stated it stood ready to permit new counsel to participate at trial, but new counsel (who is also appellate counsel) did not appear at trial. Appellant has failed to bear his burden to prove error. Pippins v. State, 204 Ga. App. 318 (419 SE2d 28).

2. Appellant contends he was denied effective assistance of trial counsel. See Hawes v. State, 240 Ga. 327 (240 SE2d 833) and Timberlake v. State, 200 Ga. App. 64, 68-69 (406 SE2d 537): a defendant must show not only that counsel was deficient but that the deficiency prejudiced the defense.

(a) Appellate counsel does not show how the defense was prejudiced by trial counsel’s failure to interview certain witnesses, and there is no showing that any such witness would in fact have aided appellant’s defense.

(b) Trial counsel’s failure to have the probable cause hearing recorded did not result in ineffective assistance of counsel. Appellant asserts he was unable to show that at that hearing the victim could not describe the weapon. However, the trial transcript shows that counsel adequately cross-examined the victim at trial as to the discrepancy between his preliminary hearing testimony and his testimony at trial that the weapon was a big screwdriver.

(c) Trial counsel was not ineffective in failing to object to the prosecutor’s argument that appellant “had experience in [the] area [of drugs].” Appellant testified that he agreed to buy marijuana and knew where to get marijuana; the prosecutor’s remark was thus within the evidence. See Durden v. State, 250 Ga. 325, 329-330 (297 SE2d 237).

(d) Appellant complains that trial counsel failed to request jury charges on the lesser offenses of robbery and theft by taking. However, the evidence at the motion for new trial hearing shows counsel discussed the matter of lesser offenses with appellant, but appellant’s position was that he had not robbed the victim or committed theft but was given $18 which he later tried to return. Thus the evidence was either that appellant committed armed robbery or that he was given the money, so there was no evidence he committed an offense of robbery or theft by taking. See Johnson v. State, 204 Ga. App. 246, 247 (3) (419 SE2d 107). A charge on lesser included offenses was not warranted by the evidence.

Decided May 10, 1993.

Leonard Danley, for appellant.

(e) Appellant contends counsel was ineffective in not objecting to the prosecutor’s reference to “the black boy” and because defense counsel referred to appellant as “being a black man.” Racial prejudice is a highly volatile and cancerous factor which cannot be condoned, and its deliberate introduction by defense counsel may render defense counsel’s performance deficient. Kornegay v. State, 174 Ga. App. 279, 282-283 (329 SE2d 601). Its incendiary nature is such that its effect cannot readily be controlled by defense counsel, so it cannot be excused merely on grounds that counsel used it in his client’s best interests. In Kornegay, this entire court expressed our attitude that such racial distinctions are offensive. Id. at 287. Therefore, we will closely scrutinize any racial distinctions wherever and by whomever made in the course of a trial. But because of the insidious effect of racial distinctions, we cannot say that every such reference is prejudicial as a matter of law; to call it a deficiency of counsel as a matter of law might deprive a defendant of an important defense in some cases.

Assuming trial counsel was deficient in this matter, we do not conclude the deficiency actually prejudiced the defense. The prosecutor’s reference to “the black boy” was used in describing how appellant directed the victim down a certain road. There was no reason to use the term descriptively, for there were only two people in the truck and the jury could see the victim was white and the appellant was black. Defense counsel probably should have objected to the statement. But the description is not by itself a vulgar or odious word, as was the word used in Kornegay.

The defense counsel’s query whether the victim gave appellant a ride because he felt intimidated by appellant’s “being a black man in probably what’s predominantly a white community,” and the other statement referred to above did not in all likelihood contribute to the verdict. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

Appellant has not sustained his burden to establish that trial counsel’s representation was deficient. Spinks v. State, 204 Ga. App. 249, 251 (419 SE2d 108). The trial court’s ruling as to effective assistance was not “clearly erroneous.” Id.

3. The évidence was sufficient to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The trial court did not err in denying a new trial.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

George C. Turner, Jr., District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.


text:
    A93A0112.
    KING v. THE STATE.
    (432 SE2d 109)
   Birdsong, Presiding Judge.

Albert King appeals the trial court’s order reconsidering its earlier order to return confiscated property under OCGA § 17-5-30.

King’s motion to return property was filed on April 10, 1992, when the State nolle prossed his case, after the Supreme Court reversed his conviction (King v. State, 262 Ga. 147 (414 SE2d 206)) but before the remittitur was handed on June 5, 1992. The trial court granted the motion to return property on May 15, 1992, holding that it was bound by the Supreme Court’s reversal even though the remittitur had not come down. The State returned all of King’s property except $28,354. After remittitur of the criminal appeal came down, the State, on June 15, 1992, filed in the trial court a motion to reconsider its order to return property. At the same time, the State filed the notice of appeal of the trial court’s order to return the money. The trial court reconsidered its order to return property and ruled the State did not have to return the money. King filed this appeal. Held:

1. The State concedes the trial court was without jurisdiction to reconsider its order to return property after the State filed a notice of appeal of the order. OCGA § 5-6-45; see Turner v. Harper, 233 Ga. 483 (211 SE2d 742). The trial court’s jurisdiction, which was removed when the State filed its notice of appeal, is not retroactively supplied by the fact that the appeal was later dismissed by order of the Supreme Court “for lack of a right of appeal in the state,” State v. King, (Case No. S92A1225, decided October 2, 1992), citing State v. McIntyre, 191 Ga. App. 565, 566 (382 SE2d 669). To rule otherwise would render uncertain every supersedeas. The trial court’s reconsidered order was without jurisdiction and is void.

2. For the sake of judicial economy, the State seeks a ruling that the trial court had no jurisdiction to order a return of property in the first place because the remittitur from reversal of the conviction had not then come down. However, the State has filed no cross-appeal and we decline to issue an advisory opinion. We note, however, that in McIntyre, supra, the criminal prosecution and the proceeding to return property apparently were conducted at the same time, and that the State had nolle prossed the prosecution before King filed his motion to return property.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.

Decided May 10, 1993.

Herbert Shafer, for appellant.

J. Tom Morgan III, District Attorney, Gregory A. Adams, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.


text:
    A93A0289.
    McSEARS v. THE STATE.
    (431 SE2d 705)
   Pope, Chief Judge.

Defendant Corey McSears was convicted of armed robbery and possessing a sawed-off shotgun. He appeals his conviction and the denial of his motion for new trial.

1. Defendant first argues the trial court abused its discretion by refusing to grant defendant’s motion for mistrial after the State improperly introduced evidence of defendant’s bad character. Defendant’s companions on the night in question testified as witnesses for the State. One companion testified that before the robbery occurred the defendant and another companion were talking about buying “dope” and that the defendant suggested they could steal dope from the victim and the victim would not be able to report the crime to the police. The defendant moved for a mistrial after the first statement about “dope,” and the trial court denied the motion. Defendant renewed his motion for mistrial after several statements concerning “dope.” The trial court consistently denied the motion but instructed the jury “to try the issues on these indictments and nothing else, so disregard any statement if it has to do with something else.” We hold the trial court did not abuse its discretion by denying defendant’s motion for mistrial. “ ‘When transactions involving other crimes and the alleged bad character of appellant are so connected in time and event as to be part of the same transaction ás that for which the accused is being tried, they are admissible as a clear exception to the general rule of inadmissibility of other transactions. (Cits.) The allegedly separate events are admissible in evidence when they are part of a continuous course of conduct, closely connected in time, place and manner of commission. (Cits.)’ [Cit.]” Dukes v. State, 205 Ga. App. 678 (423 SE2d 295) (1992). The complained of testimony was properly admitted to show incriminating statements, motive, plan or scheme, and bent of mind. Smith v. State, 258 Ga. 179, 180 (3) (366 SE2d 687) (1988); Ingram v. State, 253 Ga. 622, 633 (6) (323 SE2d 801) (1984), cert. denied, 473 U. S. 911 (105 SC 3538, 87 LE2d 661) (1985).

2. The rule of sequestration was invoked prior to the beginning of defendant’s trial. After the rule was invoked the State requested that Charles Richardson, the Chief of Police for the City of LaFayette and the investigating officer in this case, be allowed to remain in the courtroom for the orderly presentation of evidence. The defendant did not object to the request and it was granted by the trial court. Defendant argues the trial court abused its discretion by failing to invoke the rule of sequestration as to Richardson and by allowing Richardson to testify after hearing the testimony of the other witnesses called by the State. We do not agree. It is well-settled that the trial court does not abuse its discretion by allowing the investigating officer to remain in the courtroom to assist in the prosecution of the case after the rule of sequestration is invoked or by allowing the investigating officer to testify after all other witnesses called by the State. McNeal v. State, 228 Ga. 633, 636 (187 SE2d 271) (1972).

Decided May 10, 1993.

Bruce & Hentz, Kenneth D. Bruce, William D. Hentz, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Melodie B. Swartzbaugh, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A0345.
    MIDDLEBROOKS v. THE STATE.
    (431 SE2d 425)
   Pope, Chief Judge.

Anthony Middlebrooks appeals his convictions for armed robbery and aggravated assault and the denial of his motion for new trial. We affirm.

1. Defendant’s contention that the aggravated assault charge merged with the armed robbery charge is without merit. The jury was authorized to find that the defendant and his co-defendant Larry Smith robbed the victim at gunpoint and after they had completed that crime and turned to leave they then decided to shoot him. As the aggravated assault charge stems only from shooting the victim, the facts used to prove each crime and the elements of each crime were separate. Thus, under the facts of this case, the aggravated assault charge did not merge with the armed robbery charge. See Gaither v. Cannida, 258 Ga. 557 (1) (372 SE2d 429) (1988); Harvey v. State, 233 Ga. 41, 43 (209 SE2d 587) (1974); Millines v. State, 188 Ga. App. 655 (373 SE2d 838) (1988); Miller v. State, 174 Ga. App. 42 (5) (329 SE2d 252) (1985).

2. Defendant argues it was reversible error to allow the State to present evidence that bullets were found in the coat defendant was wearing at the time of his arrest. Although the evidence showed the bullets were for a different model gun than was used to shoot the victim, “‘[ajll circumstances connected with an arrest are proper matters to be submitted to the jury to be weighed by them for what they are worth.’ [Cit.]” Ashley v. State, 160 Ga. App. 325 (2) (287 SE2d 321) (1981).

3. Defendant argues his constitutional right to a fair trial was denied because certain witnesses who had testimony favorable to the defendant were intimidated into refusing to testify or into changing their testimony as a result of threats by the victim. Two witnesses testified they were threatened by the victim. One witness’' testimony was presented to the jury. That witness testified fully about the victim’s threat concerning her. She also testified that the victim had a bad reputation and that she would not believe him under oath. She further testified that she did not see the robbery or shooting and had testified fully concerning her knowledge of the crimes charged. Accordingly, the record does not support the defendant’s contention that he was not able to present this witness’ testimony fully to the jury because the victim had threatened her.

With regard to the second witness, before the evidence was concluded and the jury was charged, both defendants stated on the record that they had decided not to call that witness. Nonetheless, while the jury was deliberating the parties made an offer of her testimony to the trial judge. The record supports the trial judge’s conclusion that the reason this witness did not timely appear was because she was participating in a drug rehabilitation program and not because she was threatened by defendant. Regardless of her reason for not timely appearing to testify, because defendant had decided not to call her as a witness, his inability to question her fully before a jury cannot constitute reversible error.

4. Defendant further alleges he was denied the right to fully cross-examine the victim because he was denied access to the victim’s juvenile records. Defendant made a pretrial motion to review the victim’s juvenile record. After a rather lengthy and confusing discussion concerning that motion, the understanding of defense counsel seemed to be that the trial judge would conduct an in camera inspection of the juvenile records of the victim and “let [him] know.” The record does not reflect a ruling on the defendant’s motion to review the juvenile records of the victim. As the defendant failed to invoke a ruling on his motion, he has “waived the issue for the purposes of appeal. [Cit.]” Dover v. State, 250 Ga. 209, 212 (4) (296 SE2d 710) (1982), cert. denied, 459 U. S. 1221 (103 SC 1228, 75 LE2d 462) (1983).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

Decided May 10, 1993.

Eric J. Hertz, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Anita Wallace, Assistant District Attorneys, for appellee.


text:
    A93A0362.
    HAYES v. THE STATE.
    (431 SE2d 430)
   Pope, Chief Judge.

Defendant was convicted of driving under the influence of alcohol to the extent that he was a less safe driver, and appeals.

1. The evidence presented at trial shows defendant was involved in a single car collision in which his car ran off the road and struck an embankment. First, defendant argues the trial court erred by allowing the investigating officer to testify to his opinion that the defendant’s condition at the scene of the accident was due to alcohol intoxication rather than trauma from the collision. After describing defendant’s behavior and visible condition and describing his experience in investigating cases of DUI and collisions involving injury in which the driver was not under the influence of alcohol, the officer was asked, based on his observations, whether in his opinion defendant’s condition was a result of the wreck or the result of intoxication. The officer answered that the defendant’s condition was a result of intoxication.

“A witness who satisfactorily shows that he had opportunity to observe, and did observe, the condition of another, may testify whether that person was under the influence of intoxicants and the extent thereof, stating the facts upon which the opinion is based.” Lawrence v. State, 157 Ga. App. 264 (2) (277 SE2d 60) (1981). A question at issue in Lawrence was whether defendant lost control of the automobile he was driving and plowed into a ditch at which time the axle broke or whether the car went out of control because the axle broke. This court held the trial court erred in refusing to allow a witness to testify whether, in his opinion, defendant was under the influence of alcohol at the time of the accident. Similarly, in this case the testimony to which defendant objected did not involve an opinion as to the ultimate issue of defendant’s guilt but merely the officer’s opinion whether defendant’s condition was more consistent with being under the influence of alcohol or being injured in the collision. Since the testimony was based on the officer’s observations and experience, it was not improper. See Potts v. State, 191 Ga. App. 75 (1) (381 SE2d 99) (1989). Contrary to defendant’s assertions, this case is not governed by Nichols v. State, 177 Ga. App. 689 (2) (340 SE2d 654) (1986), in which this court held that while it would have been permissible for a doctor to testify that the victim appeared to have been the victim of forcible intercourse, it was reversible error to permit him to testify to the ultimate issue that the victim had been raped because the question of rape is a legal issue which involves not only forcible intercourse but also the victim’s consent. In this case, the witness did not testify to the ultimate legal issue for the jury’s determination and the trial court did not err in overruling defendant’s objection to the testimony.

Decided May 10, 1993.

Summer & Summer, Daniel A. Summer, for appellant.

C. David Turk III, District Attorney, Donald E. Henderson, Assistant District Attorney, for appellee.

2. Next, defendant argues the trial court erred in refusing to sustain his objection to the prosecutor’s closing argument that the jury could find defendant not guilty only if it believed the officer was lying and by refusing to charge the jury it is not necessary to conclude any witness was lying in order to acquit the defendant. The defendant’s enumeration of error is based on an erroneous characterization of the statement made by the prosecutor. He did not state that the only way to find defendant not guilty was to disbelieve the officer. Instead, the prosecutor stated that the only way to find that the defendant did not smell of alcohol and that no beer cans were found in defendant’s car was to conclude the officer was lying. It is improper for the prosecutor to urge his personal belief as to defendant’s guilt or the veracity of witnesses although he may argue the reliability or unreliability of evidence as it may be inferred or deduced from the evidence. Manning v. State, 123 Ga. App. 844 (6) (182 SE2d 690) (1971). Since the officer’s testimony was the only evidence of defendant’s condition at the scene and of the existence of beer cans in defendant’s car, the prosecutor’s statements were neither inaccurate nor misleading. The trial court properly instructed the jury concerning the credibility of witnesses and it was not error for the trial judge to refuse to give the charge requested by defendant.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A0417.
    ROBERTS v. THE STATE.
    (431 SE2d 434)
   Pope, Chief Judge.

Defendant Brenda Denise Roberts appeals her conviction for aggravated assault. On June 5, 1991, defendant assaulted the victim with a tool containing a razor blade, commonly referred to as a box cutter.

Decided May 10, 1993.

Lisa M. Gross, for appellant.

Rene J. Martin III, District Attorney, Richard A. Mallard, Assistant District Attorney, for appellee.

1. The defendant claims the trial court committed reversible error by ordering a witness whose testimony was partially favorable to the defendant to be held in contempt and removed from the courtroom in the presence of the jury. Defendant further alleges that the trial court committed reversible error by making comments that impaired that witness’ credibility. Defendant did not move for a mistrial, request cautionary instructions or otherwise indicate to the court that she was concerned the jury was influenced by its actions. A party may not acquiesce in actions by the trial court and later complain of that same conduct on appeal. See Davis v. State, 203 Ga. App. 315, 318 (6) (416 SE2d 789) (1992). While the recommended practice is to remove the jury from the courtroom before the trial court holds a witness or party in contempt or otherwise comments on the conduct of a person before the court, under the facts of this case, there is no reversible error.

2. We find defendant’s contention that the trial court erred by failing to grant her motion for directed verdict to be without merit. The record supports the trial court’s ruling on that motion.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A0494.
    A93A0495.
    A93A0496.
    HEATH v. EMORY UNIVERSITY HOSPITAL et al. EMORY UNIVERSITY HOSPITAL et al. v. HEATH. EMORY CLINIC et al. v. HEATH.
    (431 SE2d 427)
   Pope, Chief Judge.

This is the second appearance of this case before this court. In Heath v. Peachtree Parkwood Hosp., 200 Ga. App. 118 (407 SE2d 406) (1991), this court affirmed the trial court’s grant of summary judgment to defendants on all claims except plaintiff’s claim for false imprisonment against defendants Emory Hospital, Emory Clinic, Dr. Elizabeth Howell and Dr. Lisa Jones and her claim for battery against Emory Hospital. Upon remand, these claims were tried before a jury which returned a verdict of $25,000 in favor of plaintiff against all defendants on the false imprisonment claim but found against plaintiff on the battery claim. Plaintiff filed an appeal (Case No. A93A0494), Emory Hospital and Dr. Jones filed a cross-appeal (Case No. A93A0495) and Emory Clinic and Dr. Howell filed a separate cross-appeal (Case No. A93A0496).

Case No. A93A0494

1. The facts show that while plaintiff was a patient at Emory Hospital, Drs. Howell and Jones executed a certificate attesting plaintiff appeared to require involuntary treatment and had plaintiff transferred by the sheriff from Emory Hospital to Peachtree Parkwood Hospital for psychiatric evaluation, pursuant to the process set forth in OCGA § 37-3-41. In our previous opinion in this case we ruled that the process whereby plaintiff was detained at Peachtree Parkwood Hospital was valid and proper and thus plaintiff could not recover for false imprisonment for her detention at that facility. Plaintiff now argues that the trial court erroneously refused to allow her to seek damages against the remaining defendants for alleged false imprisonment during that time she was transported and detained at Peachtree Parkwood Hospital.

The trial court did not err. Because this court has already ruled in our earlier opinion that plaintiff’s admission at Peachtree Park-wood Hospital was valid and proper, pursuant to the law of the case rule, OCGA § 9-11-60 (h), no liability for false imprisonment can lie against any party defendant in this action for that admission.

Case Nos. A93A0495 and A93A0496

2. Defendants argue the trial court erred by twice charging the jury that defendants had the burden of proving plaintiff was a voluntary patient within the meaning of OCGA § 37-3-20 et seq. and they were thus immune from liability because they acted in good faith compliance with the statutory provisions for holding a voluntary patient after the patient requests a discharge. Defendants argue that plaintiff had the burden of proving she was a voluntary patient and was wrongly held after requesting a discharge because, in any false imprisonment case, the unlawfulness of the detention is one of the essential elements the plaintiff must prove.

The trial transcript shows, however, that plaintiff’s theory of the case was that she was not a voluntary patient who could be lawfully held under the circumstances set forth in OCGA §§ 37-3-20 et seq. The evidence showed plaintiff suffered from numerous health problems associated with her obesity. The physician who referred plaintiff to Emory Hospital testified he recommended she undergo treatment in the behavior modification program on the psychiatric ward. Plaintiff, however, testified that at the time she arrived at Emory Hospital she believed she was checking herself into a weight loss clinic and that she was never notified of her statutory rights as a voluntary mental health patient and thus had no knowledge that she was, instead, checking herself into a mental health facility in which she could be held against her will for the period of time set forth in OCGA § 37-3-22. Defendants asserted as an affirmative defense that they were immune from liability, as provided by OCGA § 37-3-4, because they acted in good faith in compliance with the admission and discharge provisions of the statutes governing the admission of voluntary patients to a mental health facility. A defendant does have the burden of proving an affirmative defense. Whitley v. Wilson, 90 Ga. App. 16 (2) (81 SE2d 877) (1954). In order to assert the affirmative defense of immunity from liability for good faith compliance with the statutory procedures for holding a voluntary patient after request for discharge, it was first necessary to show plaintiff was, in fact, a voluntary patient as defined by statute. The trial court did not err in instructing the jury that defendants had the burden of proving these facts.

3. Defendants Dr. Jones and Emory Hospital argue the trial court erred in denying their motions for directed verdict. This argument is based on the assumption that plaintiff was a voluntary patient and her hospitalization and treatment were conducted pursuant to the procedures set forth in OCGA §§ 37-3-20 through 37-3-24 for protecting the rights of voluntary patients. As noted above, an issue of fact for jury determination was created concerning whether plaintiff was, indeed, a voluntary patient as contemplated by the applicable statutes. Conflicting evidence was presented concerning whether plaintiff was properly notified of her statutory rights at the time of admission as required by OCGA § 37-3-20 (b). Although evidence was presented that the usual procedures were followed once plaintiff arrived at the nursing desk to check into her room, including providing the patient with a written copy of patient rights, plaintiff testified and denied she was informed of her rights. Moreover, even assuming plaintiff was provided with notice of her rights as she checked into her room, the jury could conclude from the evidence that at that time plaintiff had already been admitted to the hospital. Plaintiff testified-she did not realize at the time of admission she was voluntarily admitting herself to a mental health treatment facility but thought she was checking into the hospital to participate in a weight loss program. An issue was presented for jury determination concerning whether plaintiff was duly informed of her rights at the time of admission so as to put her on notice that she was submitting to a process whereby she could be held against her will after requesting discharge for a period of time to conduct an evaluation of mental status. The jury’s verdict indicates they found plaintiff was not a voluntary patient.

Decided May 10, 1993.

Mary P. Schildmeyer, for Heath.

Allen & Peters, Hunter S. Allen, Jr., Dennis A. Elíseo, for Emory Clinic et al.

Long, Weinberg, Ansley & Wheeler, Stephen H. Sparwath, J. M. Hudgins IV, Paul L. Weisbecker, for Emory University Hospital et al.

If, as the jury apparently concluded, plaintiff was not a voluntary patient who could be held against her will for a statutorily defined period, evidence was presented from which the jury could find the detainment of plaintiff was unlawful. In holding the plaintiff after she requested discharge, Emory Hospital acted through its agents, including Dr. Jones. Thus, the trial court did not err in denying directed verdict to Emory Hospital and Dr. Jones.

Judgments affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A0585.
    LYONS v. THE STATE.
    (431 SE2d 432)
   Birdsong, Presiding Judge.

Following a bench trial, Trevon Lyons was convicted of violating OCGA § 40-6-20, “running a red light,” and was sentenced to a fine of $20. Lyons’ appeal asserts the general grounds.

Lyons and Watts approached S.R. 54 from opposite directions on S.R. 138 when the traffic signal controlling the intersection changed. Both drivers proceeded until Watts suddenly turned left in front of Lyons’ car causing a collision. Lyons and Watts were both charged with running a red light.

At trial, the investigating officer testified Lyons told him he approached the intersection with his light yellow and all of a sudden Watts turned left in front of him. Although Watts earlier pleaded nolo contendere to the same charge, he nevertheless testified he could not say what color the light was facing Lyons, but the light facing him turned from green to yellow after he was in the intersection.

Another witness, Jordan, who was headed in the same direction as Lyons, but in a lane to turn left onto S.R. 54, testified he stopped when the left turn light turned yellow. Although he admitted not seeing Lyons’ car until after the accident and never testified he saw the light turn red, he gave his “interpretation . . . both of the gentlemen [ran] the red light.” Still another witness, Rogers, testified he was in the right lane about one-and-one-half car lengths behind Lyons and the light was green for him and Lyons was ahead of him.

Finally, Lyons testified that the light was green as he approached it and then turned yellow. More specifically, Lyons testified he was underneath the light when it turned yellow, i.e., it was “still green when I approached it, and when my car got like [indicating] the right hand lane across [S.R.] 54, into that [position], the light turned caution and I still had enough time to go across.”

The trial court found, however, that “one of the problems with the defendant’s case is that while his witness, Mr. Johnson [sic], testified unequivocally that the light was green when the defendant entered it, the defendant himself said that the light had already turned to an amber color when he entered it, raising an internal conflict between the evidence in the defendant’s case. The driver of the other vehicle which was struck has this same day, as indicated by the question of the counsel for the defendant, chosen not to contest the fact that he had run a red light at the time this collision occurred. And the remaining witness in the case has testified that in his opinion, based upon his location at the intersection, his observations of the light and of the circumstances, it’s his opinion that both of the drivers had run a red light. For all of those reasons the court finds that the defendant is guilty.” (Emphasis supplied.) Held:

OCGA § 40-6-20 (a) requires drivers of vehicles to obey the instructions of traffic-control devices, and OCGA § 40-6-21 (a) (3) requires drivers facing a steady circular red signal to stop. Nevertheless, OCGA § 40-6-21 (a) (2) (A) provides: “Traffic . . . facing a steady CIRCULAR YELLOW or YELLOW ARROW signal is thereby warned that the related green movement is being terminated or that a red indication will be exhibited immediately thereafter when vehicular trafile shall not enter the intersection.”

Since there was no direct evidence that Lyons ran a red light, his conviction must be based upon circumstantial evidence. OCGA § 24-1-1 (4). Jordan’s opinion testimony about the fact that Lyons ran a red light, however, is inadmissible. OCGA § 24-9-65. Also, the trial court cannot rely on the pickup driver’s plea of nolo contendere as an admission he ran the red light. OCGA § 17-7-95 (c). Thus, his plea was not sufficient to contradict his testimony that the light was yellow when he turned.

Moreover, regardless of any internal conflict between the testimony of Lyons and Rogers, neither testified that the light was red. Instead, both testified the light was green or yellow. Therefore, the conflict found by the trial court has no real significance.

A conviction based upon circumstantial evidence is authorized only when the facts proven are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis except the guilt of the accused. OCGA § 24-4-6. Further, when a reasonable hy-

Decided May 10, 1993.

Thomas E. Jordan, Thomas C. Sinowski, William Y. Barnes III, for appellant.

Keith C. Martin, Solicitor, Leigh A. Moore, Assistant Solicitor, for appellee.

pothesis appears from the evidence or from the lack of evidence that points to the innocence of the defendant, this court may declare it so as a matter of law. Wood v. State, 156 Ga. App. 810, 811-812 (275 SE2d 694).

Here, the proven facts are not consistent with Lyons’ guilt, because there is no competent evidence in the record from which one can conclude that Lyons violated OCGA § 40-6-20. See Hoffer v. State, 192 Ga. App. 378, 379-381 (384 SE2d 902). Witness Jordan never testified the light in Lyons’ direction was red, but did testify he did not see Lyons’ car until after the accident.

Thus, the uncontradicted direct evidence from three witnesses was that the traffic light was either yellow or green when Lyons entered the intersection. An unimpeached witness’ direct, positive testimony on facts within his knowledge, that is not incredible, impossible, inherently improbable, or not contradicted directly or indirectly by proof of facts or circumstances incompatible with this testimony, cannot be rejected on the surmise the testimony might not be truthful. State v. Stokes, 185 Ga. App. 718, 719-720 (365 SE2d 477).

Accordingly, considering the evidence as we must (see Grant v. State, 195 Ga. App. 463 (393 SE2d 737)), we conclude that the transcript reveals no evidence from which Lyons could have been found guilty within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Wood v. State, supra. Therefore, his conviction must be reversed.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0761.
    HUNTLEY JIFFY STORES, INC. et al. v. GRIGSBY.
    (431 SE2d 435)
   Beasley, Presiding Judge.

This appeal is before the court from the grant of defendants’ application for interlocutory appeal to review the denial of summary judgment in this negligence action resulting from a slip and fall. We reverse.

The complaint alleged that plaintiff Grigsby, a business invitee at defendants’ convenience store, was injured when she tripped and fell over a raised section of the sidewalk of defendants’ premises.

Plaintiff’s deposition testimony established the following: In March 1991, plaintiff’s father drove her to defendants’ convenience store to purchase a money order. She had visited defendants’ store monthly for at least a year to purchase money orders. He parked at the curb and discharged plaintiff while he waited in the car. She walked around the car to the sidewalk and into the front door without difficulty, using the cane she had required since being diagnosed with multiple sclerosis in 1985. When asked whether she saw cracks or uneven divider spaces in the concrete on her way into the store, plaintiff replied, “I didn’t pay no attention.”

She purchased the money order, exited the store, and fell when she placed her cane on an uneven section of the sidewalk. When asked whether she noticed the uneven portion of the sidewalk before she fell, she replied, “I wasn’t paying attention to that. I was just going back to my car . . . ,” she did not observe the sidewalk. Nothing obstructed her view or distracted her from looking down at the sidewalk. The weather was clear, dry and sunny. After standing up, she looked down and was able to see the uneven portion of the pavement that had caused her fall.

In opposition to summary judgment, plaintiff produced the affidavit of an optometrist showing that she experiences decreased vision (20/50 right eye and 20/400 left eye) due to proliferative diabetic retinopathy.

“ ‘[T]he basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. ... (If the) invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.’ [Cit.]” Hosp. Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500 (402 SE2d 103) (1991). “[T]he sidewalk expansion joint at issue was a ‘static condition’; that is, one that is not inherently dangerous or likely to cause injury until one . . . trips over it. [Cits.]” Id. at 501. Accord Froman v. Ga. World Congress Auth., 197 Ga. App. 338 (398 SE2d 413) (1990); Hadaway v. Cooner Enterprises, 172 Ga. App. 113 (321 SE2d 830) (1984); Durrance v. Bacon County Hosp. Auth., 172 Ga. App. 1 (321 SE2d 767) (1984).

As in Bostic, Froman, and Hadaway, plaintiff had traversed the sidewalk on numerous previous occasions. “ ‘When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. [Cits.]’ [Cit.]” Harpe v. Shoney’s, 203 Ga. App. 592, 593 (1) (417 SE2d 184) (1992). Moreover, the static defect was openly visible and plaintiff was not prevented or distracted on this occasion from observing it. “The proof offered clearly puts this case within the line of cases involving the ‘plain view’ doctrine and effectively eliminates any ‘distraction’ theory. [Cits.]” Hadaway, supra at 115.

Decided May 11, 1993.

Dillard, Bower & East, Bryant H. Bower, Jr., for appellants.

Leaphart & Johnson, J. Alvin Leaphart, for appellee.

Plaintiff claims that a factual question remains as to whether she utilized her diminished “senses in a reasonable measure amounting to ordinary care in discovering and avoiding [injury to herself].” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 47 (332 SE2d 304) (1985). Summary judgment was denied on this basis.

Notwithstanding her visual limitations, she observed the uneven pavement from a standing position after regaining her footing, attributing it as the cause of her fall. She did not notice it previously because she was paying no attention to it. “It was incumbent upon [plaintiff] ... to use her eyesight to detect any discernible hazard in her path.” Bostic, supra at 501. Although she admittedly had the capacity to do this, she failed to exercise due care to avoid injuring herself.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.