text:
    A99A0082.
    CLARK v. STAFFORD.
    (522 SE2d 6)
   Ruffin, Judge.

Beatrice Clark sued Doris Stafford to establish the boundary line between the parties’ adjoining properties and to recover damages for certain timber allegedly cut by Stafford on Clark’s property. Stafford filed a counterclaim seeking to have the boundary line established in her favor. A jury found in favor of Stafford and awarded her $9,075 in attorney fees and expenses of litigation. Clark appeals, contending that there was no evidence to support the verdict or the award of attorney fees, that the trial court erred in admitting certain plats into evidence, and that the trial court erred in giving a jury instruction. We affirm.

Clark, then known as Beatrice Taylor, purchased certain property in Jeff Davis County in 1946. The deed described the property as containing 150 acres, “more or less,” and stated that the property was bordered “on the East by agreed lines and lands of the estate of Henry McLoon,” who was Stafford’s father. The deed did not refer to a plat or provide a metes and bounds description of the conveyed property.

In 1954, the heirs of Henry McLoon conveyed his property to his widow, Leona Bailey Carter, for life, with the remainder interest going to Oliver McLoon. The deed incorrectly described the property as being bordered on the west by “lands of Tot McLoon,” although the land was in fact bordered by Clark’s property. Oliver McLoon subsequently conveyed the property by deed to Catherine Harrell, Stafford’s sister. This deed also described the property as being bordered on the west by lands of Tot McLoon. On July 10, 1992, Catherine Harrell conveyed this property to Stafford in settlement of a dispute over their brother’s estate. However, in describing the property conveyed, the deed referred to a recorded plat prepared by Walter Copeland in 1991, which plat was in turn a recreation of an earlier recorded plat prepared in 1956 by James Alva Wooten for Leona Bailey Carter. The deed described the conveyed property as being bound on the southwest “for a portion of the way by lands of [Clark], and for the remainder of the way by the west original land lot line of said Land Lot # 364, all as shown according to the plat above-referenced.”

As shown in the attached diagram, the 1956 plat (as recreated by Copeland) shows the property line running south along the original land lot line for 1,097.5 feet. A wire fence is shown running parallel to and 24 feet to the west of the land lot line, on Clark’s property. To the east of the land lot line is Fox Branch creek, running in a southeasterly direction. The property line then runs generally east along a wire fence for 916.5 feet to an iron axle. Approximately halfway along its length, this easterly line crosses Fox Branch; the portion of the line to the east of Fox Branch is identified on the plat as a “blazed line” and an “agreed line.” From the iron axle, the line runs generally south for several hundred feet, again crossing Fox Branch. This portion of the line is also identified as an “agreed line.” The 1956 plat contained a notation stating: “Note: All interested parties present while running Agreed Lines, Agreed Timber Lines.”

The dispute in the present case concerns a strip of timberland between the original land lot line of land lot 364 on the west and Fox Branch on the east. Clark contends that her property extends east to Fox Branch, while Stafford contends that the property line at that point is the original land lot line, farther west. The jury was presented with a special interrogatory asking it to find that the boundary line was either Fox Branch or the line reflected in Stafford’s plat, and it found in favor of Stafford.

1. Clark contends the trial court erred in admitting the 1956 and 1991 plats into evidence because there was no testimony establishing the accuracy of the plats. This contention is without merit.

A survey or plat made by a county surveyor pursuant to OCGA § 36-7-12 constitutes presumptive evidence of the facts contained therein. Durden v. Kerby, 201 Ga. 780, 781 (41 SE2d 131) (1947). An unofficial survey, as in this case,

carries no presumptive value as evidence of the facts, although, if verified by oral testimony, it is admissible as a part of and as illustrative of such oral testimony for whatever it may be worth. The above rule is in accord with the generally accepted practice of admitting plats or diagrams for whatever they may be worth; not as original, independent evidence, but on the theory that they are nothing more than verified pictorial representations of matters about which the witness has properly testified, and as being a desirable expediency by which to illustrate the witness’s testimony as to the location of the land thus represented.

Id. at 782.

Payne Copeland testified that in 1995, after this action was filed, he conducted a survey of Stafford’s property to locate the lines marked in Wooten’s 1956 survey. He testified that he found remnants of the fence lines referred to in the old survey; a blazed tree along the eastern boundary line marked as a “blazed line” in the old survey; the iron axle marking the turning point of the eastern line in the old survey; and a black gum tree marking the southeast end of the property line in the old survey. Although some of these items were slightly off of the lines identified in the 1956 survey, Copeland testified that “[s]eldom do we find that we have an exact agreement.”

In this case, the trial court specifically stated that it would admit the plats because they were in Stafford’s chain of title and because they provided a basis for her belief that the disputed property belonged to her. Because Stafford’s deed described the conveyed property by reference to the plats, the plats were clearly admissible to show the extent of property encompassed by the deed. Moreover, at the time the plats were admitted, Clark was seeking punitive damages against Stafford for cutting down timber on the disputed land. Punitive damages are not authorized where there is a “good faith and honest belief on the part of a defendant as to [her] ownership of the property in dispute.” Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447) (1975). Clearly, the fact that Stafford’s deed referred to a recorded plat showing that she owned the disputed property is relevant to the issue of Stafford’s good faith in cutting down trees on the property. Accordingly, the trial court did not err in admitting the plats.

2. Clark contends that the trial court erred in denying her motion for new trial because there was no evidence that the line claimed by Stafford was in fact the true boundary line.

In analyzing this assertion of error, it is important to consider the peculiar nature of this case and the issue presented to the jury. During a bench conference in the middle of trial, the court expressed its concern that, given the inadequacy of both parties’ deeds, neither party might be able to prove that her proposed boundary line was in fact correct. Clark’s attorney expressly stipulated to the court that the property line was either Fox Branch or the line set forth in Stafford’s plat, “no in between,” and that it was up to the jury to set the line. Implicit in this stipulation is an admission that the jury’s rejection of either party’s proposed line would be sufficient to support a finding in favor of the other party. At Clark’s request, the jury was given a special verdict form requiring it to choose between the two options, and the jury was not given the option of rejecting both Clark’s and Stafford’s proposed boundary lines. As we have held previously, “a party will not be heard to complain of error induced by his own conduct, nor to complain of errors expressly invited by him during the trial of the case.” Southern Nitrogen Co. v. Manuel, 110 Ga. App. 597 (3) (139 SE2d 453) (1964), overruled on other grounds, Crawford v. Randle, 191 Ga. App. 112, 116 (381 SE2d 77) (1989). Accordingly, if the jury had any basis to disbelieve Clark’s claim that Fox Branch was the dividing line or to prefer Stafford’s proposed line over Clark’s, Clark cannot now complain that the jury lacked a sufficient basis to find in favor of Stafford.

With this in mind, it is helpful first to consider whether the evidence demanded a finding that Fox Branch was the proper boundary, as claimed by Clark. Nothing in Clark’s deed indicated that Fox Branch was the boundary line. Rather, the deed simply stated that the property was bordered on the east by “agreed lines and lands of the estate of Henry McLoon.” Clark did not offer into evidence any prior deeds in her chain of title that might have described the boundary line with more specificity, nor did she produce any survey showing the creek as the boundary. She presented no evidence that her and Stafford’s predecessors in title had ever agreed that Fox Branch was the boundary between their respective properties. Indeed, the only evidence touching on this issue is Clark’s subjective statement that she had always considered Fox Branch to be the boundary line, although she provided no objective basis for this belief. When questioned by the trial court, Clark’s counsel appeared to admit that there was no evidence Fox Branch was intended to be the original boundary line, stating that “I think it boils down to either acquiescence, if we can prove an agreement, which I don’t think either side can, or prescription.”

Although Clark now asserts that she obtained title to the disputed property by prescription or acquiescence, the evidence does not show that she actually exercised notorious and exclusive possession of the disputed area up to Fox Branch or that she openly claimed ownership up to that line. See OCGA §§ 44-5-161 (a) (3); 44-5-165; 44-4-6. There was an old wire fence running parallel to, and 24 feet to the west of, the original land lot line, apparently built before Clark purchased her property. There was no gate on the fence allowing access to the other side. Clark’s husband testified that he did not know who built this fence. At some undisclosed time, Clark’s husband moved this fence 28 feet to the east. However, this simply resulted in the fence being four feet to the east of the original land lot line, Stafford’s proposed boundary, and well to the west of Fox Branch. There is no evidence that Clark ever put Stafford or her predecessors on notice that she claimed ownership of all property up to Fox Branch. Although Clark’s husband testified that he had taken firewood and cut some posts from the property, it is not clear whether he was referring to the area between the land lot line and Fox Branch, or simply the area to the east of the original fence line. Moreover, there is no evidence as to when or how often he would take wood from the property.

Clark testified that, in 1956, a surveyor (presumably Wooten) came onto her property to survey the land. After the surveyor put one foot over Clark’s fence, Clark threatened to shoot him if he put the other foot across. Although Clark contends that this shows her claim of ownership to the disputed property, it could just as easily be interpreted as claiming ownership only to the original fence line, well to the west of Fox Branch.

As the foregoing makes clear, the evidence did not demand a finding that Fox Branch is in fact the boundary between the two properties, whether by original grant, prescription, or acquiescence. Indeed, apart from Clark’s subjective statement that she had always considered Fox Branch to be the boundary, there is little evidence to support her claim. From its verdict, it is clear that the jury rejected Clark’s contention that Fox Branch was the boundary. Accordingly, based on the special verdict form submitted by Clark, the jury had no alternative but to find in favor of Stafford, and Clark cannot complain on appeal that Stafford did not prove the validity of her proposed line.

Moreover, there was evidence from which the jury could have preferred Stafford’s proposed boundary line to Fox Branch. Clark’s deed indicated that her property was bordered on the east by “agreed lines and lands of the estate of Henry McLoon.” As discussed above, there was an old wire fence running parallel to the original land lot line, although inside Clark’s property. In addition, there was a wire fence running east almost directly along a different section of the property line as shown in Stafford’s plat. “[A]rtificial boundaries include fences . . . and land lot lines; they are evidence of the points which landowners past or present had in mind in their contractual dealings with one another.” KDS Properties v. Sims, 234 Ga. App. 395, 397 (2) (506 SE2d 903) (1998). “The question of intention in erecting and maintaining a fence is a question for the jury.” Martin v. Patton, 225 Ga. App. 157, 160 (1) (483 SE2d 614) (1997). The existence of fences on or near the property lines proposed by Stafford was a factor the jury could consider in preferring her proposed lines as opposed to Clark’s line.

In addition, G. W. Carter, a witness for Stafford, testified that he was present when Wooten conducted his 1956 survey. He testified that Clark was present some of the time while the survey was being conducted, and that another individual, M. C. Spires, was acting on Clark’s behalf and agreed to the property lines shown in the survey. Regardless of whether there was sufficient evidence that Spires had authority to make any such agreement on Clark’s behalf, this evidence is significant in that it shows that Clark had knowledge of the survey conducted by Wooten. Thus, the jury could have concluded that Clark was aware of the boundaries claimed by Stafford’s predecessor in title and acquiesced in those boundaries by failing to raise any objections for the next 40 years. See OCGA § 44-4-6.

In sum, the jury had a valid basis for rejecting Clark’s contention that Fox Branch was the boundary between the two properties and for preferring Stafford’s proposed line to Clark’s. Since Clark stipulated that, if Fox Branch was not the boundary, it must be as shown on Stafford’s plat, Clark cannot now complain that the jury had no basis for establishing the line in Stafford’s favor.

3. Clark contends that the trial court erred in charging the jury that “arithmetic calculations for acreage contained in an enclosure established by metes and bounds and the physical evidence can be properly considered by you, the jury, in determining a true location of a boundary line.” Clark contends that the charge was improper because there was no competent evidence the jury could use to perform mathematical calculations of acreage in this case. However, Clark fails to offer any argument whatsoever as to how such a charge was harmful. Because harm as well as error must be shown to warrant reversal, this enumeration is without merit. See Wozniuk v. Kitchin, 229 Ga. App. 359, 361 (2) (494 SE2d 247) (1997).

4. Finally, Clark contends that the trial court improperly allowed the award of attorney fees to Stafford. However, Clark does not support this enumeration in her brief with a single citation to the record or to authority, nor does she provide any argument other than to state conclusorily that there is no evidence she acted in bad faith. This is not the kind of argument required to preserve an enumeration for appellate review, but simply invites this Court to review the entire record and all relevant authority to determine whether an award of attorney fees was appropriate. See Green v. State, 208 Ga. App. 1, 2 (2) (429 SE2d 694) (1993) (“ ‘principal purpose of argument is to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support appellant’s allegation of error’ ”); Darnell v. Houston County Bd. of Ed., 234 Ga. App. 488, 491 (2) (506 SE2d 385) (1998) (court will not cull record in search of error on behalf of party). In the absence of proper argument, citation to the record, or citation to authority, we will not consider this enumeration. See Green, supra; Starrett v. Commercial Bank of Ga., 226 Ga. App. 598, 601 (2) (486 SE2d 923) (1997); Daniel v. Lipscomb, 225 Ga. App. 135, 138 (3) (483 SE2d 325) (1997).

Decided July 1, 1999

Reconsideration denied July 13, 1999

Jason A. Craig, for appellant.

William K. Blackstone, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

       We note that appellee has failed to file a brief on appeal. Accordingly, “we will accept appellant’s statement of the case as prima facie true and decide the case on the basis of this statement and the evidence cited and quoted in support thereof.” Jones v. Cooke, 169 Ga. App. 516 (1) (313 SE2d 773) (1984).

       The county tax assessor testified that he had Copeland prepare a recreation of the 1956 plat because the original plat had become nearly illegible. Copeland did not resurvey the property at this time, but simply prepared a copy of Wooten’s 1956 survey. Wooten had died by the time Copeland prepared the recreated plat.

       After the close of evidence, Clark abandoned her claim for punitive damages, but did not seek to have the previously admitted plats removed from the jury’s consideration in light of this withdrawal.

       The special verdict form originally proposed by Stafford would not have required the jury to choose between two options, but would have simply asked the jury where the boundary line was.

       Clark does not even conclusorily deny the existence of the other grounds for an award of attorney fees under OCGA § 13-6-11 — i.e., stubborn litigiousness or causing the other party unnecessary trouble and expense.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A99A0135.
    COTTON STATES MUTUAL INSURANCE COMPANY v. MOORE et al.
    (520 SE2d 252)
    Decided June 29, 1999
    Reconsideration denied July 13, 1999
   McMurray, Presiding Judge.

Billy Joe Davis alleged in a personal injury complaint (“the underlying personal injury action”) that he was on a roof unloading shingles from a forklift when a septic tank cover under the forklift collapsed and caused him to be pulled off the roof. Davis brought suit against homeowner Cecil A. Moore and Lang Building Supply in the Superior Court of Glynn County. Soon thereafter Moore’s homeowner’s liability insurer, Cotton States Mutual Insurance Company (“Cotton States”), brought this separate declaratory judgment action, also in the Superior Court of Glynn County, to determine whether Moore is entitled to coverage and to a defense regarding Davis’ claims. The trial court denied Cotton States’ motion for summary judgment in an order entered on June 2, 1998. On July 6, 1998, the trial court amended this order by declining to enjoin the proceedings in Davis’ underlying personal injury action.

Cotton States filed a direct appeal from the trial court’s July 6, 1998 order, characterizing this order as one which “denied interlocutory injunctive relief to enjoin those proceedings in the underlying personal injury action.” However, inasmuch as both actions were filed in the same court, the order complained of is in substance the denial of a motion to stay proceedings in a related case and not the denial of injunctive relief. A direct appeal under OCGA § 5-6-34 (a) (4) is not available from such an order. Grange Mut. Cas. Co. v. Riverdale Apts., L.P., 218 Ga. App. 685, 686-687 (463 SE2d 46). Accordingly, Cotton States’ appeal must be dismissed as premature.

Appeal dismissed.

Andrews and Ruffin, JJ, concur.

Forbes & Bowman, Morton G. Forbes, Scot V. Pool, for appellant.

James A. Yancey, Jr., for appellee.

Cecil A. Moore, pro se.


author: Ruffin, Judge.

text:
    A99A0775.
    JACKSON v. THE STATE.
    (519 SE2d 746)
   Ruffin, Judge.

DeWayne Jackson was convicted of armed robbery and aggravated assault. He appeals, contesting the sufficiency of the evidence and contending that the trial court erred in denying his motion for severance and in giving a jury charge. For reasons discussed below, we affirm.

1. On appeal of a criminal conviction, it is axiomatic that

the evidence must be viewed in the light most favorable to the verdict, and the appellant... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Punctuation omitted.) Ford v. State, 234 Ga. App. 301-302 (1) (506 SE2d 668) (1998).

Jackson and two co-defendants, Michael Murray and Levi Hodnett, were indicted in connection with a series of robberies that occurred in April 1996. Jackson and Hodnett were charged with the armed robbery of John Kim on April 15, and Hodnett was charged with committing an earlier armed robbery of Kim on April 4. Jackson, Hodnett, and Murray were each charged with aggravated assault with the intent to rob Anjula Charles on April 15. Hodnett and Murray were charged with the armed robbery of Rochelle Cox on April 15. Hodnett was charged with aggravated assault of Gina Lee on April 15 and with armed robbery of Alex Crawford on April 15. Hodnett pled guilty to the two armed robberies of John Kim and the aggravated assaults on Gina Lee and Anjula Charles, and the remaining charge» against him were dead-docketed. Jackson and Murray were jointly tried on the charges against them and were found guilty on all counts.

Armed Robbery of John Kim

John Kim testified that, on April 15,1996, he was working at the Fame Beauty Supply store in DeKalb County. About noon, a man came into the store wearing a baseball cap, a blue and white jogging suit, and silver sunglasses with holes on the side. Kim assumed that this individual was alone. After looking at a product shelf, the man complained to Kim that one of the products was too expensive. As Kim walked over to help him, the man said, “Open up the register, this is a robbery.” At that point, Kim turned around and saw a second individual standing near the door and holding a gun on one of Kim’s employees. Kim testified that he recognized the gunman because he had robbed the store earlier that month. Kim gave the man with the sunglasses all the money in the cash register, and the two men left. About two weeks after the robbery, Kim was shown a photographic lineup by the police and identified Jackson as the man with the sunglasses. Kim identified Jackson at trial as the individual he had picked out of the lineup. Although Kim did not identify the gunman, Levi Hodnett pled guilty to armed robbery in connection with the April 15 incident as well as the previous robbery.

. Jackson, who was 16 years old at the time of the incident, testified that he was living with his grandmother at that time and was not enrolled in school. Hodnett was staying with Jackson’s mother at the time. Jackson claimed that, at about 11:00 a.m. on April 15, he went to the Hamilton Alternative School with his mother and sister, where they had an appointment to see about enrolling him in the school. Jackson testified that his mother met with an administrator named “Mr. Houdini, Murfurdini ... or something like that.” After about 30 minutes, they returned to the home of Jackson’s mother for a few minutes before going to the welfare office to pick up food stamps. However, because the line was too long, they went to have lunch. Afterwards, they returned to the welfare office and Jackson’s mother got her food stamps. They then went grocery shopping and returned to the mother’s house at about 2:00 p.m. According to Jackson, Hodnett was at the house when he returned. Jackson denied that he had ever been to the Fame Beauty Supply store.

Jackson’s mother and sister also testified, supporting Jackson’s alibi defense. However, although the mother stated that she and Jackson met with the principal and a coordinator at the Hamilton Alternative School, she could not recall their names. Jackson did not call any witnesses from the school to corroborate his alibi claim.

Aggravated Assault of Anjula Charles

Anjula Charles, part owner of the Lotto Grocery Store, testified that on the afternoon of April 15, 1996, Jackson and another man, identified as Hodnett, entered the store and asked if her husband was in. The two men left without buying anything, but returned later that evening with a third individual, Michael Murray. Jackson tried to buy a bag of chips and a soda with food stamps, but Charles’ son Ray, who was also working at the store, said the store did not accept food stamps. Jackson paid cash for the items and then stood next to the counter. Charles testified that Jackson was “just standing,” and did not appear to be leaving the store. Murray and Hodnett got into an argument with Charles and her son when they refused to sell them cigarettes. Hodnett then pulled a gun and said, “Give us the money.” Charles screamed and told her son to push the alarm button. He did so, and the three men then ran out of the store together. Jackson was wearing a white and dark color warmup suit, a white baseball cap, and silver sunglasses with holes on the sides during the robbery. Charles’ son testified that Jackson did not ask Hodnett what he was doing or ask him to stop when he pulled out the gun.

Jackson testified that, after he had returned to his mother’s house at about 2:00 p.m., he and Hodnett went to Charles’ store to buy beer. When Charles told them she could not sell them beer because of their age, they told her that her husband let them buy beer and then left the store. Jackson testified that later that evening, he asked a friend, Marcus Holt, to drive him to his girlfriend’s house. On the way, they stopped at Charles’ store and Jackson went in to buy some chips and a soda. Jackson testified that, while he was paying for these items, Hodnett and Murray came into the store. Murray greeted Jackson, saying, ‘What’s up, Bird? What’s up?” After Jackson paid for his items and started to leave the store, he heard Hodnett arguing with Charles. Jackson said that he began to laugh and then saw Hodnett pull out a handgun. Jackson saw Charles’ son reach under the counter and heard Murray say, “They fixing to pull out a gun.” According to Jackson, Murray pushed him and they ran out of the store. Jackson said that he did not leave with Hodnett and Murray after the robbery, but went to his girlfriend’s house. Holt and Jackson’s girlfriend corroborated Jackson’s testimony. Holt testified that Jackson was “like a little brother to me.”

A videotape of the incident recorded by the store’s security camera showed that Jackson entered the store about 25 seconds before the other two men. All three men approached the door from the same direction. Although the robbery itself is not shown on the videotape, the tape shows the three men running from the store together about four minutes after they arrived.

With respect to the armed robbery of John Kim, the evidence was clearly sufficient to support Jackson’s conviction. Kim positively identified Jackson in a photographic lineup as the individual who had robbed him. See Harper v. State, 213 Ga. App. 444, 445-446 (1) (445 SE2d 303) (1994) (pre-trial identification sufficient to support conviction, notwithstanding failure to make independent identification at trial). Moreover, the robber’s clothing and distinctive sunglasses matched those worn by Jackson later that day during the robbery of Charles’ store. See Simonds v. State, 231 Ga. App. 692, 693-694 (2) (499 SE2d 744) (1998) (upholding conviction based on pretrial identification and other corroborating evidence). Although Jackson raised an alibi defense through his own testimony and that of his mother and sister, “the jury was not bound to accept the evidence introduced of alibi as true; the jury determines the credibility of the witnesses and weight to be given their testimony.” (Punctuation omitted.) Champion v. State, 192 Ga. App. 43 (1) (383 SE2d 565) (1989). The jury could have found it significant that Jackson called no unbiased witnesses from the Hamilton Alternative School to corroborate his alibi claim. Accordingly, there was sufficient evidence for the jury to conclude that Jackson was guilty of the armed robbery. See Brundidge v. State, 184 Ga. App. 860 (1) (363 SE2d 66) (1987) (upholding conviction based on pre-trial identification, despite alibi evidence); Lawson v. State, 214 Ga. App. 464, 465 (1) (448 SE2d 14) (1994) (credibility of alibi and identification evidence are for jury); Jackson v. State, 226 Ga. App. 604, 606 (2) (487 SE2d 142) (1997).

With respect to the aggravated assault on Anjula Charles, the jury was authorized to reject Jackson’s claim that he was simply present during the commission of the crime by Hodnett and Murray. It is true that mere presence at the scene of a crime is not sufficient to convict one of being a party thereto. Howéver, “presence, companionship, and conduct before and. after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Punctuation omitted.) Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370) (1997). In this case, there were several factors that could have led the jury to believe that Jackson was more than merely present during the robbery.

First, the jury could have considered the fact that Jackson and an accomplice, presumably Hodnett, had committed an armed robbery earlier in the day as evidence of Jackson’s guilty intent. The two incidents were similar in that Jackson entered the store first in both cases and was followed by the gunman. See Gilliam v. State, 245 Ga. 708, 709 (1) (267 SE2d 8) (1980) (evidence of separate crime committed the same day admissible to show state of mind, criminal intent, and that defendants were together on crime spree).

Second, the jury could have focused on Jackson’s actions at the store, as caught on tape and described by witnesses, in finding guilty intent. After Hodnett pulled the gun, Jackson did not express any surprise or ask Hodnett to stop. Although this fact alone may not be sufficient to support a conviction, it is a factor the jury could have considered in assessing the credibility of Jackson’s testimony that he was not with Hodnett and Murray at the time of the robbery. In addition, the jury could have taken Jackson’s flight from the store, in the company of Hodnett and Murray, as evidence of his guilty intent. Our Supreme Court has held that “[t]he fact that a suspect flees the scene of a crime points to the question of guilt in a circumstantial manner.” Renner v. State, 260 Ga. 515, 517 (3) (b) (397 SE2d 683) (1990). “[F] light is circumstantial evidence of consciousness of guilt; the weight to be given such evidence is for the jury to decide.” (Punctuation omitted.) Okongwu v. State, 220 Ga. App. 59, 61 (1) (467 SE2d 368) (1996). Under all of the circumstances, the jury was authorized to conclude that Jackson was a party to the crime of aggravated assault with the intent to rob.

2. The first witness at trial, Rochelle Cox, testified about a robbery of the Colonial Bakery store on April 15, 1996. Hodnett and Murray were charged with this crime, but Jackson was not charged. Cox testified that at about 12:30 p.m., two men came into the store. One of the men started to purchase cookies, but complained that the price was too high after Cox had rung up the purchase. Cox rang up the purchase a second time and opened her cash register. At this point, the second individual pulled out a gun and demanded the money in Cox’s cash register. Both men took money and food stamps from the cash register and then left the store. After the incident, Cox was shown a photographic lineup by the police and identified a photograph of Murray as the individual without the gun. At trial, however, when asked if this individual was in the courtroom, Cox pointed to Jackson instead of Murray, although neither side remarked on this discrepancy at the time.

At the close of the State’s evidence, Jackson’s attorney moved to sever his trial from the charges against Murray. He stated that, because of Cox’s identification, Murray’s attorney was likely to argue at closing that Jackson, and not Murray, was the gunman’s accomplice in the Colonial Bakery store, although Jackson had not been charged with the crime. The trial court denied the motion, but instructed the jury at the close of evidence that Jackson was not charged with the Colonial Bakery robbery and that the jury “should not infer anything hurtful to Mr. Jackson because of the witness Cox’s testimony.”

In ruling on a motion to sever,

the trial judge must examine each case individually and exercise his discretion in ruling on the motion. That decision will not be disturbed unless appellant shows an abuse of discretion. The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process. In exercising its discretion, the court must consider three factors: (1) Whether a joint trial will create confusion of evidence and law; (2) whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and (3) whether the co-defendants will press antagonistic defenses. On appeal, a defendant must show “clear prejudice” from denial of a motion to sever.

(Citations and punctuation omitted.) Morgan v. State, 226 Ga. App. 624, 625 (2) (487 SE2d 420) (1997).

Pretermitting whether the motion to sever was timely, Jackson has not shown that he suffered clear prejudice from the denial of the motion. The only argument presented by Jackson at trial in support of the severance motion was that the jury might conclude that he, and not Murray, was the gunman’s accomplice in the Colonial Bakery robbery based on Cox’s misidentification. However, the trial court instructed the jury that it was not to draw any hurtful inferences against Jackson from Cox’s testimony, and the jury in fact convicted Murray of the crime, indicating that it believed Cox had merely pointed to the wrong defendant. Accordingly, the trial court did not commit reversible error in denying the motion. See Morgan, supra.

Jackson also contends that the trial court erred in sua sponte giving the curative instruction to the jury. Although Jackson reserved objections to the trial court’s charge, we note that the court informed Jackson’s attorney that it would not give the curative instruction if he did not want it to. In response, Jackson’s attorney merely stated that he preserved his motion for severance. Regardless of whether Jackson waived any right to complain of the instruction, however, he makes no showing on appeal as to how he was harmed by the instruction. Although Jackson states that the instruction reemphasized Cox’s testimony, the jury in fact convicted Murray of the crime, indicating that it believed Murray, and not Jackson, was the gunman’s accomplice. Because Jackson has shown no harm from the giving of the instruction, this enumeration does not present a basis for reversal. See Watson v. State, 235 Ga. App. 381, 386 (2) (509 SE2d 87) (1998).

Decided June 24, 1999

Reconsideration denied July 13, 1999.

Lynch, Spears & Shuman, John H. Tarpley, Dwight L. Thomas, Jo Ann Claudrick, for appellant.

J. Tom Morgan, District Attorney, Noah H. Pines, Maria Murcier-Ashley, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       However, the Supreme Court in Renner held that “while the state may offer evidence of and argue flight, it shall be error for a trial court in a criminal case to charge the jury on flight.” Id. at 518 (3) (b).

       Cox did not identify Jackson by name, but pointed to the defendant “with the white shirt on.” Murray was apparently wearing a green shirt during the trial, and Jackson a white shirt.


author: Pope, Presiding Judge.

text:
    A99A0783.
    HUFF v. THE STATE.
    (519 SE2d 263)
   Pope, Presiding Judge.

Victoria Xemobia Huff was tried and convicted of two counts of armed robbery. Here, in nine enumerations of error, she argues that the trial court erred in denying her motions for mistrial and for a new trial.

Viewing the evidence in the light most favorable to the verdict, on October 30, 1996, at about 9:00 p.m., Victoria Huff drove with her friend, Kimberly Prince, and a 12-year-old girl to a haunted house. When they arrived at the haunted house, Huff’s passengers remained in the car as Huff pulled a gun from under the front seat and left the car.

At the same time that night, Laurie Kobs and Lisa Purcell were leaving the haunted house and walking back to their car when someone grabbed them from behind. Each woman felt arms go around her and heard a voice say: “hey ladies.” The victims turned around and saw Huff, who was holding a revolver in their faces and demanding money. Huff first held Purcell at gunpoint and took $25 from her. Kobs did not have any money, so she handed Huff her driver’s license and some receipts. Huff demanded Kobs’ jewelry, so Kobs broke her necklace off and gave it to Huff. Huff then told Kobs she wanted her watch, to which Kobs said no. Kobs then ran away from Huff. Huff ran after Kobs and Purcell followed. The victims saw Huff get into a red Maxima and Purcell tried to memorize the tag number on the car. Huff drove away in the car and the victims immediately reported the crime to Cobb County police officer Bullock, who was working at the haunted house. They told Bullock that Huff drove off in a red Nissan Maxima with Olympic tags 19ME2 and that two other passengers were in the car. They described the robber as a sixteen- to eighteen-year-old male, who was about five-three to five-four, and weighed about one hundred and thirty-five pounds. They reported that the robber was wearing a baseball cap with a dark bill and baggy clothes. At trial Kobs recalled that the robber had chubby cheeks and short hair. Both Kobs and Purcell mistakenly identified the robber as male.

Officer Bullock issued a lookout for a suspect matching the description that the victims had given him. Meanwhile officers less than two miles away from the haunted house saw a car with tags which matched the description Purcell had given. The officers conducted a routine felony traffic stop. When Huff got out of the car, she was wearing a hat and the officer who stopped her mistakenly thought that she was a man. In response to inquiry from the police officers regarding weapons, Huff admitted that she had a loaded gun under the seat. The officers performed a pat-down search of Huff and found $25 in her pocket.

Meanwhile, two detectives went to the haunted house and took another description of the robber from the victims. The victims again described a small young black male wearing a ball cap with a dark bill and dark, baggy clothing. They stated that the robber was carrying a shiny silver gun.

The officers at the haunted house then learned of the traffic stop of the red Maxima and brought the victims to the gas station for an identification showup. The officers stated that they decided the showup would be appropriate because of the closeness in time between the incident and the traffic stop. The victims arrived at the showup scene about 15 to 20 minutes after the robbery. Huff and her passenger, Prince, were seated in separate patrol cars and were handcuffed.

Purcell was asked to look at the women seated in the back of the patrol cars and identify either. She was unable to identify either woman. The officer conducting the showup then learned that Huff had been wearing a baseball cap during the crime, so he placed the baseball cap on Huff’s head. Kobs was then brought to view the passenger from Huff’s car. Kobs stated that Prince was not the robber. An officer then removed Huff from the patrol car. At this point, Kobs identified Huff as the robber, saying “that’s him.” Kobs testified that at the showup she was certain of Huff’s identity. The officers arrested Huff

Kobs testified that about ten days after the robbery she found her driver’s license on the driveway of the haunted house.

The State introduced two photographs of the defendant on the night of the robbery, which Kobs testified accurately depicted Huff on that evening. In addition to the two victims, five police officers identified Huff at trial as the person who was driving the red car on the night of the robbery. At trial, Kobs identified articles of clothing Huff was wearing on the night of the robbery as those of the robber’s.

In talking with police officers on the night of the robbery, Huff claimed that she had driven to the haunted house to check the admission price. She admitted that she ran to her car from the haunted house, but stated that she was running because she heard people screaming. One officer testified that before Huff was told that a necklace had been taken from one of the victims, she explained that she was wearing her own necklace.

Huff testified at trial and insisted that she had not been involved in the robbery.

1. Huff claims that her motion to suppress was improperly denied and that evidence of Kobs’ pretrial identification of her was improperly admitted. Huff contends that the identification procedure at the showup was impermissibly suggestive and that there was a substantial likelihood of misidentification.

There is no per se exclusionary rule applied to pre-indictment confrontations. Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a likelihood of misidentification which offends against due process and the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation.

(Citations and punctuation omitted.) Flores v. State, 228 Ga. App. 152, 153 (491 SE2d 86) (1997).

In this case, assuming arguendo that the showup was impermis-sibly suggestive, see, e.g., Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975), there was not a substantial likelihood of mis-identification. See Wright v. State, 222 Ga. App. 613 (1) (475 SE2d 670) (1996); compare State v. Frye, 205 Ga. App. 508, 509-510 (2) (422 SE2d 915) (1992); Arnold v. State, 155 Ga. App. 569 (1) (271 SE2d 702) (1980). Using the factors above, the evidence established that Huff initially approached Kobs from behind, but that then Kobs turned to face Huff. Kobs stated that Huff was “not even two feet” away and that “[s]he was right in front of me.” Though it was dark outside, lights from the interstate partially illuminated the area. Kobs estimated that she looked at Huff’s face for about ten seconds. Kobs gave consistent descriptions of Huff both at the scene and when she was questioned a short while later. Although Kobs mistakenly thought that Huff was a man, her description was otherwise accurate. Kobs was certain that Huff was the robber when she identified Huff at the showup; she was certain of Huff’s identity at the bond hearing a week later; and she was certain of Huff’s identity when she identified her at trial.

Moreover, even assuming that the court erred in admitting testimony regarding the pre-trial identification, in light of the overwhelming evidence of Huff’s guilt, we conclude that any such error was harmless beyond a reasonable doubt. Wright v. State, 210 Ga. App. 616, 617 (2) (436 SE2d 783) (1993); McGee v. State, 209 Ga. App. 261, 262 (1) (433 SE2d 374) (1993).

2. In a separate enumeration, Huff claims that the victims’ in-court identifications of her were improperly admitted. Specifically, she argues that the in-court identifications were constitutionally tainted by the prior pre-trial identifications and should have been excluded.

“Even if the pretrial identification is tainted, the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” (Citation and punctuation omitted.) State v. Frye, 205 Ga. App. at 510. See also Wright v. State, 222 Ga. App. at 614 (1); Davis v. State, 216 Ga. App. 580, 582 (2) (455 SE2d 115) (1995).

For the reasons set forth in Division 1, we conclude that Kobs’ in-court identification of Huff was admissible because it had an independent basis from the allegedly suggestive showup procedure.

There was no taint with regard to Purcell’s in-court identification. She did not correctly identify Huff at the showup. Although she conceded that she identified Huff at the bond hearing, her testimony at trial established the basis for her identification. She testified that she saw Huff’s face the night of the robbery and that Huff was no more than a foot away. Purcell estimated that she looked in Huff’s face for approximately a minute. She stated that she was confused at the showup because Huff was not wearing a hat and that the two people in the police cars were obviously women. Purcell’s description of Huff, like victim Kobs’, was mostly accurate apart from the description of Huff as a male. Purcell testified at trial that she was certain of her identification.

3. In two enumerations of error, Huff claims that the court erroneously denied her motion for mistrial based on juror misconduct. Huff argues that the jurors’ behavior deprived her of a fair and impartial jury. Huff’s arguments are based on a conversation which a deputy sheriff reported occurred between three jurors, despite the court’s instruction to the jurors to refrain from discussing the case among themselves.

According to the deputy, during the recess after the State’s first witness (victim Kobs) testified, three female jurors discussed the witnesses’ demeanor. The deputy testified that the jurors also discussed Huff’s demeanor during the trial and stated that she “was rolling her eyes, gesturing as if she did not care about what was going on.” The deputy stated that the jurors also “made comments about people in the gallery laughing and making head gestures.”

The court sua sponte individually questioned the jurors and asked them the substance of any conversation regarding the case and whether they could remain impartial. The jurors’ recollection of the conversation was basically consistent with the deputy’s account. One juror stated that “[i]t was a very general conversation. Just talk, trying to put ourselves in the place of how someone feels when they have to sit, you know, with someone questioning you.” All of the jurors interviewed stated that they could remain impartial and that the conversation did not influence their final decisions in the case.

There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. However, a jury verdict will not be upset solely because of such conduct, unless the statements are so prejudicial that the verdict must be deemed inherently lacking in due process. Our inquiry then must be directed to whether this error is so inherently prejudicial as to require a new trial, or whether it is an immaterial irregularity without opportunity for injury. Where the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant.

(Citations and punctuation omitted.) Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996).

Here, the jurors’ statements to each other did not involve extrajudicial information, nor did they demonstrate that the jurors were deliberating before the close of evidence, nor did they indicate that one juror was attempting to persuade another on any issue or testimony. See Sims v. State, 266 Ga. at 420 (3). Accordingly, we conclude that the error was not so prejudicial as to have contributed to the conviction and the jurors’ actions were harmless beyond a reasonable doubt. See Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997); Davidson v. State, 231 Ga. App. 605, 612-613 (7) (499 SE2d 697) (1998); see generally Chadwick v. State, 164 Ga. App. 102 (2) (296 SE2d 398) (1982).

Huff also claims that the court erred in individually questioning jurors about their misconduct based on the guidelines used in United States v. Herring, 568 F2d 1099 (5th Cir. 1978). Huff contends that questioning the jurors individually was harmful and prejudicial. We reject this argument. The court’s inquiry into the misconduct was “an acceptable means of proof to meet the burden cast upon the state, in such circumstances, to rebut by proof a presumption of harm.” (Citations omitted.) Hardy v. State, 242 Ga. 702, 704 (3) (251 SE2d 289) (1978). In United States v. Herring, the court concluded that the district court should have examined the jurors and found out (1) how much contact the jury members had had with the damaging publicity; and (2) how much prejudice to the defendant, if any, resulted from that contact. Id. at 1106. Although the context of Herring was different from the instant case, the avenues of inquiry addressed in that case pertained here. There was no error. See generally McGuire v. State, 200 Ga. App. 509, 510 (3) (408 SE2d 506) (1991) (discusses court’s discretion in striking juror).

4. Huff, who is African-American, argues that the array of jurors available in the jury pool violated her constitutional right to a jury chosen from a fair cross-section of her community. The record reflects that the prospective jurors were brought into the courtroom. The court asked some general questions of the panel. Then, although not recorded, counsel conducted voir dire. The following day, defense counsel raised the challenge regarding the array.

Huff should have “challenged the array when it was first put upon [her]. Georgia statutes and case law indicate that a jury is ‘put upon’ a defendant at the time that the jury array is seated and voir dire commences.” (Citations and punctuation omitted.) Pugh v. State, 214 Ga. App. 470, 471 (2) (448 SE2d 16) (1994). Instead, Huff waited until after voir dire was completed before challenging the array. There is no indication in the record before us that Huff did not have an opportunity to present the challenge in a timely manner. Accordingly, her challenge to the jury was untimely. See generally Guest v. State, 186 Ga. App. 318 (1) (367 SE2d 105) (1988). Moreover, although the court allowed Huff to present evidence, she failed to show that there was any flaw in the method used to create the traverse jury venire. See Jewell v. State, 261 Ga. 861, 863 (3) (413 SE2d 201) (1992).

5. Huff argues that the court erroneously denied her motion for mistrial because character evidence was improperly admitted. Specifically, she objects to portions of her taped statement which contained references to “trouble” she had been in. The court held a motions hearing two months before the trial and determined that certain portions of the tape would be excised before it was played for the jury. Nevertheless, at trial the court instructed Huff’s attorney to “start screaming” if anything objectionable arose in the tape. Huff did not object when the portions of the tape were played and has waived this argument. The failure to grant a mistrial was not error. See generally Young v. State, 217 Ga. App. 575 (1) (458 SE2d 391) (1995).

Decided June 9, 1999

Reconsideration denied July 13, 1999.

Amelia G. Pray, for appellant.

Huff’s arguments regarding the questions about carrying a loaded pistol in her car also lack merit.

6. Huff argues that the court erred in its jury charges by failing to give her requested charges on identification evidence and on the lesser-included offense of robbery by intimidation. With respect to the charge on identification testimony, the court’s charge accurately and fully stated the applicable principles and there was no error in its failure to use the charge Huff requested. Jones v. State, 225 Ga. App. 673, 676 (3) (484 SE2d 702) (1997); Rowell v. State, 176 Ga. App. 309, 310 (3) (335 SE2d 689) (1985).

With respect to the second argument, Huff argues that there was a controversy regarding whether a gun was used to commit the crime and therefore the jury should have been charged on the lesser included offense of robbery by intimidation. We reject this argument. “[W]here the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” (Citations and punctuation omitted; emphasis in original.) Wynn v. State, 228 Ga. App. 124, 126 (2) (491 SE2d 149) (1997). Here, the evidence did not support a charge on robbery by intimidation. The jury was authorized to find either that Huff committed the completed offense of armed robbery, or that she was not involved in the robbery at all.

7. Huff contends that the evidence was insufficient to support the verdict. We find that a rational trier of fact could find from the evidence adduced at trial proof of Huff’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Smith and Eldridge, JJ., concur.

Patrick H. Head, District Attorney, Debra H. Bernes, Michael S. Moody, Assistant District Attorneys, for appellee.

       Although Huff refers to the pretrial identification at the bond hearing, this point was never clearly raised in her motion to suppress and is waived here.


text:
    A99A0216.
    STEWART v. MEDICAL CENTER OF CENTRAL GEORGIA, INC. et al.
    (520 SE2d 747)
   Ruffin, Judge.

Charlotte Stewart, as next friend of her son, Jerami, sued the Medical Center of Central Georgia d/b/a Med Center West and Dr. Vicki James alleging medical malpractice that resulted in the wrongful death of Jerami. After a jury found in favor of Stewart and awarded $127,679.73, the trial court entered judgment on the award. Stewart filed a motion for new trial on damages. The trial court denied the motion, and Stewart appeals. We affirm.

The evidence adduced at trial showed that Jerami Stewart was born on July 13, 1979. On Wednesday, November 3, 1993, he began exhibiting signs of illness including rapid, irregular breathing, achiness, shaking and a scratchy throat. His mother took him to Med Center West, an urgent care facility operated by the Medical Center of Central Georgia, where he was seen by Dr. James, who diagnosed him with tonsillitis and an upper respiratory infection.

The next evening, Jerami’s condition worsened, and he was taken by ambulance to the Medical Center of Central Georgia. Jer-ami was admitted to the hospital for a staph infection. Although the source of the infection was not immediately apparent, the doctors eventually determined that the infection stemmed from ingrown toenails. As a complication from the infection, Jerami developed adult respiratory distress syndrome and died on November 30, 1993.

At the trial for wrongful death, Dr. Robert Coston testified for Stewart as an expert in the field of economic evaluation. Dr. Coston based his valuation of Jerami’s life on three scenarios: (1) Jerami’s earning potential had he obtained a college degree; (2) Jerami’s earning potential had he earned an associate degree; and (3) Jerami’s earning potential had he graduated from high school. Dr. Coston concluded that the present value of Jerami’s earning potential was as follows:

(1) Bachelor’s Degree: Income = $1,170,476.42

Fringe Benefits = $234,095.28

(2) Associate Degree: Income = $918,310.62

Fringe Benefits = $137,746.59

(3) High School Diploma: Income = $713,441.87

Fringe Benefits = $71,344.19

In addition, Dr. Coston testified regarding the economic loss for Jerami’s household contributions. According to Dr. Coston, a male works approximately ten hours per week around the house. Using a minimum wage of $5.15 per hour and estimating Jerami would make such household contributions until he reached the age of 70, Dr. Coston concluded that the present day value of Jerami’s household contributions was $127,679.73. The defense did not call any expert to refute Coston’s testimony. In cross-examining Dr. Coston, however, the defense did attempt to undermine the methods he employed in calculating damages. The jury found in favor of Stewart and awarded $127,679.73.

On appeal, Stewart contends that the damages awarded by the jury are inadequate. According to Stewart, since the jury found the defendants liable for Jerami’s death, the jurors had an obligation to assess damages based upon the full value of Jerami’s life, including his earning potential. Stewart argues that, by awarding “to the penny” the amount that Dr. Coston equated to loss of household contributions, the jury clearly failed to award money for loss of earnings. We disagree.

Apparently, Stewart believes the jury was obligated to return a verdict in line with Coston’s calculations. However, a jury is not obligated to accept an expert’s testimony even when it is uncontradicted. See Smith v. Godfrey, 155 Ga. App. 113, 114 (1) (270 SE2d 322) (1980). Thus, the jury was not bound to conduele that $127,679.73 represented the loss of Jerami’s household contributions notwithstanding Dr. Coston’s testimony. Rather, the jury was free to conclude that the amount approximated Jerami’s loss of earnings.

We note that Coston’s calculations for Jerami’s future earnings were premised upon the conclusion that Jerami would graduate from high school or obtain a degree. As Jerami was 14 at the time of his death, he had not yet obtained his high school diploma, and the jurors were not required to believe that he would do so. With regard to Jerami’s household contributions, Dr. Coston testified that, in reaching the $127,697.73 figure, he based his calculations on estimated contributions from Jerami through the age of 70. If the jury concluded, for whatever reason, that Jerami would not graduate from high school, they could have used the household contributions figure as an approximation for his future earnings.

Decided July 13, 10999

Gregory, Christy & Maniklal, Hardy Gregory, Jr.', Gary C. Christy, Hogue & Hogue, Franklin J. Hogue, Laura D. Hogue, for appellant.

Moreover, the jury did not use a special verdict form. Thus, in order for us to conclude that the jury only awarded damages for household contributions, we would have to assume, as a matter of law, that the jury intended its award to represent only household contributions. We decline to make such an assumption solely because the jury used the same figure that the expert witness used to represent the loss of Jerami’s household contributions.

“[A]n excessive or inadequate verdict is a mistake of fact rather than of law and addresses itself to the discretion of the trial judge who, like the jury, saw the witnesses and heard the testimony.” Moody v. Dykes, 269 Ga. 217, 221-222 (6) (496 SE2d 907) (1998). Although this Court may set aside an inadequate verdict under OCGA § 51-12-12 (a), the threshold is extremely high. Id. at 222. As a general rule,

the jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to shock the conscience. Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence.

(Citations and punctuation omitted.) Consolidated Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 234 (2) (410 SE2d 751) (1991).

Here, the jury’s $127,679.73 award does not shock the conscience. Compare Williams, supra at 809 (4) (affirming trial court’s grant of motion for new trial on damages following $10,000 jury award for wrongful death of child). Thus, we cannot say that the award is so inadequate as to reflect bias, prejudice or gross mistake on the part of the jurors. Accordingly, the trial court did not err in denying Stewart’s motion for new trial on damages.

Judgment affirmed.

Andrews, P. J, concurs. McMurray, P. J., concurs in judgment only.

Pursley, Howell, Lowery & Meeks, Roy H. Meeks, Jr., William P. Tinkler, Jr., for appellees.

       On cross-examination, Dr. Coston testified that he used a base minimum wage of $5.15, but that he estimated that minimum wage would increase at a rate of six percent.

       Defendants argue that this is a case of comparative negligence and that the jury’s verdict reflects consideration of Jerami Stewart’s negligence. We note, however, that the issue of comparative negligence was not raised in the pleadings, the defendants did not argue the issue at trial, and the jury was not charged on comparative negligence. Thus, “[clomparative negligence . . . was not properly made an issue.” Williams v. Worsley, 235 Ga. App. 806, 808 (3) (510 SE2d 46) (1998).


author: Smith, Judge.

text:
    A99A0068.
    KHAWAJA v. LANE COMPANY, INC. KHAWAJA v. SUMMERCOURT PROPERTIES, L.P.
    A99A0322.
    (520 SE2d 1)
   Smith, Judge.

These companion appeals arise out of the trial court’s grant of summary judgment to Realty Management Corporation and to Sum-mercourt Properties, L.P. in a personal injury action filed by Nazir Khawaja. Finding no error, we affirm.

On November 7, 1997, just before the two-year statute of limitation would have barred his action for personal injuries, Khawaja filed a complaint against Lane Company, Inc. for injuries he allegedly sustained on November 8, 1995. See OCGA § 9-3-33. On November 10, 1997, a special process server served this defendant. It also appears that Angela Sanders, a receptionist for Realty Management Corporation, d/b/a Lane Company, was served by special process server with the complaint on November 17, 1997. An answer was then filed by Realty Management Corporation, d/b/a Lane Company (Realty Management), raising insufficiency of service of process as a defense. Approximately three months later, Khawaja filed a “motion to amend complaint,” seeking to add Summercourt Properties, L. P, allegedly the record title holder of the property on which Khawaja was injured. He also filed a document captioned, “amendment for misnomer,” reciting that “[t]he name Realty Management Corp. d/b/a Lane Company should be substituted in lieu of Lane Company, Inc.”

On the same day Khawaja filed these pleadings, without permitting any response by the parties sought to be added, the trial court entered orders granting the motion to amend to add Summercourt Properties and permitting substitution of Realty Management in place of Lane Company, Inc. Apparently unaware that the trial court had entered these orders, Realty Management responded to Khawaja’s motions and subsequently moved for summary judgment on the ground that Khawaja failed to comply with the requirements of OCGA § 9-11-15 (c) concerning amendment of a pleading to change the party against whom a claim is asserted after the statute of limitation has run. After moving for summary judgment, Realty Management moved for reconsideration of the trial court’s orders permitting amendment and substitution.

Without expressly ruling on the motion for reconsideration, the trial court granted summary judgment to Realty Management, concluding that Realty Management was never added as a proper party. The court stated that although it “entered an order to purportedly correct the‘misnomer,’. . . of Lane Company, Inc. to Realty Management Corporation d/b/a Lane Company, this is not a misnomer case.” The court further concluded that Khawaja erroneously failed to seek leave to amend the complaint and failed to comply with OCGA § 9-11-15 (c). After the trial court granted summary judgment to Realty Management, Summercourt Properties moved, for summary judgment, and the trial court granted the motion for the same reasons it granted Realty Management’s motion.

1. In Case No. A99A0068, Khawaja appeals the grant of summary judgment to Realty Management. He first argues that the trial court erred in concluding that Realty Management was never made a proper party. He points out that the trial court never ruled on Realty Management’s motion for reconsideration concerning the substitution and amendment of the complaint, and he argues that the trial court never “reversed, amended, changed, overruled or otherwise altered” its order “placing Realty Management . . . into the case.” For these reasons, he contends Realty Management was added as a proper party defendant. We do not agree. In its order granting Realty Management’s motion for summary judgment, entered after its order concerning Khawaja’s pleading entitled “amendment for misnomer,” the trial court altered its earlier order by reciting that “this is not a misnomer” case. The trial court correctly reached this conclusion. “Correction of a misnomer involves no substitution of parties and does not add a new and distinct party.” (Citation and punctuation omitted.) Charming Shoppes &c. v. Parrish, 214 Ga. App. 729, 731 (448 SE2d 781) (1994).

It is undisputed that Lane Company, Inc. and Realty Management Corporation, d/b/a Lane Company, are separate and distinct entities. The president of Realty Management testified by affidavit that “Realty Management Corporation does business under the name Lane Company. It does not now and has not in the past used the name Lane Company, Inc.” Also according to the president, Realty Management had “no connection whatsoever with a Georgia corporation known as ‘Lane Company, Inc.’ ” Khawaja presented no evidence disputing this testimony. The trial court consequently did not err in concluding that this is not a case of mere misnomer, but one in which leave of court was required for addition of Realty Management Corporation. “A court order is required to add or drop parties under OCGA § 9-11-21, and even the liberal amendment provisions of OCGA § 9-11-15 are limited by this requirement. [Cit.]” Young v. Rider, 208 Ga. App. 147, 148 (1) (430 SE2d 117) (1993). See also Manning v. Robertson, 223 Ga. App. 139, 141 (1) (476 SE2d 889) (1996).

2. Khawaja also contends that the trial court erroneously con-eluded that he failed to meet the requirements of OCGA § 9-11-15 (c). We disagree.

A plaintiff who has sued the wrong defendant may move to amend [his or] her pleading after the statute of limitation has run and that amendment will relate back to the time of the original pleading if the proper defendant has received actual notice and knew or should have known that, but for the plaintiff’s mistake, it would have been the party sued. OCGA § 9-11-15 (a), (c).

(Citation and punctuation omitted.) American Transp. v. Thompson, 218 Ga. App. 54, 55 (460 SE2d 298) (1995).

Realty Management had the burden of showing that at least one of the requirements of OCGA § 9-11-15 (c) was not met. American Transp., supra at 55-56; see also Swan v. Johnson, 219 Ga. App. 450, 451 (1) (465 SE2d 684) (1995). On motion for summary judgment, Realty Management pointed to evidence showing that although Khawaja’s special process server purportedly served Lane Company, Inc. on November 10, 1997, Lane Company, Inc. was not related to Realty Management. Furthermore, while a receptionist for Realty Management was served November 17, 1997, outside the limitation period, the undisputed testimony presented by Realty Management showed that this receptionist was not authorized to accept service. It was not until June 5, 1998, that the registered agent for Realty Management was finally served, and Realty Management submitted undisputed evidence that the purported service on its receptionist on November 17, 1997, was the first notice it received that a complaint had been filed.

Once Realty Management showed that it did not have notice of the action within the limitation period, Khawaja was required to show that the requirements of OCGA § 9-11-15 (c) were met. American Transp., supra at 56. Khawaja failed in this regard. In response to Realty Management’s motion for summary judgment, Khawaja attempted to create an issue of fact as to whether Realty Management’s receptionist was authorized to accept service; he did so by submitting the affidavit of his special process server. That affidavit recited that the receptionist “stated . . . that she was able to accept service on behalf of Lane Company” and that she never stated “that she was unable to accept service on behalf of Lane Company.” The former statement, however, was hearsay, lacking in probative value to establish any fact. See, e.g., Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 171 (2) (390 SE2d 257) (1990). And the latter statement amounted to mere speculation that the receptionist might have been authorized to accept service. But this statement has no probative value in light of Realty Management’s direct evidence that the receptionist was not authorized to accept service. See generally Dougherty County Farm Bureau v. Hinman, 184 Ga. App. 244, 245 (361 SE2d 236) (1987).

We also note the affidavit testimony of Khawaja’s attorney reciting among other things that Realty Management’s insurance adjuster had been “aware of the claim for damages since February 12, 1996” and that the defendants had never been unaware of the incident since this conversation. But under the plain wording of OCGA § 9-11-15 (c), the defendant sought to be added must have actual notice of the institution of the action, not merely “[n]otice of the incidents giving rise to the litigation.” Harrison v. Golden, 219 Ga. App. 772, 773 (1) (466 SE2d 890) (1995). See also Hall v. Hatcher Sales Co., 149 Ga. App. 133, 134 (1) (253 SE2d 812) (1979).

The evidence in this case is undisputed that an employee of Realty Management, an entity unconnected with Lane Company, Inc., was purportedly served with Khawaja’s complaint after the expiration of the two-year statute of limitation. Realty Management clearly did not have notice of the institution of the action until after expiration of the statute of limitation, and relation back of Khawaja’s complaint to add Realty Management was not authorized under OCGA § 9-11-15 (c). American Transp., supra; Swan, supra at 450-451; see also Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326 (436 SE2d 63) (1993).

Rich’s, Inc. v. Snyder, 134 Ga. App. 889 (216 SE2d 648) (1975) and Ford v. Olympia Skate Center, 213 Ga. App. 600 (445 SE2d 362) (1994), relied upon by Khawaja, are distinguished from this case. In Snyder, the day before the statute of limitation would have barred plaintiff’s claim for personal injuries, she filed a suit naming Richway, Inc. as defendant. Id. After Richway, Inc. answered and moved for summary judgment on the ground that it did not own, operate, or . control the store in which plaintiff’s injuries occurred, plaintiff amended her complaint to substitute “Rich’s, Inc. d/b/a Richway, Inc.” as defendant. Id. at 890. This court concluded that Rich’s, Inc. was properly added to the action, because the requirements of former Code Ann. § 81A-115 were met. In particular, although Snyder states only that “Rich’s Inc., the correct defendant, had early notice of the pendency of the claim,” id. at 891, it is clear that Rich’s, Inc. also had notice of the pendency of the action against it, because the secretary of both corporations was served with the complaint. Id. at 891-892. Moreover, evidence was presented that Richway, Inc. and Rich’s, Inc. were closely related, as Rich’s, Inc. was the sole stockholder of Richway, Inc., and Rich’s, Inc. “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it.” (Pune-tuation omitted.) Id. at 892.

Similarly, in Ford, supra, plaintiff named the wrong defendant, Olympia Skate Center, before the expiration of the statute of limitation and served the personal secretary of its president. Id. at 600. Plaintiff later sought to amend to substitute or add the correct defendant, Olympia Services, Inc. Id. at 601. We concluded that the trial court should have permitted the substitution of the correct defendant on the ground that plaintiff complied with the requirements of OCGA § 9-11-15 (c). With regard to whether Olympia Services had notice of the pendency of the action, evidence was presented that the “original complaint was served on the personal secretary of the man who served as president of both Olympia Skate Center, Inc. and Olympia Services, Inc.” and later on the president himself. Id. at 601 (1). Also, we found that the two entities were “closely intertwined,” as they shared “the same president, stockholder(s), bookkeeper, and accountant.” Id. at 602.

Here, unlike Snyder and Ford, the undisputed evidence shows that Realty Management did not have notice of the pendency of the action against it within the two-year statute of limitation for filing a complaint for personal injuries and that Realty Management, the correct defendant, was not related to Lane Company, Inc. Although in Ford we stated that our policy is “to interpret the Civil Practice Act liberally rather than restrictively, [cits.],” id. at 602 (1), we did not dispense with the requirement that a defendant sought to be added under OCGA § 9-11-15 (c) must have had sufficient notice of the pendency of the action. Realty Management was not given notice of the action within the time “provided by law for commencing the action against [it],” OCGA § 9-11-15 (c), and the trial court did not err in granting its motion for summary judgment.

3. In Case No. A99A0322, Khawaja contends that the trial court erroneously granted summary judgment to Summercourt Properties.

After the trial court granted Realty Management’s motion for summary judgment, Summercourt Properties moved for summary judgment, expressly adopting the motion of Realty Management. The trial court granted summary judgment for the same reasons it entered judgment in favor of Realty Management: Khawaja’s failure to show that all requirements of OCGA § 9-11-15 had been met. We agree with the trial court’s conclusion. Khawaja based his motion to add Summercourt Properties on his theory “that Defendant Lane Company, Inc., either a subsidiary of or a company hired by Sum-mercourt Properties, LP to manage subject property, is already a named Defendant. Therefore, Summercourt Properties, LP already has knowledge of the lawsuit.” But as discussed above, Lane Company, Inc. was not related to the correct defendant, Realty Management, and Realty Management did not receive notice of the institution of the action against it until after expiration of the statute of limitation. Notice to Lane Company, Inc. of the pendency of the lawsuit was not notice to Summercourt Properties, and the trial court did not err in granting this defendant’s motion for summary judgment.

Judgments affirmed.

Pope, P. J, and Eldridge, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Khawaja argues that the purported statement of Lane Company’s receptionist that she was able to accept service was not hearsay but instead was an admission. We do not agree. It is true that “[a]dmissions by an agent . . . , during the existence and in pursuance of his agency, shall be admissible against the principal.” OCGA § 24-3-33. But before the statements of a purported agent may be admitted, “some proof of agency must be submitted. [Cit.]” Butler v. Bolton Road Partners, 222 Ga. App. 791, 794 (476 SE2d 265) (1996). Here, Khawaja has failed to submit proof that the receptionist was an agent authorized to accept service. For an employee to be authorized to accept service on a corporation’s behalf, the employee’s position must

be such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him. It is not necessary that the employee in question be an officer or that he be authorized to enter into contracts on behalf of the corporation. However, if the employee is not an officer or has not been expressly designated by the corporation to receive service, it is necessary that he or she occupy some position of managerial or supervisory responsibility within the organization.

(Citations and punctuation omitted; emphasis supplied.) Whatley’s Interiors v. Anderson, 176 Ga. App. 406, 407 (336 SE2d 326) (1985). Khawaja failed to show or point to any evidence showing that the receptionist occupied any managerial or supervisory responsibility within Realty Management. In fact, the undisputed affidavit testimony of Realty Management’s president showed that the receptionist simply received and signed for mail and packages, was not an officer or director, and was not authorized to accept service on behalf of Realty Management. Because no evidence of agency was presented, the receptionist’s alleged statements to the process server were not admissions. They were simply hearsay and had no probative value.

Decided May 18, 1999

Reconsideration denied July 14, 1999

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., Deborah M. Carter, P. Kent Eichelzer III, for appellant.

Barksdale & Associates, Carol L. Wilkerson, for appellees.

Khawaja also argues that Tanner’s Rome, Inc. v. Ingram, 236 Ga. App. 275 (511 SE2d 617) (1999) controls the issue of whether the action in this case is barred by the failure to comply with the requirements of OCGA § 9-11-15 (c). We do not agree. In that case, an incorrectly named defendant was served a few weeks after the expiration of the two-year statute of limitation, and we affirmed the trial court’s denial of the defendant’s motion for summary judgment. The defendant originally named and served in the lawsuit was a sister corporation of the correct defendant, Tanner’s Rome, and shared the same registered agent. Id. at 275. Tanner’s Rome was substituted by consent order. Id. at 276. Because the two corporations were closely related, we concluded that valid service on the improperly named defendant, even after expiration of the statute of limitation, “was timely notice of the action, and the requirements of OCGA § 9-11-15 (c) were met.” Id. We distinguished Tanner’s Rome from Harrison v. Golden, 219 Ga. App. 772 (466 SE2d 890) (1996), “because in that case the substituted defendant and the existing defendant were unrelated.” Tanner’s Rome, supra at 276.

Khawaja appears to argue that because an incorrect defendant was named after the statute of limitation expired, and because summary judgment was properly denied to the correct defendant, summary judgment should also be denied here. But this argument ignores the basis for our decision in Tanner’s Rome: the fact that the incorrectly named corporation and the correct corporation were related. We did not reach the issue of whether service was diligent so that late service related back to the date of filing. Id. at 276. Similarly, we do not reach that issue in this case. Here, as in Harrison, supra, and unlike Tanner’s Rome, Realty Management and Lane Company, Inc. were not related, and we therefore cannot conclude that the requirements of OCGA § 9-11-15 (c) were met.

       Although the trial court granted Khawaja’s motion to add Summercourt and never explicitly modified this order, in its subsequent order granting summary judgment to Sum-mercourt, the trial court stated, “Even though Summercourt Properties, L.P. was added as a party to this case, the requirements of [OCGA §] 9-11-15 must be met in order for service on them [sic] to relate back” and that Summercourt did not receive notice of the lawsuit within the statute of limitation. The court thus modified its earlier order.


author: McMurray, Presiding Judge. Ruffin, Judge,

text:
    A99A0695.
    MORRIS v. THE STATE.
    (520 SE2d 485)
   McMurray, Presiding Judge.

Defendant William R. Morris was tried before a jury and found guilty of a single count of violating the Georgia Controlled Substances Act by possessing cocaine. Viewed in the light most favorable to the verdict, the evidence adduced at trial revealed that, after a traffic stop and during a weapons pat-down of defendant’s person, defendant consented to a search of the contents of his shirt pocket. There, police found a match box containing three small plastic bags of cocaine. Defendant’s motion for new trial was denied, and this appeal followed. Held:

1. Defendant moved to suppress the cocaine found on his person, arguing that the police had no reasonable basis for stopping his vehicle, and that the search of the match box exceeded the justifiable scope of a weapons pat-down as authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). In two related enumerations, defendant assigns error to the denial of that motion.

Where the evidence is uncontradicted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to the undisputed facts is subject to de novo appellate review. State v. Hall, 229 Ga. App. 194-195 (1) (493 SE2d 718). At the suppression hearing, the only witnesses were Deputies Brad White and Chris Webster of the Lamar County Sheriff’s Office. Their uncontradicted testimony authorized the following facts:

On Friday, July 18, 1997, between 2:30 and 3:00 a.m., Deputies White and Webster were dispatched to The Hot Spot, a convenience store in Bamesville, Georgia, on Highway 341 North. The Hot Spot closes on Thursday evenings-Friday mornings “between the hours of two [a.m.] and 4 [a.m.].” The deputies were responding to a complaint from one of the cashiers that a man driving a black pickup truck was “outside beating on the [front] door trying to get in. She [the cashier] was scared, so she wanted a deputy to go check him out and see what the problem was.” It took the deputies four or five minutes to arrive from the jail. It was “totally dark.” All the “outside lights were off. It [the store] was clearly closed.” The deputies saw “a black truck leaving from the front of the store.” Specifically, as they approached, they saw the black truck “backing away from the door. It backed up and started past the gas pumps. By the time [the deputies] got in the parking lot and got behind it, it was towards the lower end of the parking lot,” but had not yet exited the lot. There were no other vehicles in sight. The deputies initiated a traffic stop, halting the truck while it was still in the convenience store parking lot. Other than the cashier’s complaint, the deputies had no independent basis for stopping this vehicle.

Deputy White spoke with the driver, defendant, while Deputy Webster spoke with the cashier. Defendant explained “he was trying to get bread.” While asking defendant for his license and proof of insurance, Deputy White “detected an odor of alcohol on [defendant’s] breath,” and detained defendant for “just a roadside evaluation [with] the Alcosensor.” When defendant exited the truck, Deputy White patted defendant down for weapons. Deputy Webster “patted [defendant’s] shirt pocket because [the officer] noticed it had a bulge in it.” Defendant said it was a pack of matches. When Deputy Webster inquired whether defendant minded if the deputy examined the matches, defendant said “no, go ahead.” Deputy Webster “handed it to Deputy White and continued to pat [defendant] down. Shortly after, Deputy White advised [Deputy Webster] to place [defendant] under arrest.” Inside the match box, Deputy Webster “found three clear, plastic bags containing a white powdery substance” that subsequently tested positive for cocaine.

(a) Even though defendant appears somewhat unsteady on his feet, the videotape of this traffic stop corroborates the consensual nature of the search yielding the cocaine sought to be suppressed.

“ ‘Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. (Cits.)’ Mallarino v. State, 190 Ga. App. 398, 403 (2) (379 SE2d 210) (1989). ‘ “A valid consent eliminates the need for either probable cause or a search warrant. (Cit.)” ’ Wright v. State, 189 Ga. App. 441, 444 (1) (375 SE2d 895) (1988).” Boggs v. State, 194 Ga. App. 264 (390 SE2d 423). If [Deputies White and Webster were] authorized to stop defendant’s vehicle and approach, the consent is not invalid.

McDaniel v. State, 227 Ga. App. 364, 365-366 (2) (489 SE2d 112) (whole court). Thus, defendant’s argument that the search of his match box exceeded the bounds of a Terry-type frisk for weapons simply is not germane to the lawfulness of that consensual search. Hunter v. State, 190 Ga. App. 52-53 (1) (378 SE2d 338).

(b) In our view, the articulated ground for stopping defendant’s vehicle in the parking lot was neither arbitrary nor harassing but was specific and reasonable under the totality of the circumstances.

A police officer is authorized to make a brief, but nevertheless forcible, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion that the person stopped has been, is, or is about to be engaged in criminal activity. United States v. Place, 462 U. S. 696, 702 (II) (103 SC 2637, 77 LE2d 110). What is demanded of the police officer, as the agent of the State, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. Brisbane v. State, 233 Ga. 339, 341 (211 SE2d 294).

In the case sub judice, the frightened cashier reported conduct arguably amounting to disorderly conduct in violation of OCGA § 16-11-39 (a). It is not necessary that reasonable cause for a stop and frisk be based only upon an officer’s personal observation, rather than information supplied by another person. Graves v. State, 138 Ga. App. 327, 328 (226 SE2d 131), citing Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612). A concerned citizen or victim of a crime is accorded a presumption of credibility. Sayers v. State, 226 Ga. App. 645, 646-647 (487 SE2d 437); Hinson v. State, 229 Ga. App. 840, 842 (1) (c) (494 SE2d 693), rev’d on other grounds, State v. Hin-son, 269 Ga. 862 (506 SE2d 870). When the police arrived at the closed convenience store minutes after the late-night complaint, they found only a black pickup as mentioned by the cashier, with no other vehicles in sight. Since

defendant’s [black pickup truck, the only vehicle in sight,] “roughly fit the description given [by the complaining citizen], this provided the basis for an articulable suspicion justifying the stop. Terry v. Ohio, 392 U. S. 1[, supra]; Brisbane v. State, 233 Ga. 339[, supra].” McGhee v. State, 253 Ga. 278, 279 (1) (319 SE2d 836).

McDaniel v. State, 227 Ga. App. at 366 (2), supra. Neither the Fourth Amendment nor Art. I, Sec. I, Par. XIII of the 1983 Georgia Constitution requires a policeman who lacks the precise level of information necessary for probable cause simply to shrug his shoulders and allow a crime to occur or a criminal suspect to escape. On the contrary, Terry, supra, recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be the most reasonable in light of the facts known to the officer at the time. Graves v. State, 138 Ga. App. at 328, supra. See also State v. Carter, 240 Ga. 518 (242 SE2d 28). That reasonable and brief, intermediary detention to establish identity and maintain the status quo is precisely what occurred in this instance. The trial court correctly denied defendant’s motion to suppress made on the ground that the traffic stop was unauthorized.

2. Proof that defendant carried a match box on his person containing cocaine was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of violating the Georgia Controlled Substances Act as alleged in the accusation. Reeves v. State, 194 Ga. App. 539, 540 (2) (391 SE2d 35).

3. The trial court granted the State’s motion in limine to show the jury only that portion of the videotape of defendant’s arrest that depicted the initial stop, search, and the discovery of cocaine. Defendant contends the court erroneously excluded the remainder of the tape, which depicted the search of a passenger and defendant’s booking at the jail. He does not, however, adequately explain the relevancy of these events to the issues to be tried.

As a general rule, the admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Hood v. State, 216 Ga. App. 106, 108 (4) (453 SE2d 128). In particular, questions of relevancy are generally matters within the trial court’s discretion, and it is not error to exclude evidence that is not related to an issue at trial. Sleeth v. State, 197 Ga. App. 349, 350 (3) (398 SE2d 298). In our view, the trial court did not abuse its broad discretion in excluding the remainder of the videotape as irrelevant.

4. Defendant next contends the trial court erred in limiting the scope of his cross-examination of Deputy White. Defense counsel questioned Deputy White during trial about the reasons for the investigative stop, attempting to impeach him with prior inconsistent statements about his reasons for stopping defendant’s truck. The court advised counsel that many of the questions posed, pertaining to the legality of the initial stop, were settled in the motion to suppress hearing and therefore were not relevant to the issues to be tried. After giving defendant some latitude to demonstrate the relevance of this line of questioning, the trial court instructed him to move on to another topic. Counsel made no exception to this ruling and turned to the chain of custody of the cocaine seized from defendant.

To preserve his right to complain about an abridgement of his right of cross-examination, Morris must pose questions he desires to ask “ ‘ “and then interpose timely objection to the ruling of the court denying the right to propound the questions. (Cits.)” . . . (Cits.)’ [Cit.]” (Emphasis supplied.) Bradford v. State, 182 Ga. App. 337, 338 (5) (355 SE2d 735) (1987). See Berry v. State, 163 Ga. App. 705, 710 (4) (294 SE2d 562) (1982). In this case, defendant made no objection when the court initially advised him to show the relevance of his line of questioning, nor did he object when the court later told him to move on to another subject. Since defendant failed to interpose a proper objection and because the “ ‘scope of cross-examination rests largely within the sound discretion of the judge, we find no merit in this enumeration.’” Bradford, supra. Further, contrary to defendant’s contention, we do not construe the court’s ruling on this matter to be a comment by the court on Deputy White’s credibility.

5. Defendant next contends the trial court erred in failing to give his requested charge on circumstantial evidence tracking the language of OCGA § 24-4-6. Instead, the charge as given includes the word “alone” following the words “circumstantial evidence.”

We note the Suggested Pattern Jury Instructions, Vol. II: Crim. Cases, Part 2, (J) (2), p. 11, does not include the term “alone” in explaining the law of circumstantial evidence. Nevertheless, the trial court need not track the exact language of OCGA § 24-4-6 in order to satisfy the requirement that the jury be instructed on the principle of the sufficiency of circumstantial evidence to warrant a conviction. Lowe v. State, 267 Ga. 180, 181 (3) (476 SE2d 583), applying Price v. State, 180 Ga. App. 215 (2) (348 SE2d 740). Defendant certainly has not shown how any circumstantial evidence points to a reasonable hypothesis that he innocently carried cocaine in a match box he knew was in his shirt pocket. See Sellers v. State, 36 Ga. App. 653 (137 SE 912); Reynolds v. State, 23 Ga. App. 369 (98 SE 246). We find no error in this instance.

6. Finally, defendant contends the trial court erred in charging the jury that “proof of the general good character of the witness may be shown and the effect of the evidence is to be determined by the jury.” He argues this was an unauthorized charge on the good character of the State’s witnesses. The complained-of language was given as part of the court’s charge on impeachment, which tracked the Suggested Pattern Jury Instructions, Vol. II: Crim. Cases, Part 2, (R), p. 27. An Instruction on impeachment must be read in conjunction with the entire charge “and provides no cause for reversal if the court’s instruction in its entirety makes it plain that the jury is the sole judge of witness credibility.” Berry v. State, 267 Ga. 476, 480 (4) (c) (480 SE2d 32). In the case sub judice, the court’s charge plainly stated that matters of witness credibility were exclusively within the jury’s province. Because the charge, taken as a whole, was unlikely to mislead a jury of ordinary intelligence, we find no error. Id. See also Green v. State, 177 Ga. App. 577, 579 (4) (340 SE2d 234).

Judgment affirmed.

Johnson, C. J., Pope, P. J., Andrews, P. J., and Eldridge, J, concur. Smith, J., concurs in the judgment only. Ruffin, J., dissents.

Ruffin, Judge,

dissenting.

I respectfully dissent from the majority opinion because I do not believe, as the majority finds, that the police officers had reasonable suspicion that Morris either was engaged or was about to be engaged in criminal conduct.

It is well settled that an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal conduct. See Barnes v. State, 228 Ga. App. 44, 45 (491 SE2d 116) (1997); State v. Goodman, 220 Ga. App. 169, 172 (2) (469 SE2d 327) (1996); Oboh v. State, 217 Ga. App. 553, 555 (458 SE2d 177) (1995). Here, the only basis the officers provided for their decision to stop Morris is that they believed Morris was the individual who had been “beating on the door” of the convenience store, trying to gain entry after the store had closed. The convenience store closed from 2:00 a.m. until 4:00 a.m. When asked his reason for trying to get into the store, Morris explained that he wished to purchase bread. This explanation is entirely plausible, and I am confident that many law abiding citizens have attempted to convince a cashier to let them into a store after hours to make a purchase.

Of course, Morris could have broken the law in his attempt to gain entry into the store. However, there is no indication that he damaged store property while pounding on the door. Although the police officers testified that the store clerk said that she was afraid, the clerk did not testify either at the suppression hearing or at trial. Thus, there is no evidence that she asked Morris to leave. Also, there is no evidence suggesting that Morris threatened the clerk to convince her to open the door. Here, the only activity Morris engaged in was banging on the door of the store. Unquestionably, this does not constitute a crime. We cannot assume criminality based on conduct which may reflect what someone thought was a crime — whether the officers or the store clerk — but which is, in fact, not a crime, without more. We cannot assume criminality based upon such innocuous conduct. See Johnson v. State, 231 Ga. App. 273 (498 SE2d 359) (1998) (physical precedent only) (no suggestion that defendant’s conduct in knocking on doors to solicit a ride was illegal). Regardless of whether either the officers or the store clerk thought Morris’ actions were criminal, absent objective evidence of criminal conduct, the officers lacked reasonable suspicion to detain Morris. Rogers v. State, 206 Ga. App. 654, 659 (3) (426 SE2d 209) (1992) (a reasonable suspicion of criminal conduct must be based on more than a subjective suspicion).

Moreover, there was no evidence suggesting that Morris was about to commit a crime as he was leaving the premises. The State presented no evidence that Morris committed any traffic violations while attempting to leave. To the contrary, one of the arresting officers acknowledged that there was nothing unusual about either Morris’ truck or the manner in which the truck was being driven. Under these circumstances, where there is no evidence of criminal conduct of any kind, I do not believe the police were justified in stopping Morris. See State v. Goodman, supra (officer did not have reasonable suspicion of criminal conduct where defendant made a legal U-turn); State v. Canidate, 220 Ga. App. 276, 277 (469 SE2d 710) (1996) (officer not justified in investigating defendant after seeing him drive away from a house that had previously been raided only to pull quickly into a parking lot).

Decided July 1, 1999

Reconsideration denied July 14, 1999

Virgil L. Brown & Associates, Virgil L. Brown, Russell B. Mabrey, Jr., Eric D. Hearn, Bentley C. Adams III, Larkin M. Lee, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Accordingly, contrary to the majority conclusion, I do not believe the officers’ stop of Morris was based on an articulable suspicion. Because the stop was improper, I believe that Morris’ consent to search the match box the officers found in his pocket was tainted and, thus, the trial court should have suppressed evidence of the cocaine contained therein. See Tarwid v. State, 184 Ga. App. 853, 856 (1) (363 SE2d 63) (1987); Bowers v. State, 221 Ga. App. 886, 888 (473 SE2d 201) (1996) (physical precedent only).

       The majority asserts that Morris’ “conduct arguably [amounted] to disorderly conduct in violation of OCGA § 16-11-39.” I disagree. There is no evidence that Morris’ actions were directed toward another person, that he used “opprobrious or abusive words,” or that he used vulgar or profane language.