text:
    A93A0094.
    GOODWIN v. THE STATE.
    (431 SE2d 473)
   Blackburn, Judge.

The defendant, Lincoln Goodwin, was indicted for one count of aggravated assault, one count of kidnapping and one count of burglary. Following a trial by jury, he was convicted of aggravated assault with the intent to rape, false imprisonment, and criminal trespass, and sentenced to 15 years’ imprisonment to serve 10 on the aggravated assault charge, 10 years to serve concurrently on the false imprisonment charge, and 12 months to serve concurrently on the criminal trespass charge. His motion for new trial was overruled by the trial court, and this appeal followed.

1. In his first two enumerations of error, the defendant contends that the trial court erred by not allowing him an opportunity to thoroughly cross-examine the victim regarding her prior cocaine use in order to impeach her testimony. As a result of the limitations placed upon his cross-examination of the victim, the defendant contends that the trial court violated his right to present a defense. We disagree.

The state moved in limine to “[prohibit the defendant and defendant’s attorney from asking any questions regarding the victim’s (Carolyn Jefferson) alleged use of illegal drugs or purchase of illegal drugs including cocaine or crack prior to or after the incident for which the defendant is on trial in the instant case.” The state further moved to “[prohibit the defendant, defense attorney and all witnesses from making any statements, inferences or gestures regarding Carolyn Jefferson’s alleged use of illegal drugs or purchase of illegal drugs including cocaine or crack prior to or after the incident for which the defendant is on trial in the instant case.” In granting the state’s motion in limine, the trial court concluded that the victim’s past cocaine use was irrelevant, and, therefore, prohibited the defendant and his counsel’s discussion of the victim’s past use of illegal drugs. However, the defendant and his counsel were allowed to discuss any arrangement that the victim had made with the defendant in exchange for sex and question the victim as to her use of drugs on the night in question.

“The general character of a victim and his or her conduct in other transactions are irrelevant unless the nature of the matter at issue is such as to make character and previous conduct relevant. See OCGA § 24-2-2. Whether the victim was addicted to cocaine is irrelevant to the issue of whether defendant assaulted the victim and held her against her will. Furthermore, the trial court’s allowance of evidence as to the victim’s use of cocaine during the incident gave the defendant sufficient opportunity to establish his version of the facts.” Harris v. State, 196 Ga. App. 304, 306 (3) (396 SE2d 288) (1990). Accordingly, the trial court did not err in prohibiting any discussion of the victim’s prior drug use.

2. The defendant further contends that the trial court erred when it prohibited the impeachment of the victim by the use of a business record. In an offer of proof, defense counsel stated in her place that the director of the clinical laboratory at Grady would testify that the urine sample received from the victim shortly after the incident in question tested positive for cocaine. The director would further testify that urine samples are taken in the regular course of business and routinely done on pregnant women such as the victim. However, the director would not have been able to establish a chain of custody because the director did not have any personal knowledge of the person that received the sample from the victim or the person that analyzed the sample. The trial judge excluded the testimony of the director as well as the hospital report, based upon the defect in the chain of custody and the lack of relevance of the victim’s cocaine use to the offenses charged to- the defendant. The defendant contends that credibility was a factor, and if admitted, the jury could have inferred from the document that the victim was the initial aggressor.

Under OCGA § 24-3-14 (b), “[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event . . . [if] it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” Subsection (c) of the same Code section specifically provides that “[a] 11 other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight; but they shall not affect its admissibility.” In Smith v. City of East Point, 189 Ga. App. 454, 456 (376 SE2d 215) (1988), this Court upheld the admission of the results of a urinalysis although the person who conducted the test did not testify. The Smith court concluded that “[i]t was not necessary to offer the testimony of the person who conducted the tests in order to lay a foundation for admitting the results,” and “[a]ny doubt about the identity or purity of the sample went to its weight, not its admissibility.” Id.

Pretermitting the issue of whether the admission of the hospital record would have violated the trial court’s ruling on the state’s motion in limine and prohibition against the discussion of the victim’s prior drug use, the results were admissible for impeachment purposes, and the trial court erred in excluding the hospital record. However, we conclude that any error committed by the trial court in excluding the record was harmless as other evidence of an impeaching nature, such as the victim’s prior convictions for theft by taking and shoplifting, was admitted and considered by the jury. “ ‘In order for an alleged error to be grounds for reversal, appellant must show not only error, but also ensuing harm. (Cit.)’ [Cit.]” Frost v. State, 200 Ga. App. 267, 271 (4) (407 SE2d 765) (1991). The cumulative nature of the hospital record for impeachment purposes renders any error in its exclusion harmless. Miller v. State, 260 Ga. 191, 194 (5) (391 SE2d 642) (1990). In fact, the jury, in considering the victim and the defendant’s version of the facts, convicted the defendant on the lesser included offenses of false imprisonment and criminal trespass. As for the defendant’s conviction on the charge of aggravated assault, the overwhelming evidence, including the testimony of the 200-pound defendant that he slapped the 100-pound victim twice in self-defense after he had questioned her about sex, the testimony of the victim, several police officers, and neighbors of the victim, which corroborated the victim’s testimony that she was struck by the defendant, overwhelmingly shows that the defendant was guilty of aggravated assault. Further, the victim’s testimony that the defendant attempted to unfasten her pants was corroborated by the observations of Officer Harrelson that the victim was found with the top button and zipper of her pants undone. ‘“[Overwhelming evidence of the defendant’s guilt can negate the possibility that the . . . error contributed to the conviction. (Cit.)’ [Cit.]” Greer v. State, 201 Ga. App. 775, 776 (2) (412 SE2d 843) (1991). Consequently, this enumeration is without merit.

Decided May 25, 1993.

Anna Blitz, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Carla Young, Assistant District Attorneys, for appellee.

3. Lastly, the defendant asserts that the trial court erred when it failed to charge the jury on the lesser included offense of battery. However, contrary to the contentions of the defendant, the trial court, as requested by the defendant, specifically charged the jury that “if you do not find the defendant guilty of aggravated assault with the intent to rape, you should go further and investigate another charge which is lesser included offense in count 1, and it’s simple battery, and I charge you as follows: I charge you that a person commits the offense of simple battery when that person either, one, intentionally makes physical contact of an insulting and provoking nature with the person of another or, two, intentionally causes physical harm to another.” Consequently, this enumeration is also without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A0117.
    PRADA v. ADMINISTRATOR, SMALL BUSINESS ADMINISTRATION.
    (432 SE2d 274)
    Decided May 25, 1993.
    Humberto 0. Prada, pro se.

      Lawson & Davis, James H. Baskin, for appellee.
   Blackburn, Judge.

This is an appeal from a dispossessory action in which a Writ of Possession was ordered on behalf of appellee, Administrator, Small Business Administration (SBA), against appellant, Humberto Prada. The SBA obtained a dispossessory warrant on June 29, 1992, and a trial was held, without a jury, on July 22, 1992 in the State Court of DeKalb County. Prada, appealing pro se, asserts several enumerations of error all raising general grounds. “However, no transcript of the proceeding is present in the record before us. ‘Where no transcript of evidence is filed all grounds requiring a consideration of evidence must be affirmed. [Cit.]’ [Cit.]” Southerland v. Oxford Group, 162 Ga. App. 213 (290 SE2d 556) (1982). See also P. H. L. Dev. Corp. v. Smith, 174 Ga. App. 328 (329 SE2d 545) (1985).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0120.
    BLANKENSHIP v. THE STATE.
    (431 SE2d 481)
   Blackburn, Judge.

On June 6, 1991, following his investigation of an automobile collision that'occurred the day before, a DeKalb County police officer issued to the appellant uniform traffic citations for following too closely and for leaving the scene of an accident. The police officer did not witness the collision, did not sign the arresting officer’s certification on the citations, and did not take the appellant into custody. The case was subsequently bound over from the Recorder’s Court of DeKalb County to the State Court of DeKalb County.

On October 23, 1991, a formal accusation was filed, charging the appellant with following too closely in violation of OCGA § 40-6-49, and leaving the scene of an accident in violation of OCGA § 40-6-270. The appellant agreed to a bench trial, which was conducted on January 29, 1992, and resulted in convictions on both charges. At the close of the state’s case, the appellant moved to dismiss the charges based upon the insufficiency of the accusation. This appeal concerns the denial of that motion.

Decided May 25, 1993.

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

Ralph T. Bowden, Jr., Solicitor, Bradley R. Malkin, Andrew W. Lohn, W. Cliff Howard, Assistant Solicitors, for appellee.

The appellant’s sole contention on appeal is that the October 1991 accusation was invalid because it was not supported by an affidavit, as required under Bickley v. State, 243 Ga. 488 (255 SE2d 31) (1979) and Martin v. State, 139 Ga. App. 8 (228 SE2d 15) (1976). However, “[b]oth of these cases were decided before the enactment of OCGA § 17-7-71 in 1980. In Shults v. State, 195 Ga. App. 525 (394 SE2d 573) (1990), this court noted: ‘Since 1980 an accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.’ ” State v. Scoggins, 196 Ga. App. 781, 782 (397 SE2d 50) (1990).

In the instant case, as in Scoggins, the appellant was not arrested for the charged offenses, and the accusation was not intended or used as the basis for the issuance of a warrant for the appellant’s arrest. Accordingly, no affidavit supporting the accusation filed against the appellant was required under OCGA § 17-7-71 (a), and the trial court properly denied the appellant’s motion to dismiss.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A93A0122.
    SEAVERS v. THE STATE.
    (431 SE2d 717)
   McMurray, Presiding Judge.

Defendant was charged, via indictment, with peeping Tom and terroristic threats and acts. The evidence adduced at a jury trial reveals the following: At about 2:00 in the morning on September 14, 1990, defendant drove by the home of his former girl friend and observed the victim’s pickup truck in the driveway. Driven by wounded feelings and rage, defendant went to his former girl friend’s bedroom window and broke two window panes. Glass fell on the bed where defendant’s former girl friend and the victim were sleeping and the couple awoke and heard defendant shout, “ ‘I’m going to kill you, you Son of a B_t_h.’ ” (Defendant’s former girl friend was injured and she later required emergency hospitalization.) Defendant fled and was later apprehended by law enforcement officers. While in police custody, defendant stated, “ T should have just gone ahead and took [the victim’s] head off.’ ”

Defendant was found not guilty of peeping Tom and guilty of terroristic threats and acts. This appeal followed the denial of his motion for new trial. Held:

1. Defendant contends there was insufficient evidence to satisfy the corroboration requirement of the terroristic threats statute, OCGA § 16-11-37 (a). This contention is not supported by the record.

Defendant’s former girl friend testified that she was awakened during the early morning of September 14, 1990, by “[a] loud crash and [defendant] screaming, T’m going to kill you, you Son of a B_t_h.’ ” This evidence and defendant’s admission that he broke his former girl friend’s bedroom window sufficiently corroborated the victim’s testimony that he heard defendant uttér a terroristic threat after being awakened by thé sound of breaking glass. See Boone v. State, 155 Ga. App. 937 (1) (274 SE2d 49). See also Ellis v. State, 176 Ga. App. 384, 386 (3) (336 SE2d 281). The evidence adduced at trial is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of committing terroristic threats and acts. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant contends the trial court erred in limiting cross-examination of his former girl friend, arguing that evidence of the couple’s relationship and of an alleged abortion was relevant to challenge the veracity of the witness’ testimony that defendant committed a terroristic threat and act.

“It [is] competent to show that a witness for the State entertained feelings of ill will towards the defendant. Civil Code, § 5289 [OCGA § 24-9-68].” McDuffie v. State, 121 Ga. 580, 584 (7) (49 SE 708). However, an investigation of the basis for such feelings of hostility is inadmissible absent a showing that the witness did not harbor ill feelings toward the defendant. McDuffie v. State, 121 Ga. 580, 584 (7), supra. In the case sub judice, defense counsel never asked defendant’s former girl friend whether she harbored ill feelings toward defendant, thereby failing to establish proper foundation for introduction of particular incidents which may have stirred vengeance in the heart of defendant’s former girl friend. The trial court therefore did not err in so limiting cross-examination of the State’s witness. See Borders v. State, 114 Ga. App. 90, 91 (3) (150 SE2d 306).

3. Defendant contends the trial court erred in denying him opening and concluding arguments to the jury, arguing that he introduced no evidence other than his own testimony. OCGA § 17-8-71.

“ ‘Which party is entitled to open and close is oftentimes unclear, based on whether or not any admissible testimony or documentary evidence has been introduced by the accused. It is beyond question in this state that where an accused offers no testimony or evidence into the trial of a case, other than his own testimony, he has the right to the opening and closing arguments.’ Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698).” Warnock v. State, 195 Ga. App. 537, 539 (2) (394 SE2d 382). In the case sub judice, defense counsel marked a photograph of the alleged crime scene for identification. Defendant identified the photograph, exited the witness stand, displayed the photograph to the jury and highlighted representations in the photograph via direct testimony. However, the photograph was never offered or admitted into evidence, and as a consequence, defendant now argues that he did not forfeit his right to opening and closing arguments by providing evidence outside his own testimony.

In Park v. State, 224 Ga. 467, 477 (4) (162 SE2d 359), the Supreme Court of Georgia held that defendant did not forfeit his right to opening and closing arguments by identifying certain documents that were not admitted into evidence or exhibited to the jury. The case sub judice is distinguishable because defendant displayed the photograph of the alleged crime scene to the jury and gave direct testimony regarding representations in the photograph. The jury therefore considered the photograph as any other item of evidence. Consequently, defendant forfeited his right to opening and closing arguments by introducing evidence outside his own testimony. However, assuming the contrary, in view of the overwhelming evidence of defendant’s guilt, “we find it highly probable that any error in this regard did not contribute to the verdict. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).” Baty v. State, 257 Ga. 371, 373 (2) (359 SE2d 655).

4. In his final enumeration, defendant contends “[t]he trial court violated [his] due process rights by refusing to grant a new trial on the basis of a witness’ partial recanting of his trial testimony.” This contention is not supported by the record.

At the motion for new trial hearing, the victim did not recant his trial testimony. He testified that “he was not certain of the exact [threat defendant uttered on the night of the crime] word for word, but there was a threat, and I remember the words — the key words.” The victim then explained that his trial testimony was substantially accurate and that “to the best of my knowledge, [defendant] said, ‘I’m going to kill you, you Son of a B_t_h.’ ”

Judgment affirmed.

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

Decided May 25, 1993.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, for appellee.


text:
    A93A0269.
    HILL v. THE STATE.
    (431 SE2d 471)
   Blackburn, Judge.

Appellant Hill entered a conditional guilty plea pursuant to Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991) on charges of driving under the influence of alcohol and driving with a blood alcohol concentration of .10 percent or more after the trial court failed to grant his motion to suppress the evidence. Hill appeals the trial court’s denial of his motion.

On January 5, 1992, Hill was involved in a single-vehicle accident in which the automobile he was driving collided with a tree. Officer Cochran of the Athens-Clarke County police department arrived at the scene of the accident and observed that Hill’s Ford pickup truck had hit a tree and that Hill was trapped between the driver’s door and the dash of the vehicle. Officer Cochran testified that he initially believed Hill to be dead; however, upon closer examination he heard Hill moaning. Hill did not move or talk prior to his transportation by ambulance to the hospital. Upon his arrival at the hospital, Officer Cochran approached an emergency room nurse and asked about Hill’s status. The nurse advised him that Hill was “alive, but out of it.” Officer Cochran requested that the nurse obtain blood and urine samples from Hill. Thereafter, Officer Cochran observed Hill in the trauma area of the emergency room being administered to by six to eight hospital personnel. Oxygen was being administered to Hill and a suction tube was placed down his throat. Hill testified that he did not remember losing consciousness and that he was able to discuss his injuries with the doctor attending him in the emergency room.

Officer Cochran did not ask Hill for his consent for a chemical analysis of his bodily fluids, nor did Officer Cochran advise Hill of his implied consent rights as required by OCGA § 40-6-392.

On appeal, Hill’s sole enumeration of error is that the trial court erred in finding that Hill was in a condition which rendered him incapable of refusing the chemical test of a bodily fluid, within the meaning of OCGA § 40-5-55 (b), thereby allowing the test without his consent.

In order for the chemical analysis “to be considered valid [it] shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.” OCGA § 40-6-392 (a) (1). Further, the person being tested is entitled to have a qualified person of his own choice administer an additional chemical test and must be advised by the arresting officer at the time of his arrest of his right to do so, or may refuse to permit any test to be made. OCGA § 40-6-391 (a) (3), (4), and (c). “Under ordinary circumstances, where this advice is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs.” Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983). However, “[i]f a suspect is ‘dead, unconscious, or otherwise incapable of refusing the test . . . the officer lawfully can extract a blood specimen under the aegis of protection of evidence’ without advising the suspect of his rights concerning intoxicant tests. [Cits.]” Rogers v. State, 163 Ga. App. 641, 643 (295 SE2d 140) (1982). See also OCGA § 40-5-55 (b).

In the case sub judice, the narrow issue raised turns on the question of whether Hill was unconscious or otherwise incapable of refusing the test at the time it was administered. The trial court specifically found that Hill was incapable of a meaningful understanding of his implied consent rights when the test was administered. “In ruling on a motion to suppress evidence, the trial judge sits as the trier of fact and his findings should not be disturbed by this court if they are supported by any evidence. [Cit.]” Rogers, supra at 643. The record contains sufficient evidence to support the trial court’s findings.

Hill complains that Officer Cochran relied on the emergency room nurse’s assessment of his condition; however, in Smith v. State, 143 Ga. App. 347 (238 SE2d 698) (1977), we upheld a similar case where the officer relied upon the nurse’s assessment that the defendant was “semi-conscious and not communicating with persons present.” Id. While the nurse’s description in Smith was more specifically worded, we find that Officer Cochran’s reliance on the nurse’s statement that Hill was “out of it” was reasonable under the circumstances. Officer Cochran’s observation of six to eight medical personnel working around Hill, administering oxygen and a suction tube, combined with his first impression that Hill was dead and the nurse’s opinion that Hill was “out of it” presented sufficient facts which authorized the trial court’s denial of Hill’s motion to suppress.

Judgment affirmed.

Johnson and Smith, JJ., concur.

Decided May 25, 1993.

Christopher P. Brooks, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.


text:
    A93A0283.
    WILLIAMS v. THE STATE.
    (431 SE2d 469)
   Blackburn, Judge.

The defendant, Carl E. Williams, was indicted for the February 15, 1979 armed robbery of a jewelry store, convicted by a jury of the offense in November 1979, and subsequently sentenced to life in prison. On December 9, 1991, 12 years after his conviction and imposition of sentence, the defendant petitioned the Superior Court of Irwin County, the county in which the robbery occurred, to set aside his life sentence. Based upon a review of the record of the 1979 proceedings, the trial court concluded that the defendant was properly sentenced to life in prison and concluded that the sentencing court properly considered the defendant’s prior conviction for robbery from the State of Florida as evidence in aggravation of the punishment. This appeal followed.

1. In his first and third enumerations of error, the defendant contends that the sentencing judge erred in imposing a life sentence. The defendant also asserts in his seventh enumeration of error that the lower court erred in upholding the life sentence imposed by the sentencing judge. Although a superior court judge can modify a void sentence at any time, Gonzalez v. State, 201 Ga. App. 437, 438 (411 SE2d 345) (1991), “OCGA § 17-10-1 authorizes the trial court to sentence a defendant to any amount of time within limits provided by law. ‘The [sentence] in this case [was] within the statutory limits [OCGA § 16-8-41 (b)], and any complaints regarding the [sentence] should have been addressed to the appropriate sentence review panel. (Cit.)’ [Cit.]” Browner v. State, 206 Ga. App. 676 (426 SE2d 673) (1992). Accordingly, this enumeration is without merit.

2. In his second enumeration of error, the defendant contends that the sentencing judge erred in sentencing him under a recidivist statute when he was never indicted under a recidivist statute. We disagree.

At the sentencing hearing held after the jury published its guilty verdict, the trial court admitted evidence in aggravation of the punishment pursuant to OCGA § 17-10-2. More specifically, the trial court admitted without objection, a certified copy of a 1973 robbery conviction against the defendant from the State of Florida, for which he was sentenced to 40 years in the state penitentiary. Although the trial court imposed a higher degree of punishment for the offense, the trial court did not impose the maximum punishment, which would have been mandated if the defendant was indicted as a recidivist. See OCGA § 17-10-7 (b). “Appellant’s prior felony [conviction was] not used against him during sentencing for legislatively-imposed recidivist punishment. That is, the Court did not fix the term on the basis that it was required to do so as a matter of public policy under OCGA § 17-10-7.” Jefferson v. State, 205 Ga. App. 687, 688 (423 SE2d 425) (1992). “Instead, the trial court imposed [the] punishment . . . based on an exercise of its judicial discretion as applied to the facts of the case and the aggravating factor of defendant’s history of crime.” Id. In imposing the sentence, the trial considered armed robbery “to be a most serious crime, taking into consideration the fact that [the defendant was] . . . apparently on parole, having been convicted and having been sentenced in Florida earlier to a sentence of forty years for this offense-, and apparently time did not have sufficient effect on [him] to cause [him] to change [his] ways, which apparently got [him] into trouble in Duval County, Florida, initially.” The legislature’s determination that repeat offenders should be punished more severely when they are indicted as such “does not deprive the judicial branch of the discretion to impose the same degree of punishment because of a background which includes criminal behavior.” Id. Accordingly, the trial court did not err in imposing an elevated sentence which was within the minimum and maximum prescribed by law.

3. In his fourth enumeration of error, the defendant contends that the sentencing judge erred in considering the Florida offense when there was no proof of the Florida offense introduced during his sentencing hearing. The defendant also contends that the trial court erred in concluding that the Florida offense was properly considered in the sentencing phase of the trial. However, at trial, counsel for the defendant did not object to the admission of the prior coviction. “ ‘(E) numerations of error which raise questions for the first time on appeal present nothing for decision.’ (Punctuation and citations omitted.) [Cit.]” Meriwether v. State, 204 Ga. App. 113, 115 (3) (418 SE2d 451) (1992). Consequently, this enumeration is without merit.

4. Lastly, the defendant contends that the lower court erred in denying him an evidentiary hearing on his “Motion for Modification of Nullity and Void Sentence.” However, the defendant has not presented any authority in support of such a post-conviction remedy. Compare OCGA § 17-10-6 (c), which limits the sentencing panel’s review to the written arguments of the defendant and the district attorney. Inasmuch as the defendant has “provided neither argument nor citation of authority as to [this] enumeration . . . [this] enumeration is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2).” Kosal v. State, 204 Ga. App. 708, 713 (5) (420 SE2d 621) (1992).

Decided May 25, 1993.

H. B. Edwards III, for appellant.

Carl E. Williams, pro se.

David E. Perry, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Johnson, Judge.

text:
    A93A0327.
    HORNE et al. v. CARE MORE, INC.
    (431 SE2d 480)
   Johnson, Judge.

Tommy Horne slipped and fell while on the premises of Care More, Inc. d/b/a Macon Health Care Center. Tommy and Mary Horne filed a complaint against Care More for injuries allegedly caused by the fall. The jury returned a verdict in favor of Care More. The trial court made the verdict the judgment of the court. The Hornes appeal.

1. The Hornes contend that the court erred in charging the jury on the defense of accident. “The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error.” (Citations, punctuation and emphasis omitted.) Whisanant v. Northeast Ga. Med. Center, 202 Ga. App. 526, 527 (414 SE2d 739) (1992). Although there was evidence that Horne’s fall might have been the result of Care More’s negligence, the jury also could have concluded that the fall was not proximately caused by the negligence of any party. The jury could have found from the evidence that Horne slipped in a puddle of urine, which had only been on the floor a few minutes and about which Care More had no knowledge prior to Horne’s fall. The jury was authorized to conclude that the urine on the floor was an unforeseeable occurrence. “Where the jury is authorized under the alternatives submitted by the evidence to find that the [fall] was not proximately caused by negligence but could have resulted from an unforeseen or unexplained cause, there is ample reason to give a charge on the law of accident.” (Citations and punctuation omitted.) Adams v. Finlayson, 199 Ga. App. 821, 822 (1) (406 SE2d 227) (1991); see also Greene v. Wright, 200 Ga. App. 125, 126 (1) (407 SE2d 68) (1991). The court did not err in charging the jury on accident.

Decidied May 25, 1993.

J. O’Quinn Lindsey, for appellants.

Tittsworth & Grabbe, John C. Grabbe IV, for appellee.

2. The Hornes enumerate that the court erred in failing to give their requested charge on distraction. Because the request is not contained in the record, we cannot address the merits of this enumeration. Jones v. Livingston, 203 Ga. App. 99, 102 (3) (416 SE2d 142) (1992).

Judgment affirmed.

Blackburn and Smith, JJ., concur.

       The Supreme Court’s holding in Tolbert v. Duckworth, 262 Ga. 622 (423 SE2d 229) (1992), that the jury charge on accident should not be given in civil cases after January 21, 1993, is inapplicable to the instant case, which was tried from January 13-15, 1992.


text:
    A93A0386.
    HUBBARD v. THE STATE.
    (431 SE2d 479)
    Decided May 25, 1993.
   Blackburn, Judge.

The defendant, Donald Robert Hubbard, was convicted by a jury of one count of aggravated child molestation and one count of child molestion on October 2, 1990, and the judgment was entered on the verdict on October 9, 1990. The defendant subsequently moved for a new trial on November 2, 1990, asserting that the verdict of guilty was contrary to the evidence produced at the trial and the motion was overruled by the trial court on October 10, 1991. The defendant filed this notice of appeal on October 22, 1992, over a year after the trial court’s decision on his motion for new trial.

“[A] notice [of appeal] shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” OCGA § 5-6-38 (a). “ ‘ “The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” [Cit.] (Emphasis supplied.)’ [Cit.]” Sharpe v. State, 198 Ga. App. 381, 382 (401 SE2d 586) (1991). Inasmuch as the defendant did not file his notice of appeal within the 30-day time period as provided in OCGA § 5-6-38 (a), this appeal must be dismissed for lack of jurisdiction.

Appeal dismissed.

Johnson and Smith, JJ., concur.

Diane M. Locklear, for appellant.

George C. Turner, Jr., District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.


text:
    A93A0507.
    CURTIS v. THE STATE.
    (431 SE2d 719)
   Blackburn, Judge.

The appellant, Genard Curtis, was convicted of possession of cocaine with the intent to distribute. His sole contention on appeal is that the evidence was insufficient to support his conviction.

During the early morning hours of March 13, 1991, a Camden County deputy sheriff stopped an automobile for speeding, heading south towards Florida. The vehicle was driven by an individual named Mark Best, and Curtis was a passenger. Initially, the deputy intended to issue a courtesy warning, but when he discovered that Best’s driver’s license was suspended, he detained them while the proper paperwork could be brought to the scene to serve Best with notice of license suspension.

As they waited, the deputy conversed with Best and Curtis, and, because of inconsistent statements about what their plans were, he requested and received permission to search the vehicle. During that search, the deputy found in the glove compartment receipts for three money orders totalling $3,700 that had been sent to Nathaniel Jeff in Miami, Florida, in February 1991. In the trunk of the car, the deputy observed three false partitions, behind which he found a .25 caliber pistol and a zippered bank envelope which contained 16 pieces of crack cocaine. He then placed both Best and Curtis under arrest.

Later that day, Curtis gave an inculpatory custodial statement to a special agent with the Georgia Bureau of Investigation, in which he admitted that he had wired the money orders to his cousin, Nathaniel Jeff, in Miami for the purchase of crack cocaine. Curtis, however, denied having any knowledge of the cocaine in the trunk of the car.

At the trial, Curtis testified that he and Best had been traveling to visit his cousin in Jacksonville, Florida, when they were stopped for speeding. He denied knowing about the cocaine in the trunk of the car, and admitting to the GBI agent that he had wired the money to his cousin in Miami to buy crack cocaine. Rather, he claimed that he sent his cousin the money to help out with medical expenses. Upon cross-examination, when asked how he could afford to send his cousin $3,700 on his $120 per week salary, he stated that he merely had returned his cousin’s money to him. He explained that the money actually was connected with an unspecified local business of that cousin, and had been delivered to him by another individual whom he would not identify. He acknowledged that he had sent all of the money, despite Best’s name being on one of the money order receipts. Curtis also testified that the deputy sheriff found the money order receipts in his pouch, and not the glove compartment.

Decided May 25, 1993.

Clyde M. Urquhart, for appellant.

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

Curtis contends that there is no evidence that connects him to the cocaine that was found in the trunk of the car in which he was merely a passenger. Acceptance of that contention, however, requires blind acceptance of his testimony over the conflicting testimony of the GBI agent who recounted Curtis’ inculpatory statement, and the various inferences arising from the circumstances that implicated him in a joint effort to possess the cocaine that was found in the car’s trunk.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Plumm v. State, 201 Ga. App. 154, 155 (410 SE2d 352) (1991). Viewing the evidence in the light most favorable to uphold the jury verdict in this case, we find the evidence sufficient to authorize a rational trier of fact to find Curtis guilty beyond a reasonable doubt of possession of cocaine with the intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0568.
    SIMMONS v. THE STATE.
    (431 SE2d 721)
   Blackburn, Judge.

On February 24, 1991, the appellant, William H. Simmons, was arrested in a laundromat parking lot, at which time 17 baggies containing marijuana were found hidden under the driver’s seat of his car. The arrest resulted from information provided by a confidential informant who contacted the arresting officer by his beeper number earlier that afternoon. Simmons subsequently was convicted of possession of marijuana with intent to distribute in violation of the Georgia Controlled Substances Act.

At the trial, Simmons admitted to possessing the marijuana with the intention of selling it, but claimed that he had been persuaded to peddle the contraband by his wife (with whom he had recently reconciled), who needed quick money to pay fines for charges against her for writing bad checks. The day before his arrest, he had picked up a quarter pound bag of marijuana from a friend, and then had divided it up into 16 baggies to sell.

On the day of his arrest, after he had returned home from work, Simmons and his wife decided to go to a laundromat to do their laundry. They went in separate vehicles so that he could drop off the marijuana at a lake cottage for safekeeping. When his wife arrived at the laundromat a few minutes after Simmons, she made a telephone call and supposedly arranged a sale of marijuana. Simmons then went back to the cottage to retrieve the marijuana, and upon his return to the laundromat he was met by the arresting officer. No one else was at the scene, except for Simmons’ wife who waited inside the laundromat. Concerning the question of his predisposition to sell marijuana, Simmons denied any use of marijuana for approximately one-and-one-half years prior to his arrest, and stated that he had never been arrested for, charged with, or convicted of any offense involving a controlled substance. The arresting officer acknowledged that he had never heard of Simmons or his wife prior to this incident.

The friend who had supplied the marijuana testified on Simmons’ behalf, and corroborated his claim that he had not used marijuana for over a year. This friend also testified that the day after Simmons’ arrest, his wife had paid her for the marijuana Simmons had picked up, and had purchased another quarter pound of marijuana; a few days later, this supplier had been arrested. A special agent with the Georgia Bureau of Investigation, who applied for the warrant to search the supplier’s residence, testified that he had been under the impression that the “wired” informant who had participated in a tape-recorded transaction with the supplier had also provided the information that led to Simmons’ arrest.

On appeal, Simmons contends that the trial court erred in not requiring disclosure of the confidential informant who tipped the arresting officer about his possession of the marijuana; that the trial court erred in failing to direct a verdict of acquittal based upon Simmons’ unrebutted entrapment defense; and that the trial court erred in denying his motion for new trial based upon newly discovered evidence of the identity of the confidential informant.

1. At the hearing on the motion to disclose the identity of the confidential informant, Simmons attempted to establish that the informant was his wife, on the grounds that such a revelation would be critical to his asserted defense of entrapment. Counsel for Simmons also theorized that Simmons’ wife had acted as a wired informant for the police when she purchased more marijuana from the supplier the day after Simmons’ arrest.

However, during the hearing, the arresting officer testified that Simmons’ wife was not the informant. Further, the officer emphasized that the actual informant had merely contacted him by telephone to tip him about Simmons’ drug activity. Although it denied the disclosure of the informant’s identity, the trial court agreed to make an in camera inspection of the state’s file in Simmons’ case along with the state’s file in the case against the suppliers of the marijuana, including listening to a tape of a sale of marijuana transaction with the supplier. In a subsequent hearing held the day before Simmons’ trial, however, the trial court found nothing exculpatory in the two files, and indicated that the identity of the informant was not revealed on the tape of the drug transaction involving the supplier.

Simmons contends that even if his wife was not the confidential informant, she must have been acting in concert with the actual informant, who may have been connected with the police. Simmons asserts that the informant’s identity thus would be material to his entrapment defense.

“Public policy in Georgia favors nondisclosure of the identity of an informant in the interest of the free flow of information about criminal activity. [Cit.]” Grimes v. State, 168 Ga. App. 372, 376 (5) (308 SE2d 863) (1983). The identity of a mere tipster is privileged, but where the informer is a witness or participant, or has entrapped a defendant into committing a crime, disclosure could be material to the defense. State v. Royal, 247 Ga. 309, 312 (275 SE2d 646) (1983); Thornton v. State, 238 Ga. 160 (2) (231 SE2d 729) (1977). This court has held numerous times that disclosure of an informant’s identity was required where the informant was a witness or participant whose testimony would be the only testimony available to amplify or contradict that of the police officer or the defendant. See Boatright v. State, 195 Ga. App. 440 (1) (393 SE2d 707) (1990).

In the instant case, it is uncontroverted that the informant was not a witness to or participant in the criminal activity for which Simmons was arrested. The arresting officer also indicated during the hearing that the actual informant had not acted as an agent of the police in gathering the information that led to Simmons’ arrest. The only possible basis for not applying the “mere tipster” rule thus would be to accept Simmons’ theory that even if his wife had not been the actual informant, she had acted as an agent of the informant, who in turn was an agent of the police, despite the lack of any factual support for such a theory.

One context for requiring disclosure of a confidential informant’s identity is the general requirement to disclose evidence favorable to a defendant if the evidence is material to guilt or innocence, under Brady v. Maryland, 373 U. S. 83, 87 (83 SC 1194, 10 LE2d 215) (1962). Thornton v. State, supra at 163. However, with regard to Brady matters, a defendant has the burden of showing the materiality and favorable nature of the material sought, and “[m]ere speculation that there may be exculpatory information is insufficient.” Hayes v. State, 182 Ga. App. 319, 320-321 (3) (355 SE2d 700) (1987). Inasmuch as Simmons’ theory regarding his wife’s indirect involvement as a government agent had no factual basis and was, in fact, contradicted by the testimony of the arresting officer, the trial court properly denied Simmons’ motion to disclose the identity of the confidential informant.

2. Alleging a post-trial revelation by the arresting officer that the informant had been the boyfriend of Simmons’ wife, Simmons moved for new trial based upon newly discovered evidence regarding the identity of the confidential informant. Although no evidence of the matter was actually adduced, the trial court denied the motion after hearing Simmons’ offer of proof concerning the evidence.

In moving for a new trial based on newly discovered evidence, the movant must show “ ‘(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.’ [Cits.] All six requirements must be complied with to secure a new trial.” Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980).

Assuming arguendo the existence of the other requirements delineated in Timberlake, we reject Simmons’ contention that the discovery of his wife’s boyfriend as the confidential informant would establish the defense of entrapment by a government agent and thus was so material that it would probably produce a different verdict. During the hearing on the motion to disclose the identity of the informant, the arresting officer made it clear that prior to Simmons’ arrest, there had been no investigation regarding Simmons, and that he had never heard of either Simmons or his wife. The officer further stated unequivocally that, although the confidential informant had provided reliable information in the past, the informant merely called in from time-to-time with tips and did not “manufacture” cases for the police. It having been established during this hearing that the informant had not acted as agent for the police, the identity of the informant would not have advanced Simmons’ asserted entrapment defense.

3. Simmons also contends that he was entitled to a directed verdict of acquittal based on his unrebutted defense of entrapment. Under OCGA § 16-3-25, “[entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” A distinction must be made between evidence which raises a defense of entrapment and warrants a jury charge on the issue, and evidence which demands a finding of entrapment. State v. Royal, supra at 310.

Decided May 25, 1993.

J. Richard Neville, for appellant.

Garry T. Moss, District Attorney, Charles D. Gafnea, Assistant District Attorney, for appellee.

In the instant case, even though it had been established during the pre-trial hearing that his wife was not the confidential informant, Simmons attempted to suggest that his wife had persuaded him to sell the marijuana and had provided the information which ultimately reached the police who arrested him. However, there was no evidence whatsoever that Simmons’ wife, either directly or indirectly, had acted as an agent of the government in persuading Simmons to commit the crime. Considering the fact that entrapment constituted Simmons’ sole defense, the evidence may have authorized a jury charge on the issue, but it certainly did not demand a directed verdict of acquittal. Because Simmons presented only a theory, and not a factual showing, that a government agent had induced Simmons’ actions, it was not necessary for the state to present rebuttal evidence to avoid a directed verdict of acquittal. Campbell v. State, 160 Ga. App. 561 (2) (287 SE2d 591) (1981).

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0770.
    SANDERS v. THE STATE.
    (431 SE2d 725)
   Johnson, Judge.

David Sanders appeals from his conviction of armed robbery and the denial of his motion for a new trial. Sanders contends that the trial court erred in denying his motion to suppress the victim’s in-court identification of him as the perpetrator.

The evidence at the suppression hearing showed that the victim was at home on the evening of May 2, 1991, when she heard a knock at her door. She turned on the porch light, looked out the window and recognized the person at the door as a man who had done yard work for her earlier that day. She opened the door, spoke with the man and allowed him to come inside her house. Once inside, the man grabbed the victim around her neck, held a knife to her throat, pushed her to the floor, and demanded money. He then grabbed a black bag containing $1,500 which was on the floor and ran. The victim identified her attacker to the police as “David,” but was unable to recall his last name. She described him as a “young black male, short, slim of build, who had done some yard work for her that day.” Based upon this description and other information, David Sanders was arrested for the robbery. On May 11,1991, the police officer who had responded to the robbery call showed the victim a photograph of Sanders and asked her if she recognized the man in the picture. No photographs of any other persons were shown to the victim. The victim identified the subject of the photograph as David, her attacker.

Decided May 25, 1993.

Albert C. Palmour, Jr., for appellant.

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

Sanders argues that the victim’s in-court identification was tainted by the pretrial photographic showup because the showup was impermissibly suggestive. We need not address the issue of whether the photographic showup was impermissibly suggestive because “(e)ven if the pretrial identification [was] tainted, the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” (Citations omitted.) Hamilton v. State, 180 Ga. App. 284, 285 (1) (349 SE2d 230) (1986). We conclude that the in-court identification in this case did not depend on the photographic showup but had an independent origin and was therefore admissible. The victim testified unequivocally that she was familiar with Sanders because he had worked with her in the yard earlier that day, and that she had an opportunity to view him both before and during the robbery. Under these circumstances, we find that the trial court was correct in denying Sanders’ motion to suppress the victim’s in-court identification.

Judgment affirmed.

Blackburn and Smith, JJ., concur.


text:
    A93A0791.
    BROWN v. THE STATE.
    (431 SE2d 726)
   Blackburn, Judge.

The appellant, James Brown, Jr., was tried and convicted of burglary and criminal attempt of burglary. Judgment was entered on that jury verdict on June 15, 1992, and the appellant filed a pro se notice of appeal on June 18, 1992. On June 30, 1992, he filed a document captioned as a motion for transcript, in which he asserted several grounds for a new trial. A motion for new trial dated June 19, 1992, was filed in the trial court on July 17, 1992. The trial court granted the appellant a new trial on December 22, 1992. This appeal was docketed with this court on January 7, 1993.

Decided May 25, 1993.

Gerald P. Privin, Odessa P. Thompson, for appellant.

James Brown, Jr., pro se.

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

Initially, we address the issue of our jurisdiction in this case, since both a notice of appeal and motion for new trial were filed by the appellant. Where a notice of appeal and a motion for new trial are timely filed, even though the former precedes the latter, the notice of appeal is rendered premature until disposition of the motion for new trial. O’Kelly v. State, 196 Ga. App. 860 (397 SE2d 197) (1990); but compare Atkinson v. State, 170 Ga. App. 260 (1) (316 SE2d 592) (1984).

In the instant case, the appellant’s motion that was filed on July 17, 1992, was untimely, and therefore void, as a motion for new trial. Johnson v. State, 227 Ga. 219 (180 SE2d 94) (1971). However, his motion for transcript filed on June 30, 1992, which referred to his motion for new trial and asserted several grounds for new trial, was filed within 30 days of the entry of judgment on the jury verdict.

“[T]here is no magic in mere nomenclature, even in describing pleadings.” Marshall v. State, 229 Ga. 841 (195 SE2d 12) (1972). Pleadings are construed to serve the best interests of the pleader, and are judged by function rather than name. Bell v. Figueredo, 259 Ga. 321 (381 SE2d 29) (1989). Although the pro se appellant designated the pleading filed on June 30, 1992, as a motion for transcript, that motion asserted grounds for new trial. Considering the contents of that motion, the pleading functioned as a combined motion for new trial and motion for transcript, and we will classify it as such.

Inasmuch as the appellant’s notice of appeal and motion for new trial were both filed timely, the notice of appeal must be considered as premature, pending disposition of the motion for new trial. O’Kelly v. State, supra. Further, in light of the trial court’s grant of the appellant’s motion for new trial, this appeal remains premature and must be dismissed, as there is nothing for this court to review.

Appeal dismissed.

Johnson and Smith, JJ., concur.


text:
    A93A0873.
    TURNER v. THE STATE.
    (431 SE2d 727)
   Blackburn, Judge.

The appellant, Kathy Jo Turner, was convicted by a jury of aggravated assault and sentenced to five years’ imprisonment. The appellant subsequently filed a motion for new trial and the motion was denied by the trial court. On appeal, the appellant contends that the trial court erred in allowing the victim to place appellant’s character in issue in response to a question asked by the appellant’s counsel and a mistrial was warranted.

At trial, the 17-year-old victim testified that on the morning in question, she saw the appellant at a teen nightclub. The appellant and the victim had met approximately four years earlier and had established a friendship. The appellant and another individual walked past the victim while the victim was talking to a friend, and the appellant turned around toward the victim. Thereafter, the appellant hit the victim and told the victim to leave the nightclub. The victim subsequently hit the appellant and after a few of their friends interrupted the scuffle that followed, the appellant walked away. Another fight ensued between the appellant and the victim and as a result of this second encounter, the victim was cut by the appellant with a razor from the middle of her left ear down to her throat. The victim later saw the appellant outside of the nightclub and identified the appellant as her assailant.

In response to defense counsel’s question on cross-examination concerning inconsistencies made in her statement to the police, the victim indicated that at the time of the statement, she did not know who had cut her, “but [she] was pretty sure [that the appellant] did because she’s cut all kind of people. She’s cut someone before. She’s assaulted someone with a knife, and then she’s been bragging about it.” The trial court sustained the defense counsel’s general objection to the victim’s answer because the answer was not responsive to the question. However, the trial court did not provide curative instructions to the jury and the appellant’s counsel did not ask for these instructions. In addition, the appellant’s counsel did not move for a mistrial after the victim responded.

Assuming arguendo that the victim’s response incidentally placed the appellant’s character in issue, the appellant did not object to the victim’s response to the question based upon that ground. “ ‘The trial court was not asked to rule on (this) ground and thus there is nothing to review. It is well established that appellate courts may not consider objections to evidence not raised at trial.’ (Citations and punctuation omitted.) [Cit.]” Sales v. State, 199 Ga. App. 791, 792 (406 SE2d 131) (1991). By failing to object on the basis that the victim’s response placed the appellant’s character in issue, the appellant waived any objection that she might have had on that issue. Favors v. State, 145 Ga. App. 864 (244 SE2d 902) (1978). In addition, the appellant’s attorney did not move for a mistrial after the victim responded to the question, and as this court has held in Garner v. State, 180 Ga. App. 146 (348 SE2d 690) (1986), a mistrial will not be granted where a motion for mistrial is not made contemporaneously with the alleged misconduct. “ ‘A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ [Cit.]” Favors, supra at 866. Accordingly, the appellant’s enumeration is without merit.

Decided May 25, 1993.

Paul S. Han, for appellant.

J. Tom Morgan III, District Attorney, Barbara B. Conroy, Gregory A. Adams, Stacy Y. Cole, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0484.
    RELIANCE INSURANCE COMPANY v. WALKER COUNTY et al.
    (431 SE2d 700)
   McMurray, Presiding Judge.

This wrongful death action arose on October 15, 1988, when a county-owned front-end loader being operated by the decedent Dennis Wayne Turner overturned and crushed him. The trial court granted Walker County’s motion for summary judgment on the basis of a covenant not to sue signed by the decedent which contained a disclaimer of liability. On appeal, this court concluded that this exculpatory clause barred the plaintiffs’ wrongful death claim on a negligence theory. Walker County had acknowledged that the exculpation provision did not relieve it from liability for wilful or wanton conduct, so the case was remanded to the trial court for a determination of whether the defendants had liability insurance, which would effect a waiver of sovereign immunity and permit the plaintiffs to pursue damages through their allegations of “reckless disregard and conscious indifference” on the part of Walker County. Turner v. Walker County, 200 Ga. App. 565, 566 (2) (408 SE2d 818) (1991).

Upon remand, the defendants Walker County and County Commissioner Parrish filed a second motion for summary judgment which was denied. They then filed a motion to set aside this order and sought permission to add their insurer, appellant Reliance Insurance Company (“Reliance”), as a third-party defendant. Both motions were granted and defendants filed a third-party complaint seeking a determination of whether the coverage under the insurance policy issued by Reliance applied to the acts alleged in the complaint. The policy expressly excluded coverage for intentional acts where bodily injury or property damage was “expected or intended from the standpoint of the insured.” Reliance filed a motion for summary judgment on the ground that conduct showing reckless disregard or conscious indifference to consequences would as a matter of law be expected or intended by the county, and therefore would be excluded from coverage.

The trial court issued an order denying summary judgment and finding “as a matter of fact and law” under the authority of State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988), that the allegations Walker County acted with reckless disregard and conscious indifference did not amount to an intentional or expected act which would be excluded under the insurance policy; and that insurance coverage was therefore provided for the acts alleged against Walker County so as to waive sovereign immunity in the amount of coverage provided. On appeal of this order, Reliance complains that the trial court in effect granted summary judgment or a judgment on the pleadings to the plaintiffs, even though they never made such a motion and there was no evidence in the record to pierce the pleadings denying coverage, which makes the ruling directly appealable as a final order. Reliance also enumerates as error the denial of its motion for summary judgment.

We agree with appellant Reliance that the trial court incorrectly relied upon State Farm Fire &c. Co. v. Morgan, 258 Ga. 276, supra. The issue to be decided there was whether the insured’s “level of intoxication was such as to preclude the formation of intent or expectation,” which this court determined was a question for the jury and not amenable to directed verdict. State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377 (1), 379 (364 SE2d 62) (1987). The Supreme Court affirmed on certiorari, ruling that “[t]he question of intent or expectation here uniquely fits the pattern of those issues of material fact which are not appropriate issues for summary judgment but are decided by the trier of fact.” State Farm Fire &c. Co. v. Morgan, 258 Ga. 276, supra. In the case sub judice, however, there is no question raised or presented by the evidence in regard to the defendants’ ability to form the requisite actual intent to inflict injury. The sole issue is whether, as a matter of law, by reckless conduct or conscious indifference to consequences the county engaged in behavior that was “expected or intended” to cause bodily injury.

This court early on equated wilful and wanton conduct to instances where “the defendant’s conduct was such as to evince a wilful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences, where human life or limb was involved, as to justify the jury in finding a wantonness equivalent in spirit to actual intent.” Central of Ga. R. Co. v. Moore, 5 Ga. App. 562, 564 (2), 565 (63 SE 642) (1909). Accord Hawes v. Central of Ga. R. Co., 117 Ga. App. 771 (162 SE2d 14) (1968); Truelove v. Wilson, 159 Ga. App. 906, 907 (4), 908 (285 SE2d 556) (1981). See generally Adams & Adams, Georgia Law of Torts, § 3-5 (1987). “ ‘The general rule which appears to have developed through judicial interpretation and application of exclusionary provisions such as the one in the instant case is that they are inapplicable if and only if the insured acts without the intent or expectation of causing any injury, however slight. Conversely, such an exclusion is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected.’ [Cits.]” Antill v. State Farm Fire &c. Co., 178 Ga. App. 659 (344 SE2d 480) (1986).

In Roe v. State Farm Fire &c. Co., 188 Ga. App. 368, 369 (373 SE2d 23) (1988), citing Antill, it was held that the evidence clearly showed that “if the insured did not actively intend harm to the appellants’ daughter [whom he sexually molested], he was at the very least consciously indifferent to the consequences of his conduct upon her.” Thus the court concluded “that he must be presumed under such circumstances to have intended those injuries which naturally and unavoidably flowed from his criminal misconduct, with the result that his assertion that he did not subjectively intend to cause injury to the girl ‘does not demonstrate any unintended consequences of an intentional act so as to avoid application of the policy exclusion.’ [Cit.] To conclude otherwise would be to allow any insured to defeat such a policy exclusion, no matter how heinous his mistreatment of the injuréd person, simply by stating that he had no subjective intention of causing the injury. ...” Id.

Three judges dissented in Roe v. State Farm Fire &c. Co., 188 Ga. App. 368, supra, including the author of this opinion, arguing that “[t]here is a distinction between intentional acts and intentional consequences or results. It is the latter which is the focus of the exclusion. [Cit.] At this stage, therefore, a fact resolution remains. As said in State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 378 [supra], ‘the concern is whether intent is or was present in fact, in order to determine the applicability of a policy exclusion. . . . [T]he burden is on the carrier to prove and persuade that the injuries were within the scope of the exclusion.’ Thus at trial the burden will be on the insurer to prove that the insured expected or intended bodily injury to the [injured person] when [it] acted.” Id. at 370. This view is in accord with the general rule, that the three most basic elements of intent within this context “appearing both in the Restatement [of Torts Second] and in court usage are that (1) it is a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act ... It is also essential that the state of mind of intent exist when the act occurs. Additional elements of the concept concern the extent to which the intent may relate to different persons or different consequences from those at issue.” (Emphasis in text.) Prosser & Keeton on the Law of Torts 33, 34, § 8 (pocket part at p. 15) (5th ed. 1984).

In the recent case of Hendon v. DeKalb County, 203 Ga. App. 750, 757 (5), 758 (417 SE2d 705) (1992), summary judgment was reversed because this court found no evidence to support a finding that the defendant engaged in wanton or wilful misconduct or bad faith as opposed to. gross negligence. Citing Truelove v. Wilson, 159 Ga. App. 906, supra, the court delineated how wanton and wilful conduct differs from gross negligence: “Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is ‘ “so reckless or so charged with indifference to the consequences . . . as to justify the jury in finding a wantonness equivalent in spirit to actual intent.” (Cit.)’ [Cit.] ‘ “Bad faith” is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will. (Cit.)’ Vickers v. Motte, 109 Ga. App. 615, 619 (137 SE2d 77) (1964).”

In this case, although Walker County denied the allegations of negligence in its answer, neither Reliance nor Walker County has responded to the claims of gross negligence, reckless disregard and conscious indifference, and wilful and wanton conduct. These allegations were contained in subsequent amendments to the original complaint and did not require an answer under OCGA § 9-11-12 (a). Adams v. First Nat. Bank of Columbus, 170 Ga. App. 490 (317 SE2d 301) (1984). The pretrial order recites that these allegations were issues for jury determination. However, no evidence was submitted from which it could be determined by summary judgment that the circumstances described in the policy exclusion existed. While the conduct alleged may or may not be the equivalent of intentional acts for this purpose, as Reliance contends, there must be evidence of the defendants’ subjective intention and Reliance bears the burden of proving whether the exclusion is applicable; “ ‘summary judgment is appropriate [only] when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.’ [Cit.]” Moss v. Protective Life Ins. Co., 203 Ga. App. 389, 392 (417 SE2d 340) (1992). See Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991). Thus, denial of Reliance’s motion for summary judgment was correct because it has not shown by the record that the county defendants “expected or intended bodily injury” to the plaintiffs’ decedent.

Decided April 19, 1993 —

Reconsideration denied May 26, 1993.

Hicks, Marsh, Casey & Young, William T. Casey, Jr., Mark A. Barber, for appellant.

Bruce & Hentz, Wm. Davis Hentz, Watson & Dana, Dennis D. Watson, Milligan, Barry, Hensley & Evans, Frederick M. Milligan, for appellees.

The trial court also ruled that the plaintiffs’ allegations that the county defendants acted with reckless disregard and conscious indifference did not amount to an intentional or expected act which would be excluded under the insurance policy; and that therefore there was coverage provided for the acts alleged against the county defendants so the defense of sovereign immunity was waived and the plaintiffs could pursue their claim in the amount of the coverage provided in the policy. The court apparently decided that acts of “reckless disregard and conscious indifference” were of a lesser degree of tortuousness than acts where the actor “expected or intended bodily injury” in concluding that there was insurance coverage. However, this pronouncement effectuated a summary judgment in the plaintiffs’ favor against Reliance on the issue of insurance coverage, even though there was no such motion made by either the plaintiffs or the county defendants. The ruling was premature, as the plaintiffs must prove to the satisfaction of the jury that the acts were done with “reckless disregard and conscious indifference of the consequences” in order to prevail. They also must counter Reliance’s defense that the legal expression is the equivalent of its contract term and thus the contract exclusion automatically applies to deny insurance coverage. If they are not successful, the county defendants will prevail on their claim of sovereign immunity. Consequently the case must once again be remanded for determination in accordance with this opinion.

Judgment reversed with direction.

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


text:
    A93A0084.
    DENTON et al. v. HOGGE et al.
    (431 SE2d 728)
   Johnson, Judge.

Lorri and Stephen Denton agreed to sell a house to Glenn and Konda Hogge. Pursuant to their written contract, the Hogges paid $2,000 in earnest money. The contract contains the following financing provision: “Purchaser to apply for assumption of loan at Ahmanson Mortgage by September 7, 1988.” The Hogges filed a complaint against the Dentons to recover their payment of earnest money, claiming that the Dentons had misrepresented the size and zoning classification of the property. The Dentons filed a breach of contract counterclaim, seeking $18,000 in damages. The case was tried before a jury. At the close of all the evidence, the trial court directed a verdict in favor of the Hogges as to both their claim and the Dentons’ counterclaim on the ground that the contract was unenforceable because the financing provision was vague and indefinite. The court entered judgment in favor of the Hogges in the amount of $2,000. The Dentons filed this direct appeal from the judgment, challenging the court’s directed verdict against them on both their counterclaim and the Hogges’ claim.

1. The Hogges’ motion to dismiss the appeal, based on the Dentons’ failure to follow the discretionary appeal procedures as required by OCGA § 5-6-35 (a) (6) for judgments of $10,000 or less, is denied. The Dentons’ direct appeal from the trial court’s judgment against them on their $18,000 counterclaim is proper because “OCGA § 5-6-35 (a) (6) is applicable only where the appellant is seeking to appeal a money judgment for an amount [of $10,000 or less], and not, as in this case, where the appellant has sought a money judgment but has obtained no recovery whatever. [Cit.]” Whitley v. Bank South, 185 Ga. App. 896, 897 (1) (366 SE2d 182) (1988). Because the Dentons have the right to directly appeal the judgment against them on their counterclaim, they also have the right to have this court review the $2,000 judgment against them on the Hogges’ claim. Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980); Hudgins v. Bawtinhimer, 196 Ga. App. 386, 387 (1) (395 SE2d 909) (1990).

2. The Dentons contend that the court’s grant of a directed verdict to the Hogges on both the original claim and the Dentons’ counterclaim was improper because it was based on an erroneous finding that the financing provision of the contract is vague and indefinite. They claim that this case is controlled by the decision in Brack v. Brownlee, 246 Ga. 818 (273 SE2d 390) (1980). That decision, however, is inapplicable to the instant case because it addressed the issue of mutuality of obligation, not the defense of vagueness and indefiniteness. “[T]he defense of vagueness and indefiniteness is not necessarily the same as a lack of mutuality of obligation, the former being in this case mainly a question of interpretation and ascertaining intent of the parties [cits.], the latter having most often to do with consideration. [Cits.] The Supreme Court in Brack addressed only the mutuality of the contingent financing clause and did not imply that all real estate sales contracts, however vague and indefinite in some material part, will be enforceable.” Farmer v. Argenta, 174 Ga. App. 682, 683 (331 SE2d 60) (1985).

Decided May 26, 1993.

Goodman & Goodman, Michael D. Goodman, for appellants.

William A. Wehunt, for appellees.

“The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon.” (Citations and punctuation omitted.) Advance Security v. Superior Surgical &c. Co., 197 Ga. App. 769, 771 (1) (399 SE2d 488) (1990). The financing provision in the instant case, that the Hogges are to apply for the assumption of a loan, is not sufficiently plain and explicit to convey what the parties agreed upon. “The test is whether the loan ... is properly identified.” Morgan v. Hemphill, 214 Ga. 555, 556 (105 SE2d 580) (1958). Here, the contract does not identify the loan or any of its terms. Because the financing provision does not properly identify the loan, the contract is too vague and indefinite to be enforceable. See Barton v. E. D. Martin Co., 142 Ga. App. 586 (236 SE2d 555) (1977); Parker v. Averett, 114 Ga. App. 401 (151 SE2d 475) (1966); Hicks v. Stucki, 109 Ga. App. 723 (137 SE2d 399) (1964). The trial court did not err in granting a directed verdict in favor of the Hogges.

Judgment affirmed.

Blackburn and Smith, JJ., concur.


text:
    A93A0299.
    TRUITT v. THE STATE.
    (432 SE2d 119)
   Johnson, Judge.

Robert Willie Truitt appeals from his burglary conviction. His sole enumeration of error, that there was insufficient evidence to support his conviction, is deemed abandoned because it is not supported by argument, reference to the record or citation of authority. Court of Appeals Rule 15 (c) (2); Parnell v. State, 204 Ga. App. 488 (1) (420 SE2d 42) (1992). Even if the enumeration was not abandoned, it is without merit. The State presented the testimony of an eyewitness who had known Truitt for five years. The witness testified that she saw Truitt on the porch of the victim’s house and heard glass break. She then saw Truitt leave the house with a television, a video cassette recorder and a box full of miscellaneous items. The eyewitness made both in-court and out-of-court identifications of Truitt as the burglar. The victim testified that one of her house windows was broken and that she had not given anyone permission to enter her house and take her belongings. Truitt testified that he did not break into the victim’s house, but he could not recall where he was on the date of the burglary. Reviewing the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Truitt guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided May 26, 1993.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, J. Wade Padgett, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn and Smith, JJ., concur.


text:
    A93A0338.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. HARRINGTON, GEORGE & DUNN, P.C.
    (431 SE2d 730)
   McMurray, Presiding Judge.

Harrington, George & Dunn, P.C., (“HGD”) brought suit against the Metropolitan Atlanta Rapid Transit Authority (“MARTA”) seeking damages for tortious interference with business relations. MARTA answered the complaint and moved for summary judgment. In addition, MARTA moved to disqualify HGD’s counsel. The trial court denied MARTA’s motion for summary judgment, granted its motion to disqualify counsel, and certified each ruling for immediate review. Each party filed an application for an interlocutory appeal. This court denied MARTA’s application and granted HGD’s application. HGD filed a notice of appeal and MARTA filed a notice of cross-appeal. HGD subsequently withdrew its appeal and moved to dismiss MARTA’s cross-appeal, asserting we are without jurisdiction to entertain it. Held:

1. “Pursuant to OCGA § 5-6-48 (e), dismissal of the appeal does not affect the validity of a cross-appeal. It is only when the appeal is dismissed for lack of jurisdiction that a cross-appeal which does not have an independent ground for jurisdiction must also be dismissed. See Jones Roofing &c. Co. v. Roberts, 179 Ga. App. 169 (345 SE2d 683) (1986). Unlike the jurisdictional posture in Jones, this court was vested with jurisdiction of the appeal and the saving provision of OCGA § 5-6-48 (e) preserves defendant’s right to proceed with the issues raised in the cross-appeal even though the [plaintiff has] voluntarily withdrawn the issues [it] raised on appeal. The holding in Jones does not apply to this case and defendant’s cross-appeal should not be dismissed.” First Union Nat. Bank of Ga. v. Floyd, 198 Ga. App. 99, 100 (1) (400 SE2d 393).

Decided May 26, 1993.

George E. Powell, Jr., Bruce L. Bromberg, for appellant.

Shapiro, Fussell, Wedge & Smotherman, Michael P. Davis, Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Lisa M. Smith, Gregory H. Wheeler, for appellee.

2. The trial court did not err in denying MARTA’s motion for summary judgment.

Judgment affirmed.

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


text:
    A93A0341.
    WILLIAMS v. THE STATE.
    (431 SE2d 731)
   Blackburn, Judge.

The defendant, James Daniel Williams, was charged with possession of marijuana with the intent to distribute, driving under the influence, and driving without a driver’s license. The charge against the defendant for driving without a license was nol prossed because the defendant had a valid driver’s license. Prior to trial, the defendant filed a motion to suppress the evidence seized as a result of the investigatory stop of May 24, 1991, as well as a motion to reveal the identity of the informant. After a hearing, the trial court denied both motions. In denying the defendant’s motion to suppress, the trial judge found that the information that the investigators had was sufficient to establish probable cause to enable the investigators to stop and search the vehicle.

The case proceeded to a bench trial, during which the defendant agreed to various stipulated facts, and the trial court entered its judgment of conviction on the possession of marijuana and the DUI charges. The trial court denied the defendant’s motion for a new trial. On appeal, the defendant contends that the trial court erred in denying his motion to suppress because the totality of the circumstances did not support a warrantless search of his vehicle.

At the hearing on the defendant’s motion to suppress, Investigator Barbara Irby of the Monroe County Sheriff’s Department, testified that at approximately 6:50 p.m. on May 24, 1991, she received a telephone call from a confidential informant. The informant indicated that at approximately 7:30 in the evening, two white males in a white Toyota, transporting a large quantity of marijuana, would turn left onto Johnsonville Road from 1-75 North. Investigator Irby had received information from this informant six months earlier and the information previously received was reliable. The informant talked to the defendant earlier that day and during that conversation, the defendant told the informant that he had some marijuana, the cost of the marijuana, and that it would take him an hour to get it.

Based upon this information from the informant, Investigator Irby requested the assistance of another investigator and both investigators proceeded to the location suggested by the informant at Johnsonville Road. At approximately 7:50 p.m., Investigator Irby saw the vehicle in question and the two investigators followed the vehicle. The defendant, the driver of the vehicle, pulled over to the right shoulder of the road after the investigators placed the blue flashing lights on the dashboard of the unmarked police vehicle. The investigators pulled behind the vehicle, at which time the passenger was observed leaning down in the automobile. Both the defendant and the passenger were asked to exit the vehicle.

As one of the investigators talked with the defendant, he smelled alcohol on his breath and inquired if the defendant had been drinking. The defendant indicated that he had had a few beers. The investigators informed the defendant of the tip concerning marijuana in his vehicle, and asked if they could search the automobile. It is undisputed that the defendant consented to the search of the vehicle. During the consensual search of the defendant’s automobile, the investigators discovered a brown paper bag containing nine plastic-wrapped marijuana bags, with a weight of approximately 7.5 ounces, on the floor of the passenger side of the car, and a small plastic bag of marijuana, weighing 23.5 grams, in the glove compartment. The defendant was arrested at the scene for the marijuana charge. Another officer was called to the scene to transport the defendant to the precinct for an intoximeter test.

We agree with the trial court that the investigators had probable cause justifying the stop and search of the defendant’s vehicle. In determining probable cause to justify a warrantless search of a vehicle, “ ‘[t]he sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the “totality of the circumstances” surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. [Cit.]’ ” Rucker v. State, 199 Ga. App. 854, 855 (406 SE2d 277) (1991). “ ‘ “(A) deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” [Cit.]’ [Cit.]” Id. at 855. “[A]ll the determination of ‘probable cause’ entails is ‘a fair probability that contraband or evidence of a crime will be found in a particular place.’ [Cit.]” State v. Bassford, 183 Ga. App. 694, 697 (1) (359 SE2d 752) (1987).

Decided May 26, 1993.

Nancy A. Atkinson, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assis tant District Attorney, for appellee.

“It appears that the trial court [was] authorized to conclude that the informant’s tip, coupled with the officers’ corroboration and personal observations, provided sufficient probable cause for an immediate warrantless search. . . .” Jones v. State, 191 Ga. App. 332, 333 (381 SE2d 575) (1989). The information from the confidential informant was sufficiently detailed and adequately predicted the defendant’s future behavior. In addition, the information provided by the informant was corroborated by the observations of the investigators inasmuch as the investigators saw the defendant and a passenger make a left turn from 75 North onto Johnsonville Road, in a white Toyota, within 30 minutes of the time period predicted by the informant, which indicated that the informant’s assertions were true. “Because an informant is right about some things, he is more probably right about other facts. . . .” (Citations and punctuation omitted.) Bassford, supra at 697. Moreover, “ ‘[a] valid consent eliminates the need for either probable cause or a search warrant.’ [Cit.]” Id. at 698. It is undisputed that the defendant consented to the search of his vehicle by the investigators. “[E]ven assuming that probable cause and exigent circumstances for an immediate search did not exist, the trial court was clearly authorized to conclude that the [investigators] had a sufficient articulable suspicion to justify an investigatory stop of the [two] individuals.” Jones v. State, supra at 333. As in Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301), where the United States Supreme Court upheld an investigatory stop where a tip provided by an anonymous caller was sufficiently detailed and was corroborated by the observations of the police, the information from the confidential informant in the instant case demonstrated that the informant had inside information, information that the general public would have had no way of knowing.

Considering the totality of the circumstances, including the information provided by the confidential informant and the investigators’ visual corroboration of the information, as well as the defendant’s voluntary consent to the search, we conclude that the warrantless search of the defendant’s vehicle was justified. Accordingly, the defendant’s motion to suppress was properly denied by the trial court.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0361.
    FRANKLIN v. THE STATE.
    (431 SE2d 733)
   McMurray, Presiding Judge.

Defendant was charged, via indictment, with aggravated assault, possession of a firearm by a convicted felon and being a habitual felon. Defendant was found guilty of aggravated assault after the State adduced evidence during the first phase of a bifurcated jury trial that defendant threatened a pizza delivery man (“the victim”) with a shotgun. The jury found defendant guilty of possession of a firearm by a convicted felon after the State introduced two indictments during the second phase of trial showing that defendant entered guilty pleas to the crimes, voluntary manslaughter and burglary. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for continuance based on the absence of a defense witness.

“ ‘ “Each of (the) requirements (set forth in OCGA § 17-8-25) must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon the absence of a witness.” (Cit.)’ Ledford v. State, 173 Ga. App. 474, 476 (326 SE2d 834) (1985).” Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250). In the case sub judice, defense counsel moved for a continuance based on the absence of a defense witness who had been summoned to court via an order for production of an inmate from the state prison system. However, there is no showing that the testimony of the absent witness was material as required by OCGA § 17-8-25. In fact, there was no proof at trial that the absent witness was present during the incident which forms the basis of the crimes charged. These circumstances provide no basis for overruling the trial court’s discretion in denying defendant’s motion for continuance. See State v. Jessup, 187 Ga. App. 429, 430 (370 SE2d 489). Compare Jackson v. State, 184 Ga. App. 133, 135 (2) (360 SE2d 907).

2. In his second enumeration, defendant contends the trial court erred in allowing the victim to testify as to an out-of-court statement of an eyewitness to the alleged crimes. Defendant argues that this testimony is inadmissible hearsay.

At trial, defense counsel injected a hearsay objection after the following testimony: “[STATE’S ATTORNEY:] Let me return to the scene [of the crime] for a moment, Mr. Agard, [were] you, while this was going on, aware of anybody else being there? [THE VICTIM:] Yes, sir. There was a woman come running out of the trailer and she kept yelling to [defendant], ‘Red, don’t do it, don’t do it. Its not worth it, . . . let it go.’ ”

“A witness may testify as to what he saw and heard in the defendant’s presence. See Broome v. State, 141 Ga. App. 538 (2) (233 SE2d 883) (1977).” Moore v. State, 240 Ga. 210, 212 (2) (240 SE2d 68). In the case sub judice, it is undisputed that defendant was present at the crime scene when the out-of-court statement was uttered. Further, defendant affirmed on cross-examination that his sister admonished him during the confrontation with the victim by stating, i.e., “ ‘Don’t do it, Red.’ ” Defendant explained that his sister was “simply telling me just to go on, there’s no sense in fighting.” Under these circumstances, the trial court did not err in allowing the victim to testify that “a woman come running out of the trailer and she kept yelling to [defendant], ‘Red, don’t do it, don’t do it. It’s not worth it, '. . . let it go.’ ” See Brown v. State, 193 Ga. App. 772, 773 (2) (389 SE2d 268).

3. Defendant further contends the trial court erred in allowing the State’s attorney to comment during closing argument that defendant failed to call his sister as a defense witness. This contention is without merit.

“[T]he prosecutor can argue to the jury the inferences to be drawn from the defendant’s failure to produce witnesses, who are competent to testify and who allegedly would give evidence favorable to the defendant. Contreras v. State, 242 Ga. 369 (3) (249 SE2d 56) (1978) and cits. Cf. James v. State, 223 Ga. 677 (5) (157 SE2d 471) (1967).” Shirley v. State, 245 Ga. 616, 617 (1), 618 (266 SE2d 218). In the case sub judice, defendant admitted on cross-examination that his sister was present during commission of the alleged crimes. However, defendant did not call his sister to corroborate his testimony that he did not threaten the victim with a shotgun. Under these circumstances, the trial court did not err in allowing the State’s attorney to comment, during closing argument, that defendant failed to call a known eyewitness to the incident which led to defendant’s convictions.

4. In his final enumeration, defendant challenges the sufficiency of the evidence, arguing that the victim’s testimony was unbelievable because “there was no weapon found to substantiate the alleged victim’s claim.” This argument is without merit. “ ‘(N)othing is more firmly settled in the law than the principle that, in a jury trial, the jurors are the sole judges of the credibility of witnesses. (OCGA § 24-9-80).’ Walker v. State, 250 Ga. 230, 231 (297 SE2d 33).” Godfrey v. State, 187 Ga. App. 319, 321 (370 SE2d 183).

In the case sub judice, the victim testified that defendant threatened him with a shotgun after he delivered a pizza to a home in a trailer park. This evidence, defendant’s admission that he argued with the victim and evidence showing that defendant was twice convicted for felonies before the incident which forms the basis of the case sub judice is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated assault and possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided May 26, 1993.

Michael A. Corbin, for appellant.

Jack O. Partain III, District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A93A0369.
    HANCOCK COUNTY BOARD OF TAX ASSESSORS v. DICKENS et al.
    (431 SE2d 735)
   McMurray, Presiding Judge.

This action was initiated when the owners of several tracts of land in Hancock County appealed assessments of the standing timber on their property for 1991 ad valorem tax purposes. The landowners did not appeal separate and contemporaneous assessments of the land involved, but instead, paid the taxes on the land. The landowners complained of the taxing of the timber as a separate stratum of property and also contended that the assessments lacked uniformity and equalization for several reasons. Their appeals to the board of equalization were unsuccessful, except that the board agreed that the assessment of timber should not have been made as a separate stratum and directed the board of assessors to re-issue the tax bills with the land and timber combined. Each of the landowners then appealed to the superior court where the claims were consolidated into the case on appeal. Upon the trial of the case before the superior court and a jury, the superior court directed a verdict in favor of the landowners, finding that all of the assessments of standing timber were null and void. Held1.

1. The superior court’s grant of a directed verdict was predicated on two theories, each of which is the subject of an enumeration of error. The superior court concluded that the assessments on standing timber were invalid because assessment of such timber as a separate stratum of property was done in violation of OCGA § 48-5-33, which provided that, “[i]n the returning, appraisal, and assessment of tangible property, standing timber shall be included for all purposes as a part of the real property upon which it is located, and such standing timber shall not constitute a separate stratum of property.” This statute, which was enacted by Ga. L. 1990, p. 1901, was repealed by the 1991 legislature for subsequent years. See Ga. L. 1991, p. 1903, §§ 9 and 15.

It is clear from the colloquy at trial that the superior court recognized that the negative words in OCGA § 48-5-33, importing a prohibition of considering timber as a separate stratum of property, should be considered an expression of legislative intent that the statute be viewed as mandatory rather than merely directory. O’Neal v. Spencer, 203 Ga. 588 (2) (47 SE2d 646); Collins v. Nix, 125 Ga. App. 520, 522 (1), 524 (188 SE2d 235). Compare OCGA § 1-3-1. Also use of the verb “shall” denotes a mandatory intent on the part of the legislature. Lang v. State, 168 Ga. App. 693, 695 (4) (310 SE2d 276); Hardison v. Fayssoux, 168 Ga. App. 398, 399 (309 SE2d 397). Thus, the board of assessors was in violation of the statute when it initially assessed the timber at issue as a separate stratum of property. This error was recognized upon the appeal to the board of equalization which attempted to correct the error by ordering that the relevant tax bills be re-issued in proper form.

Nonetheless, the re-issued tax bills, which combined the assessments of land and timber into one number, continued to be predicated upon appraisals which also had been conducted in violation of OCGA § 48-5-33. The evidence as to the methodology used in determining the fair market, value of the land and timber was quite detailed, and clearly shows that timber was appraised as a separate stratum of property. Indeed, while the assessments of land and timber were combined on the revised tax bills, they continued to be listed separately in the county tax digest.

It follows that the assessments of timber having been reached in a manner inconsistent with the mandatory provisions of OCGA § 48-5-33, the superior court did not err in determining that said assessments were null and void, and in directing a verdict that they be stricken from the county tax digest. In view of this holditig, we do not reach the enumeration of error directed to the alternative basis for the grant of the directed verdict.

2. The remaining enumeration of error complains of that portion of the judgment which directs that the landowners recover court costs. However, from the argument presented, it is clear that this enumeration of error is predicated on the failure to recognize the distinction between court costs, and expenses of litigation or attorney fees which were not awarded. See Lawhorne v. Soltis, 259 Ga. 502, 503 (2), 504 (384 SE2d 662). Generally, the award of court costs to the prevailing parties is not error. OCGA § 9-11-54 (d). In the case sub judice, the award of court costs was not error for any of the reasons argued.

Decided May 26, 1993.

Roosevelt Warren, Clifton Boone, for appellant.

Gordon L. Dickens, Jr., for appellees.

Judgment affirmed.

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