text:
    A91A0837.
    A91A0913.
    BOWE v. THE STATE. McDUFFIE v. THE STATE.
    (410 SE2d 765)
   Cooper, Judge.

Appellants were tried jointly and convicted of trafficking in cocaine. In this consolidated appeal, they appeal the denial of their motions for new trial.

Acting on information provided by a detective in the Atlanta police department that cocaine was being stored for distribution in Atlanta in a motel room in Clayton County, Clayton County narcotics agents began surveillance of Room 219 of a motel in Clayton County. Concurrently, an agent obtained a search warrant for Room 219 based on information provided by the Atlanta detective that a reliable and confidential informant had been in Room 219 within the past 48 hours; that four males and a female at the motel were involved in cocaine distribution; and that the room was registered to a “Michelle,” who was from the Miami area and drove a white car with a Florida prestige tag. While on surveillance, the officers observed several men getting out of a Toyota and going into Room 203. Shortly thereafter, one of the men left Room 203 and entered Room 219. He was later identified as Preston Bowe. The search warrant was executed, and Michelle Walker and Preston Bowe were found in Room 219 with a box of nine millimeter bullets and $1,838 in cash secreted in Walker’s purse. However, no cocaine was then discovered. The agents maintained a watch on Room 203 and discovered that the room was registered to appellant, Chris Bowe, Preston’s brother, whom Preston denied knowing. The police went into Room 203 without a warrant, moved the men present in Room 203 to Room 219 and left an officer in Room 203 to secure the room until a search warrant was obtained. Appellants were two of the three men present in Room 203 who were moved to Room 219. The search of Room 203 produced no cocaine, but two guns, including a nine millimeter automatic handgun, $3,900 in cash and the keys to the white car with the Florida prestige tag were found. In a second search of Room 219, approximately 253 grams of crack cocaine were discovered in a brown paper bag inside the box springs of the bed. All the occupants of both rooms were arrested and charged with trafficking in cocaine. Preston Bowe and Michelle Walker entered guilty pleas prior to trial. Appellants and co-defendant Remano Deal were tried jointly. See Deal v. State, 199 Ga. App. 184 (404 SE2d 343) (1991). At the time of their arrest, appellants denied knowledge of the guns, cocaine and the money; however, at trial, Chris Bowe admitted owning the nine millimeter gun, and appellant McDuffie testified that $900 of the money seized in Room 203 belonged to him. During the trial, Michelle Walker testified that on the day of the arrest Preston Bowe had been given the drugs by Chris Bowe.

1. Appellants enumerate as error the trial court’s denial of their motions to suppress evidence seized from both motel rooms. However, when the evidence was offered for admission, attorneys for both appellants affirmatively stated that they had no objection to the admission of the items, thereby waiving appellants’ rights to contest the admission of the evidence on appeal. Abrams v. State, 144 Ga. App. 874 (1) (242 SE2d 756) (1978). Accord Nolton v. State, 193 Ga. App. 200 (1) (387 SE2d 364) (1989).

Relying on Osborne v. Ohio, 495 U. S. _ (110 SC 1691, 109 LE2d 98) (1990) and James v. Kentucky, 466 U. S. 341 (104 SC 1830, 80 LE2d 346) (1984), appellants argue that the motions to suppress properly preserved their objections to the evidence and that when raising federal constitutional issues, the state bar to consideration of those issues on appeal on the ground of waiver is not sufficient to deny redress. In Osborne, the Supreme Court held that it was not precluded from considering constitutional issues arising from an erroneous jury charge based on the defendant’s failure to object when the charge was given because defendant’s motion to dismiss, filed before the trial, had properly placed the issue before the trial court. In James, the Supreme Court ruled that a constitutional claim involving the failure to give a jury charge was not barred by the defendant’s failure to request the particular charge but was preserved for appeal by his request during the trial for an admonition of the jury on the same legal principle. In both cases, the Supreme Court, citing Davis v. Wechsler, 263 U. S. 22, 24 (44 SC 13, 68 LE 143) (1923), held that plain and reasonable assertions of federal rights cannot be defeated by local practice. However, these cases do not require a departure in the instant case from this state’s long-standing rule that objections to evidence not raised at trial cannot be considered on appeal. Appellants’ acquiescence in the admission of the evidence at trial represented a total reversal of the initial objections asserted in the motions to suppress in opposition to the admission of the evidence, and those initial objections to the evidence are deemed waived by the attorneys’ specific and affirmative statements during the trial that there were no objections to the admission of the evidence.

2. Appellants contend the trial court erred in admitting into evidence a videotape depicting appellants denying any knowledge of the cocaine, guns and money recovered in the seizure because the State failed to supply written copies of the statements as requested pursuant to OCGA § 17-7-210. The record demonstrates that prior to the playing of the videotape at trial, the denials were testified to by live witnesses without objection. The court concluded that because the statements were testified to in the suppression hearing, two months prior to trial, when appellants and their counsel were present, appellants had notice of the statements at least ten days before trial as required by OCGA § 17-7-210. We agree. “The purpose of the discovery statute (OCGA § 17-7-210) is to inform the defendant in writing of all relevant and material portions of his own statement that the State may rely upon to the defendant’s disadvantage. [Cit.]” Lewis v. State, 183 Ga. App. 41, 42 (357 SE2d 862) (1987). In McCarty v. State, 161 Ga. App. 444 (1), 445 (288 SE2d 249) (1982), this court held that “[t]he testimony of an investigating officer [in a suppression hearing] recalling an oral statement and the recording and transcription of this testimony is the furnishing in writing of ‘all relevant and material portions of the defendant’s statement’ which [OCGA § 17-7-210] requires.” Accordingly, we find that there was substantial compliance with the requirements of the discovery statute. Moreover, to obtain a reversal based on the State’s failure to provide a written statement, harm, as well as error, must be shown. Van Kleeck v. State, 250 Ga. 551 (1) (299 SE2d 735) (1983). The statements on the videotape were merely cumulative of other previously rendered testimony to which appellants interposed no objection. See Burton v. State, 191 Ga. App. 822 (7) (383 SE2d 187) (1989).

3. Chris Bowe enumerates as error the trial court’s denial of his renewed motion for new trial on the ground that his counsel at trial was ineffective in failing to object to the tender of the cocaine, money and guns during the trial and thereby failing to preserve his objection for appeal. “ ‘To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies. (Cit.)’ [Cit.]” Hall v. State, 194 Ga. App. 200 (390 SE2d 104) (1990). Examining the evidence adduced below as if counsel had made timely objections to the introduction of the cocaine, guns and the photograph of the money, we conclude that the evidence nevertheless would have been admissible at trial, and the verdict would not have been different.

Chris Bowe contends there was insufficient probable cause for his arrest in view of the fact that the informant’s tip pertained to Room 219; therefore, the seizure of the evidence was illegal, and the evidence should have been suppressed at trial. We disagree and find that Chris Bowe’s arrest was supported by sufficient probable cause. What the officers observed in their surveillance of the motel rooms was consistent with the information provided by the informant. No drugs were discovered in Room 219, and it was reasonable for the officers to conclude that the drugs might be found in Room 203 based on their discovery that the room was registered to Chris Bowe, Preston Bowe’s brother, their observation of the four men entering Room 203, Preston Bowe leaving Room 203 and entering Room 219 prior to the raid and Preston Bowe’s denial that he knew Chris Bowe. Moreover, “ ‘[a] search conducted pursuant to a search warrant, regular and proper on its face, is presumed to be valid and the burden is on the person who moves to suppress items found to show that the search warrant was invalid.’ [Cit.]” Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893) (1989).

Chris Bowe argues that in obtaining the search warrant for Room 203, the affiant omitted exculpatory information regarding the search of Room 219. “ ‘We have previously intimated that exculpatory material is not required to be included in an ex parte application for a search warrant if no misconduct on the affiant’s part has occurred. (Cit.)’ [Cit.] ‘Undoubtedly, not all omissions, even if intentional, are sufficient to invalidate an affidavit. (Cits.) . . . The defendant must show that the information omitted was material to the determination of probable cause and that it was omitted for the purpose of misleading the magistrate.’ [Cits.] . . . ‘There must be allegations of deliberate falsehood or reckless disregard for the truth, and these allegations must be accompanied by evidence or an offer of proof of such evidence. . . . Mere allegations of negligence or mistake of fact are not sufficient. (Cit.)’ [Cit.] In the instant case, there was neither an allegation nor proof of deliberate misrepresentation or reckless disregard for the truth on the part of the affiant. The most that appellant may have shown was the affiant’s omission of facts which were neither inculpatory nor exculpatory and which were, therefore, irrelevant to the existence or nonexistence of probable cause.” Ferrell v. State, 198 Ga. App. 270 (1) (401 SE2d 301) (1991). Hence, the warrant was not defective, and any objection by Chris Bowe on this ground would have been unsuccessful in preventing the admission of evidence seized in Room 203.

Chris Bowe also contends that the warrant for Room 219 was defective because the statements regarding the confidential informant contained in the officer’s supporting affidavit did not sufficiently demonstrate the informant’s reliability. The portion of the affidavit which appellant contends is insufficient reads as follows: “Said informant has provided truthful and accurate information within the past three months which has led to the seizure of controlled substances, and the arrests of persons involved in distributions of said controlled substances. Said informant did state to Detective Tripp, that within the past 48 hours, he/she had an occasion to be inside a motel room . . . [and] did observe a quantity of cocaine being stored for distribution. . . .” In Galgano v. State, 147 Ga. App. 284, 286 (248 SE2d 548) (1978), we discussed three types of information which should be furnished to a magistrate to enable the magistrate to determine whether an informant is reliable and trustworthy, i.e., the type of information previously supplied by the informant, the use to which the information was put and the elapsed time since the information was furnished. It is not necessary in every case for all three of the factors to be shown as long as the magistrate has sufficient information to make an independent analysis. Kouder v. State, 154 Ga. App. 597 (1) (269 SE2d 92) (1980). Taking a “common-sense” approach to the evaluation of the affidavit (Whitehead v. State, 184 Ga. App. 307 (361 SE2d 188) (1987)), we find that the affidavit was sufficient to demonstrate the informant’s reliability and that an objection on this ground would have been overruled. Accordingly, Chris Bowe has not demonstrated a reasonable probability that the outcome of the trial would have been different but for counsel’s failure to object to the evidence at trial. Sweetenburg v. State, 197 Ga. App. 36 (2) (397 SE2d 451) (1990).

4. Chris Bowe also contends the trial court erred in denying his amended motion for new trial based on counsel’s failure to object to the prosecutor’s references to parole regarding Preston Bowe. However, it does not appear upon the record that this issue was asserted in the trial court; therefore, it cannot be raised for the first time on appeal. Nicely v. State, 197 Ga. App. 206 (3) (397 SE2d 630) (1990).

5. Appellant McDuffie asserts the general grounds and argues that the trial court erred in failing to grant his motions for directed verdict and new trial, as the evidence demonstrated only his “mere presence” at the scene of the crime. “ ‘Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ [Cit.]” Lunz v. State, 174 Ga. App. 893, 895 (1) (332 SE2d 37) (1985). Further, “[t]he direction of a verdict of acquittal is proper only where ‘there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .’ [Cits.] If there is any evidence of guilt, it is for the jury, rather than the court, to decide whether the evidence is sufficient to sustain a conviction. [Cit.]” Ross v. State, 194 Ga. App. 285 (2) (390 SE2d 429) (1990). The evidence adduced at trial showed that all of the defendants were from the Miami area. McDuffie testified that he had known Chris Bowe since middle school; that the two had driven to Atlanta four days before the arrest and were merely on vacation; and that they spent four days sightseeing and shopping in Atlanta, with co-defendant, Remano Deal, as tour guide. Upon his arrest, appellant denied knowledge of the cocaine, guns, $3,900 in small bills, car keys and the white car which he and Chris Bowe drove to Atlanta. However, at trial Mc-Duffie testified that he shared Room 203 with Chris for four nights and that a portion of the money seized from Room 203 belonged to him. McDuffie also admitted concealing his knowledge of the keys and the car from the police, and his testimony contained inconsistencies regarding his recent employment history and past involvement in criminal activity. Although McDuffie offered an explanation for his presence in the motel room when arrested, in our view, the jury was authorized to disbelieve that testimony and to infer from his presence and companionship with Preston and Chris Bowe and the other co-defendants that he was guilty beyond a reasonable doubt of trafficking in cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Robinson v. State, 175 Ga. App. 769 (3) (334 SE2d 358) (1985). The trial court did not err in denying McDuffie’s motion for directed verdict.

Decided September 6, 1991.

Melnick, Moore & Elliott, Larry M. Melnick, for appellant (case no. A91A0837).

Lloyd E. Hall, for appellant (case no. A91A0913).

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Judgments affirmed.

Birdsong, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A0900.
    NGUYEN v. THE STATE.
    (410 SE2d 340)
   Cooper, Judge.

Defendant and two co-defendants were indicted for the offenses of armed robbery (Count I), theft by taking (Count II) and simple battery (Count III). One of the co-defendants entered a guilty plea to the charge of robbery, and the charges were dropped against the second co-defendant. Defendant was convicted by a jury on Counts I and II, and he appeals from the denial of his motion for new trial.

Defendant’s sole enumeration of error is that the verdict was contrary to the evidence. Viewed in a light most favorable to the verdict, the evidence reveals that one evening, defendant and two other men went to a restaurant owned by Mr. and Mrs. Kao and ordered food. When the three men finished eating they took out guns and ordered everyone in the restaurant into a walk-in cooler located in the restaurant’s kitchen. The men then took money from the cash register, as well as from the customers and employees of the restaurant, and they also took a van belonging to Mr. Kao. Mr. and Mrs. Kao identified defendant in a pretrial photographic lineup and at trial as being one of the perpetrators of the robbery. One of the co-defendants testified at trial that he went to the restaurant with defendant and the second co-defendant and that the three of them robbed the restaurant.

Decided September 6, 1991.

Glover & Davis, R. Keith Prater, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes T. McCabe, Assistant District Attorney, for appellee.

Defendant contends that the verdict was contrary to the evidence arguing that only two of the 11 persons in the restaurant were able to identify him; that the testimony of the co-defendant was tainted because he had not yet been sentenced on his guilty plea; and that the testimony from the two eyewitnesses was problematic in that Mr. Kao had been working long hours and was tired, and Mrs. Kao was vague as to the details about what she saw. “The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness ... for it is the function of the triers of fact to determine to what evidence it gives credence. [Cit.] It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. [Cit.] Rather, on appeal, we indulge every contingency in favor of the verdict. [Cit.]” Simpson v. State, 193 Ga. App. 439, 440 (2) (388 SE2d 39) (1989).

The evidence was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Pope, J. concur.


author: Pope, Judge.

text:
    A91A0916.
    HALL v. THE STATE.
    (410 SE2d 448)
   Pope, Judge.

Defendant Lynn Hall was convicted of first degree arson of an automobile and appeals.

1. Defendant filed a motion to dismiss on the ground that the indictment was insufficient because it did not give the serial number of the car or other identification sufficient to allow her to locate the car for inspection and on the ground that the car had been removed from the jurisdiction, thereby preventing her from inspecting the car in preparation of a defense to the charge. Defendant asserts the trial court erred not only in denying her motion to dismiss but in failing to hear the motion prior to the date of trial.

The motion to dismiss was filed after the date of arraignment. Defendant’s attorney explained that this was because she was appointed after the date of arraignment. Defendant failed, however, to obtain an extension in writing from the judge for the late filing of motions, as required by Rule 31.1 of the Uniform Superior Court Rules. Moreover, the motion to dismiss had no merit. The test of the sufficiency of an indictment is whether it contains the elements of the offense charged and adequately apprises the defendant of what she must be prepared to meet. Fletcher v. State, 157 Ga. App. 707 (2) (278 SE2d 444) (1981); State v. Black, 149 Ga. App. 389 (2) (254 SE2d 506) (1979). The indictment in this case described the property at issue as a 1984 Dodge Aries and named the owner. The indictment was sufficiently specific. See Gee v. State, 110 Ga. App. 439 (1) (138 SE2d 700) (1964); Carson v. State, 22 Ga. App. 551 (1, 2) (96 SE 500) (1918).

2. Defendant also moved to dismiss the charge against her on the ground she was denied her right to a speedy trial. Defendant was not denied her statutory right to a speedy trial because the trial was commenced at the next succeeding term of court after her written demand was filed, in compliance with the requirements of OCGA § 17-7-170 (b). Defendant’s motion to dismiss was also brought on the ground that she was denied her right to a speedy trial afforded by the Sixth Amendment to the United States Constitution.

“ ‘In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated: ... (a) (t)he length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant.’ ” Heinen v. State, 186 Ga. App. 373, 374 (367 SE2d 275) (1988). In this case, defendant argues the delay prejudiced her because, due to the delay in bringing the case to trial, the most important evidence in the case, the automobile, was removed from the jurisdiction. The record does not reflect that defendant’s opportunity to inspect the automobile was in any way affected by a delay in bringing the case to trial. Defendant never filed a motion to produce the automobile for inspection and even if she had, the evidence showed the automobile was not in the possession of the State but was disposed of by the owner and her insurer. The criminal act which defendant was convicted of committing occurred on November 11, 1989. The record shows defendant was released on bond on December 12, 1989. She was indicted February 12, 1990 and arraigned on February 23. A demand for speedy trial was filed on March 15, 1990, and she was tried in the next succeeding term of court on December 5, 1990. The delay in no way prejudiced defendant’s opportunity to prepare a defense in this case.

3. We reject defendant’s argument that she was denied her right of due process by the trial court’s failure to rule on her motions to dismiss. The trial court heard defendant’s arguments and ruled that the case would proceed to trial. Thus, defendant’s motions were heard and effectively denied.

4. The trial court did not err in denying defendant’s motion for a directed verdict of acquittal. An eyewitness testified she saw defendant commit the act. The owner of the automobile which defendant was charged with damaging testified the damage was committed without her consent. Thus, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. We reject defendant’s argument that the evidence was insufficient to sustain her conviction because no evidence was submitted that the insurer of the automobile did not consent to the act. “As we read [OCGA % 16-7-60 (a) (3)], the act is not criminal (i.e., consensual) if both the insurer and the insured have agreed or acquiesced in the act. However, if either or both do not consent to the act, the burning becomes an act of arson, for the non-consenting party has been subjected to either a criminal tort or fraud.” Burns v. State, 166 Ga. App. 766, 767 (1) (305 SE2d 398) (1983). Accord Blackburn v. State, 180 Ga. App. 436 (1) (349 SE2d 286) (1986). The State did not fail to prove an essential element of the crime by failing to present evidence of the insurer’s lack of consent to the act.

5. The trial court committed no reversible error in charging the jury: “[Y]ou are the judges of both the law and the facts in a criminal case.” This statement comes directly from the Constitution of the State of Georgia, Art. I, Sec. I, Par. XI (a). “[I]t has long been settled that this language, identical to that in earlier constitutions, means that jurors are ‘made absolutely and exclusively judges of the facts in the case, (and), they are, in this sense only, judges of the law.’ Harris v. State, 190 Ga. 258, 263 (9 SE2d 183) (1940) (quoting Berry v. State, 105 Ga. 683 (31 SE 592) (1898)). It is ‘the province of the court to construe the law and give it in charge, and the jury to take the law as given, apply it to the facts as found by them, and bring in a general verdict.’ [Id.]” Conklin v. State, 254 Ga. 558, 570 (331 SE2d 532) (1985). Here, the trial judge adequately and accurately charged the jury on the applicable law and the jury was properly left to apply the law to the facts of the case.

6. Defendant argues the trial court erred in failing to dismiss the case because the indictment did not allege and the evidence presented at trial did not prove that the damage to the automobile was without the consent of the holder of the security interest in the car. Because, as discussed in Division 4, pursuant to OCGA § 16-7-60 (a) (3) the State is only required to prove that either the owner or the insurer of the property did not consent to the damage, it follows that pursuant to OCGA § 16-7-60 (a) (2) the State is only required to prove that either the owner or the holder of the security interest did not consent to the damage, and is not required to prove both parties did not consent. The trial court did not err in charging that the definition of arson is damaging a vehicle by fire without the consent of the owner or the person holding a security interest.

Decided September 6, 1991.

Edith M. Edwards, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0936.
    GMS AIR CONDITIONING, INC. v. DEPARTMENT OF HUMAN RESOURCES et al.
    (410 SE2d 341)
   Pope, Judge.

Plaintiff GMS Air Conditioning, Inc. (hereinafter “GMS”), by letter from its attorney dated October 25, 1989, requested permission pursuant to the Open Records Act (OCGA § 50-18-71 et seq.) to inspect and copy certain documents and records maintained by defendant Georgia Department of Human Resources (hereinafter “DHR”), relating to “Contract No. 427-021-004218, Project No. MH-GRC-88S-92, Modifications to Therapy Building Mechanical Rooms, Replace High Temperature Water Piping” at the Georgia Retardation Center (hereinafter “Center”). The letter requested permission to inspect and copy “[a]ll public records collected, assembled, or maintained in any way pertaining to the above-referenced contract,” and went on to specify numerous categories of documents deemed to be included in the request. DHR responded on November 8, 1989, that its records and documents “pertaining to this project” would be available for timely inspection at the Center. Only the “contract file” for the project referred to in GMS’s request was made available to it. The file included only the original purchase order, the contract documents and related correspondence. From these documents, which filled two three-inch deep file folders, GMS selected 145 pages to be reproduced.

On November 27, GMS, through its attorney, complained by letter that DHR had failed to provide it with the records requested, submitting that it was being denied access afforded by the Open Records Act and declaring it would seek enforcement of compliance as provided by OCGA § 50-18-73. A DHR representative immediately wrote the attorney that he had discussed the problem, with the staff at the Center and they had advised him that all records they had on the “referenced project” had been made available. Mr. Allen expressed his willingness to locate other documents if GMS could “be more specific about records you hoped to find, or feel are being denied you . . . .”

DHR received no response to the letter requesting clarification of the information sought by GMS. Instead, two weeks later GMS filed suit seeking compliance with the Open Records Act and an award of attorney fees and expenses of litigation thereunder. After the complaint was filed, additional documents were made available to GMS for inspection and copying. DHR answered the complaint and asserted it had acted in good faith and that, because all documents responsive to plaintiff’s request had been provided, plaintiff’s complaint should be dismissed. GMS moved for summary judgment asserting DHR had produced 8,000 to 10,000 pages of documents, of which it selected some 2,000 pages for photocopying, only after the complaint was filed; and that since it had incurred considerable expense and attorney fees to compel compliance with the Act, it was entitled as a matter of law to recover those costs. DHR filed a cross-motion for summary judgment contending that not until after the suit was filed did it receive clarification of the scope of GMS’s open records request sufficient to permit it to respond; and that once it did, it furnished the documents requested at a time convenient to GMS. According to DHR, plaintiff was not entitled to an award of attorney fees because the filing of the complaint was unnecessary. GMS appeals the trial court’s grant of summary judgment to DHR.

The issue presented by defendant’s motion for summary judgment is whether the initial written request was vague and ambiguous and whether the information it received from plaintiff after the filing of the complaint did, in fact, provide the clarification necessary for it to comply with plaintiff’s request. In support of its motion, defendant submitted the affidavit of the DHR representative who responded to plaintiff’s request and corresponded with plaintiff’s attorney prior to the filing of the suit. According to his affidavit, the DHR representative initially “assumed that Plaintiff was merely requesting the contract file on the project referenced in its . . . request.” On its face, however, the request referred to all records pertaining to the contract referenced in the request and specified a lengthy and detailed list of the types of documents it intended to include in its request. The DHR representative further attested in his affidavit: “As written, the Plaintiff’s request arguably would apply to all documents pertaining to the original installation of the high temperature water piping system in all thirteen buildings at the Georgia Retardation Center. These documents, going back as far as 1968, are voluminous and involved thousands of pages. Because the Plaintiff’s . . . request specifically referenced one contract and project at the Georgia Retardation Center, I assumed that the request was not intended to apply so broadly.” This statement appears to be internally inconsistent; on the one hand, the affiant states he interpreted the request to apply broadly to construction dating back to 1968 while at the same time acknowledging that the request referenced only one contract and project. Moreover, the request on its face contradicts the affiant’s assertion that the request encompassed documents relating to the water piping system of “all thirteen buildings” at the Center; it refers only to the system in the therapy building. The affiant goes on to state he did not understand plaintiff wanted only those documents relating to the therapy building until the suit had been filed and counsel for DHR had consulted by telephone with counsel for plaintiff. As noted above, that the request was restricted to the therapy building appears on the face of the written request.

Based on this evidence, the trial court found the initial request to be vague and overbroad and found that the scope of plaintiff’s request was not clarified until after the suit was filed. Thus, the trial court held DHR had acted in good faith and that plaintiff was not entitled to an award of attorney fees. “The award of attorney’s fees is discretionary under [OCGA § 50-18-73] and the decision of the superior court will be interfered with only where this discretion has been abused.” Richmond County Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19, 21 (311 SE2d 806) (1984). However, “ ‘the testimony of a party offering himself as a witness in his own behalf is to be construed most strongly against him when it is contradictory, vague, or equivocal ....’” Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 552 (181 SE2d 866) (1971). As noted above, the testimony of the DHR representative was contradictory and equivocal. It was also in conflict with the information contained in the written request which was submitted in evidence by plaintiff.

In an action to enforce the provisions of the Open Records Act, the plaintiff has the burden of proving the defendant violated the Act and, to be awarded attorney fees, must prove the violation was “completely without merit as to law or fact . . . .” OCGA § 50-18-73 (b). On a motion for summary judgment, however, the movant has the burden of showing the absence of any genuine issue of material fact, even as to issues upon which the opposing party would have the burden of proof at trial. Wood v. Brunswick Pulp & Paper Co., 119 Ga. App. 880 (169 SE2d 403) (1969). The factual issues presented by this case are whether defendant, though it produced the documents plaintiff requested after a lawsuit was filed, violated the Open Records Act by not producing them before the suit was filed and whether the violation, if any, was “completely without merit as to law or fact.” “ ‘Where the evidence on motion for summary judgment is ambiguous or doubtful, the party opposing the motion must be given the benefit of all reasonable doubts and of all favorable inferences and such evidence construed most favorably to the party opposing the motion. [Cit.]’ ” Burnette Ford, supra at 552-553 (quoting Word v. Henderson, 110 Ga. App. 780, 788 (140 SE2d 92) (1964), Jordan, J., dissenting). Because defendant failed to show that these factual issues must be decided in its favor as a matter of law, then summary judgment in its favor was improper.

Decided September 6, 1991.

Garrett, McManus & Grubb, John C. McManus, for appellant.

Michael J. Bowers, Attorney General, Grace E. Lewis, William C. Joy, Senior Assistant Attorneys General, Mary F. Russell, Assistant Attorney General, for appellees.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0952.
    BELCHER v. THE STATE.
    (410 SE2d 344)
   Cooper, Judge.

Appellant was indicted for kidnapping, armed robbery and aggravated assault and was found guilty by a jury of all charges. He appeals from the denial of his motion for new trial.

The evidence viewed in a light most favorable to the jury verdict shows the following: In the early morning hours of December 18, 1989, the victim stopped at a store on her way home from work. Appellant approached the victim’s car as she was getting into it, poked a large pistol in her side and forced her to move to the passenger seat. When she intentionally dropped her car keys on the floor, appellant hit her in the back with the gun and demanded that she give him the keys. She complied and appellant drove to an unpopulated wooded area, telling the victim that he was going to tie her up and leave her in the woods because he needed to use her car to rob a bank when it opened in the morning. Because it was cold and snowing, the victim talked appellant out of leaving her in the woods, and he took her to his apartment which was only three blocks from the store. Appellant and the victim spent the rest of the night talking, and when appellant left in the morning, the victim went next door and called the police. The victim’s car was subsequently found a couple of blocks from appellant’s apartment.

1. Appellant contends in his first enumeration of error that the trial court erred in admitting the State’s similar transaction evidence. The State introduced the testimony of a male victim, who identified appellant as the perpetrator of an armed robbery which occurred two months earlier. The man was giving appellant and his friend a ride home when appellant put a gun against the man’s neck and forced him into the backseat of the car. Appellant told the man that he needed the car to rob a bank. The man was able to escape through the plastic rear window in his car. “While generally evidence of other criminal acts committed by an accused is inadmissible because it tends to put the accused’s character into evidence in violation of OCGA § 24-9-20 (b), ‘ “(e)xceptions allow independent crimes to be introduced on two conditions: 1) there must be evidence that defendant was in fact the perpetrator of the independent crime, and 2) there must be sufficient similarity or connection between the independent crime and the charged crime that proof of the former tends to prove the latter. (Cits.) Thereafter the independent crime may be introduced to prove identity, motive, plan, scheme, bent of mind and course of conduct. (Cit.)” [Cit.]’ [Cit.]” Lord v. State, 199 Ga. App. 814, 816 (1) (a) (406 SE2d 137) (1991). While every detail was not identical, we find that there were sufficient similarities in the two armed robberies to render the evidence admissible. “ ‘(I)nitial admissibility of evidence is a matter which rests largely within the sound discretion of the trial judge. (Cit.)’ [Cit.] We find no abuse of discretion of the trial court in admitting evidence of [the] prior armed [robbery] for the limited purpose for which the jury properly was instructed. Appellant’s assertions are without merit.” Brown v. State, 197 Ga. App. 155, 157 (398 SE2d 34) (1990).

2. In his second enumeration of error, appellant contends that the trial court erred in allowing the victim to testify about appellant’s prior criminal record. The victim testified that during her conversation with appellant at his apartment, appellant told her about previous crimes he had committed and admitted that he had served time in prison. “We determine that the victim’s testimony included a statement made by appellant during the commission of [one of] the offense [s] for which he was indicted and was an integral part of the res gestae. [Cits..] ‘ “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense. . . .” (Cits.)’ [Cit.] ‘The fact that such part of the res gestae incidentally placed (appellant’s) character in issue does not render it inadmissible. (Cits.)’ [Cit.] “(A) trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered . . . will not be disturbed on appeal unless that determination is clearly erroneous.” (Cits.)’ [Cit.] Accordingly, we find no basis for reversal!” (Indention omitted.) Miller v. State, 197 Ga. App. 691 (2) (399 SE2d 281) (1990). Accord Japhet v. State, 176 Ga. App. 189 (6) (335 SE2d 425) (1985).

3. Appellant asserts that the trial court erred in denying his motion for directed verdict on the charge of armed robbery because the evidence did not show that he took the victim’s automobile by intimidation and with the use of a handgun. He argues that if any taking took place, it was while he left the victim asleep in his apartment and drove the car away; thus the robbery was not from her person or in her presence, nor was it accomplished by the use of a handgun, and therefore there was not only a failure of proof of the allegations of the indictment but also a fatal variance.

We do not agree. The jury was authorized to conclude from the evidence that the armed robbery occurred when the appellant forced the victim at gunpoint to move into the passenger seat of her car and give him the car keys. As the indictment adequately informed appellant of the charges against him so that he could effectively prepare a defense, there was no fatal variance between the allegata and the probata. Mathis v. State, 194 Ga. App. 498 (2) (391 SE2d 130) (1990).

4. Appellant’s enumeration that the trial court erred in refusing to charge the lesser included offense is without merit. The evidence was that appellant either took control of the victim’s car at gunpoint, as she testified, or, according to appellant’s testimony, that she picked him up. Thus there was no evidence of theft by taking, and the jury was only authorized to find appellant guilty or not guilty of armed robbery. “Although both robbery and theft by taking have been held to be lesser included offenses of armed robbery, it is not necessary to charge on the lesser included offense where the evidence demonstrates completion of the greater offense. [Cit.] The evidence clearly supported the trial court’s charge and appellant’s conviction. Thus the trial court did not err in refusing to charge . . . theft by taking.” Sims v. State, 197 Ga. App. 214, 217 (5) (398 SE2d 244) (1990).

5. Appellant enumerates the general grounds. Appellant’s testimony directly contradicted the victim’s testimony. He testified that the victim drove up to him at the store and asked him if he wanted to party; that she invited him to come to her apartment on Buford Highway, but since it was snowing he suggested they go to his apartment, which was nearby. She wanted to walk in the snow, so she drove the car to a parking lot and left it there, and they walked the two blocks from there to his apartment. Appellant and the victim went to his bedroom where they drank champagne and talked all night. He left her asleep in his bed when he went to work in the morning. Appellant’s common law wife testified that appellant could not drive a car.

Decided September 6, 1991.

Jonathan J. Wade, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Henry M. Newkirk, Richard E. Hicks, Assistant District Attorneys, for appellee.

“ ‘Judging the credibility of witnesses and weighing the evidence are functions within the province of the jury.’ [Cit.] Further, on appeal we are required to view the evidence in the light most favorable to the verdict. [Cit.] After a review of the record and the evidence adduced at trial, we conclude that a rational trier of fact could have found proof of guilt beyond a reasonable doubt. [Cit.]” Seidel v. State, 197 Ga. App. 14, 15 (1) (397 SE2d 480) (1990).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1037.
    RUCKS v. THE STATE.
    (410 SE2d 206)
   Cooper, Judge.

Appellant, pro se, appeals his conviction of the sale of cocaine under OCGA § 16-13-30 and sentence of life imprisonment.

1. In enumerations of error one, two, three, six and seven, appellant attacks the recidivist portion of OCGA § 16-13-30 (d) on constitutional grounds of denial of due process and equal protection. However, the basis for his challenge, that the statute unlawfully gives the prosecutor unbridled discretion to determine whether to invoke its provisions, has previously been considered and determined adversely to his position. “Prosecutorial discretion in this situation is no different from prosecutorial discretion in any other. Given any set of facts, prosecutors must exercise discretion as to what the criminal charge will be. . . . Therefore, since prosecutorial discretion comes into play under every criminal statute, it is not, of itself, grounds for striking a given statute down as unconstitutional. [Cit.]” Knight v. State, 243 Ga. 770 (1) (257 SE2d 182) (1979).

Further, “[t]he United States Supreme Court in Oyler v. Bowles, 368 U. S. 448 (82 SC 501, 7 LE2d 446) (1962) held that even the conscious exercise of some selectivity in enforcement of a recidivist statute was not a constitutional violation provided the selection was not ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ [Cits.]” Id. at 772. Applying the same principle, the Georgia Supreme Court has held that “[t]he party seeking to prove unconstitutionally discriminatory enforcement of the law . . . has the burden of presenting sufficient evidence to establish the existence of intentional or purposeful discrimination which is deliberately based upon [such] an unjustifiable standard, such as race, religion, or other arbitrary classifications. [Cit.]” State of Ga. v. Causey, 246 Ga. 735, 737 (2) (273 SE2d 6) (1980). Appellant, relying on a newspaper article, claims that he is among a small number of individuals with previous drug convictions who has been prosecuted under OCGA § 16-13-30 (d) since its passage, while many others have had multiple convictions and have not been convicted likewise under the statute. “Under the rule of Causey, the fact that only one person is prosecuted for doing what many others do is no warrant, in itself, for relief.” State v. Agan, 259 Ga. 541, 548 (6) (384 SE2d 863) (1989). As there is no evidence of record that OCGA § 16-13-30 (d) was selectively enforced against appellant or any particular group of which he is a member, he has failed to prove his contention that the statute was selectively enforced. Ray v. State, 259 Ga. 868, 869 (2) (389 SE2d 326) (1990).

Appellant’s contention that the recidivist provision is invalid because it imposes a mandatory life sentence has also been rejected. “ [I]t is within the power of the legislature to direct the punishment to be prescribed for second offenders and to leave no discretion to the trial judge.” Knight, supra at 771. Nor are mandatory life sentences unconstitutional. See Rummel v. Estelle, 445 U. S. 263 (100 SC 1133, 63 LE2d 382) (1980).

Likewise, appellant’s position that the life sentence mandated by the statute for second convictions of OCGA § 16-13-30 (b) is disproportionate to the punishment for other drug activities, and in particular those for all other second time felony offenders, cannot prevail. “The legislature has a wide discretion in the exercise of its police power in setting classifications and penalties. [Cit.] Such laws will not be held invalid if there is any basis upon which the law is aimed at a legitimate state interest. [Cits.]” Hargrove v. State, 253 Ga. 450, 453 (3) (321 SE2d 104) (1984). “ ‘Courts should not substitute their judgments as to the appropriateness of criminal penalties for those lawfully expressed by the General Assembly. It is only when criminal sanctions fail constitutional standards that the judiciary may concern itself with the substance of the sanctions. Among those standards is the requirement that sentencing schemes be rational. (Cit.)’ [Cit.]” Tillman v. State, 260 Ga. 801 (400 SE2d 632) (1991).

There is absolutely no question that the drug problem is pervasive and insidious, and the havoc drug usage and its attendant ills have wreaked upon the citizens of this state vindicate the legislature in imposing more severe sanctions for repeated violations of the sale of cocaine. “Inasmuch as there is a rational basis for the sentencing scheme set up by the legislative branch, the mandatory life imprisonment sentence found in OCGA § 16-13-30 (d) does not unconstitutionally deprive appellant of due process of law.” Id. at 802. Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991), a three-judge majority decision which appellant cites for the premise that the 1983 Georgia Constitution affords additional due process protection beyond the Federal Constitution, does not require a different result. “The protection of the Georgia Constitution of 1983, Art. I, Sec. I, Par. II, and the Equal Protection Clause of the federal constitution have been held to be coextensive. [Cit.]” Ambles v. State, 259 Ga. 406, 407 (2) (383 SE2d 555) (1989).

Decided September 6, 1991.

Douglas Rucks, pro se.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. Appellant’s argument that the sentence of life imprisonment imposed pursuant to OCGA § 16-13-30 (d) violated the Eighth Amendment prohibition against cruel and unusual punishment has also been repudiated. Quoting Rummel v. Estelle, supra at 284-285, our Supreme Court stated, “the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction. We therefore hold that the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments.” Grant v. State, 258 Ga. 299, 300 (2) (368 SE2d 737) (1988). Thus there was no constitutional violation on this ground.

3. Appellant complains that he was erroneously indicted and sentenced under OCGA § 16-13-30 (d) for his first, rather than his second, offense. The prior conviction was based upon an offense which occurred on November 14, 1988, subsequent in time to the instant offense (January 12, 1988); however, a judgment of conviction on the November offense was entered prior to disposition of the instant case. While the statute provides for life imprisonment “ ‘[u]pon conviction of a second or subsequent offense,’ ” it has been held that there is “no statutory prerequisite as to a conviction which antedates the offense for which the accused is sentenced.” State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984). It follows that where there are two convictions, there is no basis for reversal.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1059.
    RAVEN v. THE STATE.
    (410 SE2d 346)
   Cooper, Judge.

In a three-count indictment, appellant was charged with two counts of armed robbery (Counts I and II) and one count of robbery by intimidation (Count III). The jury returned a verdict of guilty on Counts II and III and found appellant guilty of robbery by intimidation, a lesser included offense, on Count I. Appellant’s sole enumeration of error is that the trial court erred in admitting into evidence his plea of guilty to the offense of giving a false name to a law enforcement officer.

The evidence adduced at trial shows that on February 28, 1988, a black man entered a Kangaroo convenience store wearing an army jacket, a stocking cap, and a scarf wrapped around his face. The man, who had his hand in his jacket to suggest that he had a weapon, went around the counter and demanded that the store clerk give him all of the money, after which the man left the store. Officer Taylor was patrolling the area near the Kangaroo store when he saw a black man come out of the store and begin to slowly jog away. Just as the officer pulled up beside the man, a report came over the radio about the armed robbery. The man, hearing the radio broadcast, broke into a full run. He was able to escape through some woods; however, a cap and scarf matching the description of those worn by the suspect during the robbery were recovered later that night in the area where the man escaped.

On March 13, 1988, a black man entered another Kangaroo store wearing an army jacket and white pants and carrying a knife. The man demanded that the store employee give him the money from both cash registers, and after taking the money, he ran from the store in the direction of a nearby apartment complex. Officer Wimpy responded to the call and saw a man running through the apartment complex who fit the description of the robbery suspect. He pursued the suspect and was able to get a good look at the suspect as the suspect took off the army field jacket he was wearing and discarded it. Officer Wimpy retrieved the jacket in which he found a knife and an envelope containing money orders. The suspect was eventually captured by other officers who arrived on the scene. Officer Wimpy identified the suspect as the person he had been chasing. Appellant was not charged with armed robbery at that time, but was arrested for giving a false name to the law enforcement officer who apprehended him. Appellant subsequently made bond on the charge of giving a false name to a law enforcement officer and was released.

On March 24, 1988, a black man entered a third Kangaroo store wearing a cap and a black bandanna over his face. The man went behind the counter, told the store employee that she was being robbed and ordered her to leave the store. Police officers responded to the call about a robbery and subsequently apprehended appellant based on the description given by the store employee.

At trial, the cap and scarf which were recovered after the first robbery were identified at trial by the first store clerk as the cap and scarf worn by the suspect during the robbery. Officer Taylor also identified those items as being worn by the man who jogged out of the Kangaroo store. In addition, both the victim of the first robbery and Officer Taylor identified the jacket recovered by Officer Wimpy after the second robbery as the jacket worn by the appellant during the first robbery. A microanalyst with the State Crime Lab testified that hair samples taken from the cap and scarf found after the first robbery were consistent with known hair samples from appellant’s head. With respect to the second robbery, the store employee positively identified appellant as the man who robbed the store. The employee also identified the jacket retrieved by Officer Wimpy as the jacket appellant was wearing when he robbed the store. The money orders recovered by Officer Wimpy were also identified by the second robbery victim as those taken during the robbery. Two witnesses who knew appellant testified that they were on their way to the store when they saw appellant go behind the counter in the store and then run from the store into one of the apartments. Officer Wimpy also identified appellant at trial as the person he chased through the apartment complex. Although the victim of the third robbery could not identify appellant at trial, she identified the pants taken from appellant when he was arrested following the third robbery as the pants the man was wearing when he robbed the store.

Appellant contends that the trial court erred in allowing the State to introduce into evidence a copy of appellant’s plea of guilty to the charge of giving a false name. He argues that the evidence was not admissible for the purpose of showing that appellant attempted to obstruct the investigation because the officer to whom the false name was given was not available to testify as to the circumstances surrounding the giving of the false name. Thus, appellant contends that the evidence impermissibly placed his character in evidence. “The broad premise is that a statement or conduct by defendant which indicates a consciousness of guilt is admissible against him. [Cit.]” Parker v. State, 181 Ga. App. 590, 591 (2) (353 SE2d 83) (1987). The intake form, which was introduced into evidence without objection, showed that appellant was charged with giving a false name to an officer on March 13, 1988 at 3:36 a.m. The Uniform Traffic Citation, issued at his arrest, indicated that on March 13, 1988 at 3:30 a.m., appellant gave the name of “Tracy Manee when questioned by Cmdr. Darracott during a police investigation.” The second robbery occurred shortly after 2:30 a.m. on March 13, 1988, and when the false name was given, the appellant was being investigated in connection with the robbery, although he was not charged at that time. The giving of a false name to a law enforcement officer during an investigation is evidence which indicates a consciousness of guilt on the part of appellant and we find no error in the trial court’s admission of this evidence. Parker v. State, supra. Appellant also argues that even if the evidence were relevant, its prejudicial impact outweighed any probative value which it may have had. We disagree. We cannot conclude that the misdemeanor charge to which appellant pled guilty in any way prejudiced the jury with respect to the three robberies for which he was on trial. Furthermore, given the overwhelming evidence of appellant’s guilt on each count in the indictment, we conclude that any error in the admission of the evidence did not contribute to the guilty verdict. Vaughn v. State, 248 Ga. 127 (2) (281 SE2d 594) (1981).

Decided September 6, 1991.

Valpey & Walker, Gregory W. Valpey, for appellant.

Howell Raven, pro se.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1194.
    FRANKLIN v. THE STATE.
    (410 SE2d 451)
   Cooper, Judge.

Appellant was convicted by a jury of rape and burglary and appeals from the denial of his motion for new trial.

1. Appellant contends that the trial court erred in admitting the State’s similar transaction evidence. He argues that the prior offense was not sufficiently similar to the charged offense; therefore, his character was impermissibly placed in issue.

The victim, who was 16 at the time of the incident, testified that on May 26, 1989, she drove a friend to a house where the friend was meeting a group of people who were going to Florida for the Memorial Day weekend. When the victim and her friend arrived, several people, including appellant, were already at the house. The victim knew appellant and was friendly with him. When the group left for Florida, the victim, appellant and a friend of appellant remained at the house. The three drove to the liquor store, returned to the house, then went to Cartersville and picked up other friends before returning to the house at approximately 10:30 p.m. The victim testified that she was supposed to be home by 9:00 p.m., but was unable to leave because appellant took her car keys and would not give them back to her. Appellant had driven the victim’s car to the back of the house earlier and parked it there. The victim continued to ask appellant to give her the keys, but appellant refused to do so until the victim agreed to talk to him. Everyone left the house except appellant and the victim, who were on the front porch. Appellant told the victim that if she came inside and talked he would give her back the car keys. As soon as the victim went inside the house, appellant locked the front door. Appellant then told the victim that if she came in the bedroom and talked he would give her the keys and she could leave. The victim testified that she went along with appellant because she wanted to get her keys, but once they were in the bedroom, appellant raped her. Appellant then allowed the victim to leave, and the victim called the police.

The State called a witness who testified that she met appellant in February 1989, when he visited with her roommate. On one occasion, after appellant had completed his visit, the witness drove appellant back to his house. When she got to appellant’s house he told her to pull up behind the house where a camper was parked. As soon as the witness was behind the house, appellant grabbed her keys and would not return them. Appellant told the witness to come get the keys, and she followed appellant inside the camper with the hope of retrieving her keys. As soon as the witness was in the camper, appellant locked the door, tied her up and raped her.

“ ‘Evidence of other similar crimes by a defendant is admissible if there is “sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. (Cits.)” (Cit.) Such evidence may be admitted to show state of mind or intent of a defendant. (Cit.) “In crimes involving sexual offenses, evidence of similar previous transactions is admissible ‘to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the act charged.’ (Cits.)” (Cit.)’ [Cit.]” Meier v. State, 190 Ga. App. 625, 626 (2) (379 SE2d 588) (1989). Appellant’s reliance on Wimberly v. State, 180 Ga. App. 148 (348 SE2d 692) (1986) and Larkins v. State, 230 Ga. 418 (197 SE2d 367) (1973) in support of his position that the prior transaction was not admissible is misplaced. Wimberly relied on Larkins for the proposition that the general rule regarding similar transaction evidence does not apply in rape cases where the only issue for the jury to determine is the consent of the victim. “This portion of Larkins was overruled in Hunt v. State, 233 Ga. 329, 331 (211 SE2d 288) (1974); and Thomas v. State, 234 Ga. 635, 636 (217 SE2d 152) (1975). In Thomas the court held that evidence which would show intent, motive, plan, scheme, and bent of mind was relevant as to whether or not the [victim] consented to the sexual acts committed upon her by the defendant.” Taylor v. State, 195 Ga. App. 634, 635 (394 SE2d 597) (1990). We find that the prior offense was sufficiently similar to the offense charged to be admissible.

Decided September 6, 1991.

Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, Paul F. Carden, Assistant District Attorney, for appellee.

2. In his second enumeration of error, appellant contends that the trial court erred in failing to conduct a pre-sentence investigation. Following the jury verdict, the trial judge asked appellant’s counsel if he wanted to present any material or any evidence in connection with the sentencing, and appellant’s counsel responded that he did not. Therefore, appellant was afforded an opportunity to present evidence in mitigation of punishment and declined to do so. Accordingly, we find no error with the trial court’s decision to sentence appellant without conducting a pre-sentence investigation. Thompson v. State, 195 Ga. App. 18 (3) (392 SE2d 732) (1990).

Appellant also argues that the trial court erred in considering his prior criminal record in aggravation of his sentence when such evidence had not been made known to appellant prior to trial pursuant to OCGA § 17-10-2 (a). Prior to imposing the sentence the trial judge asked the probation officer if he was familiar with appellant’s prison record, and the probation officer responded that he knew that appellant had been on probation on several occasions and that his probation had been revoked. The judge then stated: “I am aware of the fact that . . . [appellant] has been before this Court on other occasions, matters of his probation, that his remainder has been revoked from time to time. He has been to the prison system. I know that if I sentence him to a period of years that the parole board is going to put it on the grid and ascertain a time. . . . My situation here is that... I believe, that you have had opportunities here in the Court system to be rehabilitated and to choose a different path, and rather than you choose a different path it has gotten more serious and you have gotten more serious. . . . My purpose is to basically incapacitate you and get you out of this community for the maximum period of time.” Appellant made no objection. “ ‘Any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation, subject to the notice provisions of (OCGA § 17-10-2 (Code Ann. § 27-2503)).’ [Cit.] Appellant’s failure to object to the fact that the [probation officer] was not sworn or to any lack of notice waives his right to raise such objections. [Cit.]” Fields v. State, 167 Ga. App. 816, 818 (4) (307 SE2d 712) (1983).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A1197.
    MERRITT v. THE STATE.
    (410 SE2d 349)
   Birdsong, Presiding Judge.

Van Merritt appeals his convictions for the dual offenses of possession of cocaine while having “on and within arm’s reach of accused’s person a firearm, to wit: a pistol,” in violation of OCGA § 16-11-106 (b) (4). Held:

1. The evidence showed that police officers, standing as near to an apartment doorway as “from [the witness stand] to the front bench [of the courtroom]” saw an individual standing in the doorway. The doorway was well lit and the door was open; the officers were standing in the shadows. They saw three persons standing in line on the apartment steps. The first person turned and left; the second person stepped forward and gave the individual standing in the doorway a ten dollar bill. The man in the doorway turned and retrieved something from inside the apartment and handed the buyer a small plastic bag. Police observed as the third person in line approached the man in the doorway and handed him money, and the man turned as if to reach inside the apartment. At this point, the officers “broke and ran for the door and just as we hit the steps he turned around and saw us and then slammed the door shut. ...” One officer ran around to the back of the apartment. Appellant came through the glass of a window “and fell on top of [the officer] dropping a .22 caliber pistol on top of [the officer] and glass.” The officer did not see where the gun fell from, but said, “when [appellant] hit me the gun hit my side and it fell to the ground.” Appellant started to run but was caught by the other officer, who placed him in handcuffs. The man who jumped out of the window was the man the officers had seen exchanging a small plastic bag for money in the doorway of the apartment. The officers went back to the front door and were allowed in by a female; when she opened the door, cocaine and weighing scales were in plain view. They saw the butt of a gun, a .38 caliber, under a chair occupied by a woman; there were two sets of scales and about a couple of hundred of the small bags used to package cocaine. There were three or four “hits” of cocaine found in the front room.

This evidence, viewed in favor of the verdict, is sufficient to enable a rational trier of fact to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The jury could conclude beyond a reasonable doubt that appellant was in possession of cocaine and that at least the .22 caliber pistol was “within arm’s reach” of appellant while he was in possession of the cocaine, since he obviously retrieved it instantaneously before or while running to the back of the apartment and jumping through the window. Appellant was not entitled to a directed verdict of acquittal under OCGA § 17-9-1.

2. Although appellant in his brief refers to several motions for mistrial, he argues only two. Enumerations not supported by. argument of counsel or citation of authority are deemed abandoned. Moss v. State, 196 Ga. App. 81, 84 (395 SE2d 363). The only arguments made as to appellant’s motions for mistrial are that the jury was drawn discriminately; and that the State was improperly allowed to introduce evidence of a drug sale when such was not charged in the indictment.

As to the first contention, appellant argues only that the prosecutor’s proffered explanations for two jury strikes were “suspect.” No other argument is made, and no reason is given as to why appellant believes the prosecutor’s explanation was “suspect.” We know of no rule of law that would authorize the suspension of a jury verdict on grounds that the reason given for striking a witness was “suspect.” As to the defendant’s burden of proof in cases involving a challenge to jury composition per Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), see Aldridge v. State, 258 Ga. 75, 77 (365 SE2d 111). A party alleging error has the burden to show it affirmatively in the record; this burden is not discharged by recitations in the brief (Blane v. State, 195 Ga. App. 504 (393 SE2d 759)), nor by the mere assertion that some event at trial was “suspicious.” See Solomon v. State, 195 Ga. App. 882 (395 SE2d 335).

Appellant was not entitled to a mistrial on grounds of evidence being admitted that the police witnessed what they believed were “drug sales,” in this prosecution for possession and having a firearm within arm’s reach. This evidence was part of the events witnessed by police, tying appellant directly to the possession of cocaine found in the apartment. The sale of a plastic bag, believed in common experience to contain drugs, in exchange for money was an aspect of the charged criminal act and was admissible as res gestae although appellant was, to his good fortune, not prosecuted for the sale of drugs. Hight v. State, 195 Ga. App. 727, 730 (394 SE2d 636).

3. Appellant complains similarly of the denial of his motion in limine, by which he sought to preclude the officers from testifying as to what they saw appellant doing in the doorway of the apartment. This complaint is without merit. Not only were the officers competent to testify that they observed what in their experience was a drug sale (see Daniels v. State, 184 Ga. App. 689 (4) (362 SE2d 775)), but the incidents which they observed, which were indicative of drug sales and which resulted in their approach to the apartment door, from which appellant fled in possession of a gun, were part of the res gestae, and therefore admissible in evidence. See O’Kelly v. State, 196 Ga. App. 860, 861 (397 SE2d 197). “As a general rule, all the circumstances connected with a defendant’s arrest are admissible as a part of the res gestae.” Crowe v. State, 193 Ga. App. 385 (388 SE2d 24). The fact that appellant was seen in the doorway of the apartment conducting an activity which in the officers’ experience appeared to be the sale of drugs is what connects appellant to the possession of the cocaine found in the apartment, notwithstanding the fact that he was not prosecuted for the sale.

Decided September 6, 1991.

Patrick G. Longhi, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Katherine B. Monahan, Rebecca A. Keel, William C. Akins, Assistant District Attorneys, for appellee.

We find no merit in this appeal.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A1266.
    HARRIS v. THE STATE.
    (410 SE2d 351)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated battery, aggravated assault and two counts of possession of a knife during the commission of a crime. On appeal, her sole enumeration of error is the trial court’s admission of the State’s similar transaction evidence.

The evidence adduced at trial reveals that on the night of July 12, 1990, appellant went uninvited to the home of the victim, who was sitting on his front porch. Appellant told the victim to go in the house and after the victim refused, appellant walked into the victim’s house, went into the kitchen and looked in the victim’s refrigerator. The victim followed appellant into the house and told appellant to get out of his house. Appellant then took a butcher knife out of the kitchen sink, ran towards the victim with the knife and stabbed him below his navel, forcing the full length of the blade into the victim’s body. There was evidence that appellant was intoxicated at the time of the stabbing. Appellant offered a different version of the incident, testifying that as she was walking home on the night of the stabbing, she was approached by the victim who made sexual advances toward her; that the victim and appellant had a brief verbal exchange; and that the victim took a knife and stabbed appellant, and then appellant took out a knife and stabbed the victim.

The State introduced into evidence a certified copy of appellant’s plea of guilty to the charge of voluntary manslaughter, arising out of an incident on November 11, 1982 wherein appellant, while intoxicated, killed a man by stabbing him in the chest with a butcher knife. The State also introduced a picture of that butcher knife for the purpose of comparing it to the knife used in the stabbing for which appellant was on trial. The trial court instructed the jury that appellant was only on trial for the offenses charged in the indictment and that evidence of any other offenses was admitted only to the extent that it might illustrate appellant’s identity, bent of mind, plan, scheme, course of conduct or state of mind and that such evidence was not to be considered for any other purpose. “ ‘Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. “However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged. (Cit.)” Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. (Cit.)’ [Cits.]” Leonard v. State, 197 Ga. App. 221, 223 (2) (398 SE2d 250) (1990). Since the identification of appellant as the perpetrator of the previous transaction was established, the admissibility of the evidence depends on whether it was sufficiently similar to the crime charged. Both stabbings were committed with a butcher knife when appellant was intoxicated and apparently angry with the victim. The previous stabbing was sufficiently similar to the crime charged and was “admissible for the limited purpose of showing [appellant’s] propensity for knife wielding, which falls within the ‘bent of mind’ exception to the inadmissibility rule. [Cit.]” Millwood v. State, 164 Ga. App. 699, 701 (1) (296 SE2d 239) (1982). Furthermore, “[e]ven assuming there was error . . . where, as here, the evidence was overwhelming, it is highly probable that the error did not contribute to the judgment. Therefore, the error, if any, is harmless. [Cit.]” Mims v. State, 180 Ga. App. 3, 5 (2) (348 SE2d 498) (1986).

Decided September 6, 1991.

Andrews & Seery, Stephen H. Andrews, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1371.
    PLUMM v. THE STATE.
    (410 SE2d 352)
   Birdsong, Presiding Judge.

Charles Palmer Plumm appeals his judgment of conviction of burglary and the sentence. He enumerates that the trial court erred in denying his motion for directed verdict and his motion for new trial because his pretrial statement was not corroborated as required by OCGA § 24-3-53. Held:

1. OCGA § 24-3-53 provides that “[a]ll admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction.”

2. “[A] mere incriminating statement is made where the accused, though admitting to damaging circumstances, nonetheless attempts to deny responsibility for the crime charged by putting forward exculpatory or legally justifying facts. Thus, ‘[a] statement which includes facts or circumstances which show excuse or justification is not a confession of guilt even if it admits the main fact’ [cit.], and ‘[w]hen a person admits only some subordinate fact or series of facts from which the jury may or may not infer guilt and which would be true whether the main fact existed or not, there is no confession. . . .’ A confession, as distinct from an incriminating admission, is a statement inconsistent with the possibility of accused’s innocence of the crime charged: ‘An admission of the main fact, from which the essential elements of the criminal act may be inferred, amounts to an admission of the crime itself. If the main fact is admitted with a qualifying exclusion of a necessary ingredient of the crime charged, the crime is not confessed.’ ” Robinson v. State, 232 Ga. 123, 126 (205 SE2d 210). Examining the pretrial statements of appellant, which were introduced in evidence, we conclude these statements, either alone or together, did not constitute a confession but rather were incriminating statements or admissions within the meaning of Robinson. It is not required that admissions or incriminating statements be corroborated as must confessions to a crime (Sheffield v. State, 188 Ga. 1, 11 (9) (2 SE2d 657); Milner v. State, 191 Ga. App. 726 (1) (382 SE2d 666); Brown v. State, 167 Ga. App. 851, 852 (1) (307 SE2d 737)). Nothing in the record establishes that the trial court failed to scan appellant’s incriminating pretrial admissions with great care, as required by OCGA § 24-3-53.

3. “[0]n appeal of the overruling of a motion for directed verdict of acquittal made at the close of the state’s case in chief, the reviewing court can consider all the [relevant] evidence in the case in determining whether the trial court erred in overruling the motion.” Bethay v. State, 235 Ga. 371, 374 (1) (219 SE2d 743). Likewise, we can consider all the relevant evidence in the case in ruling on the propriety of the trial court’s denial of appellant’s motion for new trial.

Decided September 6, 1991.

Kimel & Bloodworth, George L. Kimel, for appellant.

Thomas C. Lawler III, District Attorney, Pamela D. South, Debra K. Turner, Assistant District Attorneys, for appellee.

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. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in this light reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the burglary offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A91A1130.
    ROBERTS v. STENNETT.
    (410 SE2d 356)
   McMurray, Presiding Judge.

Plaintiff Vincent I. Roberts instituted an action against defendant Dirk A. Stennett and alleged that he suffered damages after an automobile collision which occurred while he was a passenger in a vehicle negligently driven by defendant Stennett. Defendant admitted that plaintiff was a passenger in a vehicle he wrecked and that he was responsible for the collision. However, defendant alleged that he paid plaintiff for all damages stemming from the collision and that plaintiff’s additional claims are excessive, i.e., not the proximate result of defendant’s negligent act.

The case was tried before a jury and a verdict was returned in favor of defendant. This appeal followed the denial of plaintiff’s motion for new trial. Held:

1. Plaintiff contends “[t]he jury verdict was contrary to the weight of the evidence.”

“Where a determination of the merits of an enumeration of error requires a review of the entire transcript, and only a portion of the evidence at trial was forwarded on appeal, this court must affirm. See Campbell v. Crumpton, 173 Ga. App. 488 (2) (326 SE2d 845) (1985) and cases cited therein.” Prater v. Bertrand, 197 Ga. App. 169, 170 (3) (397 SE2d 562). In the case sub judice, no full transcript of the trial proceedings has been filed in the trial court and none is included in the record on appeal. (Only excerpts from the jury instructions appear in the appellate record.) Consequently, we must assume the jury’s verdict was properly supported by evidence. Prater v. Bertrand, 197 Ga. App. 169, 170 (3), supra.

Decided September 9, 1991.

Stephen W. Nicholas, for appellant.

Decker & Briggs, Richard P. Decker, William W. Briggs, for appellee.

2. Error is further enumerated that the trial court “erred in giving charges to the jury concerning negligence when such was not an issue and was stipulated by both parties.”

An inapplicable jury instruction “is not grounds for reversal where it does not appear that the inapplicable part was calculated to mislead the jury, erroneously affected the verdict or was prejudicial to the rights of the complaining party. Southern R. Co. v. Heaton, 61 Ga. App. 386, 387 (12) (6 SE2d 339) (1939); Atlanta, Birmingham &c. R. Co. v. Patterson, 75 Ga. App. 189, 195 (43 SE2d 177) (1947). See also Perry v. State, 1 Ga. App. 542 (1) (58 SE 60) (1907).” Long v. Marion, 182 Ga. App. 361, 364 (3) (355 SE2d 711). See Davis v. Stewart, 169 Ga. App. 733, 734 (2) (315 SE2d 6). In the case sub judice, there is not a full transcript of the trial proceedings. Only excerpts from the trial court’s jury instructions appear in the appellate record. Consequently, we have no way of determining the full impact of the trial court’s charge that plaintiff had the burden of proving defendant’s negligence. This enumeration presents nothing for review.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1333.
    TENCH et al. v. TURNER et al.
    (410 SE2d 357)
   McMurray, Presiding Judge.

Plaintiffs, Mr. and Mrs. Hoyt Tench, brought suit against James Wesley Turner and his employer, Atlanta Baking Company, Inc., seeking damages for malicious prosecution and loss of consortium. They alleged that defendants “negligently caused a warrant” to issue for the arrest of Mr. Tench on the ground that he failed to stop at the site of an accident with damage; that Mr. Tench was “arrested, booked and placed under bond”; that a magistrate determined plaintiff was arrested without probable cause; that Mr. Tench suffered mental anguish and humiliation as a direct result of defendants’ conduct; and that, due to the injuries sustained by Mr. Tench, Mrs. Tench suffered a loss of consortium. Defendants answered the complaint and denied any liability to plaintiffs.

Decided September 9, 1991.

Following discovery, defendants filed a motion for summary judgment. The motion was granted and plaintiffs appeal. Held:

1. “The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for false imprisonment or malicious prosecution (Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822, 827 (67 SE2d 600) (1951)); in the latter case there is not. Hammon v. D. C. Black, Inc., 53 Ga. App. 609 (186 SE 775) (1936). It is clear, though, that the initiation of the criminal action need not be expressly directed by the party to be held liable. Webb v. Prince, 62 Ga. App. 749, 752 (9 SE2d 675) (1940).” Ginn v. C & S Nat. Bank, 145 Ga. App. 175, 178 (243 SE2d 528).

Reviewing the record, we find that defendant Turner did no more than relay facts concerning the automobile accident to a deputy sheriff. He simply informed the deputy that his bread truck had been struck in the rear by a pickup truck; that he observed a green pickup truck bearing a particular license number leaving the scene immediately after the accident; and that he followed the pickup truck to a particular residence. The decision to investigate and arrest Mr. Tench was made by the deputy sheriff alone. Thus, defendants cannot be held liable for the arrest and prosecution of Mr. Tench. Huff v. Household Intl., 184 Ga. App. 296 (2) (361 SE2d 273).

Plaintiffs’ reliance upon Melton v. LaCalamito, 158 Ga. App. 820 (282 SE2d 393), is misplaced. In that case, defendant continued to insist that the furniture pads be returned to U-Haul and a factfinder could have concluded that defendant’s insistence was the “determining factor leading to appellee’s arrest and prosecution.” Id. at 823. In the case sub judice, on the other hand, there was no evidence that defendant Turner urged any action or played any role in the decision to arrest Mr. Tench. He merely relayed facts about what he believed happened.

2. The mere fact that the superior court may not have considered the entire record in ruling upon the motion for summary judgment does not require a reversal as the plaintiffs here failed to show a genuine issue of material fact remained for trial. See Holtzendorf v. Seckinger, 195 Ga. App. 177, 183 (2) (393 SE2d 13).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

McDonald & Cody, Douglas W. McDonald, Sr., for appellants.

Carey & Walker, Jack M. Carey, for appellees.


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A91A1470.
    JACKSON v. THE STATE.
    (410 SE2d 358)
   McMurray, Presiding Judge.

Pursuant to an arrest warrant, defendant was arrested and charged with conspiring to damage property with the intent to defraud an insurance company. A magistrate set bail at $350,000. Subsequently, defendant was indicted and accused of conspiracy to commit theft by deception, and conspiracy to damage and destroy property to defraud another (two counts). In the meantime, defendant filed a “petition for setting of bond” in the Superior Court of Fayette County. The petition urged the superior court “to set bail for petitioner in such reasonable amount as [the superior court] should deem fit and proper.”

Responding to the petition, the Chief Judge of the Superior Court sent a letter to the Clerk of the Superior Court of Fayette County on April 19, 1991. In pertinent part, the letter reads as follows:

“I note that the above-stated matter appears on my motion day calendar for April 26, 1991. Inasmuch as bond has previously been fixed in this case by the Fayette County Magistrate, there is nothing for me to hear and you are directed to remove the same from this calendar. I am also advised that the accused has filed and has pending ... an application for a writ of habeas corpus . . . concerning the amount of the bond which was set by the Magistrate.”

The letter was filed in the office of the Clerk on April 22, 1991. On May 1, 1991, defendant appealed. The notice of appeal states that defendant is appealing “the Superior Court’s refusal to entertain the issue of Bond or Bond Reduction pursuant to the Court’s letter . . . directing the Clerk to remove the Bond Hearing from the Court Calendar.” Held:

“In order for this court to review the decision of another court, that court must have made a decision and that decision must be appealable under some provision of law. . . .” Fulton County Dept. of Family &c. Svcs. v. Perkins, 244 Ga. 237, 238 (259 SE2d 427). The superior court did not make a decision with respect to defendant’s motion to set bond. The most that can be said is that the superior court refused to make a decision. It follows that there is no decision for this Court to review. Bautz v. Best, 170 Ga. App. 219, 221 (4) (316 SE2d 589).

Appeal dismissed.

Andrews, J., concurs. Sognier, C. J., concurs specially.

Decided September 9, 1991.

Kane & Anderson, Daniel B. Kane, for appellant.

W. Fletcher Sams, District Attorney, Sharon J. Law, Assistant District Attorney, for appellee.

Sognier, Chief Judge,

concurring specially.

I am constrained to concur in the dismissal of this appeal because, pretermitting the question whether the trial court’s action constituted a final order on the issue of bail reduction, but see Reid v. State, 116 Ga. App. 640, 643-644 (1) (158 SE2d 461) (1967) (held, trial court’s refusal to rule on a speedy trial demand was an appealable judgment), an appeal from an order denying a defendant’s motion for pretrial bail “is an interlocutory matter requiring a defendant to follow the interlocutory procedure set forth in OCGA § 5-6-34 (b). [Cit.]” Howard v. State, 194 Ga. App. 857 (392 SE2d 562) (1990). Nonetheless, given the posture of the case below, I find it necessary to give some direction to this matter.

Excessive bail is prohibited by Art. I, Sec. I, Par. XVII of the 1983 Georgia Constitution, and our courts have long recognized that excessive bail is the equivalent of a refusal to grant bail. Reid v. Perkerson, 207 Ga. 27, 29 (4) (60 SE2d 151) (1950). A defendant seeking a reduction in the amount of bail set may file either a writ of habeas corpus, id., or a motion for reduction of bail. See Summerlin v. State, 162 Ga. App. 747 (293 SE2d 26) (1982). Although in this case the magistrate’s court had authority to set bail, OCGA §§ 17-6-1 (b); 15-10-2 (9), the judges of the superior courts have authority “[t]o hear and determine questions arising upon . . . [w]rits of habeas corpus or bail . . . [and] the lessening of the amount of bail,” OCGA § 15-6-9 (5) (A), (C), and thus the superior court erroneously concluded it could not hear the defendant’s request for bail reduction.

Accordingly, the defendant is. entitled either to file a new motion for reduction of bail or to renew the portion of his previously filed and dismissed writ of habeas corpus that raised the issue of excessive bail. Upon the filing of either such pleading, the superior court should conduct a hearing to consider whether the amount of bail set by the magistrate is excessive. See Summerlin, supra. If the amount originally set is in excess of that needed to reasonably assure the presence of the defendant, bail should be reduced. Jones v. Grimes, 219 Ga. 585, 587-589 (2) (134 SE2d 790) (1964).


text:
    A91A0796.
    DEPARTMENT OF TRANSPORTATION v. HARRIS et al.
    (410 SE2d 360)
   McMurray, Presiding Judge.

The Georgia Department of Transportation (“DOT”) filed this appeal after the denial of a motion for new trial from a judgment on a jury’s verdict, awarding $349,255 to Dr. Thomas L. Harris II for the partial-taking of property containing Harris’ veterinary clinic. Held:

1. DOT asserts the general grounds in its first three enumerations and contends the trial court erred in denying its motion for new trial, arguing that evidence of Harris’ business losses was improperly before the jury.

Richard L. Stallings testified for Harris and proved his qualification as an expert real property appraiser. Stallings valued the partial taking of Harris’ property at $91,123 and determined consequential loss to the remaining parcel to be $91,577. Stallings also considered costs associated with maintaining and relocating Harris’ veterinary clinic and substituted these expenses for traditional business losses, i.e., the diminution in value of the veterinary business. Stallings then concluded that Harris’ total loss amounted to $349,255. DOT did not object to any portion of this testimony.

“ ‘A party cannot ignore during a trial that which he thinks to be error or an injustice and take his chances on a favorable verdict and then complain later.’ Simmons v. Edge, 155 Ga. App. 6, 8 (270 SE2d 457) (1980).” Willis v. State, 197 Ga. App. 230 (2) (398 SE2d 259). In the case sub judice, DOT waived any challenge to evidence over the actual and consequential cost of the condemnation by failing to object to such evidence at trial. Consequently, we do not reach DOT’s arguments regarding the vitality of the evidence which supports the jury’s verdict. It is sufficient to say that the trial court did not err in denying DOT’s motion for new trial because the unchallenged evidence authorized a verdict for Harris in the amount of $349,255. Boggs v. Griffeth Bros. Tire Co., 125 Ga. App. 304, 309 (7) (187 SE2d 915).

2. DOT further contends the jury’s verdict was not in line with the assessment of damages given by Harris’ expert witness. This contention presents no harmful error.

“To warrant reversal, the alleged error must be harmful. [Cits.]” Whitehead v. Cogar, 180 Ga. App. 812, 813 (1) (350 SE2d 821). In the case sub judice, the jury orally announced a $349,355 verdict for Harris. This award is $100 more than the assessment of damages given by Harris’ expert witness, Richard L. Stallings. However, the verdict form and the judgment reflect a reduced award of $349,255. This amount is in line with Stallings’ assessment of damages.

3. DOT contends there was insufficient evidence to authorize the trial court’s charge on business losses and unique property. This contention is without merit.

Decided September 10, 1991.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, C. Bradford Sears, Jr., for appellant.

C. Jerry Willis, for appellees.

“[A] property is unique if it is a type of property not generally bought or sold on the open market. Department of Transp. v. 2.734 Acres of Land, [168 Ga. App. 541, 543 (3), 544 (309 SE2d 816).]” Department of Transp. v. Bales, 197 Ga. App. 862, 864 (4), 865 (400 SE2d 21). In the case sub judice, there is expert testimony showing that Harris’ veterinary clinic is property which is not ordinarily bought and sold on the open market. This evidence authorizes the trial court’s charge on business losses and unique property. Department of Transp. v. Bales, 197 Ga. App. 862, 864 (4), 865, supra.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Sognier, Chief Judge.

text:
    A91A0927.
    HARRIS v. WILWAT PROPERTIES, INC.
    (410 SE2d 372)
   Sognier, Chief Judge.

Wilwat Properties, Inc. brought a dispossessory action against Marcella Harris. Although Harris filed an answer, she failed to appear at trial, and a default judgment was entered against her. Wilwat was awarded $828.58 in past rent and costs, and a writ of possession was issued. Because Harris asserts issues other than the amount of rent due, OCGA § 5-6-35 (a) (3) does not apply to the case sub judice and her direct appeal is proper. Compare Nixon v. A. F. M., Inc., 176 Ga. App. 546 (336 SE2d 382) (1985) with Ranger v. First Family Mtg. Corp., 176 Ga. App. 715 (337 SE2d 388) (1985).

1. In her first enumeration appellant contends the trial court erred by entering the default judgment because she was not timely notified of the trial date. However, the record affirmatively establishes that notice of the trial date was handed to appellant by court personnel when she filed her answer. Accordingly, this enumeration is without merit.

2. Appellant alleges in her second enumeration that the trial court’s failure to rule on her motion for a continuance was error. While appellant insists in her brief that the trial court received her motion prior to trial, a careful review of the record by this court and the trial court clerk’s office fails to indicate that such a motion was ever filed. There is no ruling on this matter which we can properly consider. See generally Westwind Corp. v. Washington &c. Assoc., 195 Ga. App. 411 (1) (393 SE2d 479) (1990).

Decided September 10, 1991.

Marcella Harris, pro se.

Peterson, Young, Self & Asselin, Joseph M. Ward, Daniel J. Carroll, for appellee.

3. Appellee has filed a motion to assess damages for a frivolous appeal pursuant to OCGA § 5-6-6. As appellant’s arguments are wholly devoid of support from the record, “ ‘we must conclude that the appeal to this court was for the purpose of delay only. . . .’ [Cit.]” Dickens v. First Capital Income Properties, 187 Ga. App. 607, 608 (3) (371 SE2d 130) (1988). The trial court is directed to enter judgment in favor of appellee for damages in the amount of ten percent of the judgment, as authorized by OCGA § 5-6-6.

Judgment affirmed with direction.

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