text:
    77899.
    BASS et al. v. BARRETT et al.
    (378 SE2d 722)
   Carley, Chief Judge.

Appellant-plaintiifs filed a two-count complaint against appelleedefendants. The allegations of Count One sounded in tort and were directed against all three appellees. The allegations of Count Two also sounded in tort and were directed against only appellees Mr. and Mrs. Arnold Barrett. The case was tried before a jury. As to Count One, a $4,055.40 verdict in favor of appellants was returned, but only as against appellee Brenda Barrett. As to Count Two, a verdict in favor of appellants was also returned as to liability, but no damages were awarded. Pursuant to the jury’s verdict, the trial court entered a $4,055.40 judgment in favor of appellants against only appellee Brenda Barrett. Appellants then filed a “Motion to Amend the Verdict and Judgment (Or In The Alternative For The Granting Of A New Trial).” The trial court denied this motion and appellants appeal.

Appellants’ sole enumeration is that the “trial court erred in failing to grant [their] motion to alter the judgment so as to make all three [appellees] equally liable for the $4,055.40 awarded.” “Every court has power to amend and control its processes and orders so as to make them conform to law and justice, and to amend its records to conform to the truth. [Cit.] But when founded on verdicts of a jury, and not the acts of the judge, the court may not amend the judgment ... so as not to follow the verdict.” Cox v. LeRoy, 130 Ga. App. 388 (2) (203 SE2d 863) (1973). The $4,055.40 judgment that was entered in favor of appellants against appellee Brenda Barrett follows the jury verdicts that were returned. Accordingly, so long as those verdicts stand, the trial court would have no authority to amend the judgment.

“A verdict may be amended in mere matter of form after the jury has dispersed. However, after a verdict has been received and recorded and the jury has dispersed, it may not be amended in matter of substance either by what the jurors say they intended to find or otherwise.” OCGA § 9-12-7. An amendment of the verdicts to reflect a recovery by appellants of any amount of damages as against appellees Mr. and Mrs. Barrett would clearly effect a substantive change in the jury’s findings. As to Count One; the jury found no liability except as to Brenda Barrett and, as to Count Two, the jury awarded no damages as against any of the appellees. “After dispersal of the jury, the judge has no power either to add to or take from the findings, and has not the power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury. [Cit.] Nor can the trial judge accomplish the same result by amending the verdict in a matter of substance by entering a decree different from the verdict of the jury, thereby eliminating substantial findings of the verdict and thus substantially modifying or changing the other findings of the jury. To do so requires the judge to find facts which the jury did not, and thus usurp their peculiar province. [Cits.]” Harrell v. Bank of the South, N. A., 174 Ga. App. 384, 386 (330 SE2d 147) (1985). It follows that the trial court had no authority to amend the verdicts and did not err in failing to do so.

Decided February 14, 1989.

Bailey Law Offices, Kirby G. Bailey, for appellants.

Rogers & Brownlow, David R. Rogers, for appellees.

Judgment affirmed.

Sognier, J., concurs. Deen, P. J., concurs in judgment only.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    77837.
    JACKSON v. THE STATE.
    (379 SE2d 4)
   Pope, Judge.

Appellant was convicted of rape, aggravated assault with a deadly weapon and theft by taking. The trial court found that the aggravated assault conviction merged into the rape conviction, and appellant was sentenced to 15 years on the rape count and one year to be served concurrently on the theft by taking charge.

1. In his second enumeration of error, appellant argues that the trial court erred in failing to strike the victim’s testimony because her testimony was unresponsive on cross-examination, “coached” on direct examination and improperly interpreted.

The victim is a young deaf woman who has limited education. The interpreter at trial testified that she has a very limited vocabulary of 1,500 to 2,000 words. She communicated at trial by means of sign language with an interpreter who was qualified in accordance with OCGA § 24-9-101 (6). Almost all of the victim’s testimony, both on direct and cross-examination, came in response to leading questions. The victim seemed incapable of responding to open-ended questions. Counsel for appellant made no objection to the use of leading questions. In his cross-examination, defense counsel became very frustrated with the difficulty he was having in examining the victim. At one point, counsel indicated he might ask the court to strike the victim’s direct testimony as a consequence of her unresponsiveness. Instead, an overnight recess was taken, and counsel renewed his cross the next day. The victim was more responsive and counsel conducted a lengthy cross-examination. Still, difficulties in communication persisted. Counsel for appellant questioned the effectiveness of the interpreter and the court permitted an extensive voir dire of the interpreter regarding his technique by both counsel. The court offered appellant’s counsel another opportunity to fully cross-examine the victim. Counsel stated he wanted to question her again regarding her knowledge of the appellant’s brother and sister-in-law, but saw no need to go over everything else. The court permitted this. During this questioning, another qualified interpreter, in court apparently at the behest of the defendant, was sworn and aided the first interpreter. Appellant’s counsel then completed his cross.

Decided February 7, 1989

Rehearing denied February 15, 1989

J. M. Raffauf, for appellant.

Robert E. Wilson, District Attorney, J. Michael McDaniel, Robert M. Coker, Barbara B. Conroy, Assistant District Attorneys, for appellee.

This court has carefully reviewed the record. It is apparent that the trial court and counsel for both sides worked cooperatively and diligently to overcome the communication difficulties presented by the victim’s handicap and lack of education. Although counsel for appellant indicated on different occasions that he might move to strike the victim’s testimony, it is clear from the record that he never did make such a motion, nor did he move for a mistrial or actually or finally object to the accuracy of the interpreter. From the record, it appears that none of this was done because the trial court responded to counsel’s concerns and counsel was able to satisfactorily complete his examination. Therefore, we find no error. See generally Worthy v. State, 54 Ga. App. 211 (187 SE 613) (1936).

2. Our review of the record shows sufficient competent evidence was adduced at trial to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt on both charges. Although appellant questions the sufficiency because of a lack of physical evidence of rape, the jury had the testimony of the victim, who said she was raped by appellant, corroborated by other witnesses’ testimony about appellant’s presence in the victim’s apartment, as well as testimony about appellant’s possession of the knife used in the assault and appellant’s possession of the gold chain taken from the victim’s apartment. The evidence was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Appellant argues that there exists a fatal variance between the indictment and proof on the theft by taking charge because the indictment alleged that the chain taken belonged to the victim and the proof showed it belonged to her husband. This enumeration is without merit. Baker v. State, 160 Ga. App. 211 (1) (286 SE2d 458) (1981).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77472.
    KROGER COMPANY v. GREEN.
    (378 SE2d 905)
   Pope, Judge.

Trial below resulted in a verdict for appellee Green in the amount of $22,000 in this slip-and-fall case. Appellant Kroger enumerates seven errors.

1. Kroger argues that the trial court erred in denying its motion for directed verdict, its motion for judgment notwithstanding the verdict, and its motion for new trial. “On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict.” (Citations and punctuation omitted.) Campbell v. Forsyth, 187 Ga. App. 352, 353 (370 SE2d 207) (1988).

Taken in the light most favorable to the verdict, the evidence shows that appellee was shopping in appellant’s store. The seafood manager saw a customer drop a container of milk that left a spill in one of the aisles. The manager advised the customer that he would take care of it. He then got on the intercom and called for someone to clean it up. The manager testified that he also warned customers in the area about the spill in a loud voice. He testified that he saw appellee while he was shouting the warning. Appellee testified that she heard something about a problem through an announcement, but did not know specifically what or where it was. The seafood manager went back to his counter and saw several people walk through the spill. Appellee testified that she was looking up at the directional signs over the aisles to find the location of the cereal when she slipped and fell in the milk spill.

“This case differs from the usual slip-and-fall case in that there is no dispute about the presence of a foreign substance on the floor of the premises, its character or about the [store’s] knowledge of the substance upon the floor. ... As to hazards, ordinarily the owner is allowed a reasonable time to exercise care in inspecting and keeping the premises in a safe condition; but where defendant or its agents are in the immediate vicinity or area of the dangerous condition . . . and could easily have remedied it, no specific length of time will excuse the failure to exercise ordinary care after knowledge of the defect. Questions of negligence, contributory negligence, cause and proximate cause, and whose negligence or what negligence constitutes the proximate cause of the injury are solely for the jury. . .'.” (Citation and punctuation omitted.) McGinnis v. Sunbelt Western Steers, 173 Ga. App. 270 (326 SE2d 3) (1985). In McGinnis, this court reversed a grant of summary judgment to the proprietor in a situation in which a manager watched a waitress spill some mushrooms sauteed in butter. He sent the waitress on, and went to get a mop to clean it up. In the short time he was gone, McGinnis slipped on the spill and was injured.

The present case is sufficiently similar in facts to McGinnis, supra, to be controlled by it. We find that the evidence was adequate to support the verdict.

2. Appellant argues that the trial court erred in not allowing into evidence photographs of a re-creation of the milk spill. Appellant’s position is that the photographs show the visibility of milk against the background of the floor. The trial court heard extensive testimony and argument about the changes in the scene from the time of the accident and appellant’s efforts to re-create the scene as closely as it could. This court will reverse a trial court’s ruling on the admissibility of photographs only upon a showing of abuse of discretion by the trial court. Teal v. Parrish, 169 Ga. App. 217 (311 SE2d 863) (1983). We find no such abuse here.

3. In enumerations 5 and 6, appellant complains of two charges. In the first instance, appellant complains of language to the effect that store owners should know that shoppers’ attention is directed toward items on the shelf. The language complained of is taken directly from the case of Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427 (263 SE2d 171) (1979), as is the language of the second charge objected to by appellant. In that charge, the court said that the plaintiff is not barred from recovery simply because by extreme care the injury could have been avoided.

The charge of the court must be viewed as a whole. If, taken as a whole, the charge of the court covers the issues presented fairly and accurately, no error will be presumed from minute inspection of individual words or phrases. Rosenthal v. Hudson, 183 Ga. App. 712 (5) (360 SE2d 15) (1987); Ga. Farm Bureau Mut. Ins. Co. v. Burton, 176 Ga. App. 729 (2) (337 SE2d 455) (1985). After reviewing the charge given by the court, we find that the whole charge covered fairly all issues and contentions of both sides. The enumerations are without merit.

4. Finally, appellant argues that the trial court’s charge on damages was repetitive and redundant and improperly contained references to diminished earning capacity. We find no error. The instructions as given do not indicate that the judge placed undue emphasis on damages and thus influenced the jury. Nor did the court improperly charge on diminished earning capacity. Rather, the charge merely referenced the diminished capacity to work as an element of pain and suffering. Appellee presented evidence of things she could no longer do in her job because of her injury. The charge was proper. See Malcolm v. Cotton, 128 Ga. App. 699 (3) (197 SE2d 760) (1973).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided February 15, 1989.

Nixon, Yow, Waller & Capers, Richard E. Miley, Ziva P. Bruckner, for appellant.

James W. Ellison, Louis Saul, for appellee.


author: Pope, Judge. Carley, Chief Judge, McMurray, Presiding Judge, Banke, Presiding Judge,

text:
    77520.
    SNELSON v. THE STATE.
    (378 SE2d 723)
   Pope, Judge.

1. The State has moved to dismiss defendant’s appeal based on defendant’s failure to file a timely notice of appeal and the absence of any proper authorization for an out-of-time appeal. “The requirement of a timely filed notice of appeal is jurisdictional, even as to criminal cases, and, absent an extension, upon the failure to file such notice within 30 days after a judgment becomes final the appeal must be dismissed.” Rimes v. State, 182 Ga. App. 721 (356 SE2d 897) (1987) and cits. The dissent’s assertions to the contrary, the Supreme Court’s decision in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985) does not require a different result. In Evitts the defendant’s retained counsel filed a timely notice of appeal but then failed to file his “statement of appeal” containing such information as the names of the parties, counsel and the trial judge, as required by the Kentucky Rules of Appellate Procedure. However, as the Supreme Court specifically noted, the rule requiring the filing of the statement of appeal was not jurisdictional in nature but rather was designed merely to assist in the processing of appeals. Consequently, Evitts v. Lucey does not pertain to jurisdictional requisites such as the timely filing of a notice of appeal and does not require us to review cases over which we have no jurisdiction. Rather, Evitts merely forestalls the dismissal of criminal cases that are otherwise properly before an appellate court for consideration but in which counsel fails to comply fully with the procedural or technical rules of that court.

In Johnson v. State, 183 Ga. App. 168 (358 SE2d 313) (1987), cited by the dissent, the notice of appeal was timely mailed and would have been timely received except for confusion concerning the proper recipient of the notice. In the case at bar, the notice of appeal was filed seventy-seven days late. Defendant made no attempt to timely file the notice of appeal and offered no extenuating circumstances to excuse the late filing. The failure to file a timely notice of appeal is not a technical or procedural error, but rather constitutes a lack of compliance with a jurisdictional prerequisite, the necessity of which neither the parties nor this court can dispense with. Consequently, the State’s motion to dismiss is granted.

2. Defendant’s enumeration of error concerning the sufficiency of the evidence is rendered moot by the foregoing.

Appeal dismissed.

Birdsong, Sognier, and Beasley, JJ., concur. Deen, P. J., concurs and also concurs specially. Carley, C. J., concurs specially. McMurray, P. J., Banke, P. J., and Benham, J., dissent.

Carley, Chief Judge,

concurring specially.

I fully agree with the majority that under Rimes v. State, 182 Ga. App. 721 (356 SE2d 897) (1987) and many other decisions, the failure of appellant to timely file a notice of appeal in this case is jurisdictional and that the appeal therefore must be dismissed. However, contrary to the majority, I do not believe that Johnson v. State, 183 Ga. App. 168 (358 SE2d 313) (1987) is distinguishable as a matter of law. It is my opinion that this Court was as effectively deprived of jurisdiction by the late filing of the notice of appeal in Johnson as the majority correctly holds is true in the present case. I would overrule Johnson v. State, supra.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.

McMurray, Presiding Judge,

dissenting.

In my view, the decision in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821), requires that the case sub judice be decided on the merits. Also, in Johnson v. State, 183 Ga. App. 168 (358 SE2d 313), a recent whole court case, this court considered the case on its merits rather than dismiss for untimely filing of the appeal. Therefore, I respectfully dissent since I believe the court should address the merits of defendant’s enumerations of error.

I am authorized to state that Judge Benham joins in this dissent.

Banke, Presiding Judge,

dissenting.

The announced basis for the decision in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), was that “[a] first appeal as of right... is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.” Id. 469 U. S. at 396. This rationale is no less applicable in a case where the appeal is dismissed because the notice of appeal was not filed in a timely manner than in a case where the appeal is dismissed for failure to follow a technical procedural rule of the appellate court. Therefore, I do not believe the basis offered by the majority for distinguishing Evitts is a valid one.

There is no suggestion in this case that the defendant, who has filed an affidavit of indigency and is represented on appeal by court-appointed counsel, has voluntarily waived his right of appeal. It is thus clear under Evitts that if we dismiss the appeal based on counsel’s failure to file the notice of appeal in a timely manner, the defendant will automatically be entitled to habeas corpus relief based on a violation of his Sixth Amendment right to effective assistance of counsel. Accordingly, in the interest of judicial economy, I agree with Presiding Judge McMurray that we should adhere to Johnson v. State, 183 Ga. App. 168 (358 SE2d 313) (1987), and reach the merits of the appeal. Perhaps the occurrence of such situations could be reduced in the future by including in the order appointing counsel a requirement that the notice of appeal be filed in a timely manner, along with a notification that failure to do so will be treated as contempt of court.

Decided February 15, 1989.

Lawrence E. Diamond, for appellant.

Lewis R. Slaton, District Attorney, for appellee.

I am authorized to state that Judge Benham joins in this dissent.


text:
    77721.
    COX ENTERPRISES, INC. v. MARSHALL.
    (378 SE2d 725)
   Pope, Judge.

In this workers’ compensation case, the employee, Stanford Marshall, was awarded benefits on September 27, 1985. The employer, Cox Enterprises, Inc., filed its appeal to the full board within the thirty-day period for bringing appeals which was then in effect (prior to the 1987 amendment to OCGA § 34-9-105 (b)), but after twenty days from the date of the award. The board and the superior court affirmed the award. The employer’s application for discretionary appeal to the Court of Appeals was denied and the Supreme Court refused to grant certiorari. Within twenty days from the denial of certiorari, the employer commenced payment of benefits. On December 16, 1986, more than one year from the original award, the employee requested that the board assess a twenty percent penalty against the employer for failing to pay benefits within twenty days from the date of the original award. The board’s order awarding a twenty percent penalty was affirmed by the superior court. We granted the employer’s application for appeal.

The employer urges this court to overturn its holding in Owen of Ga. v. Waugaman, 185 Ga. App. 827 (366 SE2d 173) (1988), on the ground that the holding is inconsistent with earlier opinions and that language within the opinion is internally inconsistent with the holding in the case.

The employer argues that it has long been held that an award of an ALJ “is final . . . only when no application for review thereof is filed in due time with the full board . . . .” Thornberg v. Richmond County Bd. of Education, 110 Ga. App. 676, 677 (139 SE2d 454) (1964). It follows, the employer argues, that it is only the decision of the full board which must be appealed or paid within twenty days because a decision by an individual ALJ is not final until the period for bringing an appeal has expired. (We note that the employer’s appeal to the superior court was brought within twenty days of the full board’s decision.) We have already addressed this issue in McLean Trucking Co. v. Florence, 179 Ga. App. 514 (347 SE2d 333) (1986), in which this court acknowledged that, despite the twenty-day payment rule, no award is final until all appeals have been exhausted. Therefore, we held in McLean that an employee may collect both benefits and a penalty even before the appeals have been exhausted, “subject to the right of the employer to recover these amounts in the event the employer should later file a timely appeal and ultimately prevail thereon.” Id. at 516.

In Owen this court also recognized that when a timely appeal is taken, the award of an ALJ is not final until approved on appeal. The employer urges that this recognition of the non-finality of an award on appeal is inconsistent with the holding in Owen that a penalty is due and payable when the appeal was brought after twenty days from the date of the award. However, in Owen the issue of finality arose in the context of whether to apply the doctrine of res judicata to the final award, thereby precluding the employee from later requesting the imposition of a penalty. We merely held that the non-finality of an award on appeal means that an employee is not required to raise his claim for a penalty on appeal because, obviously, the award could be overturned so that neither benefits nor a penalty would be due. However, we also indicated that the employee was not precluded from raising a claim for a penalty when the award is on appeal to the full board. In accordance with McLean, if a penalty is assessed by the board in the course of affirming the award of an ALJ, both the award and the penalty may later be reversed on appeal to the superior court or an appellate court. Thus, the rationale of Owen is not internally inconsistent with the holding in that case that a penalty was payable because the appeal was brought more than twenty days from the date of the award.

A penalty is assessable if benefits are not paid within twenty days from the date they “becom[e] due.” OCGA § 34-9-221 (f). The award becomes due not on the date the award becomes final, as the employer argues, but “on the date the award is issued.” Rule 221 (f) of the Rules & Regulations of the State Board of Workers’ Compensation. Consequently, the penalty awarded in this case was properly assessed.

Decided February 15, 1989.

Swift, Currie, McGhee & Hiers, Guy R. Taylor, for appellant.

David H. Buchanan, Steven E. Marcus, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Birdsong, Judge.

text:
    77754.
    BROWN v. THE STATE.
    (378 SE2d 908)
   Birdsong, Judge.

Appellant, Leonard Brown, originally was tried for the offenses of trafficking in cocaine, simple battery and escape. His first trial resulted in convictions of simple battery and escape, but a mistrial was declared regarding the trafficking charge. Appellant was retried and sentenced on the trafficking in cocaine charge from which he now appeals.

On November 1, 1985, Police Chief Thomas Smith executed a search warrant at the residence of Ruby Scott. A female, later identified as Lisa Thomas, answered the door. Upon gaining admission into the apartment, Chief Smith observed three males sitting in the kitchen. He then observed a closed bedroom door, and upon opening it, found appellant and Toby Davis in the room alone. The room was a bedroom with two twin beds. Appellant and Davis were both sitting on one bed and facing the other, which was closely adjacent thereto. A dinner plate containing a white powder substance, later identified as cocaine, was in plain view on the unoccupied bed, and appellant was observed moving some of the white powder on the plate with a playing card as though attempting to separate it. Toby Davis was just sitting on the bed and was not observed to be doing anything. Chief Smith also observed ten corners of sandwich bags, each containing white powder. Based on his experience as a police officer, Chief Smith believed that the white powder “probably [was] being ready to be packaged and sold.” In addition, one small bag and three packs of white powder containing cocaine, a five-inch set of scales, a bank bag, two cards, and two packages of plastic bags were taken from the bedroom. Another set of scales was taken from appellant’s vehicle. The white powder mixture in State’s Exhibit No. 7 and 7A together contained 106.6 grams of pure cocaine. All other white powder seized in the bedroom and introduced in evidence also contained some amount of cocaine.

The appellant testified that he went to Ruby Scott’s apartment after being told someone there wanted to see him. When he entered the apartment, he was told that Toby Davis was in the bedroom. Appellant saw Davis sitting on the end of a bed, and the plate was sitting nearby. Appellant also observed some little packages of white powder that Davis had “already fixed up.” Davis asked the appellant “about did I need anything.” Appellant replied that he did not have any money. When Davis asked the appellant this question, he was referring to “[t]hat white powder, that cocaine they call it.” Davis put a package in his pocket and subsequently sat down on the bed. Shortly thereafter the police officer entered the room. Appellant admitted that he had picked up a playing card that was lying on the plate with white powder. He denied separating the cocaine, although he admitted that he “might have been fixing to separate the cocaine and look at it” but did not have time to do so before the police officer arrived. Appellant also admitted that when he entered the bedroom he recognized that the white powder was most likely cocaine. He did not object to the presence of cocaine because it was not his house. The likely presence of cocaine was not bothering him, as appellant does not use cocaine. Held:

1. Review of the transcript in a light most favorable to the jury’s verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

2. Appellant asserts that the trial court erred in failing to grant his motion to suppress evidence seized as a result of the execution of a search warrant where there was insufficient probable cause for the issuance of the warrant. Specifically, appellant asserts that “[o]n the face of the affidavit used to obtain the search warrant . . . there are no facts indicating that the search warrant was validly issued.”

The trial court denied appellant’s pretrial suppression motion both before the trial and when the motion was renewed during trial. Appellant elected when he renewed the suppression motion at trial to “use previously what we’ve had.”

The record before us does not contain the transcript of any suppression hearing. However, the record does contain the trial judge’s ruling on the pretrial motion to suppress filed in this case. It appears from this ruling that the trial judge considered and relied upon the transcript of a “motion to suppress evidence hearing,” conducted by the trial court during the course of the original trial, regarding an “identical” motion to suppress. Moreover, it appears that the trial court, after reviewing that hearing transcript in regard to the pretrial suppression motion filed in this case, reached the same findings as it did in disposing of the motion to suppress filed during the original trial. These findings include findings that the magistrate had probable cause to issue the warrant and that the appellant had no expectation of privacy in the premises searched.

“Evidence used in the determination of probable cause may be presented by written affidavit, sworn testimony or both.” (Emphasis supplied.) Lewis v. State, 255 Ga. 101 (2) (335 SE2d 560). As the hearing transcript has not been included in the record, we are unable to determine whether any sworn testimony was received by the magistrate and, if so, its content. “In the absence of a transcript of the suppression hearing, ‘ “we must assume as a matter of law that the evidence adduced at the hearing supported the findings of the court.” ’ ” Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). Moreover, “ ‘ “[t]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for concluding’ that probable cause existed.” ’ ” Rush v. State, 188 Ga. App. 520, 522 (373 SE2d 377), citing Illinois v. Gates, 462 U. S. 213, 234 (103 SC 2317, 76 LE2d 527). Examination of the face of the affidavit in support of the warrant, using a totality of the circumstances test, does not reveal any deficiency that would per se negate the existence of probable cause. See generally Illinois v. Gates, supra; Lewis, supra; Ford v. State, 183 Ga. App. 566 (2) (359 SE2d 435); Thomas v. State, 183 Ga. App. 819 (1) (360 SE2d 75). Accordingly, we find this enumeration of error to be without merit.

3. Appellant asserts that the trial court erred in failing to grant a motion to suppress cocaine entered as evidence based on the failure of the State to perfect the chain of custody. Specifically, appellant attacks the chain of custody because his counsel observed the cocaine on a table at a restaurant during lunch. The transcript reflects that appellant’s counsel in support of his motion stated: “I saw Officer Smith over there eating lunch with the [evidence] bag, the bag all wide open and all.” Subsequently, in an out-of-court hearing, appellant’s counsel did not accept the trial judge’s advice that counsel would have to testify if he wanted to place his testimony in the record. However, counsel did admit in response to a question from the trial judge as to whether the bag was in the possession of Officer Smith that “[y]eah, he had it laying up on the table.” It thus appears from the current state of the record that this incident occurred during a lunch break in the case sub judice, and after the evidence had been subjected to laboratory analysis.

“ ‘(W)here the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence. [Cit.] Hence, the burden is on the prosecution “to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” [Cit.] However, the State need not negate all possibility of tampering, and “need only establish reasonable assurance of the identity” of the confiscated evidence.’ ” Johnson v. State, 184 Ga. App. 745 (1) (a) (362 SE2d 450); accord Spead v. State, 187 Ga. App. 359 (1) (370 SE2d 213). We are satisfied based on the posture of the trial record that the State has met its burden. Moreover, “[t]he remote possibility that some intermeddler having nothing to do with the case” tampered with the evidence at some point after laboratory analysis thereof “does not require the suppression of the evidence.” See Pope v. State, 256 Ga. 195 (6) (345 SE2d 831). Accordingly, this assignment of error is without merit.

4. Appellant asserts that the trial court erred when it failed to charge the jury on the equal access rule and held that the posture of the evidence did not raise the equal access issue. It is never error for a trial court to refuse to charge on a legal issue, even though requested to do so in writing, when the evidence does not reasonably raise the issue. See Hernandez v. State, 182 Ga. App. 797 (3) (357 SE2d 131); Santone, supra at 791 (2); compare Cash v. State, 224 Ga. 798 (4) (164 SE2d 558). The equal access rule does not apply, and no charge regarding the rule need be given, when the “contraband is not in an open, notorious and equally accessible area.” Manbeck v. State, 165 Ga. App. 625 (3) (302 SE2d 361). In this case, the bedroom door was closed. The appellant denied possession of the drugs and testified that he assumed Toby Davis was in possession of the powder. Toby Davis testified that when he arrived at the apartment, the appellant was in the bedroom separating and bagging the drugs and that no one else was in the bedroom with him at that time. We do not consider the drugs in these circumstances to be in an open, notorious and equally accessible area within the meaning of Manbeck. Accordingly, we find that the equal access issue was not reasonably raised by the evidence and that no charge thereon was required. Moreover, under the posture of the evidence, we are satisfied that the giving of an equal access charge could potentially mislead and confuse the jury. See generally Bland v. State, 210 Ga. 100, 107 (8) (78 SE2d 51); House v. State, 184 Ga. App. 724 (4) (362 SE2d 429); Crosby v. State, 150 Ga. App. 555, 558 (258 SE2d 264).

Appellant further asserts, in this same enumeration of error, that the trial court erred in failing to grant a motion for a directed verdict that was based on lack of evidence due to the alleged applicability of the equal access rule.

At the onset, we caution that it is a codal requirement that enumerations of error “shall set out separately each error relied upon.” OCGA § 5-6-40; Palmer v. State, 186 Ga. App. 892, 899 (4) (369 SE2d 38); Hester v. Baker, 180 Ga. App. 627 (1) (349 SE2d 834).

A directed verdict of acquittal is authorized only where there is “no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311). As there was a conflict in the evidence at trial, the trial court did not err in denying appellant’s motion for a directed verdict of acquittal. See summary of facts and Division 1, supra.

This enumeration of error is without merit.

5. Appellant asserts that the trial court erred in failing to grant a mistrial because of the prosecutor’s statement that “flight is evidence of guilt.” During opening statement, the prosecutor said: “I expect to show that as a further indication of guilt . . . the defendant . . . was arrested and committed to the Washington County Jail . . . and that upon his being there . . . he . . . escaped.” (Emphasis supplied.) Assuming without deciding the making of the statement constituted error, the trial court negated any prejudicial effect of the error by giving a timely curative instruction regarding flight and by correctly charging as to evidence of flight in its charge to the jury. “The decision of whether to grant a motion for a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed on appeal absent an abuse of discretion. [Cit.] . . . Furthermore, it is not reversible error to refuse to grant a mistrial if the alleged harmful testimony can be corrected by a proper instruction to the jury.” Flowers v. State, 252 Ga. 476 (2) (314 SE2d 206); accord Crawford v. State, 256 Ga. 585 (2) (351 SE2d 199). Abuse of discretion does not exist in this case because the curative instruction and subsequent charge on flight would serve to prevent any misconception by the jury as to the probative value of such evidence and, thus, could prevent the prosecutor’s statement from having any prejudicial impact on appellant. See Dimauro v. State, 185 Ga. App. 524 (2) (364 SE2d 900). This enumeration of error is without merit.

6. Appellant asserts that the trial court erred in failing to grant a mistrial in the case based on the prosecutor’s repeatedly putting the appellant’s character in evidence. We disagree. Although no curative instructions were given regarding the incidents of which appellant complains, no such instructions were specifically requested by appellant. “A motion for a mistrial is not per se the equivalent of a specific request for a curative instruction to the jury.” Oller v. State, 187 Ga. App. 818 (4) (371 SE2d 455). Reviewing the transcript in its entirety, we are satisfied that the trial judge did not abuse his discretion in denying the motion for mistrial. Moreover, assuming without deciding that the prosecutor did place appellant’s character in issue as asserted in this enumeration of error, we find that the error was harmless, as it is “ ‘ “highly probable that (any such) error did not contribute to the judgment.” ’ ” House v. State, 184 Ga. App. 724 (2), supra, citing Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.

Decided February 15, 1989.

John J. Pilcher II, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.


text:
    77830.
    JACKSON v. MOORE.
    (378 SE2d 726)
   Pope, Judge.

Plaintiff Elfrem Keith Moore was struck by an automobile driven by defendant Cecil Adams, a minor, as Moore was riding his bicycle on a two-lane road. The record shows Cecil Adams was sixteen years old at the time of the incident and had no driver’s license. He stole the keys to his mother’s car out of her purse while she was in the shower and drove the car to get something to eat. Adams’ mother, defendant Linda Jackson, had expressly instructed her son not to drive her car and had never given him permission to do so. Plaintiff brought an action for personal injury and property damage against Adams and Jackson. We granted Jackson’s application for interlocutory appeal of the trial court’s denial of her motion for summary judgment.

“It is well settled that by common law and in this state unless changed by statute, parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship, when liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality.” Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467) (1981). Because the child was not pursuing his mother’s business or acting on her behalf at the time the incident occurred, she cannot be held liable on a theory of agency. “In cases of this sort the question is whether the facts of the case impose upon the parent a duty to anticipate injury to another through the child’s use of the instrumentality.” Corley v. Lewless, 227 Ga. 745, 748 (182 SE2d 766) (1971).

“Recovery has been permitted where there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party. Davis v. Gavalas, 37 Ga. 242 (139 SE 577) [(1927)] (velocipede); Faith v. Massengile, 104 Ga. App. 348 (121 SE2d 657) [(1961)] (BB gun); Herrin v. Lamar, 106 Ga. App. 91 (126 SE2d 454) [(1962)] (rotary lawnmower); Glean v. Smith, 116 Ga. App. Ill (156 SE2d 507) [(1967)] (pistol); McBerry v . Ivie, 116 Ga. App. 808 (159 SE2d 108) [(1967)] (shotgun).” Corley v. Lewless at 748. In the case now before us, the mother did not furnish or permit the child access to her car. In fact, she expressly instructed him not to drive it. Nevertheless, plaintiff Moore argues that defendant Jackson could be found negligent by a jury for leaving her keys in a place accessible to the child. The record shows the keys were left in her purse on a chair in the dining room while she went to another room to take a shower. In those cases in which the parent did not furnish the dangerous instrumentality to the child, the standard for imposing liability upon a parent for failing to prevent the child’s action is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity. See, e.g., Dent v. Smith, 172 Ga. App. 90 (322 SE2d 100) (1984) (the parent was entitled to summary judgment when there was no evidence that the child had any proclivity or propensity for playing with a BB gun); Salter v. Roan, 161 Ga. App. 227 (291 SE2d 46) (1982) (where there was no evidence that the child had any proclivity or propensity for playing with lighters or matches or setting fire, no parental negligence was shown by the fact that the parent left a cigarette lighter on the counter and went into another room); Muse v. Ozment, 152 Ga. App. 896 (264 SE2d 328) (1980) (the father was entitled to summary judgment where the evidence showed he did not know of any proclivity of the son for obtaining a golf club out of an unlocked storage building and swinging it in the presence of others); Scarboro v. Lauk, 133 Ga. App. 359 (3) (210 SE2d 848) (1974) (parents were entitled to summary judgment where it was undisputed that they did not know of any previous occurrence of rock throwing or similar activity on the part of their son).

Here, defendant Jackson was aware that her son had a juvenile record (burglary, shoplifting and conspiracy to commit theft). He told her he could drive a car, but she had never known him to drive. Though defendant knew of her son’s previous acts of delinquency, she denied knowing that he had ever driven a car and there is no evidence that he had previously taken the keys from her purse. No evidence was presented that defendant Jackson knew of any proclivity or propensity on the part of her son for the specific dangerous activity which allegedly caused plaintiff’s injuries. Therefore, no issue of Jackson’s negligence is presented for the jury.

Plaintiff amended his complaint to allege that defendant Jackson is liable for property damage resulting from her son’s acts pursuant to OCGA § 51-2-3. Said statute imposes limited liability upon a parent for the “willful or malicious acts” of her child. Plaintiff alleged that defendant Adams violated OCGA § 40-6-390 by driving the vehicle with “reckless disregard for the safety of others.” Thus, he argues that an issue of fact remains as to whether defendant Jackson is statutorily liable for her son’s reckless driving. We disagree that the evidence presents an issue as to whether the son’s acts were reckless. Here, there was no evidence that the son was driving at an excessive speed or otherwise endangering others on the road. Cf. Landers v. Medford, 108 Ga. App. 525 (133 SE2d 403) (1963) (where the petition alleged that a minor child was driving without a license at an excessive rate of speed on the wrong side of the.road, it was sufficient to withstand the demurrer of the mother to the plaintiff’s claim for statutory liability for the wilful and wanton acts of her child). According to the undisputed testimony of the son, he swerved to avoid striking the plaintiff who was weaving from one side of the lane to the other on his bicycle.

Decided February 15, 1989.

Adele P. Grubbs, for appellant.

Rand & Ezor, Kenneth I. Behrman, for appellee.

The undisputed evidence shows plaintiff may not recover against defendant Jackson either in negligence or for statutory liability for her son’s acts. Consequently, the trial court erred in denying her motion for summary judgment.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


text:
    77836.
    DiSANTI v. THE STATE.
    (378 SE2d 729)
   Birdsong, Judge.

Appellant Joseph DiSanti appeals his conviction of trafficking in cocaine and his sentence.

At approximately 11:27 p.m., June 27, 1987, Trooper James Ralston stopped a vehicle driven by appellant for speeding 64 m.p.h. on 1-75 in a 55 m.p.h. speed zone. At Ralston’s request, appellant produced his Pennsylvania driver’s license. Appellant returned to the car and retrieved documents showing his wife’s ownership of the Pennsylvania registered vehicle since June 22. At that time, Ralston observed a newspaper from Erie, Pennsylvania, on the right rear floorboard. It was dated Friday, the 26th. Appellant and Ralston engaged in conversation regarding appellant’s trip. Ralston asserts he became suspicious that appellant might have contraband in the car. However, he elected to issue appellant a warning ticket for the speeding offense. Before issuing the warning ticket, Ralston decided to ask appellant to consent to a search of his vehicle.

Ralston testified that his suspicions in part were based on his police experience and the following factors. Appellant said he had been visiting friends, the DiPasquals, in Florida, for a couple of days, but the newspaper from Erie in his car was dated the day earlier. The vehicle was purchased recently; and, appellant was driving it to Florida to test it out, as well as to visit his friends with whom he could not have spent much time. The tape shows appellant mentioned being in the Fort Lauderdale area. Appellant now was on his way to Cleveland, Ohio. Thus, appellant was going from a known drug source area to a major city known for narcotics problems. Appellant was traveling alone and at night. He had left his wife and three children at home with a station wagon. Appellant appeared nervous. He said he owned a tavern and weekends normally are a busy business period for taverns.

At approximately 11:40 to 11:42 p.m., Ralston issued appellant a warning ticket; he had decided not to arrest him for the speeding offense. Ralston returned appellant’s driver’s license and ownership documents to him. At that point appellant was free to leave, although Ralston did not inform him of this fact.

Shortly after 11:43 p.m. Ralston asked appellant if he would consent to a vehicle search. Appellant verbally consented to the search, after expressing certain strong reservations, including the assertion that nothing was in the car. Appellant reached inside his vehicle and obtained his car keys. Ralston requested appellant to sign a vehicle consent to search form, which he gave to the appellant to read. Appellant appeared to read the form, and questioned the legality of the written consent procedure. The form advised appellant that he could refuse to consent to search. Appellant continued to question the procedure, and approximately two minutes later Ralston orally advised appellant that he need not consent. Ralston also advised appellant that normally people who do not have anything to hide will consent. Appellant refused to sign the form; however, after being advised of his right of refusal, he did not attempt expressly to withdraw his previous oral consent to search.

Less than four minutes from the time he was first requested to consent orally to search, appellant, without being requested to do so, proceeded to unlock the trunk of his car. Ralston observed a suitcase or small bag of clothing in the car and a package wrapped in birthday paper. Appellant appeared to have a limited amount of clothing, enough clothing for a couple of days if that much. Trooper Ralston asked if he could pick up the package, and appellant consented, handing the package to Ralston. Appellant stated that the package was a gift from friends to his daughter and that he did not know its contents. Ralston told appellant that he believed the package felt like it contained cocaine. He based his belief on the weight of the package. Trooper Ralston asked if he could open the package, and appellant refused permission. Appellant retrieved the package, placed it in the trunk, and shut the trunk lid. Ralston believed at that point appellant had revoked his consent to search, and from that moment on, he considered that appellant was no longer free to go. Appellant became more nervous than before and evasive in his answers. He said Ellen DiPasqual had given him the present for his daughter and that he did not know what was in it. Appellant gave Ralston the DiPasqual’s phone number. Ralston subsequently advised him around midnight that he was being detained until the drug dog arrived and the information about the package was checked out.

Trooper Ralston continued his investigation. He determined that the DiPasqual phone number had been called and no one answered. From 11:55 p.m. to 12:20 a.m., information was relayed to him from a phone conversation with appellant’s wife. Ralston was informed that Mrs. DiSanti stated initially that her husband was in Virginia, and that he had left home on Friday morning after she went to the doctor. When asked about the DiPasquals, she said they had known them for seven or eight years, and that appellant was in Tallahassee with Mrs. DiPasqual visiting the latter’s husband who was in prison. Mrs. DiSanti also said appellant was supposed to go to Virginia after leaving Tallahassee. At about 12:20 a.m., Ralston received information from his EPIC check that in 1982 appellant had been arrested for possession of one kilo of cocaine and that he also had a previous rape charge which had been dropped. At about 12:21 a.m., appellant indicated that he wanted to leave to go to the bathroom, but he was not allowed to depart the area. Trooper Ralston had requested a narcotics dog when he initially ran the EPIC check; the dog handler was on a traffic stop at the time and the dog did not arrive on the scene until about 12:37 a.m. At about 12:44 a.m., the dog alerted on the trunk area of the car. Trooper Ralston opened the trunk after appellant declined to do so. At about 12:49 a.m., after cocaine was found in the package, appellant was handcuffed and formally informed that he was under arrest.

Trooper Ralston did not believe that he had probable cause to search the package immediately after appellant refused to consent to its search. In fact, at about 11:57 p.m., Ralston appears to have been considering releasing appellant until he could obtain the information he had requested by radio. After 12:20 p.m., when the EPIC information had been received, Ralston believed that he now had probable cause to search the vehicle; and, if he did not have probable cause, from the attendant characteristics and “from the package,” he believed he could at least detain appellant until the drug dog arrived. He did not search the vehicle immediately after receiving the EPIC information because he “was waiting on the arrival of the dog to verify any doubt that [he] may have had pertaining to this person or the vehicle that was stopped.” When the trunk initially was opened, Ralston never requested appellant for permission to open anything other than the package. Held:

1. Appellant asserts that the trial court erred in holding that the detention for one hour and seventeen minutes was reasonable despite the absence of probable cause, and that the lengthy detention was not based on probable cause and was thus unreasonable.

It is recognized that no “bright line” rule or “rigid time limitations” can be imposed in determining whether detention of a person constitutes a mere investigative stop requiring only an articulable suspicion or an arrest requiring the existence of probable cause at its inception. United States v. Sharpe, 470 U. S. 675, 685 (105 SC 1568, 84 LE2d 605); United States v. Hardy, 855 F2d 753, 759 (11th Cir. 1988). Nevertheless, this court recently has held that it would stretch the imagination to say that a 30-minute detention was justifiable, under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), when the officer waited for the arrival of a drug dog and magistrate and the defendant was not free to leave. Schmidt v. State, 188 Ga. App. 85, 87 (372 SE2d 440).

In this case, appellant’s renewed detention, unrelated to either the speeding offense investigation or his consent to search, commenced at approximately 11:46 p.m. when, after refusing to consent to the search of the package, appellant was no longer free to go. At approximately 11:57 p.m., Trooper Ralston still had not received a response to his EPIC check and was considering whether to release the appellant from detention. In fact, the response to the EPIC check was not relayed to Ralston until about 12:20 a.m. At about 12:21 a.m. appellant indicated he wanted to depart the area as he needed to use a rest room. He was denied permission to leave. The drug dog did not arrive on the scene until approximately 12:44 a.m., about 58 minutes after appellant’s renewed detention commenced. Moreover, the record shows that Ralston was aware that the dog handler was on traffic stop when initially contacted. Thus, it was obvious that a substantial delay was likely to be encountered in transporting the drug dog to the scene. Under these circumstances, we find Schmidt v. State, supra, to be controlling and that appellant was in a status of arrest. Accordingly, it was necessary for the arrest to be legal that Trooper Ralston have had probable cause to arrest appellant “ ‘at the moment the arrest [was] made,’ ” that is at 11:46 p.m. Schmidt v. State, supra at 87. In this case, Trooper Ralston had less basis for probable cause at the moment of arrest than he did in Schmidt. Except for certain characteristics of nervousness, and other minor drug profile factors, the only other significant information Ralston possessed by 11:46 p.m. was a possible discrepancy as to how long appellant had been in Florida due to the date of a newspaper found in his car and a suspicion as to the contents of a gift-wrapped box due to its weight. While these factors give rise to reasonable and articulable suspicion as to the contents of the package, they do not give rise to probable cause for arrest or search. Accordingly, we find that appellant was placed in unlawful arrest, Schmidt v. State, supra, and that the illegal arrest tainted the subsequent search. Lackey v. State, 246 Ga. 331 (271 SE2d 478); Bradshaw v. State, 162 Ga. App. 750 (1) (293 SE2d 360).

Decided February 15, 1989.

Bailey & Bearden, J. Lane Bearden, Donald F. Samuel, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

2. In view of our holding in Division 1, we need not address appellant’s other enumerations of error.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77563.
    77564.
    HORNSBY v. PHILLIPS. NATION v. PHILLIPS.
    (378 SE2d 870)
   Sognier, Judge.

James E. Phillips filed an action against Applied Control Systems (ApCon) and John C. Nation and Michael Hornsby, ApCon’s primary officers and shareholders, alleging that they had violated the Georgia Sale of Business Opportunities Act (“the Act”), OCGA § 10-1-410 et seq., in their sale to him of twenty-five coin operated telephones. The original complaint was brought against ApCon and Nation, and included claims for breach of warranty, breach of contract, and fraud. After the trial court granted Phillips’ motion for partial summary judgment against ApCon, which is not in issue here, and discovery by Phillips revealed that ApCon no longer had assets, Hornsby was added as a defendant by amendment and the claims against Hornsby and Nation were tried before a jury on the cause of action for violation of the Act. The jury returned a verdict in favor of Phillips and against both Hornsby and Nation in the amount of $28,657.35 and all attorney fees. Judgment was entered on the jury’s verdict, and these appeals ensued.

Construing the evidence to support the verdict, the record reveals that ApCon was engaged in the business of designing, manufacturing and marketing electronic components and equipment for the coin operated telephone market. Its business consisted of two main divisions. One division, headed by Hornsby, provided field installation and maintenance services to MCI Telecommunications, Inc. The other division, headed by Nation, was dedicated to research and development of “intelligent” coin operated telephones, i.e., those capable of operating independent of the local telephone company’s central office. In late 1984, as part of its research and development efforts, and to develop marketing programs for the products it envisioned manufacturing, ApCon began acting as a distributor of telephones manufactured by Coin-Call, Inc., while also buying Coin-Call phones for its own account which it installed in locations throughout metropolitan Atlanta after arranging license agreements with the owners of the locations. ApCon retained sales representatives to market the telephones to others and to obtain and solicit license agreements for locations for the phones ApCon owned. Lisa A. McCorkle had day-to-day responsibility over the sales representatives.

In the industry, selling telephones together with locations for their installation is called a “route.” On November 19, 1984, appellee saw an ApCon advertisement in the Atlanta Constitution offering coin telephone “routes,” and contacted the company to inquire about a prospective purchase. Appellee was directed to McCorkle, who assigned a sales representative, Terry Slater, to follow up. Slater and appellee met on a number of occasions, and Slater furnished appellee with promotional literature which represented that ApCon would supply or assist customers in finding locations for the coin telephones purchased. Appellee testified at trial that he was promised “prime” locations, such as airports and bus stations, for which ApCon was then negotiating. Prior to the end of January 1985, other ApCon sales representatives also offered to find locations for customers. In late January 1985, ApCon’s attorneys informed the officers that selling locations and telephones together as a “route” was a violation of the Act, and that ApCon must immediately cease doing so.

On February 7, 1985, appellee entered into a written contract with ApCon for the purchase of 25 Coin-Call phones. The language in the contract did not contemplate the sale of a “route.” On or about April 10, 1985, the order was upgraded to more sophisticated telephones (5 of which were subsequently traded for 4 telephones manufactured by Westinghouse) at an additional cost of $7,500. On April 22, 1985, after appellee complained about the fact that he had thought he was purchasing a “route,” appellee and ApCon entered into an assignment agreement wherein, for $150 each, ApCon assigned 10 locations to appellee which previously had been obtained for ApCon’s own account, and appellee installed his telephones at these locations. Appellee experienced mechanical and servicing difficulties with the telephones, and by letter dated November 19, 1985, sought to rescind the transaction. By letter dated January 9, 1986, ApCon refused and this action followed.

1. Nation’s appeal was docketed in this court on July 27, 1988, and to date no enumeration of errors or brief on appeal has been filed in case no. 77564. Accordingly, pursuant to Rule 14 of this Court, Nation’s appeal is dismissed.

2. In case no. 77563, Hornsby (hereinafter appellant) first contends that the trial court erred by failing to direct a verdict in his favor because the Act does not apply in that appellant is not a “seller” of a “business opportunity” within the meaning of the Act. The Act prohibits “the sale or lease of, or offer to sell or lease, any products, equipment, supplies, or services for the purpose of enabling the purchaser to start a business and in which the seller or company represents: (i) That the seller or company will provide locations or assist the purchaser in finding locations for the use or operation of vending machines, racks, display cases or other similar devices, or currency operated amusement machines or devices.” OCGA § 10-1-410 (2) (A) (i).

Contrary to appellant’s argument, it is clear that the definitions in the Act cover the conduct complained of here. Although the statute does not state specifically that it is applicable to coin operated telephones, neither does it state that it is not. In this case, when the statute was enacted, private ownership of coin operated telephones was not permitted. However, the evils contemplated and sought to be remedied by the Act would be equally possible as to privately owned coin telephones, once that became a possibility, as to any other vending machine. Further, we know of no reason a coin operated telephone may not be considered a vending machine. It simply dispenses a service instead of a product upon insertion of a coin. There are other such “service-vending” machines; for example, machines which weigh the vendee, or ascertain his or her blood pressure. In fact, the record in this case reveals that in its sales literature provided to prospective purchasers, ApCon referred to the privately owned coin operated telephone as “The Ultimate Vending Machine,” and boasted that these “have proven to be the highest earning vending machines in the fifty year history [of] our industry.” We note also that ApCon’s sales literature also states clearly that its staff “can assist [the purchaser] in finding locations,” a representation specifically mentioned in the statute, providing further support for coverage. Even more persuasive, perhaps, is the fact that there is uncontradicted evidence in the record that ApCon’s attorney advised it that the offer to provide locations in conjunction with the sale would be a violation of the Act, making it clear that at least in his opinion, sale of the telephones as a business opportunity was covered by the Act.

As to appellant’s argument that he is not a “seller” under the Act, OCGA § 10-1-410 (10) provides that “[s]eller” includes “any person who offers to sell to individuals any business opportunity, either directly or through any agent,” and (8) defines “[p]erson” as “any individual, corporation, partnership, joint venture, association, trust, unincorporated organization, or other entity and shall include any other person that has a substantive interest in or effectively controls such person as well as the individual officers, directors, general partners, trustees, or other individuals in control of the activities of such person.”

We find that appellant was himself a “seller” within the meaning of the Act, in that he was an individual who had a substantive interest in a corporation which offered to sell a business opportunity and is therefore included in OCGA § 10-1-410 (10).

The Georgia Sale of Business Opportunities Act was enacted in 1980, Ga. L. 1980, p. 1233, § 1, and its purpose was, inter alia, “[t]o prevent and prohibit fraudulent and deceptive practices in the sale of business opportunities.” Appellee alleged in his action that ApCon had misrepresented material facts in advertising and selling business opportunities, in this case, ownership of coin operated telephones. Thus, the gist of the action brought by appellee was the very essence of the legislative intent in enacting the statute. “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). Accordingly we find that the Act applies to the case sub judice, and we turn to appellant’s other enumerations of error.

3. Appellant next contends the trial court erred by failing to direct a verdict in his favor because appellee’s claims under the Act rested solely on parol evidence, which was barred both by the parol evidence rule and by the contract itself. We do not agree. First, the record does not support appellant’s allegation that appellee’s claims were supported solely by parol evidence, as ApCon’s printed sales literature contains representations identical to those appellee claims were made to him by ApCon’s sales representatives.

Second, the parol evidence rule forbids the admission of evidence only when oral testimony is introduced to vary or change the terms of a contract as written. The contract in question here, the February 7 agreement, was silent as to whether ApCon would furnish locations and, thus, the evidence of ApCon’s representations allowed in here was not introduced for the purpose of showing that the contract terms were actually different from those contained in the written contract, but to prove that additional representations, in violation of the Act but not altering the terms of the contract, were made. As such, the evidence was admissible. “ ‘Parol testimony may be admitted . . . to show a distinct collateral understanding, although it may not contradict or vary the writing itself. [Cit.]’ [Cit.] ‘ “The test to determine whether the oral agreement is one which the law will permit to be (pled) and (proven) is whether the oral agreement constitutes a part of the written contract or whether, instead, it is a separate and distinct oral contract which is not inconsistent with the written contract. If the latter, it admits of pleading and proof. [Cits.]” [Cit.]’ [Cit.]” Taylor v. Career Concepts, 184 Ga. App. 551, 553-554 (3) (362 SE2d 128) (1987). Here, where the cause of action is for violation of the Act, rather than for breach of contract, and the Act forbids the making of certain representations, requiring that appellee show the making of those representations in order to recover, it would frustrate the purposes of the Act to deny the admissibility of those representations.

Nor does the language in the February 7 contract stating that it is the entire contract forbid the admission of this evidence, as this action was not brought on the contract. Therefore, because the cause of action was for violation of the Act, rather than for breach of contract, it is immaterial that the contract itself did not contain the representations which constitute the alleged violation. Accordingly, we find no error in the admission of the evidence complained of, and the trial court did not err by denying appellant’s motion for a directed verdict on that basis.

4. Appellant also maintains a directed verdict in his favor was warranted because appellee’s claims under the Act were time barred. In this regard, appellant first argues that the statute of limitation contained in OCGA § 10-1-401, the Fair Business Practices Act (FBPA), provides that “[n]o action shall be brought under this part . . . [m]ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; or . . . [m]ore than two years after the termination of any proceeding or action by the State of Georgia, whichever is later.” (Emphasis supplied.) As stated, this statutory language is found in the FBPA, OCGA § 10-1-390 et seq., but is not found in the Act in issue here, OCGA § 10-1-410 et seq., and appellant urges this court, without citing any authority, to hold that the statute of limitation for the FBPA extends as well to an action under the Act. However, although the Act provides that violation of the Act “shall constitute an unfair or deceptive act or practice in the conduct of a consumer act or practice or consumer transactions under . . . the ‘Fair Business Practices Act of 1975,’ ” OCGA § 10-1-417 (b), the Act does not mandate that actions for violation of its provisions must be brought under the provisions of the FBPA, and appellee in the case sub judice did not proceed under the FBPA but instead elected to proceed under the rescission remedy afforded him in § 10-1-417 (a) of the Act. Because appellee’s cause of action arose solely under that statute, and the Act itself contains no statute of limitation, the general statute of limitation, providing that an action to enforce a right accruing to an individual under state statute must be brought within 20 years after the action accrues, governs. See OCGA § 9-3-22; Perry & Co. v. Knight Ins. Underwriters, 149 Ga. App. 128, 130 (2) (253 SE2d 808) (1979). Under that statute of limitation, appellee’s action was not barred. The question of whether 20 years is an appropriate limitation period for the exercise of this right affecting business transactions is one we must leave to the legislature. We note, however, that although appellee was not required to file his action for 20 years after its accrual, the statutory right to rescind the transaction and recover his investment derived from the Act would not have been available to appellee had he not notified the seller of his exercise of that right within one year.

The alternate basis for appellant’s argument that appellee’s suit was time barred is the existence in the contract of a provision that “[n]o action, regardless of form, arising out of or in connection with the sale of Units hereunder . . . may be brought more than one (1) year after the cause of action has arisen.” Appellant argues that although appellee’s original suit was timely brought, appellant was not added as a party defendant until after the expiration of one year and therefore appellee’s claims against appellant were not timely. We do not reach this argument, however, because we find that since appellee’s action was not based on the contract, a defense alleging that the contract allows the complained of conduct or prohibits legal action for its redress simply does not apply. In Attaway v. Tom’s Auto Sales, 144 Ga. App. 813, 814-815 (242 SE2d 740) (1978), we held that when an action is brought for violation of the FBPA, contractual defenses are irrelevant and inapplicable. The same principle applies here, and we hold that contractual defenses are inapplicable when an action is based not on the contract but solely on an alleged violation of the Sale of Business Opportunities Act.

5. We find no merit in appellant’s enumeration contending the trial court erred by failing to grant his motion for a directed verdict on his affirmative defenses of accord and satisfaction and waiver. Appellant’s contention in this regard is that there were three separate, unconnected transactions, some of which involved the sale of telephones and one of which involved the assignment of locations, and that, therefore, because a sale of vending machines and the assignment of locations were not contained in the same transaction but each transaction was an accord and satisfaction of its predecessor agreements, the Act was not violated. We find it to be sheer sophistry to argue that because the Act prohibits the sale of vending machines “together with” assistance in finding locations or a representation that such assistance will be provided, it is not a violation of the Act if those sales and representations take place in separate agreements between the same seller and purchaser as to the same items sold. It is clear in the case sub judice that both the original representations that assistance would be forthcoming as to locations, and the eventual assignment of locations, were intended to apply to the machines sold.

6. We find that appellant’s enumeration regarding the trial court’s failure to charge the jury that McCorkle and Slater were “special agents” of ApCon alleges error which is more apparent than real. The trial court charged the jury on agency and on apparent authority, essentially covering the material contained in the requested charge. Appellant complains that had the trial court instructed the jury that McCorkle and Slater were “special agents,” he would have had to instruct them as well that appellee had a duty to inquire into their authority and thus appellant was harmed by the trial court’s omission in this regard. However, the trial court charged the jury that “[a]n agency cannot be proved by the mere declarations of a person purporting to act as agent for another. And one who deals with such a person is bound to inquire into his authority or take the risk of ascertaining when it is too late, that he was not authorized to bind the alleged principal.” Thus, the trial court covered the substance of the requested charge in its instructions to the jury, and “ ‘[i]f the substance of a properly requested and appropriate instruction is given in the jury charge as a whole, the court is under no obligation to employ the exact language requested. [Cit.]’ [Cit.]” Simpson v. Reed, 186 Ga. App. 297, 298 (2) (367 SE2d 563) (1988).

Nor do we find reversible error in the trial court’s having allowed Nation to testify, over objection, that although McCorkle did not have actual authority to make the representations to customers, because of her title it appeared to customers that she had that authority. Even assuming without deciding, that it was error to allow this statement by Nation into evidence over appellant’s objection, the same evidence was given by appellee without objection, and thus Nation’s testimony on this point was merely cumulative, and therefore harmless. See generally Woodruff v. Naik, 181 Ga. App. 70 (1) (351 SE2d 233) (1986).

7. Appellant maintains that although appellee complied with the notice provision in the Act as to ApCon, appellee did not provide appellant with notice of rescission “within one year of the date of the contract” as required by former OCGA § 10-1-416 (a) (now OCGA § 10-1-417 (a)). The required notice was given by letter dated November 19, 1985 from appellee’s counsel to ApCon and the evidence adduced at trial showed that on that date, appellant controlled the corporation, and negotiations were ongoing for the division of ApCon. The trial court found there was an issue of fact as to the question of notice to appellant and submitted that issue to the jury. The jury obviously decided the question adversely to appellant, and we find that the evidence authorized it to do so.

8. In the remaining enumeration of error, appellant asserts that the trial court erred by awarding attorney fees to appellee. OCGA § 10-1-416 (b), as it read at the time pertinent to this action, provided that “[a]ny purchaser injured by a violation of this part . . . may bring an action for recovery of damages, including reasonable attorneys’ fees.” (Emphasis supplied.) Appellant does not challenge appellee’s entitlement to attorney fees, but maintains the amount of the award was not supported by sufficient evidence. “Even assuming without deciding that [appellee] otherwise met his burden of demonstrating an- entitlement to a recovery of attorney fees pursuant to [OCGA § 10-1-416 (b)], he did not meet his burden of introducing sufficient evidence as to the amount of reasonable attorney fees that was recoverable. ‘Proof of what was paid for professional services is not, without more, sufficient proof of their value.’ [Cit.]” Eberhart v. Morris Brown College, 181 Ga. App. 516, 519 (3) (352 SE2d 832) (1987). Accordingly, we affirm the judgment on condition that appellee write off the award of attorney fees; otherwise the judgment is reversed.

Judgment affirmed on condition in Case No. 77563. Appeal dismissed in Case No. 77564.

Carley, C. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Deen, P. J., and McMurray, P. J., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

1. The asserted basis for Hornsby’s liability resulting from his corporate office was an alleged violation of the Georgia Sale of Business Opportunities Act, OCGA § 10-1-410 et seq., which in pertinent part regulates the sale of vending machines, racks, display cases or other similar devices, or currency-operated amusement machines or devices. That Act, however, is inapplicable in this case, because coin-operated telephones are not vending machines or any other of the devices listed in the statute, and I believe that the trial court erred in refusing to direct a verdict for Hornsby on this basis.

As acknowledged by the majority opinion, at the time the Act was passed, private ownership of coin-operated telephones was not even possible. It logically follows that the legislative intent behind the Act did not extend to such products. The Act, being in derogation of the common law, “must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.” Ford Motor Co. v. Carter, 239 Ga. 657, 658 (238 SE2d 361) (1977). Since the legislature obviously could not have intended application of the Act to coin-operated telephones and since the plain and explicit terms of the Act do not include such devices, application of the Act presently in this case works an ill-advised and implicitly impermissible judicial encroachment and usurpation of the legislative prerogative, purpose, and process. Accordingly, I must dissent from the majority opinion’s contrary conclusion.

2. I concur fully with the dismissal of Nation’s appeal. I am authorized to state that Presiding Judge McMurray joins in this opinion.

Decided January 26, 1989

Rehearing denied February 16, 1989

Hansell & Post, R. Matthew Martin, for appellant (case no. 77563).

John C. Nation, Sr., pro se (case no. 77564).

Mullins, Whalen & Shepherd, Newton M. Galloway, for appellee.


author: McMurray, Presiding Judge.

text:
    77127.
    HARRIS v. THE STATE.
    (378 SE2d 912)
   McMurray, Presiding Judge.

The Fulton County Grand Jury charged defendant in Indictment No. A86181 and Indictment No. A86182 with crimes stemming from two separate incidents. Defendant was first tried on the charges in Indictment No. A86182: burglary, armed robbery and three counts of false imprisonment. The trial began on February 23, 1987, and the evidence revealed the following:

At about 1:45 p.m. on August 25, 1986, Mr. and Mrs. Robert Crawford and their three-year-old child returned home from shopping and noticed that a “screen was down and [that] the burglar bar had been removed” from a window. Mrs. Crawford “went up to the door, an iron door, and ... it was jarred open.” When Mrs. Crawford “put her hand like she was going to open the knob[,] . . . the door was jerked open” and defendant appeared, holding one of Mr. Crawford’s “.22 rifles.” Defendant “pulled” the “slide clip” on the rifle, “grabbed [Mrs. Crawford] by the arm” and ordered the Crawfords into the house. The Crawfords, including their child, were forced to lie face down on the floor and defendant bound them with “shoelaces” and covered them with a “bedspread.” Defendant resumed plundering the Crawfords’ home and, before leaving, he took Mrs. Crawford’s “pocketbook” and $130 from Mr. Crawford’s pants pocket. Defendant made his escape in the Crawfords’ “1985 Plymouth Horizon.”

On September 7, 1986, the Crawfords’ vehicle was recovered after a high speed chase between law enforcement officers and defendant. Defendant was then a suspect in an unrelated burglary. Items taken from the Crawfords’ home and from the unrelated burglary were found in defendant’s possession. From this and other evidence adduced at trial, defendant was found guilty of burglary, armed robbery and two counts of false imprisonment.

On February 25, 1987, defendant was tried on the counts of burglary and theft by taking in Indictment No. A86181. The evidence adduced at trial was as follows:

At about 11:00 a.m. on September 7, 1986, Mrs. Cynthia Smith returned home from church and she observed an unfamiliar “white sub-compact car” parked in her driveway. Mrs. Smith “got out of [her] car and . . . started to go into the house, but then [she] backed up and . . . decided to get back in [her] car and go down to [a nearby] gas station . . . and call the police. . . .” Shortly after Mrs. Smith’s departure, Ms. Sharon Neal, who then resided with the Smiths, returned home and observed a bearded man with “very unkempt hair” in “a white Horizon” automobile attempting to exit the driveway. Ms. Neal confronted the man who asked her was she “going to park?” The man moved the car he was in and Ms. Neal maneuvered her vehicle to a parking position. The man fled without further confrontation. After a few moments, a law enforcement officer approached Ms. Neal and made inquiry about an emergency phone call. Ms. Neal and the officer then investigated the Smiths’ house and discovered that it had been burglarized.

At about 11:30 a.m., Officer M. L. Holder of the City of Atlanta Police Department received a lookout for a small white car driven by a bearded man “headed north on Peyton Road.” A general description was given of the driver and Officer Holder began patrolling the area where the vehicle was last observed. A few minutes later, Officer Holder “spotted the vehicle on the side of [Interstate Highway] 285 southbound, parked in the emergency lane.” The officer pulled behind the vehicle, put on the blue light, noticed that the engine was engaged, approached the driver and observed defendant “leaning over in the seat counting some money, mostly change.” The officer asked defendant “to turn off the car and [hand over his] driver’s license.” Defendant did not comply and he attempted to flee. Officer Holder struggled with defendant, but the officer was repelled from the moving vehicle. A high-speed chase ensued and defendant successfully eluded law enforcement officers for “about 45 miles,” colliding with several vehicles and approaching speeds of 110 miles per hour. Finally, defendant was apprehended and brought into police custody. Defendant there admitted that he “hit” the Smiths’ house.

It was discovered that defendant was operating a stolen vehicle and that several items in defendant’s possession were objects taken from the Smiths’ home and from an unrelated theft. From this and other evidence, defendant was found guilty of burglary.

Defendant filed a consolidated motion for new trial from his convictions under both Indictment No. A86182 and Indictment No. A86181. In separate orders, the trial court denied defendant’s motions for new trial and defendant appeals therefrom. Held:

1. In his first enumeration of error, defendant contends the trial court erred in failing to suppress Mrs. Crawford’s testimony relating to her pre-trial photographic identification of defendant. Defendant argues that the photographic identification procedure was impermissibly suggestive and that, as a result of the suggestive procedure, there was a substantial likelihood of irreparable misidentification at his trial on Indictment No. A86182.

“Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. McCoy v. State, 237 Ga. 62, 63 (226 SE2d 594) (1976); Bonner v. State, 160 Ga. App. 902, 903 (1) (288 SE2d 612) (1982). . . . [However, even] if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. Price v. State, 159 Ga. App. 662, 663 (1) (284 SE2d 676) (1981).” Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548).

In the case sub judice, Mrs. Crawford indicated that she had ample opportunity to observe defendant at the time of the armed robbery. In this regard, she testified that defendant was standing about five feet from her when she observed him in the doorway of her house holding a rifle. She also testified that the “sun was shining” at the time and that she and her husband had extensive conversations with defendant during the ordeal. Further, Mrs. Crawford gave a detailed description of the clothing defendant was wearing and she affirmed on cross-examination that she was “[t]rying to” make “as many mental notes as possible” during the armed robbery. This evidence shows that Mrs. Crawford’s identification of defendant had such an independent origin, i.e., her observations of defendant at the scene, that the trial court did not err in denying defendant’s motion to suppress.

2. Defendant contends in his second enumeration of error that the trial court erred in denying his motions for mistrial during his trial for the crimes committed at the Crawfords’ house (Indictment No. A86182), arguing that the State’s attorney impermissibly placed his character in issue by injecting evidence relevant to the Smith burglary (Indictment No. A86181). More specifically, defendant points to three objections he made during the testimony of three of the State’s witnesses.

(a) Defendant’s first objection came after the State’s attorney asked the arresting police officer whether “the victim” gave him a description of the automobile that defendant was driving. Defendant moved for a mistrial and argued that the State’s reference to a “victim” inferred that defendant was involved in other criminal activity. The trial court ruled as follows: “I am going to deny the motion for mistrial. I don’t see anything improper about that.”

“ ‘The decision of whether to grant a mistrial . . . rests with the trial judge. (OCGA § 17-8-75). His decision will not be overturned on appeal absent a manifest abuse of discretion. (Cit.)’ Jones v. State, 250 Ga. 166, 168 (3) (296 SE2d 598) (1982). See also Johnson v. State, 142 Ga. App. 526 (1) (236 SE2d 493) (1977).” Grant v. State, 185 Ga. App. 497 (1), 498 (364 SE2d 628). In the case sub judice, we have examined the context in which this question was raised and we find nothing which would have led the jury to believe that defendant was involved in another crime. Consequently, the trial court did not abuse its discretion in not ordering a mistrial.

(b) Next, defendant objected when Mrs. Cynthia Smith testified that defendant did not have “permission to have . . .” items that were found in the vehicle defendant was operating at the time of his arrest and which were taken from Mrs. Smith’s home on September 7, 1986. Assuming without deciding that it was error to allow Mrs. Smith to testify that defendant did not have “permission to have . . .” items that were taken from her home on December 7, 1986, this error was harmless since other evidence was admitted without objection showing that defendant was in possession of goods taken from the Smiths’ home on September 7, 1986. Drake v. State, 245 Ga. 798, 801 (3), 802 (267 SE2d 237).

(c) Finally, defendant objected after a law enforcement officer testified that he interrogated defendant and that during the interrogation he “advised [defendant] that [he] was investigating a large number of burglaries that had happened. . . .” The trial court immediately instructed the jury to “completely disregard the last answer of the witness.” Defendant raised no further objection.

“If a motion for a mistrial is overruled but corrective instructions are given by the court and thereafter counsel fails to request further instructions or renews his motion for a mistrial, the overruling of the motion is not regarded as error. [Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158).]” Daniel’s Ga. Criminal Trial Prac. (1986 ed.) 550, § 20-24. In the case sub judice, since defendant neither objected to the trial court’s corrective instructions nor renewed his motion for mistrial, we find no error.

3. Next, defendant contends the trial court erred in failing to suppress an incriminating statement he made during a police interrogation shortly after his arrest. Defendant refers to evidence adduced at a Jackson v. Denno (378 U. S. 368 (84 SC 1774, 12 LE2d 908)) hearing conducted during his trial on Indictment No. A86182 and argues that there was insufficient evidence to show that his statement was voluntarily made.

“ ‘The state is required only to prove by a preponderance of the evidence that the [defendant’s] statement was voluntarily made. (Cits.) . . . We must accept the trial court’s determination that the [defendant’s] statement was voluntarily made absent a showing that this determination was clearly erroneous. (Cits.)’ Tyler v. State, 247 Ga. 119, 123 (274 SE2d 549) (1981).” Graham v. State, 185 Ga. App. 617 (1), 618 (365 SE2d 482).

In the case sub judice, defendant was advised of the charge against him and was twice advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694), prior to questioning. Defendant indicated that he understood his rights, agreed to talk to one of the law enforcement officers and stated that he did not commit the crimes at the Crawfords’ house, but that he “ ‘hit’ ” the Smiths’ house. No threats or promises were made to defendant and defendant did not request an attorney during questioning. Under these circumstances, we are satisfied that the trial court’s finding “that the defendant was advised of his Miranda rights and that he understood them and that he voluntarily waived them and that he thereafter gave a statement freely and voluntarily without any hope of benefit or fear of injury” were authorized. See Graham v. State, 185 Ga. App. 617 (1), supra.

4. In his final enumeration of error, defendant contends the trial court erred in allowing the State to impermissibly place his character in issue by injecting evidence relevant to the crime committed at the Crawfords’ house (Indictment No. A86182) at his trial for the burglary at the Smiths’ home (Indictment No. A86181). Defendant cites two portions of the trial transcript to support this enumeration of error.

(a) First, defendant complains of testimony showing that he was in possession of a piece of jewelry that was taken from the Crawfords’ home at the time of his arrest. However, there was no contemporaneous objection with this testimony. Consequently, “[b]y failing to object contemporaneously, . . . trial counsel waived the error.” Cape v. State, 246 Ga. 520, 524 (5) (272 SE2d 487). See Smith v. State, 180 Ga. App. 422, 423 (1), 424 (349 SE2d 279).

(b) Defendant’s second argument is directed to his motion for mistrial raised after the State’s attorney attempted to question a law enforcement officer about a photographic line-up that was presented to the victim of the Crawford burglary. While this inquiry may have been irrelevant to the charges against defendant relating to the crimes committed at the Smiths’ home, we find no error since defendant opened the door to this line of inquiry upon his cross-examination of the law enforcement officer. See Brown v. State, 175 Ga. App. 246, 247 (3) (333 SE2d 124).

Further, the record shows that the trial court sustained defendant’s objection by instructing the State’s attorney not to “go into that.” However, the trial court did not rule on defendant’s motion for mistrial and defendant did not press his motion for mistrial after the trial court’s favorable ruling to his objection. “It is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver. See, e.g., Flowers v. Slash Pine Elec. Membership Corp., 122 Ga. App. 254 (176 SE2d 542) (1970); Sprague v. State, 147 Ga. App. 347 (3) (248 SE2d 711) (1978).” Watts v. State, 155 Ga. App. 376 (1), 377 (271 SE2d 29). In the case sub judice, there is nothing in the record to indicate that the trial court refused to rule on defendant’s motion for mistrial. He simply heard argument of counsel and directed the State’s attorney to refrain from his line of inquiry. After this direction, defendant’s attorney did not insist on an express ruling. In fact, his only reply was, “[t]hank you, very much, your honor.” Under these circumstances, we find no error which is now subject to review.

Decided February 16, 1989.

Harry J. Bowden, Jonathan J. Wade, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, A. Thomas Jones, Assistant District Attorneys, for appellee.

Judgments affirmed.

Pope and Benham, JJ., concur.