text:
    A89A0826.
    RHODES v. THE STATE.
    (386 SE2d 857)
   Carley, Chief Judge.

Appellant was indicted for four counts of aggravated child molestation. After a jury trial, he was found guilty of only one count. He now appeals from the judgment of conviction and sentence that was entered on the guilty verdict.

1. Over appellant’s objection, the trial court allowed the State to introduce evidence of similar crimes. This ruling is enumerated as error.

“Our Supreme Court has noted that ‘(t)he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses. (Cits.)’ [Cit.] . . . ‘The sexual molestation of young children, regardless of sex or type of act, is [of] sufficient similarity to make the evidence admissible.’ [Cit.]” Cox v. State, 173 Ga. App. 422 (1) (326 SE2d 796) (1985). The witnesses who testified as to independent crimes in the present case were a ten-year-old boy, an eleven-year-old boy, and appellant’s 34-year-old son. Their testimony was “ ‘relevant to show defendant’s intent, bent of mind or general plan to gratify his lust, passion and sexual desires ([cit.]), an element in the crime with which he was charged. (Cits.)’ [Cit.]” Cox v. State, supra at 423 (1). “While the dates given in the notice were not specific, ‘the prosecution did not have specific dates of similar transactions in its possession. In revealing to appellant the information which it had, the prosecution complied with [Uniform Superior Court] Rule 31.3. (Cits.)’ [Cit.]” Patten v. State, 184 Ga. App. 152, 154 (3) (361 SE2d 203) (1987). See also Eidson v. State, 182 Ga. App. 321, 322 (2) (355 SE2d 691) (1987); Eberhardt v. State, 257 Ga. 420, 421 (2) (359 SE2d 908) (1987).

Appellant further urges that the State erroneously introduced evidence of an alleged incident of child molestation of which he was acquitted. See generally Salcedo v. State, 258 Ga. 870 (376 SE2d 360) (1989). However, the record does not support this contention. Moreover, no timely objection was made. See generally Boscaino v. State, 186 Ga. App. 133, 134 (3) (366 SE2d 789) (1988).

2. The trial court’s denial of appellant’s motion for an independent psychiatric examination of the State’s witnesses is enumerated as error. “We are aware of no statutory authority nor case law in this [S]tate that mandates the involuntary examination of a . . . victim [of child molestation]. . . . Under the circumstances of this case, we discern no abuse of discretion in the denial of a psychiatric examination of the victim[s].” J. B. v. State, 171 Ga. App. 373, 376 (4) (319 SE2d 465) (1984). See also Porter v. State, 188 Ga. App. 675, 676 (2) (373 SE2d 805) (1988).

3. Appellant enumerates as error the trial court’s denial of his motion for new trial on the ground of newly discovered evidence.

The asserted newly discovered evidence was the exculpatory testimony of appellant’s sister. “ ‘Motions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused. (Cit.) Here the trial court had the duty of evaluating the credibility of a witness who was [appellant’s sister]. ... If it is not reasonably apparent to the trial judge that the alleged newly discovered evidence would probably produce a different result, then a new trial should not be ordered. (Cits.)’ ” Evans v. State, 177 Ga. App. 820, 822 (4) (341 SE2d 483) (1986). At the hearing on the motion for new trial, appellant’s sister testified that she specifically recalled that she was at appellant’s house on the date of the alleged crime until 5:00 p.m. and that he was very sick. However, this testimony is not exculpatory of appellant because she also testified that appellant had picked the victim up at school and that she did not know what had happened after 5:00 p.m. The trial court did not err in denying appellant’s motion for new trial.

4. The trial court’s denial of several motions for mistrial based upon prosecutorial misconduct is enumerated as error.

Appellant’s contention that a mistrial should have been granted as the result of the State’s intentional introduction of inadmissible evidence of similar crimes is without merit in light of our holding in Division 1.

Decided September 5, 1989

Rehearing denied September 26, 1989

Weaver & Weaver, Brenda T. Weaver, George W. Weaver, for appellant.

Roger G. Queen, District Attorney, J. Roger Thompson, Angela A. Byne, Assistant District Attorneys, for appellee.

During closing argument, the assistant district attorney stated that the victim “was the most sincere witness I think that you will ever see” (T. 424) and later urged “with the sincerity of every fiber in my being that you find [appellant] guilty.” (T. 426) By engaging in such argument, the assistant district attorney did not impermissibly express his personal opinion as to appellant’s guilt but merely urged the jury to reach certain conclusions from the proven facts. See generally Shirley v. State, 245 Ga. 616, 617 (1) (266 SE2d 218) (1980).

When the victim started crying during direct examination, the assistant district attorney, who was the only person in the courtroom whom the victim knew, comforted him without the court’s permission and, at the recess that was immediately requested by appellant’s counsel, escorted him out of the courtroom. “We do not believe the trial court’s denial of appellant’s motion for mistrial amounted to an abuse of discretion.” Patten v. State, supra at 153 (2). See also Jordan v. State, 172 Ga. App. 496, 498 (3) (323 SE2d 657) (1984).

The remaining instance of alleged prosecutorial misconduct is the State’s failure to provide appellant with the addresses and telephone numbers of certain witnesses. Although the trial court’s failure to grant a mistrial on this ground is cited as error, the record shows that no motion for mistrial was ever made. Moreover, the record does show that there was no prosecutorial misconduct because appellant was provided with the relevant information, but the witnesses declined to speak with appellant’s counsel. The mere fact that the State had informed the witnesses of their right to refuse to speak with appellant’s counsel shows no prosecutorial misconduct. See Baxter v. State, 254 Ga. 538, 541 (4) (331 SE2d 561) (1985).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1 and 3 and in the judgment.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A89A0952.
    HEARN v. GREAT SOUTHWEST SURPLUS LINES INSURANCE COMPANY.
    (386 SE2d 859)
   Sognier, Judge.

Great Southwest Surplus Lines Insurance Company brought a declaratory judgment action to determine its liability under an insurance policy issued to Charles Posey. The trial court granted Great Southwest’s motion for summary judgment, and Cliff Hearn d/b/a Cliff Hearn Agency, an intervenor defendant, filed this appeal.

The record reveals that Charles Posey, who owned a farm at which he occasionally boarded animals owned by others, testified by deposition that he requested appellant, his insurance agent, to procure liability insurance to cover any loss of or injury to the boarded animals. Appellant testified that he submitted Posey’s application for comprehensive general liability insurance to Southern Insurance Underwriters, Inc. (SIU), a managing general agent for numerous insurance companies, including appellee, and with whom appellant had a producer agreement. Appellant further testified that he was assured by an SIU representative that liability coverage could be obtained to cover the animals, and that he relied upon SIU’s expertise to procure the necessary coverage. Sam Pritchard, an SIU employee, testified by deposition that he processed the application received from appellant and that SIU issued an owner’s, landlord’s, and tenant’s liability policy from appellee rather than the type of policy requested by appellant because the former was more “pertinent” to Posey’s needs, and that in his opinion no insurer offered a liability policy that would cover the risk at issue. Posey acknowledged that he did not read the policy, but instead relied on appellant’s assertion that the requested coverage was included. Both Posey and appellant testified that after Posey received the policy and questioned whether it covered the boarded animals, appellant telephoned SIU and received assurance that the policy issued covered that risk.

Posey subsequently submitted a claim under the policy when a bull in his care died, but appellee denied coverage because of a policy provision which excluded “property damage to . . . property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control.” Appellee then brought this declaratory judgment action against Posey and the bull owners to determine whether it was obligated to compensate Posey for the loss of the bull. Posey counterclaimed for reformation and bad faith refusal to pay, but the trial court dismissed his claims without prejudice. Appellant intervened and also filed a counterclaim for indemnity and reformation, of which the indemnification claim was dismissed. The trial court then granted summary judgment to appellee on the liability issue because of the policy exclusion.

Decided September 5, 1989

Rehearing denied September 26, 1989.

Simpson & Gray, Ralph F. Simpson, for appellants.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, Roberts, Roberts & Engram, Lawrence W. Roberts, Watson, Spence, Lowe & Chambless, John M. Stephenson, for appellee.

Appellant concedes that the clause quoted above excludes Posey’s claim for the loss of the bull, but contends the trial court erred by barring parol evidence concerning the parties’ intentions and by concluding Posey’s failure to read the policy precludes any claim of coverage thereunder. We agree with the trial court that Posey’s admitted failure to read the policy precludes any claim for coverage under the policy as issued. Barnes v. Mangham, 153 Ga. App. 540 (265 SE2d 867) (1980). Appellant’s contention that fact questions remain regarding whether appellee’s agents negligently or fraudulently failed to obtain the requested coverage is without merit, as the failure to examine the policy also bars those claims. See Greene v. Lilburn Ins. Agency, 191 Ga. App. 829 (383 SE2d 194) (1989); Life Ins. Co. of Va. v. Conley, 181 Ga. App. 152 (351 SE2d 498) (1986).

However, we do agree with appellant that Posey’s failure to read the policy does not defeat the counterclaim for reformation, as “[t]he failure of a party to read a contract which is not signed by that party, such as a policy of insurance, does not bar reformation as a matter of law. [Cits.]” Ga. Farm Bureau &c. Ins. Co. v. Wall, 242 Ga. 176, 179 (249 SE2d 588) (1978). Thus, as parol evidence is admissible to show mistake, Southern Guaranty Ins. Co. v. Powell, 246 Ga. 487, 488 (271 SE2d 831) (1980), the testimony of Posey and appellant presents a genuine issue of material fact and precludes summary judgment on the claim for reformation. See Wall v. Ga. Farm Bureau &c. Ins. Co., 238 Ga. 275 (232 SE2d 555) (1977). Accordingly, we affirm the trial court’s ruling that the policy as issued did not cover the loss of the bull, but reverse the holding that parol evidence was inadmissible and remand this action for determination whether the policy should be reformed to reflect the true intention of the parties.

Judgment affirmed in part, reversed in part, and case remanded.

Banke, P. J., and Pope, J., concur.


author: Sognier, Judge. Banke, Presiding Judge,

text:
    A89A1077.
    HAYES v. THE STATE.
    (387 SE2d 139)
   Sognier, Judge.

Marion Hayes appeals from his conviction of burglary and possession of burglary tools.

1. Appellant first enumerates the general grounds. Construing it to support the verdict, the evidence adduced at trial showed that on the morning of October 20, 1987, James T. Morrison and Theresa Bird heard the sound of wood cracking at the back door of their rented house and Morrison, upon checking, observed a man, later identified as appellant, outside the back door. When observed by Morrison, appellant had forced open the burglar door, broken a windowpane, and was in the process of removing one of the glass panes from the back door. Appellant noticed Morrison and fled, and Morrison and Bird set off after appellant. When they caught up with appellant he attacked both Morrison and Bird. Morrison eventually struggled appellant to the ground and Bird called the police, who arrested appellant, finding on his person a pair of women’s white gloves, a flashlight, an Allen wrench set, and a syringe. Morrison testified he had seen an Allen wrench in appellant’s hand at the back door; Bird testified she saw appellant use something that looked like an Allen wrench to chip away at the window.

Appellant did not deny that he was at the scene. He testified that, having been depressed, he had ingested both cocaine and alcohol during the several days before the incident in several unsuccessful attempts to commit suicide, had passed out, and simply could not remember anything about the time in question. However, appellant also told police when apprehended that he had gone to the house where Morrison and Bird lived because he was looking for his wife. Both Morrison and Bird denied any knowledge of appellant or his wife prior to this incident.

“It is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. This court must view the evidence in a light most favorable to the jury’s verdict. [Cit.] Viewing the evidence in that light, we are satisfied that any rational trier of fact could have found appellant guilty beyond a reasonable doubt. [Cit.]; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Blackman v. State, 178 Ga. App. 88, 89 (1) (342 SE2d 24) (1986).

2. Appellant next contends the trial court erred by improperly limiting his cross-examination of Bird. The trial court sustained the prosecutor’s objection, on the grounds of relevance and prejudice, to appellant’s counsel asking Bird: “[n]ow, isn’t it true that [appellant] knocked on your door and the reason y’all didn’t answer the door was you thought it was a bill collector, isn’t that true?” In making an offer of proof outside the presence of the jury, appellant’s counsel stated that his question was based on his visit to the victims’ house approximately four months after the incident, at which time he had seen many bills and an eviction notice in the open mailbox and the landlord had confirmed that eviction proceedings had been brought against the victims in November and they had moved out.

We find no reversible error here. “The scope of cross-examination is not unlimited and the extent thereof lies within the sound discretion of the court. [Cit.] An irrelevant or immaterial line of inquiry may be curtailed without violence to a defendant’s permissible scope of cross-examination. [Cit.]” Deyton v. State, 182 Ga. App. 73, 74 (3) (354 SE2d 625) (1987). Under the circumstances here, where appellant’s claim that the victims were experiencing financial difficulties was based on circumstances at a time four months later than the incident at issue, and where it is difficult to imagine how, in any event, financial difficulties would have given the victims a motive to fabricate a burglary, we find no abuse of discretion by the trial court on its limitation of appellant’s cross-examination along those lines. See generally Fitzgerald v. State, 166 Ga. App. 307, 310-311 (7) (304 SE2d 114) (1983).

3. Appellant asserts the trial court erred by failing to grant his motion for a mistrial after the prosecution commented improperly on appellant’s exercise of his right to remain silent at the time of his arrest. The record shows that after appellant had rested, the trial court permitted the State to call DeKalb County Police Detective A. B. Blaisdell, who had been unavailable during the presentation of the State’s case. Blaisdell testified that he brought appellant to the police station after his arrest and read him his rights. The prosecutor then asked Blaisdell: “And at that point, [appellant] decided not to make a statement to you, is that correct?” Defense counsel objected immediately and moved for a mistrial. The trial court denied the motion, but ordered the question stricken from the record and instructed the jury to disregard it. Thus, even if we were to agree with appellant that the prosecutor’s question was an improper comment on the exercise of appellant’s right to remain silent when arrested, the trial court did not commit reversible error by denying the motion for a mistrial. “The decision to grant or deny a motion for a mistrial is necessarily a matter within the discretion of the trial court, and the court’s exercise of that discretion will not be disturbed on appeal unless it is apparent that a mistrial is essential to preserve the defendant’s right to a fair trial. [Cit.] ‘Here the trial judge acted immediately, ruled out the offensive [comment], and properly instructed the jury not to consider the [comment] in its deliberations. (Cit.) Under the facts of this case, we cannot say that this amounted to an abuse of discretion.’ [Cit.]” Culbreath v. State, 258 Ga. 373, 376 (3) (369 SE2d 29) (1988).

4. We find no merit in appellant’s contention that the trial court’s charge and recharge to the jury regarding the definition of an unauthorized entry, taken from Mullinnix v. State, 177 Ga. App. 168 (338 SE2d 752) (1985), was an incorrect statement of the law and was not adjusted to the evidence. The trial court instructed the jury on the statutory definition of burglary. He then charged the jury, concerning what constitutes an unauthorized entry, that “where a defendant breaks the plane of a structure with intent to steal, he has done enough to permit a reasonable trier of fact to rationally find proof of entry with intent to commit a theft beyond a reasonable doubt.” The jury was recharged in the identical language when, after beginning its deliberations, it asked the trial court “[w]hat is the law regarding a definition of entry[?]”

Appellant argues that Mullinnix, supra, is not applicable because, although he broke the window on the back door, unlike the situation in Mullinnix there was no evidence he put his hand or any object through it, and thus no evidence that appellant “broke the plane” of the structure. See Hampton v. State, 145 Ga. App. 642 (244 SE2d 594) (1978). However, appellant’s argument ignores the undisputed fact that before reaching the back door window appellant “broke the plane” of the structure by forcing his way through the screen on the burglar door to reach through, unlock it, and obtain access to the window. Thus, the trial court’s charge is a correct statement of the law and was adjusted to the evidence in the case, and we find no error here.

5. Appellant raises objection to the charge of the trial court on possession of burglary tools, citing Burnette v. State, 168 Ga. App. 578 (309 SE2d 875) (1983). In Burnette, we reversed the denial of a motion for a directed verdict of acquittal on such a charge because we were not prepared to hold that a hammer, pliers, screwdriver, and chisels were tools “ ‘commonly used in the commission of burglary,’ as required by [OCGA] § 16-7-20 (a),” id. at 580 (2) (b), but even assuming they were, the State had failed to introduce any evidence “that appellant possessed such tools with the intent to use them in the commission of a crime.” Id. However, unlike the situation in Burnette, supra, in this case there was evidence appellant used the Allen wrenches to break into the home of the victims. Moreover, in Cunningham v. State, 128 Ga. App. 789 (197 SE2d 871) (1973), a conviction for possession of burglary tools was affirmed where the accused was found with a ring of keys opening a vending machine; and in Alexander v. State, 166 Ga. App. 233 (1) (303 SE2d 773) (1983), this court upheld a conviction for possession of tools for the commission of a crime when the tool was a thin screwdriver found on the person of the accused. Accordingly, we find no reversible error in the trial court’s charge on possession of burglary tools.

6. Appellant next contends the trial court erred by giving a charge on voluntary intoxication, which allowed the jury to presume intent; and compounded the error by failing to give appellant’s requested charge on specific intent, resulting in a “burden-shifting” charge, impermissible under Francis v. Franklin, 471 U. S. 307 (105 SC 1965, 85 LE2d 344) (1985). Contrary to appellant’s argument, we find nothing in the charge given which could possibly be construed as allowing the jury to presume intent. The charge given on voluntary intoxication instructed the jury that if appellant voluntarily deprived himself of reason by consuming intoxicants and then committed a criminal act while under the influence of such intoxicants, he would be “criminally responsible for such act to the same extent as if he were sober.” (Emphasis supplied.) The law in Georgia is that “if the intention to commit the act in controversy is present, intoxication is no excuse for the crime. [Cit.]” Hardy v. State, 242 Ga. 702, 706 (4) (d) (251 SE2d 289) (1978). Thus, provided the jury was instructed properly regarding the finding of intent, the charge on voluntary intoxication was not error.

In the portion of the court’s charge on intent the jury was instructed that the crimes charged consisted of the “union or joint operation of act and intention,” and that “[i]ntent may be shown in many ways provided the jury finds that it existed from the evidence produced before them. A person will not be presumed to act with criminal intention, but the jury may find such intention or the absence of intention, upon consideration of the words or conduct or demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.” (Emphasis supplied.) In the remainder of the charge the trial court instructed the jury concerning the elements of the crimes charged, including specific intent, on the presumption of innocence, the obligation of the State to prove each essential element of the crimes charged beyond a reasonable doubt, and the rule of reasonable doubt.

We cannot agree that Francis, supra, provides authority for appellant’s claim that the charge given shifted the burden on the issue of intent. Not only did the trial court not use the phraseology condemned in Francis, “but [the trial court] emphasized the presumption of innocence of the defendant, that the burden was always upon the prosecution, and ‘intent’ must be established by the [S]tate, beyond a reasonable doubt,” Bogan v. State, 177 Ga. App. 614, 619 (4) (340 SE2d 256) (1986), and that the jurors themselves must make the decisions from the evidence. Accordingly, this enumeration is without merit. See id.

7. OCGA § 16-4-5 (b) (1) provides that “[a] renunciation of criminal purpose is not voluntary and complete if it results from ... [a] belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose.” Accordingly, as there was no evidence that the attempt was abandoned for any reason other than that appellant fled when discovered, there is no merit in appellant’s contention that the trial court erred by failing to give his requested charge on abandonment of an attempt.

8. Appellant finally contends the trial court erred by refusing to give his requested charge on mistake of fact because it was his sole defense. See Arnold v. State, 157 Ga. App. 714-715 (1) (278 SE2d 418) (1981). The requested charge was taken verbatim from OCGA § 16-3-5, which provides that “[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” In the case at bar, even assuming, without deciding, that mistake of fact was appellant’s sole defense, and that his actions in breaking and removing the windowpane of the victims’ back door were induced by the misapprehension that appellant’s wife was inside, nevertheless that misapprehension would not have justified appellant’s actions in “breaking the plane” of the victims’ residence. Accordingly, a charge on mistake of fact was not supported by the evidence in this case. “ ‘A jury charge is properly refused where it is not authorized or adjusted to the evidence adduced at trial. (Cit.)’ [Cit.]” McNeese v. State, 186 Ga. App. 410, 411 (2) (367 SE2d 235) (1988).

Appellant’s possible motive in breaking the windowpane, i.e., his belief that his wife may have been inside, was relevant only to the issue of intent to steal, on which question the jury was properly and thoroughly charged by the trial court (see Division 6, supra).

We find no merit in this enumeration.

Judgment affirmed.

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

Banke, Presiding Judge,

dissenting.

In Hampton v. State, 145 Ga. App. 642 (244 SE2d 594) (1978), this court concluded that an “entry” was not shown by evidence that the appellant and an accomplice had damaged the back door to a building in an attempt to force it open and had broken an adjacent window. The court held that under such evidence the appellant could not be found guilty of burglary but only of criminal attempt to commit burglary. Accord Battle v. State, 178 Ga. App. 655 (1) (344 SE2d 477) (1986) (where a conviction of attempted burglary was upheld based on evidence that the appellant had been observed using a crowbar in repeated attempts to gain entry to the premises, that three locks had been torn from the doors, and that one door had been cr^ckod)

Decided September 5, 1989

Rehearing denied September 26, 1989

J. M. Raffauf, John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Eleni A. Pryles, Fran Shoenthal, Assistant District Attorneys, for appellee.

In Mullinnix v. State, 177 Ga. App. 168, 169 (338 SE2d 752) (1985), it was held that “insertion of an instrument through a hole in the door and removal with the instrument or hand of an alarm string” constituted a “breaking of the plane” and thus an “entry” within the contemplation of OCGA § 16-7-1, so as to support a conviction of burglary. The facts of the present case would appear to more closely resemble those in Hampton than those in Mullinnix, in that there was no showing that the appellant in the present case passed any object or part of his body through the plane of the structure. Thus, inasmuch as the majority has sought neither to overrule Hampton nor, in my opinion, to distinguish that case from this one in any satisfactory manner, I am constrained to dissent to the affirmance of the appellant’s conviction.


text:
    A89A1131.
    ROLAND WELL DRILLING, INC. et al. v. MURAWSKI et al.
    (386 SE2d 872)
   Sognier, Judge.

This is the second appearance of this action before the Court of Appeals. The facts are set forth in Murawski v. Roland Well Drilling, 188 Ga. App. 760 (374 SE2d 207) (1988), in which we addressed the validity and enforceability of the original contract and addendum (the contract) between Roland Well Drilling, Inc. (Roland Well) and G. W. Robinson and the enforceability of a subsequent trust deed. We held that the contract was valid and enforceable and the restrictive covenants imposed upon the grantees of the subdivision lots were enforceable against all properties for which Robinson appears in the claim of title, but that the terms of the trust deed executed by Roland Well and Decatur Consolidated Water Services, Inc. (Decatur Water) were enforceable only as to Roland Well and Decatur Water and not against the subdivision property owners. Following remittitur from this court, the trial court entered a final order on the property owners’ claim for declaratory relief. Roland Well and Decatur Water filed this appeal from that order.

Appellants contend that the trial court, in holding that appellees, the property owners, “are no longer bound by any restriction on water sources arising out of the [contract],” erroneously interpreted the terms of this court’s prior order. Upon review of the lower court’s order, we find that it correctly concluded that because the contract was binding upon both appellants and appellees, as a result appellants were not entitled to impose any fees or charges in excess of those permitted by the contract even if authorized by the trust deed. The trial court, however, also found that the pump and some of the water mains installed by appellant Roland Well were not of the size specified in the contract, and concluded that because the water system was “not constructed or operated in strict accordance with the [contract],” appellees were no longer bound by the restrictions on obtaining alternative sources of water. We do not agree.

The contract provided in pertinent part: “For and in consideration of [appellant Roland Well] constructing said water supply system in strict accordance with the terms of this contract, Robinson agrees and binds himself that so long as said system is operating in accordance with the rules and regulations of the Department of Public Health of the State of Georgia, Division of Georgia Water Quality Control, and the State Water Quality Control Board of the State of Georgia, he shall not, within 20 years from the date of this contract, sell any lot in said proposed subdivision without the deed to said lot containing the following restriction: ‘Grantee [each appellee] herein acknowledges that the property described in this deed is presently being served with water by [appellant Roland Well] and agrees and binds himself that for a period of 20 years from the date of this deed he shall not construct a private water supply system on said above described property, or dig a well on the above described property, or allow said above described property to be served with water from any other source other than [appellant Roland Well]; provided, however, that the failure of [appellant Roland Well], its successors or assigns, to supply water to said above described property in the quantity and of the quality required by the rules and regulations of the Department of Public Health, the division of Georgia Water Quality Control, or the State Water Quality Control Board of the State of Georgia, or their successors, shall operate to relieve the Grantee . . . from the restrictions and prohibitions contained in this deed.’ ”

The trial court construed the quoted contractual provision to provide that if construction of the water system was not done in strict accordance with the contract specifications, the restrictive covenants could not be enforced. This interpretation renders meaningless the final phrase in the restrictive covenants, which states that appellees will be relieved from the water source restrictions if appellant Roland Well fails “to supply water to [the] property in the quantity and of the quality required by the rules and regulations of the [appropriate state authorities].” The contract “must be interpreted so as to give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect. [Cits.]” Central Ga. &c. Corp. v. Ga. Power Co., 217 Ga. 171, 173 (121 SE2d 644) (1961). As “ ‘forfeitures are not favored in the law, and where there is legitimately a choice of constructions, that which will save the contract is rather to be preferred than that which will work a forfeiture[,]’ ” Aetna Ins. Co. v. Lipsitz, 130 Ga. 170, 175 (2) (60 SE 531) (1908), we construe the contractual provision at issue to provide that once the restrictive covenants are incorporated into the deeds of appellees, as the property owners, the restrictions contained therein are binding against appellees unless the quantity or quality of the water supply is in violation of the applicable state regulations. We previously held that the restrictive covenants were valid and binding against appellees, Murawski, supra at 763, and thus the only issue before the trial court with regard to enforceability of the restrictive covenants was appellants’ compliance with the state water quality regulations. As the trial court addressed only the scope of appellants’ compliance with the contract specifications and did not consider whether appellants were in violation of the Georgia Safe Drinking Water Act of 1977, OCGA § 12-5-170 et seq., and the regulations promulgated thereunder, we reverse and remand for a factual determination on that issue.

Decided September 6, 1989

Rehearings denied September 19, 1989 and September 26, 1989.

Geneva Roland, pro se.

Ben Kirbo, for appellants.

Rikard L. Bridges, for appellees.

Judgment reversed and case remanded.

Banke, P. J., and Pope, J., concur.


text:
    A89A1302.
    MICHAELS v. KROGER COMPANY.
    (387 SE2d 2)
   Sognier, Judge.

This is the third appearance of this slip and fall case before this court. In Michaels v. Kroger Co., 172 Ga. App. 280 (322 SE2d 903) (1984), Sharon Lynn Michaels appealed a judgment for $3,000 in her favor based on a jury verdict. We reversed because of the trial court’s exclusion of certain evidence and failure to give a charge requested by Michaels. Upon remand, Michaels voluntarily dismissed her action and paid all costs known to her before refiling. Kroger then moved for summary judgment in the renewal action based on Michael’s failure to pay juror costs pursuant to Rule 12 of the Uniform Superior Court Rules. In Kroger Co. v. Michaels, 183 Ga. App. 626 (359 SE2d 698) (1987), this court affirmed the trial court’s denial of the motion for summary judgment, holding that although Rule 12 applied to this action, “ ‘the costs which must be paid pursuant to OCGA § 9-11-41 (d), as a precondition to the filing of a new suit, do not include costs unknown to plaintiff after a good faith inquiry[,Y [cit.]” id. at 627, and there remained a question of fact whether Michaels’ “efforts to ascertain the costs owed before refiling her action amounted to a good faith inquiry which would prevent involuntary dismissal for failure to comply with OCGA § 9-11-41 (d).” Id.

After remand, Kroger renewed its motion for summary judgment, claiming that although the costs were now known to her, Michaels had still not paid the juror fees, and Michaels then paid the fees. Michaels appeals the trial court’s grant of Kroger’s motion.

Appellant contends the trial court erred by granting summary judgment in favor of appellee because she was not required to pay the juror fees without having been billed for them, or without a court order requiring her to pay them; but even if she was required to pay them, her eventual payment was timely because of her difficulty in getting the court clerk to accept her payment. We do not agree. Since the time of our decision in the previous appeal, appellant has been aware that Rule 12 applies to this case, and has thus known juror costs must be paid before refiling. Moreover, she has known the exact amount owed. We can no longer agree with appellant, therefore, that there exists a fact question as to whether her failure to pay these costs for three to four months after the Supreme Court’s denial of appellee’s petition for certiorari was in good faith. Instead, we are constrained to agree with appellee that the only apparent reason for appellant’s failure to pay the known costs was an effort to delay paying them. In Daugherty v. Norville Indus., 174 Ga. App. 89 (329 SE2d 202) (1985), which we cited in Kroger Co., supra, as authority for our holding that the costs which must be paid before refiling do not include costs which are unknown after good faith inquiry, the Daugherty court went on to say that “[o]f course, any unpaid costs in a previous action which are unknown after a good faith inquiry but discovered after the filing of a new action must be paid within a reasonable time in order to preserve jurisdiction.” (Emphasis supplied.) Id. at 91. Consequently, as it is undisputed that at least since the pendency of the prior motion for summary judgment, appellant knew that $720 was expended in juror fees upon the trial of her case, her obligation to pay those costs was mandatory and we conclude they were not paid in a reasonable time. Accordingly, the trial court’s order granting summary judgment to appellee is affirmed.

Decided September 5, 1989

Rehearing denied September 26, 1989

Barnes, Browning, Tanksley & Casurella, Jeffrey G. Casurella, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, for appellee.

We note finally that the trial court erroneously interpreted Uniform Superior Court Rule 12 as mandating that a plaintiff affirmatively determine jury costs and pay them even when costs have not been taxed by the clerk or where the clerk denies that sums are due. We disagree with the trial court that Rule 12 imposes such a duty as a condition precedent upon plaintiff’s counsel. We reaffirm our holding in Kroger Co., supra, which followed Daugherty, supra, in applying the “good faith” rule, i.e., that costs which are unknown after good faith inquiry need not be paid. It is only because in this case, in these particular circumstances, it is absolutely clear that appellant was aware of the jury costs but despite that fact did not pay them within a reasonable time, that the trial court’s order granting summary judgment to appellee is affirmed.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1402.
    SARVER v. ORRINGTON.
    (387 SE2d 4)
   Sognier, Judge.

Otto Sarver brought suit against Willard Donald Orrington seeking damages for noneconomic losses he allegedly incurred when his automobile was struck by Orrington’s automobile. The trial court granted Orrington’s motion for a directed verdict at the close of Sarver’s evidence and Sarver appeals.

The trial court granted appellee’s motion for directed verdict on the basis that appellee was exempt from liability under OCGA § 33-34-9 (a) because appellant had failed to present evidence that he had suffered a “serious injury” as defined jn OCGA § 33-34-2 (13).

(a) Appellant contends he suffered a “serious injury” under the statute because his injuries “result[ed] in reasonably incurred medical expenses exceeding $500.00.” OCGA § 33-34-2 (13). The transcript fails to support appellant’s argument. Appellant was seen by several doctors (the deposition testimony of two being in the transcript), and evidence was admitted establishing medical expenses of $492.22 incurred as a result of the accident. As to the other evidence with which appellant sought to meet the $500 threshold requirement, however, the record clearly establishes that the prescription for Deltasone was not prescribed for purposes related to appellant’s accident. Appellant also argues that he reached the threshold amount by his many purchases of buffered aspirin. Assigning the ordinary, logical, and common meaning to the phrase “reasonably incurred medical expenses,” see generally Curlee v. Mock Enterprises, 173 Ga. App. 594, 600 (327 SE2d 736) (1985), we find no error in the trial court’s holding under the facts of this case that appellant’s self treatment, by means of an over-the-counter drug not prescribed or recommended as a course of treatment by a health care professional, did not constitute a “reasonably incurred medical expense” under OCGA § 33-34-2 (13).

(b) Appellant contends he suffered a “serious injury” under the statute because his injuries resulted in “permanent loss of a bodily function.” OCGA § 33-34-2 (13). In his response to appellee’s requests for admission, appellant stated that as of the date of his response, “neither [appellant’s] injuries nor any complications from the medical treatments of [appellant’s] injuries have yet resulted in either permanent or partial or total loss of a bodily function, except that it is becoming increasingly probable that [appellant’s] injuries will result in permanent loss of mobility to [appellant’s] neck and back.” At trial there was no evidence that appellant’s condition had changed since his response to the request for admissions. Although appellant refers this court to the deposition testimony of Dr. A. M. Phillips, Jr., that testimony does not support appellant’s assertions but rather establishes that appellant had not experienced any change in his condition. While Dr. Phillips stated that appellant’s condition would probably not get better without surgery, the doctor also testified he could not tell whether appellant’s condition would worsen, and that it was conceivable that appellant’s pain would subside and he would feel better.

Thus, the record reveals that appellant admitted in judicio (see generally Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (2) (353 SE2d 847) (1987)) that he had suffered no permanent loss of bodily function, and the transcript demonstrates that no evidence was presented to establish that appellant’s prediction that a bodily function would be permanently lost, as referenced in appellant’s answer, had become or would become a reality. “Directed verdict is proper where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a verdict. [Cit.]” Layfield v. Turner Advertising, 181 Ga. App. 824, 826 (354 SE2d 14) (1987). We find no error in the trial court’s grant of appellee’s motion for a directed verdict. Id.

Decided September 5, 1989

Rehearing denied September 26, 1989

Horace L. McSwain III, for appellant.

James V. Towson, H. Jerome Strickland, Jr., for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1573.
    HILL v. FEDERAL EMPLOYEES CREDIT UNION.
    (386 SE2d 874)
   Sognier, Judge.

The Federal Employees Credit Union (FECU) brought suit against Sadie C. Hill to recover a deficiency balance resulting when Hill defaulted on an automobile loan and FECU repossessed and sold her car. Hill answered and counterclaimed, and the parties filed cross-motions for summary judgment. The trial court granted FECU’s motion for summary judgment and denied that of Hill, and Hill brings this appeal.

The record reveals that in April 1985, appellant executed an “Open-End Credit Plan Agreement” (the Agreement) with appellee. Shortly thereafter, appellant applied for and received an initial loan of $400, secured by her savings account. This loan was paid off in January 1986. On July 2, 1986, appellant obtained check number 210392, in the amount of $13,303, issued to appellant and Toresco’s Autoland after approval of a loan for the purchase of a 1987 Chrysler Fifth Avenue. That check was endorsed by both payees, and the proceeds used to purchase the automobile. Both before and after the date of the car loan, appellant applied for and received various other (mostly small) loans pursuant to the same Agreement.

In August 1987, after a work injury, appellant stopped making payment to appellee. On October 29, 1987, when appellant was over two months behind in her biweekly payments, and the balance remaining on the debt was almost $16,000, appellee repossessed the automobile. Four days later, appellee sent to appellant by certified mail, return receipt requested, its customary “UCC 10 day letter,” which was returned on November 23, 1987, marked “unclaimed” indicating attempted delivery twice to appellant. Appellee then prepared the vehicle for private sale, advertised it, and received written bids. On March 14, 1988, appellee sold the vehicle to the highest bidder for $11,700 and applied the proceeds to the balance owed. After doing so, there remained a deficiency balance in the principal amount of $4,107.84, reflecting a balance of $3,161.84 on the car loan and $946 on cross-collateralized line of credit loans under the Agreement. After appellant refused demand for this sum, appellee brought this action.

1. Appellant contends the trial court erred by granting summary judgment in favor of appellee when the record fails to show appellee had a security interest in the automobile it repossessed. This enumeration is without merit. The Agreement signed by appellant incorporates a security agreement which gives appellee a security interest in a vehicle for whose purchase a loan is made, and also provides that such collateral “also secures any other debt obligation that I have or subsequently incur with you.” In addition, the check issued for the purchase of the car contained a limited endorsement warranty, incorporating the Agreement by reference and indicating that by endorsing the check appellant acknowledged receipt of the proceeds in accordance with the Agreement. Appellant’s execution of the Agreement and subsequent endorsement of the check gave appellee a security interest in the purchased vehicle, which was then perfected by the issuance of a certificate of title listing appellee as first lienholder. See OCGA §§ 11-9-302 (3) (b); 40-3-53.

2. Appellant alleges the trial court erred by granting summary judgment to appellee because questions of fact remain with regard to four issues.

(a) With regard to whether the costs of servicing and preparing the car for sale were authorized, appellant’s contentions are unfounded because these incidental expenses were provided for in the Agreement and are further specifically allowed by OCGA § 11-9-504 (1) (a).

(b) Appellant also claims issues of fact remain as to whether appellee complied with the requirements of OCGA § 10-1-36 because she never received notice. The record reveals that on the envelope containing the notice, the last number of appellant’s correct street address had been deleted. However, in its motion for summary judgment, appellee proffered the affidavit of Henry Brannon, who averred that he was employed as a rural mail carrier by the U. S. Postal Service and was responsible for mail delivery to appellant’s correct address during the period of time the notice was mailed. Brannon deposed that notwithstanding the typographical error and the fact that the address on the envelope does not exist, he recognized the name on the letter, realized where it should be delivered and, in fact, attempted delivery there twice by leaving a notice of attempt to deliver certified mail at appellant’s correct address. Brannon also stated that because it was a certified letter, pursuant to post office procedures it was returned to the sender after two claim notices. This information was verified in the affidavit of Donna Willoghby, another postal service employee at Brannon’s branch.

This court has held that “[t]here is no requirement in OCGA § 10-1-36 that the debtor actually receive notice,” Calcote v. C & S Nat. Bank, 179 Ga. App. 132, 133 (345 SE2d 616) (1986), and a debtor may not evade notification by refusing to accept certified mail. Appellee has shown, without rebuttal by appellant, that two attempts were made to deliver the notice to the correct address and appellant refused delivery. Accordingly, Calcóte applies, and the requirements of OCGA § 10-1-36 have been met. Although the court in Calcóte went on to discuss whether compliance in that manner with OCGA § 10-1-36 is also a sufficient showing of compliance with the “cumulative and additional ‘reasonable notification’ provision of OCGA § 11-9-504 (3),” id., that issue is not enumerated or argued by appellant, and therefore we need not address it. Accordingly, we find no merit in this enumeration.

(c) Appellant contends an issue of fact exists as to whether she was actually in default at the time of repossession. Appellant averred in her affidavit that Chris Maner, appellee’s employee, had verbally agreed to extend the payment deadline and the repossession was accomplished prior to the extended deadline. In their affidavits, both Maner and Dorothy Freehery, appellee’s collection manager, unequivocally denied that they extended the deadline.

As to the “quasi new agreement” appellant asserts was created by her conversation with Maner, OCGA § 13-4-4 provides that mutual departure from the terms of a contract mandates notice of the intention of one of the parties to return to the original terms before those terms may be enforced. In order to establish the existence of a quasi new agreement, a mutual rather than merely unilateral intention to vary the terms of the original contract must be shown. Shalom Farms v. Columbus Bank &c. Co., 169 Ga. App. 145, 147 (2) (312 SE2d 138) (1983). Thus, in order to recover under this theory, appellant must show conduct evidencing an agreement or waiver by the appellee of the provisions in the original contract relating to non-receipt of biweekly payments. Here, the parties have proffered sharply conflicting evidence. It is ordinarily a jury question whether the parties’ conduct creates or implies the existence of a quasi new agreement, id. at 148, and the conflicting allegations in the parties’ competing affidavits regarding whether the deadline was ever extended were sufficient to create an issue of material fact as requires jury resolution. See id. Accordingly, we find the trial court erred by granting summary judgment to appellee on this issue.

(d) We agree with appellant as well that a question of fact exists concerning the value of the car. In support of its motion for summary judgment, appellee submitted the affidavit of Keith Campbell, the vice president and general manager of an automobile dealership, who detailed, inter alia, his background in the automobile industry, and his extensive experience in the purchase and sale of new and used automobiles in private and repossession auctions. Campbell listed the various factors used as standard practice within the industry to value used automobiles, including the NADA book value; stated that he had had occasion to value the car in question in this action; and detailed his reasons for valuing the car in issue at between $9,030 and $9,630.

In opposition to appellee’s motion, appellant submitted her own affidavit in which she opined that the retail value of the car was about $16,000 at the time of repossession. The affidavit sets forth that the opinion was based on shopping for the car for a number of months, during which time she sought the opinions of others knowledgeable of the value of Chrysler Fifth Avenues, including those engaged in the business, of buying and selling such cars; her continuing to keep informed of the market conditions surrounding the car, including Chrysler’s intention to discontinue the Fifth Avenue model, which appellant claimed had had a positive effect upon that model’s maintenance of its value generally; and her knowledge that her car was in “mint condition” at the time of repossession.

It is not the function of this court to weigh the credibility of the evidence. We review only its sufficiency. Work Clothes Outlet &c. v. M & S Purchasing, 188 Ga. App. 179, 180-181 (1) (372 SE2d 509) (1988). Although appellee argues that appellant’s affidavit was conclusory and therefore insufficient to rebut appellee’s evidence regarding value, “[o] pinion evidence offered by a non-expert witness ‘as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience, or familiarity with the value of the property in question or similar property and [she] must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion. (Cits.) . . .’ [Cits.]” Reeves v. Crawford, 185 Ga. App. 518 (364 SE2d 895) (1988). Giving appellant as respondent the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence, see generally Meadows v. Phillips, 188 Ga. App. 377, 378 (373 SE2d 27) (1988), we find that appellant’s affidavit meets the requirements for lay opinion as to value, sufficiently rebutting the evidence offered by appellee as to value to create a genuine issue of material fact for resolution by a jury. Accordingly, the trial court erred by granting summary judgment in favor of appellee on this issue as well. See id.

3. The trial court denied appellant’s motion for reconsideration made after the grant of summary judgment in favor of appellee. Appellant now maintains the trial court’s ruling was error because genuine issues of material fact existed as to whether appellee breached the peace by repossessing the car at night and without appellant’s knowledge and whether appellee committed larceny or trespass by taking and refusing to return appellant’s personal property inside the car when it was repossessed.

(a) It is well settled law that a secured party, through its agents, has a right to enter premises peacefully and at any time to obtain its property. See OCGA § 11-9-503. Absent agreement to the contrary, notice to the debtor is not required, Fulton Nat. Bank v. Horn, 239 Ga. 648 (238 SE2d 358) (1977), and the absence of the debtor’s knowledge or consent does not constitute a breach of the peace unless abusive and insulting language which incites violence is used or some other violation of the public peace, order, or decorum occurs. See Deavers v. Standridge, 144 Ga. App. 673, 674-675 (1) (242 SE2d 331) (1978). The security agreement in issue here did not provide for notice to the debtor before repossession (although we note that appellee gave appellant written notice that it would repossess the collateral if she did not comply with her obligations), and thus the trial court did not abuse its discretion by failing to reconsider this issue.

(b) Appellant first introduced evidence on the larceny issue by attaching an affidavit to the motion for reconsideration. However, OCGA § 9-11-56 (c) provides only that the adverse party may serve opposing affidavits prior to the hearing on the motion for summary judgment. Thus, appellant’s affidavit was untimely because it was filed and served after the hearing, after the order granting summary judgment to appellee, and after filing her motion for reconsideration. Further examination of the record shows that the “amended counterclaim,” for which the affidavit was purported to be evidence, was a compulsory counterclaim as defined in OCGA § 9-11-13 (a) because it added an entirely new cause of action. This counterclaim was filed, however, more than five months after appellant filed her original answer and counterclaim. Appellant made no claim of excusable neglect, nor did she apply for leave of court to add an omitted counterclaim pursuant to OCGA § 9-11-13 (f). Since appellant did not follow proper procedure in amending her counterclaim, and her motion for reconsideration as to the larceny issue depended on this improper counterclaim, the trial court did not abuse its discretion by denying appellant’s motion for reconsideration. See generally White v. Fidelity Nat. Bank, 188 Ga. App. 539, 540-541 (1) (373 SE2d 640) (1988).

4. In view of our determination in Division 2 that certain issues of fact remain, the trial court’s denial of appellant’s motion for summary judgment is affirmed.

5. Appellee’s motion to dismiss the appeal and for penalties for frivolous appeal is denied.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Pope, J., concur.

Decided September 6, 1989

Rehearings denied September 26, 1989

Arthur F. Millard, for appellant.

Boyce, Thompson & O’Brien, Albert F. Nasuti, J. Patrick O’Brien, for appellee.


author: Birdsong, Judge.

text:
    A89A0906.
    ELLIOTT v. THE STATE.
    (387 SE2d 18)
   Birdsong, Judge.

Larry Wayne Elliott was convicted of burglary of a pawn shop. His appeal centers upon the asserted insufficiency of the evidence, which was mainly circumstantial, to support the verdict or to support a jury charge on “parties to a crime,” which charge appellant contends allowed the jury to convict him despite the insufficiency of the evidence to convict him of the crime itself. Held:

The evidence in this case showed that in the early morning hours of March 1, 1987, a police officer came upon appellant’s Volkswagen stranded in the mud, directly across the street from the pawn shop. The officer saw appellant wave down a white van; the van pulled behind the Volkswagen and its occupants appeared to be about to assist appellant in extracting his vehicle from the mud. Before the officer could assist them, however, he heard the burglar alarm go off at the pawn shop and, after radioing for backup assistance, went to the pawn shop.

The backup officer examined appellant’s driver’s license but did not identify the occupants of the van, whom appellant apparently knew; he told them all to leave in the van when he determined appellant had been drinking.

Examination of the scene revealed tire tracks embedded about four inches into the mud behind the store, and footprints leading to the two places where access to the rear of the store had been attempted. The tire tracks lead to the front of the store, where the shop was entered, and then proceeded directly across the road, turned around, and then ended exactly where the Volkswagen was stuck in the ditch. An examination of the tire tracks at the pawn shop showed they were an identical match to the tires on appellant’s vehicle. A sledge hammer, crowbar and two gloves were found smashed in the mud a few feet from where appellant’s vehicle was stranded; footprints in the mud led directly from his car to that spot, and back to the car. Footprints from the car continued up a bank of dirt off the road to a spot where four rifles, a radio and three pistols were found; these items were identified as having come from the pawn shop.

Decided September 26, 1989.

Bagby & Bagby, Lee Henley, for appellant.

William A. Foster III, District Attorney, Blanchette C. Holland, Assistant District Attorney, for appellee.

This evidence alone is such that “immediately points to the question at issue” (OCGA § 24-1-1 (3)), as to nearly qualify as direct evidence. As merely circumstantial evidence, however, it clearly and forcefully “tends to establish [the fact that appellant was involved in the burglary] by proof of various facts, sustaining by their consistency the hypothesis claimed.” OCGA § 24-1-1 (4). The only question remaining not directly answered by the facts proved was whether the person and vehicle who made the circling tire tracks and footprints around the pawn shop, to its smashed door and also to two other places of attempted entry, was the burglar of the store. This issue could be reasonably resolved by the evidence of footprints leading directly from appellant’s stranded vehicle, off the road, and to two areas where burglary tools and stolen items were hidden in the mud.

All of the evidence is such that a reasonable trier of fact could rationally have found proof of appellant’s guilt of burglary, beyond a reasonable doubt and to the exclusion of every other hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). It well supports a jury charge as to “parties to a crime,” and supports a verdict found thereunder.

As for whether there was any other reasonable hypothesis from this evidence save that of appellant’s guilt in participating in the burglary, the jury is always the arbiter of what is a reasonable hypothesis. Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474); see Mercier v. Mercier, 46 Ga. 643.

The jury found no reasonable hypothesis other than guilt and, viewing the evidence in the light most favorable to its findings, neither do we. Appellant certainly was not entitled to a directed verdict, the jury charge was not erroneous and prejudicial, and the verdict of guilt is well supported.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Deen, Presiding Judge.

text:
    A89A1694.
    REDDING v. THE STATE.
    (386 SE2d 907)
   Deen, Presiding Judge.

An attempt to rob a DeKalb County Church’s Fried Chicken restaurant was made by a male who, shortly after the restaurant had closed for the evening, approached the back door and threatened the employee who happened to open it, and then demanded of the restaurant manager that she open the locked safe or “I’ll blow your brains out.” While the manager was attempting to comply, the other employees ran from the restaurant, and one of them summoned a police officer who was writing a traffic citation just across the street. The officer opened the restaurant’s back door and was confronted by a person later identified as appellant Redding. The officer slammed the door shut, called for help on his radio, and was carefully working his way around the building when he saw the suspect run out the front door and up a side street. The officer gave chase, and he and several other officers shortly apprehended their quarry, appellant Redding, who had apparently doubled back into a wooded area behind the restaurant. Redding was placed in a patrol car, where he was identified by the employee who had reported the robbery. He was read his Miranda rights but refused to give his correct name or address; he stated that he had not attempted to rob the restaurant and had recently used the syringe found in his pocket to take cocaine. No gun was found in his possession at the time of arrest.

After being taken to the police precinct, Redding was again read his Miranda rights. He informed the police officer who was doing the “paperwork” that he now knew where he (the officer) could be found and would “put him in the dirt.” Redding was indicted on five counts: (1) criminal attempt to commit an armed robbery; (2) aggravated assault with attempt to rob Mr. Stokes, the employee who had opened the back door; (3) aggravated assault with attempt to rob Ms. Steverson, the manager; (4) obstruction of an officer; and (5) giving a false name to an officer. The jury found him guilty on all counts, and he was given concurrent sentences of ten years’ imprisonment on Count 1, twelve months on Count 2 (he was found guilty of simple assault, a misdemeanor, rather than aggravated assault, a felony), twenty years on Count 3, five years on Count 4, and twelve months on Count 5.

Redding filed a motion for new trial on the general grounds but amended the motion to include the trial court’s failure to give a requested jury charge, the admission of certain testimony allegedly without a proper foundation, the prosecution’s failure to meet its burden of proof, the court’s failure to exercise its discretion in what he alleged to be “a close case,” and an unspecified “error of law.” The motion was denied on all grounds, and Redding has filed an appeal enumerating as error (1) the denial of the amended motion for new trial; (2) the sufficiency of the evidence to authorize conviction on Count 2; (3) giving separate sentences on Counts 1 and 3, which allegedly merge as a matter of fact; and (4), (5) the admission of custodial statements made by the defendant after he had indicated an unwillingness to talk further. Held:

1. Scrutiny of the record in the instant case, including the trial transcript, reveals that there is no substance to any of the grounds on which Redding sought a new trial, nor was a new trial authorized for any of the reasons covered in OCGA Chapter 5, Article 2. This enumeration is lacking in merit.

2. The record indicates that there was sufficient competent evidence to authorize the rational trier of fact to find appellant guilty in Count 2 of the lesser included offense of simple assault, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Examination of the trial transcript and relevant portions of the record makes it clear that the fourth and fifth enumerations have no merit. The testimony to which appellant objects was properly admitted after a Jackson v. Denno hearing in which the court ascertained that the challenged statements of the defendant were made freely and voluntarily after he had indicated that he understood his Miranda rights. Fowler v. State, 246 Ga. 256 (271 SE2d 168) (1980); Johnson v. State, 188 Ga. App. 499 (373 SE2d 284) (1988). Moreover, the record reveals, it is only through a rather strained interpretation of those statements (names and addresses, denial that he had entered Church’s, remarks concerning cocaine) that they could be considered prejudicial. We find no error here.

4. In his third enumeration appellant alleges that it was error for the court to impose separate sentences on Counts 1 and 3, since the two offenses merge as a matter of fact; that is, the aggravated assault upon Ms. Steverson involved certain acts which were also substantial steps towards the commission of armed robbery. Under OCGA § 16-1-7 (a), “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other. . . .” In Hambrick v. State, 256 Ga. 148 (344 SE2d 639) (1986), the Supreme Court reviewed convictions of aggravated assault and attempted armed robbery and noted at 150: “While it is settled that aggravated assault is not included in robbery, armed robbery, or attempted armed robbery as a matter of law [cits.], it may be included as a matter of fact [cit.] . . . Here . . . the same facts were used ... to prove attempted armed robbery and aggravated assault. Therefore, [the conviction] . . . of aggravated assault . . . [does] in fact merge with the attempted armed robber[y] and must be set aside.” In the case sub judice the assailant’s announcement that he wanted money, coupled with his verbal allusions to a gun and his holding his hand in a position which suggested the presence of a gun in his pocket, was, as in Hambrick, supra, “the act underlying both the convictions, for attempted armed robbery and for aggravated assault.” Id. See OCGA §§ 16-5-21 (a); 16-8-41 (a). Moody v. State, 258 Ga. 818 (375 SE2d 30) (1989). The elements of aggravated assault were, in the instant fact situation, among the elements which constituted attempted armed robbery. Since one crime was included in the other, only one sentence should have been imposed in connection with the two charges. The trial court erred in imposing two separate sentences, and the case must therefore be remanded for resentencing on Counts 1 and 3. The State has conceded that the trial court erred in this respect.

Decided September 26, 1989.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney; Barbara B. Conroy, Patricia G. Higginbotham, Assistant District Attorneys, for appellee.

Judgment affirmed in part and reversed in part; case remanded with direction.

Birdsong and Benham, JJ., concur.


text:
    A89A1810.
    CASAS v. THE STATE.
    (387 SE2d 20)
   Deen, Presiding Judge.

Appellant Casas was stopped by a Savannah police officer for operating his motorcycle at an excessive speed on the streets of that city. The officer found that Casas emitted an odor of alcohol, was unsteady on his feet, and spoke with slurred diction. Casas could produce no driver’s license or proof of insurance.

Appellant failed several field sobriety tests and, upon being advised of his implied consent rights, OCGA § 40-5-55, agreed to take an intoximeter test of his breath. After arriving at the police station, however, Casas refused, in the presence of the intoximeter operator, to take the breath test and insisted on having a blood test, instead. He was then booked on charges of (1) being a habitual violator of laws regarding operation of motor vehicles, (2) driving under the influence of alcohol, and (3) driving with no proof of insurance. A Chatham County jury found him guilty on all counts, and the court imposed concurrent sentences for prison terms within the statutory limits for each offense. He moved unsuccessfully for new trial on the general grounds and the additional ground that the verdict was allegedly less than unanimous. On appeal he enumerates as error the trial court’s failure to charge the jury on OCGA §§ 40-5-55; 40-5-58 (b); and 40-6-392. Held:

Scrutiny of the record reveals that, according to the trial transcript, defense counsel made no objection, either at the charge conference preceding the jury charge or after the jury had retired, to the omission of the cited jury instructions. The transcript further reveals that the substance of these Code sections, as applicable to the instant case, was covered in the jury instructions given by the court. The court is not required to instruct the jury in certain language so long as the substance of the principle is clearly stated. Wilbanks v. State, 165 Ga. App. 876 (303 SE2d 144) (1983).

Decided September 26, 1989.

Gerald L. Olding, for appellant.

Spencer Lawton, Jr., District Attorney, Lars T. Granade, Assistant District Attorney, for appellee.

As to appellant’s allegations regarding whether or not he refused to take the test designated by the arresting officer — i.e., the breath test — and whether he had notice of his status as a habitual violator, the testimony recorded in the transcript reveals clearly that appellant did unequivocally refuse the breath test and that he was notified in person of his status and of the concomitant revocation and five-year suspension of his driver’s license. See OCGA §§ 40-5-55; 40-5-58 (a), (b), (c); 40-6-391; 40-6-392. We find no error in the proceedings below.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A1937.
    HILLIARD v. THE STATE.
    (387 SE2d 21)
   McMurray, Presiding Judge.

Defendant Hilliard appeals his convictions of two counts of aggravated child molestation, one count of child molestation and the consecutive sentences imposed by the trial court. Held:

1. The trial court erred in imposing separate sentences for the two convictions of aggravated child molestation. The two charges were indistinguishable since all of the averments including date (which was not made an essential element), victim, and description of defendant’s conduct constituting the offense were identical. This lack of particularization permits the imposition of only one sentence. LaPan v. State, 167 Ga. App. 250, 253 (4) (305 SE2d 858); Smith v. State, 160 Ga. App. 26, 28 (4) (285 SE2d 749); Miller v. State, 141 Ga. App. 382 (1) (233 SE2d 460). Additionally, the evidence at trial shows the commission by defendant of only one offense of aggravated child molestation. Consequently, only one conviction of defendant for aggravated child molestation, and not both, can stand.

2. Defendant’s remaining enumerations of error raise the general grounds. The evidence consists primarily of the testimony of the vietim who was 9 years of age at the date of the trial; 8 years of age at the time of the offenses. The victim testified as to being sodomized by defendant and as to another incident during which defendant touched her vagina with his hand and penis. We find that when the evidence is viewed in the light most favorable to the prosecution, a rational trier of fact could find the defendant guilty beyond a reasonable doubt of one count of aggravated child molestation and of one count of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Buice v. State, 191 Ga. App. 7 (1) (380 SE2d 741).

Decided September 26, 1989

John W. Davis, for appellant.

Huey Hilliard, pro se.

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

As we stated in Division 1, there is no evidence authorizing the conviction of defendant for a second count of aggravated child molestation. Therefore, we reverse one conviction and sentence of defendant for aggravated child molestation. The remaining conviction of defendant for aggravated child molestation and the conviction for child molestation are affirmed. In view of the disruption in the chain of consecutive sentences by our holding herein, defendant must be re-sentenced on one count of aggravated child molestation and the count of child molestation.

Judgment affirmed in part and reversed in part.

Car ley, C. J., and Beasley, J., concur.


text:
    A89A1945.
    KIRBY v. HARRIS et al.
    (387 SE2d 22)
   Deen, Presiding Judge.

In July 1986 Mr. and Mrs. Harris, appellees here, contracted with appellant Kirby for the latter to build a house for them upon a specified lot in a subdivision where appellant was then building another house. The contract stated, without qualification, that implementation of the contract was contingent upon the sale of the appellees’ southeast Atlanta home by July 31, 1986. Appellees paid Kirby $3,000 in earnest money, to be used for acquisition or reservation of the designated building lot.

When the sale of the Harris home failed to materialize by the stated date, they requested the return of, or an accounting for, the $3,000 deposit; they allegedly told Kirby at that time that they still hoped that he would build a house for them when they were able to sell their present house and thereby to acquire the necessary funds. Kirby declined to return the deposit, stating that he had used the money in making preliminary arrangements — not including purchase or reservation of the lot — for building the house that was the subject of the contract.

In June 1987 the Harrises filed a complaint seeking return of the earnest money. Kirby answered, alleging, inter alia, that the Harrises had instructed him to use the $3,000 in any manner that he saw fit, with a view to preparing to build the proposed house, and that the Harrises had breached the contract and perpetrated fraud in allegedly failing to exercise due diligence in attempting to sell their existing house. He counterclaimed for $3,000 as compensation for his alleged “preliminary work,” plus attorney fees and other costs of the action. Plaintiffs/appellees then moved for summary judgment, and the trial court entered judgment in their favor in June 1989, awarding them $3,000 as damages, plus interest and costs.

Kirby appeals from the trial court’s order and judgment, alleging that genuine questions of material fact exist regarding such matters as good faith on the Harrises’ part, the existence vel non of a “verbal contract” to supplement the written one, the intent of the parties, and the credibility of the Harrises’ affidavit and deposition testimony. The Harrises have moved to strike appellant’s supplementation of the record, alleging that he has had forwarded to this court documents which were not a part of the record in the trial court. They have also moved for damages for a frivolous appeal. Held:

1. We have thoroughly examined the entire record in the instant case, including the affidavits and depositions. We find that, although there is a great deal of conflict in the testimony, there is no genuine conflict of fact as to the material and substantive issues. Neither in his response to plaintiffs’/appellees’ motion for summary judgment nor in his urging of his counterclaim does appellant Kirby come forward with evidence sufficient to refute the movants’ prima facie showing and to create a jury issue. OCGA § 9-11-56; Oliver v. Thomas, 158 Ga. App. 388 (280 SE2d 416) (1981). The trial court properly granted summary judgment.

2. As to appellees’ motion to strike, our affirmance of the judgment below renders that motion moot. We decline to grant appellees’ motion for damages.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided September 26, 1989.

Richard R. Kirby, pro se.

Ed Martin, for appellees.


text:
    A89A1954.
    VINCENTE v. THE STATE.
    (387 SE2d 24)
    Decided September 26, 1989.

      L. Clark Landrum, for appellant.

      David E. Perry, District Attorney, for appellee.
   Deen, Presiding Judge.

The appellant, Aramis Vincente, was pulled over by a state patrolman for travelling 23 miles per hour over the posted speed limit on 1-75. (Vincente’s vehicle was accompanying, bumper to bumper, another vehicle that was stopped by another state patrolman.) Acting on a hunch, after observing in the passenger compartment a screwdriver with what appeared to be some black insulation material on it, the state patrolman asked for Vincente’s consent to search the car. Because Vincente indicated that he spoke no English, the patrolman presented a consent to search form written in Spanish, which Vincente read and signed. The patrolman made a cursory search of the interior and trunk, and then had the car towed to the state patrol station, where another patrolman undertook a thorough search and found approximately 1 kilogram of cocaine in the right quarter panel of the vehicle.

Vincente subsequently moved to suppress the evidence on the basis that the officers had no probable cause to search his vehicle. The trial court, however, denied the motion, and Vincente was in turn convicted of trafficking in cocaine and speeding. This appeal followed. Held:

The state patrolman had probable cause to stop Vincente’s vehicle because of the violation of the traffic laws. Beguiristain v. State, 187 Ga. App. 164 (369 SE2d 774) (1988); Williams v. State, 187 Ga. App. 409 (370 SE2d 497) (1988). The evidence authorized the trial court to find that Vincente freely and voluntarily consented to the search of the vehicle. Loaiza v. State, 186 Ga. App. 72 (366 SE2d 404) (1988). Accordingly, the trial court properly denied Vincente’s motion to suppress.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Beasley, Judge.

text:
    A89A1385.
    WORLEY v. THE STATE.
    (386 SE2d 879)
   Beasley, Judge.

Worley appeals his conviction of two counts of child molestation, involving one incident. OCGA § 16-6-4. He was acquitted of two additional counts regarding a later incident.

Viewed in favor of the verdict, the evidence was that on Wednesday, February 10, 1988, the 8-year-old daughter of a law enforcement officer was playing in the track area of the high school with her 8-year-old friend Ryan. They were approached by defendant, who was riding a blue or gray bicycle. He spoke to them, exhibited his penis to them, and, as described by Ryan, “was wiggling his private.” Ryan demonstrated this activity to the jury with an anatomically correct doll.

On Saturday, a Federal Bureau of Investigation special agent who had not previously known the law enforcement officer, was at the high school signing up children for a track club. The latter was also participating and advised the agent of the children’s experience so that the adults could take precautions.

The next day, the agent’s 13-year-old daughter and her girl friend of the same age were at the high school running track when they saw defendant with a silverish gray bicycle. He had his pants unzipped and was exposing his penis to them. They immediately left the area and were followed by the defendant, who went under the bleachers where they were. After the girls were picked up by the agent’s wife, they told her about their experience, and the agent’s daughter repeated it to her father when she arrived home. He immediately went to the school and located defendant, who matched the girl’s description. Defendant gave his name and address but then rode off. He was seen and identified again by the agent’s daughter who, with her mother, had followed the agent to the school.

Defendant, who lived nearby, acknowledged that he frequently rode his or another family bike at the high school. One of these bikes was a silver/gray ten-speed. He also acknowledged the encounter with the agent but denied exposing himself to the girls. He denied being at the school at all on the day of the incident with the younger children.

The conviction was of the counts involving the younger children.

1. Two enumerations allege errors in the jury charge.

Enumeration 1 contends it was error to refuse his request regarding the elements of public indecency, which defendant contends is a lesser included offense of child molestation.

Pretermitting the issues of whether any such issue was waived by failure to object after the charge was given and the court inquired of counsel regarding objections, Bryant v. State, 256 Ga. 273, 274 (1) (347 SE2d 567) (1986); Allen v. State, 177 Ga. App. 600, 603 (340 SE2d 246) (1986), and whether the charge requested was a lesser included offense, see Morton v. State, 168 Ga. App. 18, 20 (5) (308 SE2d 41) (1983); Mackler v. State, 164 Ga. App. 874, 876 (4) (298 SE2d 589) (1982), where the children said defendant did the act and he denied it and claimed an alibi, such a charge would have been inappropriate. Cooper v. State, 256 Ga. 631 (3) (352 SE2d 382) (1987).

The indictment alleged that all of the charged incidents occurred on February 13, Saturday. The counts of which defendant was convicted occurred on Wednesday the tenth. Defendant presented evidence of his alibi on that date. In his third enumeration, he claims error in the court’s charge that the jury could convict if it believed there was proof of the crime alleged “at any time within four years preceding the date in the bill of indictment.”

Failure to object waived the objection. Allen, supra. The charge did not constitute substantial error pursuant to OCGA § 5-5-24 (c), i.e., telling the jury the date charged is “immaterial” did not emasculate the alibi defense here. See McCoy v. State, 174 Ga. App. 621, 622 (2) (330 SE2d 746) (1985). Defendant had an alibi for the date proven. Thus, even if the charge were incorrect, no harm has been shown and thus no reversible error occurred. Chenault v. State, 234 Ga. 216, 220 (2) (215 SE2d 223) (1975).

2. During its deliberations, the jury asked the court several questions. In response, the court recharged the elements of child molestation, the necessity for the State to prove intent, and that intent may be found from consideration of words, conduct or demeanor of an accused.

The next day, after several more hours of deliberation, the jury asked: “Does the prosecution have to prove beyond a reasonable doubt that the accused had to have ‘picked out’ these specific people to be guilty of the charge brought against him?” A colloquy with the court reflects that the jury’s concern was whether the acts had to have been “premeditated,” and whether a crime could “accidentally” happen. The court directed the jury repeatedly that it must determine that a crime occurred, that the defendant had to “intend to do the act,” but that the State did not have to prove that anyone sought out anyone.

In response to another inquiry regarding “pre-thought,” the court gave the charge now objected to: “The crime is defined as one performed by a person in the presence of minor children. You must find that there was an intention to perform the act and that it was performed in the presence of persons under the age of fourteen years.”

Defendant contends that this contradicted the initial charge and eliminated the need for the jury to be convinced that defendant performed the acts “with the intent to arouse or satisfy the sexual desires of either the child or the person.”

Decided September 6, 1989

Rehearing denied September 27, 1989

Robert W. Lenzer, Thomas P. Lenzer, Michael Mears, for appellant.

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

No objections were made when recharges were given, but neither did the court make any specific inquiry concerning the issue and we consider the merits of the enumeration.

The jury was repeatedly charged on the required elements of child molestation, including specific intent. Defendant seeks review of one sentence out of context, which we cannot do. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). So considered, the charge presents no error. Bentley v. State, 179 Ga. App. 287, 288 (2) (346 SE2d 98) (1986).

3. The fifth enumeration attacks the sufficiency of the evidence on the ground that there was no evidence to show the required intent. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “ ‘Intent, however, is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. OCGA § 16-2-6.’ ” In re J. B., 183 Ga. App. 229, 230 (6) (358 SE2d 620) (1987). This principle was included in the court’s charge.

The acts described by Ryan and demonstrated to the jury were sufficient for this purpose. Bentley, supra at 287.

4. The fourth enumeration claims, for the first time in any forum, that trial counsel was ineffective because of his failure to reserve objections to the charge as allowed by OCGA § 5-5-24.

Since we have ruled on the merits of the questioned charges which had not been objected to by trial counsel, the alleged ineffectiveness is harmless inasmuch as the failure to object did not work a forfeiture of the appellate review. Hazelrig v. State, 171 Ga. App. 942, 943 (1) (321 SE2d 437) (1984).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


author: Carley, Chief Judge.

text:
    A89A0986.
    ASKEW v. THE STATE.
    (387 SE2d 25)
   Carley, Chief Judge.

After a jury trial, appellant was found guilty of rape and robbery. He appeals from the judgments of conviction and sentences entered by the trial court on the guilty verdicts.

1. Appellant enumerates the general grounds.

The victim never saw the face of the man who raped and robbed her. However, two witnesses identified appellant as the man they had seen in the area at the approximate time the crimes were committed. Scientific evidence was incriminatory of appellant. The witnesses presented in support of appellant’s defense of alibi were thoroughly impeached. We find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant moved to suppress evidence relating to his pre-trial and in-court identification. The denial of his motion is enumerated as error.

Assuming without deciding that the pre-trial photographic lineup was so suggestive as to cast doubt upon the reliability of the witnesses’ identification, we will undertake “a ‘totality of circumstances’ review focusing on certain factors which might lead to ‘likelihood of misidentification’: (1) the opportunity of the witness to view the perpetrator; (2) the witness’ degree of attention; (3) the accuracy of prior description; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the identification.” Burks v. State, 174 Ga. App. 304 (1) (329 SE2d 590) (1985). One witness looked the man in the eyes and talked with him for approximately five minutes. The other witness watched and talked with him for approximately two minutes. Both witnesses gave a clear and accurate description of the man before being shown any photographs. Positive photo identifications were given by both witnesses some two or three months after the crimes had been committed. “Considering the totality of the circumstances in this case, it cannot be said that the photographic array, [even if] impermissibly suggestive, was conducive to irreparable mistaken identification. [Cit.]” Redd v. State, 154 Ga. App. 373, 374 (2) (268 SE2d 423) (1980). The trial court did not err in refusing to suppress the identification evidence.

3. The trial court’s refusal to suppress appellant’s incriminating statement is enumerated as error. The contention is that the State did not show that appellant had clearly and affirmatively waived his constitutional rights.

It is not constitutionally required that a waiver be in writing. Spain v. State, 243 Ga. 15, 16 (252 SE2d 436) (1979). See also Mitch ell v. State, 254 Ga. 353, 355 (7a) (329 SE2d 481) (1985). In the instant case, the police officer testified that appellant read and was advised of his Miranda rights, that no threats or promises were made to him, and that appellant appeared to understand his rights and so stated. In these circumstances, the trial court’s finding that appellant had freely and voluntarily waived his constitutional rights was not clearly erroneous. See Rosser v. State, 157 Ga. App. 161, 162 (1) (276 SE2d 672) (1981).

Decided September 27, 1989.

Tony L. Axam, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Monique F. Kirby, Assistant District Attorneys, for appellee.

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A1238.
    SANDNER v. THE STATE.
    (387 SE2d 27)
   Carley, Chief Judge.

By an accusation filed in January of 1988, appellant was charged in alternative counts with driving under the influence in violation of subsection (1) and (4) of OCGA § 40-6-391 (a). The alleged crime occurred on August 6, 1987. By an accusation filed in March of 1988, appellant was charged with the following crimes: alternative counts of driving under the influence in violation of subsection (1) and (4) of OCGA § 40-6-391 (a); driving with a suspended license; following too closely; and having no insurance. These alleged crimes all had occurred on November 2, 1987.

After a jury trial on the first accusation, appellant was acquitted. Appellant then filed a plea of autrefois acquit as to the second accusation. The trial court denied this motion and appellant appeals.

1. Because neither of the accusations stated that the date of the alleged offenses was a material averment, the State could prove their commission at any time within the two-year statute of limitation. For this reason, appellant urges that his acquittal on the first accusation serves as a bar to his prosecution for the incidents which were alleged in the second accusation to have occurred before the first accusation was filed.

“The purpose of [barring subsequent prosecution in certain similar cases] is to prevent the [S]tate from placing the defendant in jeopardy again for the same criminal transaction, when not confined to proof of any specific date or transaction within the period of the statute of limitations for the charged crime by virtue of the generality of the indictment or accusation. [Cit.] But this rationale does not apply in the case at bar. To begin with, it is patently evident from the other misdemeanor charges accompanying the [second accusation] that the . . . charge of violation of OCGA § 40-6-391 [alleged in the first accusation] stems from a different incident .... Appellant . . . claim[s] [only] that the two sets of charges [could have arisen] out of the same conduct or same transaction [and] that he . . . was confused or misled in [trial preparation]. The policy espoused in [certain cases whereby further prosecution is barred for the same type offense within the limitations period] is necessitated by the nature of the offenses charged in those cases. They were by nature continuing and potentially indefinite in duration. Therefore, the date as a material element in the transaction was critical because the culpability had to be pinpointed in time so as to prevent multiple prosecution for various instances of the ongoing criminal activity. The traffic offense [s] at issue here . . . [are] of quite another character. ... So the second [accusation is] not [a prosecution] for the offenses already pled to, on the face of it. ‘In order to sustain a plea of former jeopardy, it is always incumbent upon the defendant to plead and prove that the transaction charged in the second indictment [or accusation] is the same as a matter of fact as that charged in the first indictment or accusation under which he was put in jeopardy.’ [Cit.]” (Emphasis supplied.) Grogan v. State, 179 Ga. App. 300, 302-303 (1) (346 SE2d 378) (1986).

Decided September 27, 1989.

David R. Rogers, for appellant.

Appellant offered no evidence whatsoever that his subsequent prosecution on the second accusation pertained to the same transaction as that which was the basis for his prosecution on the first accusation. Accordingly, appellant failed to carry his burden of proof. “While it is true that when it charged [appellant] with the first incident, the [S]tate could have proved that the crime charged occurred on a date other than the one specified in the accusation, i.e., at any time within the two years prior to the filing of the accusation, . . .” Grogan v. State, supra at 302 (1), there is no evidence in the record that the State did so.

2. Likewise, OCGA § 16-1-8 is no bar to appellant’s subsequent prosecution on the second accusation. Grogan v. State, supra at 303 (2).

Judgment affirmed. McMurray, P. J., and Beasley, J., concur.

Gerald, N. Blaney, Solicitor, David M. Fuller, Robert Greenwald, Assistant Solicitors, for appellee.


text:
    A89A1247.
    THOMPSON v. TOM HARVEY FORD MERCURY, INC.
    (387 SE2d 28)
   Carley, Chief Judge.

A vehicle that was owned by appellee-defendant and that was being operated by one of its employees collided with appellant-plaintiffs vehicle. As the result of this collision, appellant brought suit against appellee. After answering appellant’s complaint, appellee filed a motion for summary judgment on September 21, 1988. Appellant responded to appellee’s motion on October 17, 1988. In mid-December of 1988, appellant requested oral argument on appellee’s motion. The trial court denied appellant’s request. On January 20, 1989, the trial court granted summary judgment in favor of appellee, concluding that the employee was not acting in the scope of his employment at the time of the collision. Appellant appeals from this grant of appellee’s motion for summary judgment.

Appellant enumerates as error only the trial court’s denial of her request for oral argument on appellee’s motion for summary judgment. However, appellant’s request was not timely. Rule 6.3 of the Uniform Superior Court Rules provides: “Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict. However, oral argument on any motion for summary judgment shall be permitted upon written request if such request is made not later than five (5) days after the time for response.” (Emphasis supplied.) The time for appellant’s response to appellee’s motion was October 24, 1988, thirty days, plus three days for service by mail. OCGA § 9-11-6 (e). Under Rule 6.3, appellant was required to make a written request for oral argument on or before October 31, 1988, since October 29 was a Saturday. OCGA §§ 9-11-6 (a); 1-3-1 (d) (3). Because there was no timely request by appellant, appellee’s motion for summary judgment was properly decided without oral argument. See Richmond Leasing Co. v. First Union Bank of Augusta, 188 Ga. App. 843, 845 (2) (374 SE2d 746) (1988); Tandy Computer Leasing v. Smith, 186 Ga. App. 101, 102 (1) (366 SE2d 417) (1988). If appellant needed additional discovery so as to make a response to appellee’s motion, she should have invoked OCGA § 9-11-56 (f) rather than make an untimely request for oral argument.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Decided September 27, 1989.

Richard F. Otonicar, for appellant.

Neely & Player, Leigh M. Smith, Randall H. Davis, Elliott R. Baker, Mozley, Finlayson & Loggins, William D. Harrison, for appellee.