text:
    A89A1214.
    HARVEY et al. v. TAYLOR et al.
    (387 SE2d 403)
   Sognier, Judge.

Mary Lou Harvey and her son, Everett Harvey, brought suit against Vince Taylor, Douglas Simpson, Phoebe Stallings, and Geraldine Stallings to recover damages for injuries sustained in an automobile accident. The Harveys appeal from the trial court’s award of summary judgment to the defendants.

The record reveals that on August 7, 1985, at approximately 1:45 p.m., Everett Harvey was driving north on Main Street in College Park when his car was forced off the road and into a telephone pole by another automobile, resulting in injuries to him and Mary Lou Harvey, his passenger. Sergeant L. M. Nolan of the College Park Police Department testified by deposition that when he investigated the incident, one of the two witnesses he interviewed at the scene told him the license plate number of the offending vehicle was Georgia tag number AJG495, which he recorded on his standard accident report form. Nolan testified that after talking with the witnesses, he also wrote in his report that the car was red and was occupied by three black males. Upon determining that the tag number was registered to “a Stallings at 1819 . . . Dunlap Avenue” in East Point, he went to that address on three occasions but did not find anyone at home, nor did he find a red car with that tag number. Gregory Cosby and Anthony Sinclair, the two witnesses who spoke with Nolan at the scene, both testified that they noticed the car was orange-red, but did not see the license plate and did not give a tag number to Nolan. Cosby recalled that the car was a two-door Dodge and that one white male was driving, while Sinclair stated that the vehicle was a mid-1970s model American car with one male driver whose race he could not recall.

Additional testimony established that appellee Geraldine Stallings, a North Carolina resident, owned a 1977 red Chevrolet Impala which she drove on occasion but which was driven primarily by her daughter, appellee Phoebe Stallings, and that Phoebe lived in an apartment on Roosevelt Highway in Atlanta with her husband, appellee Vince Taylor, during part of 1985 but spent most of the month of August in North Carolina with her mother. Phoebe Stallings testified that she left the car at the College Park home of her uncle, appellee Douglas Simpson, during her absence from Atlanta, and left keys with both Simpson and Taylor. Simpson testified that he did not drive the car during that time, as he and his wife each drove their own cars instead. Taylor, who testified that he lived with his parents on Barrett Street in East Point during August 1985, stated that during that time he worked at the Atlanta airport from 8:00 a.m. until 12:00 or 2:00 p.m., that he only drove the Stallings car occasionally and never to work, and that he was at work the day of the incident. Taylor also stated that during August he and Simpson did go out together in the car several times to run errands, and that Simpson usually drove. Both Taylor and Simpson denied driving the car on August 7th, and Phoebe and Geraldine Stallings testified that they were in North Carolina on the day of the incident, and that on that date no one drove the car with their knowledge or permission. Taylor further testified that after the College Park police contacted his wife about the incident at issue, he drove the car to the police station, where an officer inspected it and then permitted him to leave with the car, and neither Taylor nor his wife had any further contact with the authorities regarding this incident. The record also reveals that Phoebe Stallings reported the car as stolen on October 28, 1987, and that all of the appellees are black.

Appellants contend that summary judgment was improper, as material fact questions remain. We agree as to appellees Taylor and Simpson and reverse in part. On motions for summary judgment, the movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the instant case, the movants are the defendants, they have the additional burden of piercing the plaintiffs’ pleadings and affirmatively negating one or more essential elements of the complaint. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). Further, the respondents “should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.]” Id. at 596.

In the case at bar, although Simpson testified he never drove the Stallings automobile during August 1985, Taylor stated he accompanied Simpson on several trips in the car and also drove it on occasion by himself, thereby raising a question of fact as to who drove the car during that month and creating at least an inference that either Simpson or Taylor could have driven the car on the date in question. Also, Phoebe Stallings’ testimony that both Simpson and Taylor had keys to the car, combined with Nolan’s documentation at the scene of a vehicle and tag matching that of the Stallingses, leads to an inference that the car was being driven by Taylor, Simpson, or another permissive driver. The testimony of the witnesses at the scene and Nolan’s statements regarding his investigation create a question of fact as to whether the Stallings automobile was the car that caused the accident and if so, who was driving, and appellees’ testimony does not affirmatively rebut that evidence. Accordingly, we find the trial court erred by granting summary judgment to appellees Taylor and Simpson. See generally Mitchell v. Rainey, 187 Ga. App. 510, 513 (370 SE2d 673) (1988).

We do, however, affirm the grant of summary judgment to appellees Phoebe and Geraldine Stallings. They both testified that they were in North Carolina the day of the incident, and the witnesses said the driver of the offending vehicle was male. There is no evidence of negligent entrustment, as these appellees’ testimony that no one drove the car with their permission on the date in question was not rebutted, and even if either Taylor or Simpson was driving, there is no evidence either of the Stallingses had actual knowledge of either man’s incompetence to drive an automobile. Thomason v. Harper, 162 Ga. App. 441, 444-446 (2) (289 SE2d 773) (1982); Marques v. Ross, 105 Ga. App. 133, 139 (123 SE2d 412) (1961).

We do not agree with appellants’ contention that a material fact question remains as to whether the Stallingses are liable under the family purpose doctrine because we find that principle inapplicable here. “[T]here are . . . four requirements for the application of the family purpose doctrine: (i) the owner must have given permission to a family member to drive the vehicle, (ii) the owner must have relinquished control of the vehicle to the family member, (iii) the family member must be in the vehicle, and (iv) the vehicle must be engaged in a family purpose.” Quattlebaum v. Wallace, 156 Ga. App. 519, 520 (275 SE2d 104) (1980). An adult child of the owner may be a “family member” within the meaning of the family purpose doctrine if the child lives in the parent’s household and uses the car for a purpose for which it was provided by the parent. Hubert v. Harpe, 181 Ga. 168, 172-173 (182 SE 167) (1935). However, this court has held that a son-in-law is not a member of the family with regard to the application of this doctrine. Bryant v. Keen, 43 Ga. App. 251, 252 (158 SE 445) (1931). Although the holding in Bryant has been questioned in the case of a resident adult child, Hubert, supra at 178; Whitlock v. Michael, 79 Ga. App. 316, 319 (53 SE2d 587) (1949), we find the ruling in Bryant valid where, as in the instant case, the daughter and son-in-law were not residents of the. owner’s household and there is no evidence the vehicle was provided by the owner for the son-in-law’s use. Similarly, Simpson was not a member of Geraldine Stallings’ household, and the record is devoid of any evidence that she provided the car to him for a family purpose. Thus, as there is no evidence the car was driven or occupied by a “family member” for a “family purpose,” we conclude the trial court correctly granted summary judgment to appellees Phoebe and Geraldine Stallings. See generally Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515) (1988).

Decided October 12, 1989.

Raymond V. Guidice, for appellants.

Arnold Wright, Jr., William M. Warner, for appellees.

Judgment reversed.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A89A1528.
    DAIRYLAND INSURANCE COMPANY v. BLAYLOCK et al.
    (387 SE2d 405)
   Sognier, Judge.

Dairyland Insurance Company brought this declaratory judgment action against Tony Blaylock, its named insured, and Rebecca Lynn Blaylock by next friend and guardian Mary Sue Roper to determine its liability under the policy it issued Tony Blaylock to Rebecca Blaylock for the death of her mother, Patricia Ann Roper, who was killed in an automobile collision while driving Tony Blaylock’s car. Rebecca Blaylock’s claim against Tony Blaylock is based upon an allegation of defective brakes and negligent maintenance of the brakes. Upon finding that the “household exclusion” in the policy through which Dairyland had denied coverage was void as against public policy, the trial court denied Dairyland’s motion for summary judgment and granted that of the defendants. Dairyland appeals.

The record reveals that Patricia Roper and Randall Blaylock, Tony Blaylock’s brother, were the parents of Rebecca Blaylock although they had never married. Roper’s parents testified by affidavit that she lived with her father in South Carolina but on occasion stayed with friends in Georgia while working as a laborer in Dalton carpet mills. Tony Blaylock testified by deposition that in previous years Roper and Randall Blaylock had stayed at his house for short periods of time, but that on the date of the accident Roper was working in Georgia and staying with Blaylock’s sister. He also testified that Roper and several other friends spent the night of May 13, 1985 at his home, and that Roper was driving his car with his permission the next morning when the accident occurred. The record disclosed that Roper had both a Georgia and a South Carolina driver’s license, and that the death certificate listed her address as 1591 Beaverdale Road, which was Tony Blaylock’s address. Different newspaper accounts of the incident listed Roper’s address as Boyles Mill Road, Dalton and as Central, South Carolina.

Tony Blaylock was insured by an automobile policy issued by appellant which contained the following exclusion: “The liability insurance of this policy doesn’t apply to bodily injuries or property damage suffered by . . . anyone who is a member of the family of the person named on the declarations page and who lives with that person . . . [or to] any person using the insured motor vehicle with [the insured’s] permission, or to anyone who is a member of the family of that person and who lives with that person.” (Emphasis omitted.) The trial court held that the permissive user portion of this exclusion was against public policy and thus unenforceable.

1. Appellant contends the trial court erred by denying its renewed motion for summary judgment, as no material question of fact remains that Roper was a resident member of Tony Blaylock’s family and accordingly encompassed within the first portion of the quoted exclusion.

This enumeration is without merit. Pretermitting the question whether Roper was or had been the common law wife of Randall Blaylock and thus Tony Blaylock’s sister-in-law, the unrebutted testimony of Tony Blaylock and Roper’s parents established that at the time of the accident Roper was a resident of her father’s household in South Carolina, and not a resident of Tony Blaylock’s home as appellant asserts. Although appellant maintains that the address given on Roper’s death certificate, combined with the fact that Roper had a Georgia driver’s license and was the mother of Tony Blaylock’s niece, leads to an inference that she was a resident member of his household, on motions for summary judgment “a finding of fact which may be inferred . . . but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. [Cit.]” Frazier Assoc. &c. v. Dabbs & Stewart, 173 Ga. App. 304, 306 (325 SE2d 914) (1985).

2. Appellant also contends the trial court erred by holding that the permissive user exclusion was void as against public policy. Under our compulsory liability insurance law, liability insurance is required “not only for the benefit of the insured but [also] to ensure compensation for innocent victims of negligent motorists.” Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 337 (329 SE2d 136) (1985). Household or family exclusions in automobile liability insurance policies are not per se void as against public policy, see id. at 338, n. 6, and accordingly must be evaluated individually to determine whether within the context of the facts at issue enforcement of the exclusion “either unfairly penalizes innocent victims or unfairly exposes the insured to liability.” Southern Guaranty Ins. Co. v. Preferred Risk &c. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987). Construing Neese and Southern Guaranty, as well as GEICO v. Dickey, 255 Ga. 661 (340 SE2d 595) (1986), the Supreme Court recently stated that “[a] clear thread of consistency runs through each of these cases as they apply the dual policies of protection for innocent victims of negligent members of the motoring public and protection of the insured against unfair exposure to unanticipated liability. This results in a basic rule that if either of the[se] interests ... is left unprotected, the exclusionary clause in the insurance contract offends public policy.” Stepho v. Allstate Ins. Co., 259 Ga. 475, 476 (383 SE2d 887) (1989).

Decided October 12, 1989.

Eason, Kennedy & Associates, Richard B. Eason, Jr., Carolyn J. Kennedy, for appellant.

Daniel R. Mason, for appellees.

In the case at bar, we find no unanticipated exposure of Tony Blaylock to liability because Georgia drivers have a statutorily imposed obligation to equip their vehicles with adequate brakes. OCGA § 40-8-50. However, we agree with the trial court that enforcement of the permissive driver aspect of the household exclusion at issue would unfairly penalize an innocent member of the motoring public. The undisputed evidence shows that Roper was a permissive driver of the insured’s car, not a resident member of his household. Consequently, unlike the claimant in Southern Guaranty, supra, Roper cannot be presumed to have had knowledge of the household exclusion in Tony Blaylock’s policy with appellant. Compare id. at 356. Further, as Roper was not responsible for maintaining Tony Blaylock’s car, if the brakes are proven to have been defective, Roper was an innocent victim and would be unfairly prejudiced if the exclusion is enforced. See Neese, supra at 340-341. Roper’s status is analogous to that of the claimant in Stepho, supra, wherein the lack of intrafamily tort immunity would have left the injured party without insurance coverage if the exclusion had been enforced, and as a result the Supreme Court found the exclusion at issue to be unenforceable. Thus, we concur in the trial court’s holding that the exclusion is unenforceable in this context as against public policy, and accordingly affirm the ruling that appellees were entitled to summary judgment and that appellant’s motion for summary judgment should be denied. See Southeastern Fidelity Ins. Co. v. Chaney, 259 Ga. 474 (381 SE2d 747) (1989); compare Southern Guaranty, supra. However, we note that under the authority of Stepho, supra at 477 (2), and Neese, supra at 341-342 (2), appellant’s liability is limited to the extent of the mandatory coverage required by OCGA §§ 33-34-4 (a); 40-9-37 (a).

Judgment affirmed.

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


text:
    A89A1637.
    GRANT v. THE STATE.
    (387 SE2d 408)
   Sognier, Judge.

Franklin Eugene Grant was convicted of child molestation and violation of the Georgia Controlled Substances Act. He appeals, enumerating the general grounds as to the child molestation conviction.

The evidence adduced at trial established that the seven-year-old victim and her younger brother went to appellant’s house to spend the night with appellant’s eight-year-old daughter. Appellant’s adult female companion was not present that night, leaving appellant alone with the three children. A pallet for the three children was made up in the television room, and the victim went to sleep with her brother on one side and appellant’s daughter on the other. She awoke in the middle of the night to find appellant on the pallet between her and appellant’s daughter. Appellant had shifted the victim’s shorts and panties and was fondling the area between the victim’s legs with his hand. After the victim awoke, appellant moved over beside the victim’s brother. Appellant returned the victim and her brother to their home the following morning, and the victim’s mother testified that the victim came immediately to the mother’s bedroom and informed her what had happened. An investigator for the Bartow County Sheriffs Department testified that the victim related the same story to the officer. The officer who took appellant’s statement testified that while appellant had told the officer he could not remember all the events of that night, appellant never denied committing the act. Appellant testified that he did not “knowingly” touch the victim, though he acknowledged he could have touched her and not known it.

Appellant argues the evidence was insufficient to prove child molestation, as defined by OCGA § 16-6-4, specifically in regard to his intent to arouse or satisfy his sexual desires. “ ‘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. [Cit.]’ [Cit.]” In re J. B., 183 Ga. App. 229, 230 (6) (358 SE2d 620) (1987). The evidence showed here that appellant positioned himself by the victim, in the middle of the night, in bed, moved both her outer and under clothing, fondled the victim with his hand, and then moved to another position when the victim awoke. “From these facts it can be inferred that the appellant committed those acts in order to satisfy his own sexual desires. This was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant had committed the offense of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [Cits.].” In re J. B., supra at 231.

Judgment affirmed.

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

Decided October 12, 1989.

James E. Greene, for appellant.

Darrell E. Wilson, District Attorney, Kimberly L. Schwartz, Assistant District Attorney, for appellee.


text:
    A89A1721.
    DAY v. THE STATE.
    (387 SE2d 409)
   Sognier, Judge.

George Wendell Day was convicted of child molestation and solicitation of sodomy and he appeals.

1. Appellant contends the trial court erred by charging the jury that they “should convict” appellant and that it was their “duty to convict” him. The record reveals that the trial court instructed the jury extensively on what constitutes a reasonable doubt and the State’s burden of proof, then charged the jury that “[i]f after giving consideration to all of the facts and circumstances of the case your minds are then wavering, unsettled and unsatisfied, then that is the doubt of the law and you should acquit. But if that [reasonable] doubt does not exist in your minds as to the guilt of [appellant], then you should convict.” Subsequently, after extensive charges regarding the types of evidence presented to the jury (e.g., expert testimony and alibi evidence), the trial court charged the jury that “if in [considering the evidence as to the elements of the crimes charged] you should entertain a reasonable doubt as to the guilt of [appellant], it would be your duty to acquit [appellant]. On the other hand, if the jury believes from the entire evidence that [appellant] is guilty beyond a reasonable doubt, it would be your duty to convict.”

“ ‘[Appellant’s] contention is without merit. If a unanimous jury, after having considered all of the evidence in the case, believes beyond a reasonable doubt that [appellant is] guilty of having committed the crimes charged, then the members of the jury do, pursuant to the law and the oaths taken as jurors, have a “duty” to return [a verdict] of guilty. The use of the words “duty to convict” in the context of the charge quoted above is not unfair, oppressive, or detrimental in any way to the accused.’ [Cit.]” Jackson v. State, 165 Ga. App. 444, 445 (2) (301 SE2d 661) (1983). We find the holding in Jackson applicable as well to the “should convict” language appellant contends constituted reversible error. See Burrell v. State, 171 Ga. App. 648, 652 (11) (320 SE2d 810) (1984).

2. A pre-trial statement made by appellant was admitted at trial and appellant also gave sworn testimony as a witness. The trial court gave extensive instructions to the jury regarding appellant’s pre-trial statement and also charged the jury that “[y]ou should consider with great care and caution the evidence of any statement made by [appellant].” “The error proceeds, according to appellant, from the confusion between [the] pre-trial statement offered against him and his sworn statement as a witness. Considering the charge of the court as a whole, we will not place such an inability to discern the two portions of the court’s charge relating to the out-of-court statement and the in-court testimony. We find this portion of the charge to be sufficiently clear and without error. [Cit.]” Roland v. State, 161 Ga. App. 197, 199 (6) (291 SE2d 41) (1982).

Decided October 12, 1989.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johstono, Assistant District Attorney, for appellee.

3. Our review of the charge given the jury reveals that taken as a whole, the trial court properly instructed the jury as to the State’s burden of proof. See generally Johnson v. State, 187 Ga. App. 803, 804 (3) (371 SE2d 419) (1988). We find no merit in appellant’s argument that his conviction must be reversed because the indictment charged the specific manner in which he committed child molestation and the trial court “broadened” the indictment by charging that language in OCGA § 16-6-4 whereby a person commits the offense of child molestation when he does “any” immoral or indecent act to, with, or in the presence of “any” child. OCGA § 16-6-4 does not set forth alternate methods of committing child molestation, compare, e.g., OCGA § 16-5-23 (1) (Lyman v. State, 188 Ga. App. 790, 791-792 (2) (374 SE2d 563) (1988)); OCGA § 16-7-1 (a) (Crawford v. State, 188 Ga. App. 841, 842 (2) (374 SE2d 781) (1988)), but even assuming it comes within that type of statute, the trial court sent the indictment out with the jury so they could read the specific; charges themselves, see Slack v. State, 159 Ga. App. 185, 188 (283 SE2d 64) (1981), and thus we find no reversible error here.

4. We have reviewed the entire trial transcript and find that the evidence adduced at trial was sufficient to authorize appellant’s convictions of child molestation and solicitation of sodomy under the standard of proof required in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A1481.
    SPARLIN CHIROPRACTIC CLINIC, P.C. v. TOPS PERSONNEL SERVICES, INC.
    (387 SE2d 411)
   Banke, Presiding Judge.

The appellee, TOPS Personnel Services, Inc., is an employment agency specializing in the placement of temporary employees. The appellant, Sparlin Chiropractic Clinic, P.C., brought the present action against TOPS seeking to recover damages based on allegations that a temporary bookkeeper placed in its employ by TOPS had stolen, forged, and falsified company records. The trial court granted TOPS’s motion for summary judgment, and this appeal followed.

Sparlin’s business manager contacted TOPS in May of 1986 seeking candidates to fill the position of temporary bookkeeper for the months of June, July, and August of 1986. TOPS thereafter provided Sparlin with the names of three individuals, two of whom Sparlin interviewed for the position and one of whom, Wayne Sacco, it ultimately hired under an arrangement whereby he was to be paid by TOPS for his services. TOPS asserts that it performed “customary reference checks” on Sacco and administered standardized clerical and accounting examinations to him, all with satisfactory results. While TOPS did not conduct a criminal background check on Sacco or obtain a fidelity bond on him, it contends that it was not customary procedure in the temporary placement industry to take such precautions. TOPS submitted evidence that it had placed Sacco in nine other temporary assignments over a two-year period prior to recommending him to Sparlin and had received no complaints about his personal behavior or performance during that period. In opposition to the motion for summary judgment, however, Sparlin submitted evidence showing that one of the previous companies with which TOPS had placed Sacco had reported to TOPS that he had exhibited “poor work performance . . . and unstable personal behavior” and that he had “walked off the job.” In addition, Sparlin submitted evidence that in his application for employment with TOPS, Sacco had named as one of his last three employers an accounting firm which had accused him of misappropriating deposits and other property. While TOPS averred that it routinely contacted an applicant’s last three employers, it was shown that the company had failed to seek an evaluation of Sacco’s work from this employer. Held:

1. Sparlin contends that issues of fact remain as to whether TOPS was negligent in hiring Sacco and referring him to Sparlin as a temporary employee. “The standard in negligent hiring cases is whether ‘the hirer knew, or in the exercise of ordinary care should have known, that the servant was incompetent and that the incompetency resulted in damage to the party to whom the servant was hired.’ Ga. Elec. Co. v. Smith, 108 Ga. App. 851 (1) (134 SE2d 840) (1964). (Emphasis supplied.)” Cherry v. Kelly Svcs., 171 Ga. App. 235, 236 (319 SE2d 463) (1984). See generally OCGA § 34-7-20. In the present case, “we cannot say that ‘the evidence adduced was sufficient to demand a finding as a matter of law that [TOPS] had exercised due care in [hiring Sacco], or that there were no material issues of fact for determination for a jury.’ [Cit.]” Cherry v. Kelly Svcs., supra at 236. See also Harvey Freeman & Sons v. Stanley, 189 Ga. App. 256 (2) (375 SE2d 261) (1988). Accordingly, we hold that the trial court erred in granting TOPS’s motion for summary judgment on the issue of negligent hiring.

Decided October 13, 1989.

Page & Bacek, Robert C. Edwards, for appellant.

Pettigrew & Trippe, Stewart A. Anshell, David R. Trippe, for appellee.

2. OCGA § 51-2-2 provides: “Every person shall be liable for torts committed by . . . his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.” The test in determining whether one is a servant or independent contractor is whether the employer “had the right, under the employment, taking into consideration the circumstances and situation of the parties, and the work, to so control and direct him in his work.” Swift & Co. v. Alston, 48 Ga. App. 649, 651 (173 SE 741) (1933). The evidence of record in the present case revealed that Sacco was being paid by TOPS at the time he committed the alleged wrongful acts and that TOPS controlled his assignments. Under the circumstances, it certainly cannot be said that his alleged misconduct occurred outside the scope of his employment by TOPS. “The fact that the alleged tort was intentional rather than negligent does not, in and of itself, preclude the doctrine of respondeat superior from being considered applicable.” Gaylor v. Jay &c. Chrysler-Plymouth-Dodge, 183 Ga. App. 255, 256 (358 SE2d 655) (1987). We therefore hold that the trial court also erred in granting summary judgment to TOPS with respect to the issue of its liability under the theory of respondeat superior.

3. The appellant’s remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

Sognier and Pope, JJ., concur.


text:
    A89A1938.
    WILSON v. THE STATE.
    (387 SE2d 413)
    Decided October 13, 1989.

      James M. Bivins, for appellant.

      H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.
   Banke, Presiding Judge.

The appellant was convicted of two counts of selling cocaine in violation of the Georgia Controlled Substances Act. On appeal, he contends the trial court erred in admitting into evidence the cocaine which was the subject of Count 1 of the indictment, over his objection that the state had failed to establish a sufficient chain of custody. Held:

1. The undercover officer who had purchased the cocaine in question from the appellant testified that after doing so he placed it into an envelope which he then marked for identification and delivered to Officer Boyd. Officer Boyd testified that he received “two hits” of cocaine from the undercover officer and subsequently transported it to the State Crime Lab. However, there was testimony that the Crime Lab received not two but three “rocks” of cocaine.

The burden is on the state “ ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ [Cit.]” Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981). “However, the State need not negate all possibility of tampering, and ‘need only establish reasonable assurance of the identity’ of the confiscated evidence. [Cits.]” Kelly v. State, 182 Ga. App. 7, 9 (354 SE2d 647) (1987).

The fact that three “rocks,” or pieces, of cocaine were received by the Crime Lab does not suggest that this contraband was other than the “two hits” of cocaine which Officer Boyd had received from the undercover agent, inasmuch as there was testimony that one of the “rocks” had broken into two pieces. It follows that the trial court did not err in overruling the appellant’s chain-of-custody objection.

2. The evidence was sufficient to enable a rational trier of fact to find the appellant guilty of the offenses charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It follows that the trial court did not err in denying the appellant’s motion for directed verdict of acquittal.

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Carley, Chief Judge. Beasley, Judge,

text:
    A89A0844.
    STATE OF GEORGIA v. HAMM et al.
    (387 SE2d 344)
   Carley, Chief Judge.

Pursuant to OCGA § 16-13-49 (a) (4), the State filed a condemnation proceeding against a vehicle belonging to appellee. At a bench trial, the following evidence was adduced: Appellee met with an undercover agent. The agent agreed to follow in his vehicle as appellee drove to an apartment complex. At the apartment complex, appellee offered to sell the agent cocaine. When the agent accepted the offer, appellee entered one of the apartments. He returned with the cocaine and the sale was consummated in the agent’s vehicle. There was no evidence that any cocaine or other controlled substance was ever in appellee’s vehicle or on his person while he was an occupant of his vehicle. On this evidence, appellee’s motion for directed verdict was granted. The State appeals from that ruling.

“In a non-jury case, it is procedurally incorrect to move for a directed verdict; and such a motion [as well as the grant thereof] will be construed as one for involuntary dismissal under Section 41 (b) of the Civil Practice Act. [Cit.] ” Kennery v. Mosteller, 133 Ga. App. 879, 880 (212 SE2d 447) (1975). OCGA § 16-13-49 (a) (4) provides: “The following are subject to forfeitures: ... All conveyances, including . . . vehicles . . . which are used, or intended for use, to transport, hold, conceal, or in any manner to facilitate the transportation, for the purpose of sale or receipt, of property described in paragraph (1) or (2) of this subsection. . . .” This “statute must be strictly construed.” Lang v. State, 168 Ga. App. 693, 695 (4) (310 SE2d 276) (1983). There is no evidence, direct or circumstantial, that any contraband was ever actually transported, held or concealed in appellee’s vehicle or was ever intended to be transported, held or concealed in that vehicle. Compare State of Ga. v. Belcher, 165 Ga. App. 139 (299 SE2d 57) (1983) (wherein there was circumstantial evidence that the vehicle had been or was intended to be used to transport the contraband). It is undisputed that appellee’s vehicle was neither used nor intended for use to transport, hold or conceal the contraband. His vehicle was used only to transport himself to the site where the cocaine was located and the sale eventually took place.

By transporting appellee to the site, his vehicle was certainly used to facilitate the sale of the cocaine. It was not, however, used to facilitate the transportation of the cocaine, which was presumably already at the site. The argument advanced by the State in support of the condemnation of appellee’s car has been rejected in other jurisdictions having condemnation statutes comparable to ours and we hereby reject it in Georgia. “The State contends that the federal courts have applied the forfeiture provision of the federal Controlled Substances Act to vehicles used solely to transport people to the site of drug transactions. [Cits.]. . . . The State argues that we should give [OCGA § 16-13-49 (a) (4)] the same meaning as [the federal statute]. We are not persuaded. The State’s argument . . . has a fatal flaw. The language in the federal statute is different. . . . [The federal] statute is far broader than [OCGA § 16-13-49 (a) (4).] It reaches vehicles used to facilitate the sale, receipt, possession or concealment of property regardless of whether they are used to transport anything. The federal cases relied on by the State depend on that part of the federal statute missing in our [SJtate version. In each of those cases, the court held that the vehicle had been used to facilitate the transportation or sale of controlled substances. [Cits.] Facilitating [the] sale of a controlled substance does not subject a vehicle to forfeiture under our statute. . . . [Thus,] vehicles are subject to forfeiture [under OCGA § 16-13-49 (a) (4)] only if used, or intended for use, to transport or facilitate the transportation of controlled substances. The statute does not apply to [appellee’s vehicle].” (Emphasis in original.) Kahler v. Kernes, 711 P2d 1043, 1045-1046 (Wash. App. 1985).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

There is no transcript, but the judgment sets out the findings of fact to which the court applied its understanding of OCGA § 16-13-49 and in particular subsection (a) (4). There were actually two incidents.

Based on information from a confidential informant, the agent and the informant went to a quick market and met outside with defendant, who came in the subject car. The agent expected Hamm to transact a sale of cocaine there, but Hamm motioned the agent to follow him to a certain apartment complex nearby. In that parking lot, Hamm negotiated for a sale and then, with government funds, went into the complex and returned with cocaine in the amount agreed. Everyone left.

Three weeks later the agent contacted Hamm and they arranged to meet at the same market. They met again and this time the informant was with Hamm, in the subject vehicle. As on the first occasion, the agent expected Hamm to produce the cocaine at this location, as Hamm had agreed to do this time, but Hamm suggested that the agents follow him to the same apartments. The agents refused, arrested Hamm for sale of cocaine, and found a loaded firearm but no cocaine during the car inventory search.

In view of some of the parties’ argument, it should be made clear that the State does not have to show that the forbidden property was actually transported at some time in the vehicle. If the vehicle was in fact used, that is an objective and outward event which supplies the element. But it is also enough if there is evidence that the vehicle was “intended for use, to transport, hold, conceal, or in any manner to facilitate the transportation” of the forbidden property for its sale or receipt. That is, even if there is no proof that the vehicle was actually used for transportation of the property (or some other enumerated purpose with respect to it), if there is evidence that it was merely “intended to be used,” such subjective, intangible, matter-of-the-mind proof as to the future would qualify the vehicle for forfeiture. Such intention may be proved indirectly, OCGA § 16-2-6, by a preponderance of evidence, OCGA § 24-4-3.

Decided September 25, 1989

Rehearing denied October 16, 1989

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Lisa A. Curia, Assistant District Attorneys, for appellant.

Fowler, Hein & Daum, Douglas R. Daum, for appellees.

I depart from the majority when it says that it is undisputed that the vehicle was not intended for a prohibited use. A reasonable inference could be made that Hamm intended to use the car “to transport, hold, conceal, or in any manner to facilitate the transportation of’ the cocaine, particularly since a loaded weapon was found in the car. See State of Ga. v. Belcher, 165 Ga. App. 139, 140 (299 SE2d 57) (1983). However, whether the evidence would support such a finding is immaterial because the language in the court’s order indicates that the court considered this alternative and did not so find. In any event, it does not appear that the court misconstrued the Georgia statute, and we are bound by its findings of fact. As said in Belcher, supra: “Resolution of the use or intended use of the [vehicle] for transportation or facilitation of transportation of the cocaine was the duty of the [factfinder].”


author: Pope, Judge.

text:
    A89A0901.
    WOMACK v. THE STATE.
    (387 SE2d 336)
   Pope, Judge.

Defendant James Womack was accused of sodomy in October of 1988, and a bench trial was held on November 21, 1988. The trial transcript discloses that the case was presented by stipulated statements of facts submitted by both parties showing that while defendant was the Director of Therapeutic Services at Anneewakee, Inc., a residential hospital for emotionally disturbed youths, he and a male student/patient over the age of 14 years engaged in homosexual acts from October 1980 until the boy graduated in mid-1981. After gradúation the boy and defendant continued to engage in homosexual acts, but not as late as October of 1984 or any time within the four-year statute of limitation for the offense charged. The State contended that the homosexual relationship was consensual, but defendant asserted that the boy was a victim of sexual abúse and thus the statute of limitation barred the prosecution. The trial court denied defendant’s motion for directed verdict based on the statute of limitation defense, found defendant guilty and imposed sentence. Held:

The prosecution for the crime with which defendant was charged must be commenced within four years after commission of the crime under OCGA § 17-3-1 (c). However, the period of limitation is tolled during any period in which “[t]he person committing the crime is unknown or the crime is unknown . . . .” OCGA § 17-3-2 (2).

It is well settled that knowledge of a crime is imputed to the State, and consequently the statute of limitation commences to run, in a crime involving a victim who is not a party to the crime. “ ‘[T]he knowledge of the victim is the knowledge of the State, even though the victim does not represent the State in an official capacity.’ [Cit.]” Sears v. State, 182 Ga. App. 480, 481 (356 SE2d 72) (1987). However, in the case of a joint offense or “victimless crime,” such as adultery or fornication, knowledge of the crime by the two participants would not impute knowledge to the State. Until a consensual or joint offense is reported it is unknown within the meaning of the statute of limitation. Kiles v. State, 48 Ga. App. 675 (2) (173 SE 174) (1934).

The evidence here in regard to the homosexual relationship between defendant and the student/patient was conflicting. However, it is evident that the trial judge found that the student/patient was a willing participant in the homosexual acts, and thus a “joint offender,” a factual circumstance which would not impute knowledge to the State. “In a bench trial the court sits as trier of fact and his findings shall not be set aside unless clearly erroneous. The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.” (Citation and punctuation omitted.) Gulf Winds, Ltd. v. First Union Bank, 187 Ga. App. 383, 385 (1) (370 SE2d 508) (1988). “ ‘The appellate courts do not weigh the evidence or determine the credibility of the witnesses, but look only to determine if the evidence is sufficient such that a reasonable trier of fact could rationally have found proof of guilt beyond a reasonable doubt.’ [Cit.]” Banks v. State, 185 Ga. App. 851, 853 (3) (366 SE2d 228) (1988). The evidence was sufficient for the court to find that the student/patient was not a victim, but was a joint offender, so that knowledge of the offense by the joint offender would not be imputable to the State.

The State stipulated that the defendant’s minor daughter saw the two men “in bed together engaged in a homosexual act at [defendant’s] house in mid-1981.” Defendant argues that the knowledge of this third-party witness is sufficient to impute knowledge of the crime to the State. However, the stipulated facts also show the relationship continued after the student/patient graduated from the institution in 1981. Therefore, even assuming the knowledge of one particular act in mid-1981 was imputable to the State, no evidence was presented to show the remaining acts, which occurred both before and after this incident, were known to the State.

Decided September 5, 1989

Rehearing denied October 16, 1989

The Garland Firm, Donald F. Samuel, for appellant.

Frank C. Winn, District Attorney, for appellee.

For the first time on appeal defendant contends that the State failed to present evidence to support its theory that the crime was unknown and therefore not barred by the statute of limitation. This issue was not raised at trial nor in defendant’s motion for directed verdict. Therefore it was not addressed by the trial court, as it could have been if defendant had objected at trial. “Enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citation and punctuation omitted.) Cooper v. State, 188 Ga. App. 297, 298 (3) (372 SE2d 679) (1988). We find no basis for reversal.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


author: Carley, Chief Judge.

text:
    A89A0914.
    STEWART et al. v. BANK OF LUMBER CITY et al.
    (387 SE2d 366)
   Carley, Chief Judge.

Appellant-plaintiffs are minority shareholders of appellee-defendant Bank of Lumber City (Bank). They brought this action, seeking to compel appellee-defendant directors and officers of the Bank to produce the corporate books and records for inspection and examination. After the hearing, the trial court entered judgment in favor of appellees, concluding that appellants had not shown a proper purpose for compelling production of the corporate books and records. Appellants appeal from this order.

1. The trial court’s finding that appellants had failed to show a proper purpose to compel production of the books and records of appellee Bank is enumerated as error.

OCGA § 7-1-439 (b) authorizes the Department of Banking & Finance to prescribe, by regulation, the corporate records and reports which must, at a minimum, be disclosed to shareholders. It is undisputed that, in compliance with the relevant administrative regulations, such disclosures have been made to appellants. However, OCGA § 7-1-439 (c) further provides that the administrative regulations do not “impair the power of any court of competent jurisdiction, upon proof by a shareholder of proper purpose ... to compel the production or examination by such shareholder of the books and records of account, minutes, and record of shareholders of a bank or trust company.” (Emphasis supplied.) This statute “places much discretion in the trial judge to determine whether the purpose named is a proper one, whether the request is vexatious or arising from idle curiosity, whether the documents called for are relevant, material, and not over burdensome .... [T]he burden of showing a proper purpose as to specific materials is on the plaintiff. . . .” Riser v. Genuine Parts Co., 150 Ga. App. 502, 505 (2) (258 SE2d 184) (1979) (construing OCGA § 14-2-122).

Decided September 29, 1989

Rehearing denied October 16, 1989

Andrew, Threlkeld & Ellington, Reid A. Threlkeld, John J. Ellington, for appellants.

Smith & Harrington, Will Ed Smith, for appellees.

Appellants’ purported purpose is not to verify any mismanagement, fraud or misappropriations of funds. Instead, they assert a desire to determine whether proper corporate records are being kept and to investigate the performance of management and the financial condition of appellee Bank. There is, however, evidence that this action to compel production arises in the context of a long and determined effort by appellants to place one of their number on the board of directors of appellee Bank. The evidence authorized the trial court to find that appellants had failed to show that they could not achieve their purported purposes through resort to the records that had been previously furnished to them. Therefore, the trial court’s finding that appellants had not shown the requisite “proper purpose” to compel production was not clearly erroneous. See OCGA § 9-11-52 (a).

2. In light of our holding in Division 1, the trial court did not err in failing to award appellants attorney’s fees.

Judgment affirmed.

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


text:
    A89A0951.
    FREEMAN v. VAN DYKE.
    (387 SE2d 351)
    Decided September 25, 1989
    Rehearing denied October 16, 1989
    William J. Freeman, pro se.

      Gilbert, Whittle, Harrell & Scarlett, Wallace E. Harrell III, Timothy Harden III, for appellee.
   Carley, Chief Judge.

Appellant-plaintiff filed suit, alleging a medical malpractice claim against appellee-defendant physician. Appellee answered and subsequently moved to dismiss for appellant’s failure to file an expert’s affidavit with the complaint. The trial court granted appellee’s motion and appellant appeals.

The trial court did not err in dismissing appellant’s complaint because of his failure to attach the expert’s affidavit mandated by OCGA § 9-11-9.1. Piedmont Hosp. v. Milton, 189 Ga. App. 563 (377 SE2d 198) (1988). Compare Bell v. Figueredo, 259 Ga. 321 (380 SE2d 29) (1989).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A89A1001.
    THE STATE v. FLY.
    (387 SE2d 347)
   Beasley, Judge.

As a preliminary matter, appellee’s motion to dismiss the appeal is denied inasmuch as the appellant’s brief was filed on March 13, the last day permitted.

Defendant was charged with the offense of criminal trespass. OCGA § 16-7-21. The court found as fact that he was arraigned and pled not guilty on January 6, 1989, although the prosecuting officer did not physically enter the arraignment and plea on the accusation as he or she was mandated to do pursuant to OCGA § 17-7-96. The case was set for bench trial on January 9, at which time the State announced that it was not prepared to proceed. Defendant sought dismissal of the charge, which was denied.

A continuance in effect was granted to the State and the case was reset for trial on January 18. Again the State announced it was not ready to proceed. No reason appears in the record. Defendant announced “ready” and again requested that the charge be dismissed. The court did not grant this request and instead instructed “that issue be joined,” which we take to mean that the prosecuting attorney complete the written record which had not been done as required on January 6. The State’s counsel refused to do so on the ground that it was not prepared to go forward with the trial.

The court regarded the issue as having been joined and the case as ripe for trial, and there being no evidence presented by the State, which had the burden to present its evidence then, the court entered an acquittal. The State appealed on the ground that acquittal was precluded because issue had not been joined and the court heard no evidence.

1. Issue was joined when defendant pleaded not guilty at arraignment. OCGA § 17-7-94; Bryans v. State, 34 Ga. 323 (1866); Hardwick v. State, 231 Ga. 181, 183 (6) (200 SE2d 728) (1973); Waller v. State, 251 Ga. 124, 127 (5) (303 SE2d 437) (1983), reversed on other grounds, 467 U. S. 39 (1984). By formally denying the charge, his plea formed the issue of whether he was or was not guilty of the charge. The prosecutor’s initial failure to record it and later refusal to do so did not avoid the issue being joined de jure. Otherwise the State could avoid ad infinitum the trial of the case no matter how many times it was set, and this would frustrate the purposes of OCGA §§ 17-8-33; 17-8-21; and 17-8-22. It is the clerk’s recordation on the minutes which controls, OCGA § 17-7-94. We assume this was done, as the court did not order it accomplished as provided by OCGA § 17-7-97, before proceeding with the trial. In addition, “ ‘[t]here is a presumption of law that a public officer has done his duty, and his official duties will be presumed to have been done rightly until the contrary is shown. (Cit.)’ [Cit.]” Sapp v. State, 184 Ga. App. 527, 529 (4) (362 SE2d 406) (1987).

2. As for the absence of evidence, the State-cited authority, State v. Cooperman, 147 Ga. App. 556 (249 SE2d 358) (1978) is not on point. Issue had not been joined, and there was no opportunity for the State to present evidence. Here the State had no evidence ready to present when the trial commenced. The court was not compelled to grant another continuance, which was not even sought by the State; the governing statutory provisions actually weighed against it.

Public policy is that the accused be tried in the same term at which the accusation is made, unless a material witness is absent or the principles of justice require continuance. OCGA § 17-8-33. There is nothing in the record to indicate the reason for the State’s unpreparedness. Continuance is not to be granted to the State “except upon a reasonable showing therefor.” OCGA § 17-8-21. See also OCGA § 17-8-22. The court had little alternative but to acquit defendant in this bench trial, in order to enforce the aforestated statutory scheme which, together with OCGA §§ 17-7-170 and 17-7-171, favors the early trial of criminal cases and energizes the state constitutional right to a speedy trial. Ga. Const. 1983, Art. I, Sec. I, Par. XI (a).

Decided September 25, 1989

Rehearing denied October 16, 1989

James L. Webb, Solicitor, Helen A. Roan, Lee O’Brien, Assistant Solicitors, for appellant.

Nica J. Hersch, for appellee.

There having been an acquittal, the State had no right to appeal, OCGA § 5-7-1, and the appeal must be dismissed. State v. White, 145 Ga. App. 730 (244 SE2d 579) (1978).

Appeal dismissed.

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


text:
    A89A1149.
    WHITLEY v. THE STATE.
    (387 SE2d 348)
   Carley, Chief Judge.

Appellant was indicted for unlawfully selling marijuana and was found guilty after a jury trial. He now appeals from the judgment of conviction and sentence entered by the trial court on the guilty verdict.

1. Some two and a half months subsequent to the sale of marijuana which underlay the instant prosecution, marijuana was seized from motor vehicles and the curtilage of the house where the sale had previously taken place. Over appellant’s objection, the trial court held that this subsequent discovery of marijuana on the premises was admissible “similar crimes” evidence.

“ ‘(E)vidence of other criminal acts of the defendant may be admitted if it “ ‘is substantially relevant for some purpose other than to show a probability that [the defendant] committed the crime on trial because he is a man of criminal character. . . .’” (Cits.) The purposes for which evidence of extrinsic offenses may be offered include motive; intent; absence of mistake or accident [each is (an) aspect of intent]; plan or scheme [of which the crime on trial is a part]; and identity. (Cits.) To render evidence of extrinsic offenses admissible for any of these purposes, the (S)tate must show that the defendant was the perpetrator of the extrinsic offenses, and that there is a sufficient similarity or connection between the extrinsic offense and the offense charged, such that proof of the former tends to prove the latter. (Cits.)’ [Cits.]” Bennett v. State, 186 Ga. App. 832, 833 (3) (368 SE2d 789) (1988).

With regard to the showing of identity, there was sufficient evidence that appellant resided in the house in question, and thus possessed the subsequently seized marijuana. “Proof of [appellant’s] identity as perpetrator of the similar crime need not be beyond a reasonable doubt. [Cit.]” Allen v. State, 180 Ga. App. 701, 702 (350 SE2d 478) (1986). Although the property was owned by appellant’s mother, he acknowledged that it was his house in a conversation with the agent who purchased the marijuana. Moreover, a surveillance of the house after the sale showed that he was there on numerous occasions, and that no one else appeared to be residing in the house at the time of the subsequent seizure of contraband. Appellant also urges that others had equal access to the seized marijuana. However, “[t]he totality of the evidence was sufficient to connect the appellant to possession of the drugs, even though the evidence would have authorized a finding that others had equal access to the same drugs. [Cits.]” Farmer v. State, 188 Ga. App. 375, 376 (373 SE2d 68) (1988).

With regard to the showing of similarity, the “[e]vidence of subsequent [possession of marijuana] would be admissible in a trial for sale of marijuana. [Cit.] This is particularly true when[, as in the instant case,] identity is in issue. [Cit.]” Brown v. State, 183 Ga. App. 476, 477 (1) (359 SE2d 233) (1987). Thus, the trial court did not err in admitting the evidence of the subsequent seizure of marijuana.

2. Although the trial court gave instructions on the limited relevancy of the “similar crimes” evidence, appellant enumerates as error the trial court’s failure to instruct on the presumption of innocence or the requirement that such “similar crimes” must be proved beyond a reasonable doubt.

“The independent crime [s] . . . [were] not an element of the offense charged . . . requiring [their] proof beyond a reasonable doubt.” Wallace v. State, 246 Ga. 738, 742 (5) (273 SE2d 143) (1980). As to the crime charged, the trial court emphasized the presumption of innocence and the necessity of proof of each element of the crime beyond a reasonable doubt. Accordingly, the trial court did not err in failing to give additional instructions.

3. Appellant enumerates as error, the trial court’s giving of a charge on “the entire statute proscribing the possession, manufacture, delivery, distribution, dispensing, administering, selling or possessing [with intent to distribute] . . . marijuana. ‘It is not usually cause for new trial that an entire Code section is given. . . . This is so even though a part of the charge may be inapplicable under the facts in evidence.’ [Cits.]” Smith v. State, 178 Ga. App. 19, 20 (4) (341 SE2d 901) (1986). “[A] further reading of the charge shows that the court gave further instructions which confined the jury’s consideration to the issue of [sale].” Bentley v. State, 183 Ga. App. 112, 113 (4) (358 SE2d 274) (1987). “When viewed in the context of the full charge of the court we do not find this charge misleading. [Cit.]” Smith v. State, supra at 20 (4).

Decided September 25, 1989

Rehearing denied October 16, 1989.

Hill & Henry, W. Ralph Hill, Jr., for appellant.

Ralph Van Pelt, Jr., District Attorney, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A89A1434.
    AKIN v. THE STATE.
    (387 SE2d 351)
   McMurray, Presiding Judge.

Defendant Akin was arrested for and subsequently charged with driving under the influence of alcohol. This is an interlocutory appeal from the state court’s denial of defendant’s motion in limine to exclude the results of an intoximeter test. Held:

Following his arrest by Gwinnett County police defendant was read his implied consent rights pursuant to OCGA §§ 40-5-55 and 40-6-392. Defendant consented to take the intoximeter test as requested by the arresting officer and requested an additional test at Northside Hospital. The arresting officer advised defendant that there were three hospitals that he was allowed to take him to, Joan Glancy, Doctors Hospital, and Gwinnett Medical. Defendant refused to go to any hospital except Northside Hospital. Because the defendant refused to go to any of the three hospitals as chosen by the arresting officer, the arresting officer refused to take defendant for an independent blood test.

“OCGA § 40-6-392 (a) (3) gives one accused of driving under the influence the right to ‘have a . . . qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.’ [Emphasis supplied.] ‘There can be no question that by judicial interpretation of (OCGA § 40-6-392) the results of an intoximeter [breath] test which is taken in violation of the protections afforded by (that section) may not be used in evidence against the defendant.’ State v. Johnston, 160 Ga. App. 71, 73 (286 SE2d 47) (1981) aff'd on other grounds, 249 Ga. 413 (291 SE2d 543) (1982). See also Munda v. State, 172 Ga. App. 857 (1) (324 SE2d 799) (1984).” State v. Hughes, 181 Ga. App. 464, 466 (352 SE2d 643). In State v. Hughes, supra, we found that under similar circumstances the defendant was improperly denied his right to have an independent test performed. Defendant contends that the case sub judice is governed by State v. Hughes, supra, while the prosecution contends that there are distinguishing differences in the facts and circumstances of each case.

In its order, denying defendant’s motion in limine, the state court adopts one of the contentions advanced by the State, that defendant did not carry his burden of showing that arrangements had been made for the taking of an independent test at Northside Hospital. See in this regard Lovell v. State, 178 Ga. App. 366, 368 (2) (343 SE2d 414); Harper v. State, 164 Ga. App. 230, 231 (296 SE2d 782); Puett v. State, 147 Ga. App. 300 (248 SE2d 560). We reject this conclusion for the same reason which we rejected it in State v. Hughes, 181 Ga. App. 464, 467, supra, that is, that defendant was never instructed to make such arrangements and that whether defendant made arrangements with Northside Hospital was irrelevant since it would have been physically impossible for defendant to go to Northside Hospital while in the custody of the arresting officer who would transport him only to the three designated hospitals.

The State also contends that State v. Hughes, 181 Ga. App. 464, supra, should be distinguished because the defendant in that case knew Northside Hospital performed the type of blood test he was seeking, and that he knew the cost of the test. The defendant in the case sub judice, testified that he was not familiar with the three hospitals designated by the arresting officer. The defendant also testified that he lived and worked near Northside Hospital and knew it would take his credit card as a form of payment for the blood test and would honor his insurance. While the defendant in the case sub judice, may have sought an independent test from Northside Hospital for different reasons and possessed less specific knowledge than the defendant in State v. Hughes, supra, we do not find these differences to be significant. Defendant in the case sub judice, having chosen Northside Hospital to administer his independent test, could easily have made inquiries concerning the availability and cost of test had such inquiry not been foreclosed by the arresting officer’s refusal to transport defendant to Northside Hospital. The determinative factor in both the case sub judice and State v. Hughes, supra, is in the police action denying defendant access to the facility reasonably chosen by defendant for administration of the independent test.

The State would distinguish State v. Hughes, 181 Ga. App. 464, supra, based on the location of the hospitals. Defendant opined that Northside Hospital was eight miles from the location of his arrest. We do not find the distance defendant sought to be transported for his independent test to be inherently unreasonable.

The arresting officer testified that Northside Hospital was approximately ten miles from the location of defendant’s arrest and that of the three hospitals he designated, one was less than ten miles, one was less than six miles and he did not know the distance of the third hospital (out-of-county Doctor’s Hospital in Tucker, DeKalb County, Georgia) from the place of arrest. In State v. Hughes, supra, which incidentally also involved a refusal to transport a defendant to North-side Hospital, that trial court found that the distance between North-side Hospital and the hospital to which that defendant was transported was less than five miles. It may be fairly stated that the distance between the farthest of the offered hospitals and requested hospital in the case sub judice was approximately the same and that one of the offered hospitals was out of county as was the requested hospital. It follows that any added logistical burden which would be placed upon police by accommodating the request for independent tests is no greater in the case sub judice than in State v. Hughes, supra.

Decided September 26, 1989

Rehearing denied October 16, 1989

Alan Mullinax, for appellant.

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

Finally, the State contends that an unreasonable and onerous burden is placed on police by defendant’s request to be transported to a hospital in another county. However, as one of the three hospitals designated by the arresting officer was located outside of Gwinnett County, we need only note that this contention lacks any support in the record.

In conclusion, we find that the case sub judice is governed by our decision in State v. Hughes, 181 Ga. App. 464, supra. The state court erred in denying defendant’s motion in limine.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1878.
    SMITH v. THE STATE.
    (387 SE2d 571)
   Banke, Presiding Judge.

Smith was convicted of one count of child molestation. He brings this appeal from the denial of his motion for new trial.

The victim was the appellant’s then five-year-old step-daughter. On the morning following the incident, the child told her mother that the appellant had come into her room naked during the night and that her bed was wet. The child then left the house for visitation with her fathér. In a telephone conversation later that afternoon, the child told her mother that the appellant had gotten into her bed and had caused the bed to move up and down while he touched her vagina. The mother immediately confronted the appellant with these allegations, and he denied them; however, she nevertheless reported the incident to a marriage counselor the couple visited that afternoon.

The victim’s father testified that his daughter telephoned him on the morning in question to ask him to pick her up at her mother’s home. When he did so, the child reported the incident to him, and he in turn reported it to the sheriffs department. An investigator from the sheriffs department who subsequently interviewed the child testified that during their interview the child described two occasions on which she had been sexually molested by the appellant. Crime lab tests performed on the child’s bed sheet were positive for the presence of seminal fluid. Held:

1. The appellant contends that the trial court erred in denying his pretrial motion to suppress the child’s bed sheet. As the evidence showed that the sheet had been voluntarily turned over to the authorities by the mother without a search, this enumeration of error is without merit. See generally Tolbert v. State, 224 Ga. 291 (2) (161 SE2d 279) (1968); Montgomery v. State, 155 Ga. App. 423 (1) (270 SE2d 825) (1980).

2. The appellant further contends that his motion to suppress should have been granted because the sheet may have been accessible to others during the approximately two-week period before it was handed over to the authorities. “[A] pre-trial motion to suppress is available only to a person aggrieved by an unlawful search and seizure [OCGA § 17-5-30] [Cit.]. . . .” Foote v. State, 141 Ga. App. 18 (232 SE2d 366) (1977). As this contention does not address the legality of the seizure of the evidence, it established no basis for its suppression on Fourth Amendment grounds.

3. The appellant testified on re-direct examination that the state had obtained a court order requiring him to submit to a blood test to determine whether he was the source of the semen on the sheet. Thereafter, over his objection, the following testimony was elicited from him on re-cross-examination: “Q. Did your lawyer inform you that the test results said your blood type could not be matched with the semen? A. Yes, ma’m. Q. So even if it was your semen the forensic chemist couldn’t tell us because you are a non-secreter? A. I’m not sure because I don’t know.” However, at the conclusion of the closing arguments, the trial court reversed its prior decision to admit this testimony and instructed the jury, sua sponte, to disregard it completely. At the conclusion of the court’s charge to the jury, the appellant moved for a mistrial, contending the prejudice resulting from the prior admission of this evidence in question could not be cured. He contends on appeal that the court erred in denying this motion.

“ ‘ “The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial. (Cits.) Where a motion for mistrial is made on the ground of inadmissible matters being placed before the jury, the corrective measure to be taken by the trial court also is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of that discretion the refusal to grant a mistrial is not error.” [Cits.]’ ” Bush v. State, 188 Ga. App. 313 (372 SE2d 847) (1988). In the present case, we conclude that the instructions given by the court were sufficient to cure any prejudice to the appellant which may have resulted from the admission of the testimony in question, and we consequently hold that the trial court did not abuse its discretion in denying the motion for mistrial.

Decided September 27, 1989

Rehearing denied October 16, 1989.

E. Earl Seals, for appellant.

William G. Hamrick, Jr., District Attorney, George F. Hutchin son III, Assistant District Attorney, for appellee.

4. The appellant contends that the trial court erred in ruling that the victim, who was six years old at the time of trial, was competent to testify. The court’s ruling was based on OCGA § 24-9-5 as it existed prior to its amendment by Ga. L. 1989, p. 1639, § 1. During questioning to determine her competency, the child indicated that she understood the difference between telling the truth and telling a lie and that she intended to tell the truth at trial. In addition, she testified that if she violated the obligation to tell the truth, she would have to ask forgiveness from God. Under these circumstances, the trial court did not abuse its discretion in finding the victim competent to testify. See Conaway v. State, 188 Ga. App. 561 (373 SE2d 660) (1988); Westbrook v. State, 186 Ga. App. 493 (1) (368 SE2d 131) (1988). See also Ambles v. State, 259 Ga. 406 (383 SE2d 555) (1989).

5. The appellant enumerates as error the admission of evidence that he had previously been convicted of child molestation, arguing that the prior offense, which involved the sodomy of an eight-year-old boy, was insufficiently similar to the present offense to be relevant. This enumeration is without merit. In a child molestation case, “ ‘[t]he sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.’ [Cit.]” Cox v. State, 173 Ga. App. 422 (1) (326 SE2d 796) (1985).

6. The evidence was sufficient to enable a rational trier of fact to find the appellant guilty of child molestation beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier and Pope, JJ., concur.


author: Deen, Presiding Judge.

text:
    A89A1928.
    RHAMES v. THE STATE.
    (387 SE2d 353)
   Deen, Presiding Judge.

The appellant, Alexander Rhames, was convicted of 6 counts of terroristic threats and acts. On appeal, he contends that the trial court erred in admitting his custodial statement into evidence, and that the evidence was insufficient to support the conviction.

Rhames worked in a division of a state agency for over a year before his employment was terminated. The victim was the director of that division. In late August and early September 1987, the victim received 6 telephone calls in which the male caller threatened to kill, or sexually assault and kill, either the victim singly or the victim and her daughter. Five of the telephone calls were recorded on the victim’s answering machine or a recorder, and two of the calls were traced by Southern Bell to Rhames’s residence. A voice analyst with the state crime lab testified that based on his analysis of the voices on the tapes, the same person made all of the calls.

Rhames denied making any of the calls. He also explained that his employment at the state agency was terminated when he could not report to work due to a neck injury. A friend of his also testified that Rhames was at his house at the time one of the phone calls was supposedly made, and that Rhames had not used the telephone. Held:

1. The arresting officer advised Rhames of his Miranda rights before taking him to the GBI office, and also told him that he expected Rhames to explain his involvement in the case. When they arrived at the GBI office, Rhames remarked that there was a lot more involved in the case than the officer realized, but that he wanted to talk with his wife and attorney before making any comment. The arresting officer did not ask Rhames any more questions; however, as the officer filled out the GBI arrest record, Rhames stated further that during his employment at the state agency, he had been involved in a “war” between his immediate supervisor and the victim. Consequently, he had been forced to resign from the department.

“[0]nce an accused in custody invokes the right to counsel, he should not be subject to further interrogation by the authorities until counsel is present, unless the accused himself initiates further communication, exchanges or conversations with the police. [Cit.]” Roper v. State, 258 Ga. 847, 849 (375 SE2d 600) (1989). Following a Jackson-Denno hearing, the trial court determined that Rhames freely and voluntarily made the statement to the arresting officer after invoking his right to counsel, thus waiving that invocation. Because the trial court’s findings are not clearly erroneous in this case, this court will not disturb the ruling below. Crumbsy v. State, 188 Ga. App. 286 (372 SE2d 669) (1988).

Decided September 26, 1989

Rehearing denied October 16, 1989

Stewart A. Anshell, Daniel E. Gavrin, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, David Wright, Joseph J. Drolet, Assistant District Attorneys, for appellee.

2. Viewed in the light most favorable to the prosecution, the evidence certainly authorized a rational trier of fact to find Rhames guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1930.
    NOLTON v. THE STATE.
    (387 SE2d 364)
   Banke, Presiding Judge.

The appellant was convicted of trafficking in cocaine. He contends on appeal that the trial court erred in denying his motion to suppress certain evidence and that the evidence as a whole was, in any event, insufficient to support his conviction.

The appellant was arrested during the execution of a search warrant for a business known as A-l Remodeling and Carpet Mart. The warrant had been obtained on the basis of information received from an informant to the effect that a black male by the alias “Burns” and a black female by the alias “Pat” were selling and storing drugs at that location. Three persons were present on the premises when the officers arrived to execute the warrant: the appellant, who was standing behind the store counter, an individual named Arthur Winston, who was sitting in the office using the telephone, and an individual named Charlene Grover, who was lying on a bed in the basement. Small quantities of marijuana and cocaine were seized from under the counter behind which the appellant was standing; and approximately a gram of cocaine was also seized from atop the desk in the office, along with a gun, $4,040 in cash and $9,000 in food stamps. A search of the basement resulted in the discovery of approximately 45 grams of 90 percent pure cocaine inside one or more of the electrical panel boxes located there.

All of the occupants were immediately taken into custody, and a set of keys was seized from the appellant’s person, one of which fit the lock on the front door. At some point during the raid the appellant stated to police that he was the manager of the business. Testifying as a defense witness, the owner of the business, Ernestine Howard, stated that the appellant “sometimes” managed the business. Winston and Grover were indicted and tried for trafficking in cocaine along with the appellant; however, only the appellant was convicted. The trial judge directed a verdict in favor of Grover, and Winston was found not guilty by the jury. Held:

1. The appellant contends that the police did not have probable cause to arrest and search him immediately upon entering the premises and that, consequently, the evidence that he had claimed to be the manager and that he had been in possession of a key to the front door should have been suppressed. However, defense counsel affirmatively stated that he had no objection to the admission of the key at the time it was tendered as evidence, and the appellant’s statement that he was the manager was merely cumulative of other testimony establishing without dispute that he was the employee in charge of the premises at the time of the raid. Accordingly, this enumeration of error establishes no ground for reversal.

2. “In Ivey v. State, 226 Ga. 821 (4) (177 SE2d 702) the Supreme Court approved the rule that where the evidence on the possession of contraband is entirely circumstantial, it is usually sufficient to convict where the proof shows the premises to be occupied by and under the control of the accused, but if the proof also shows that others than the accused have equal right of access and occupancy it is usually insufficient.” Ennis v. State, 130 Ga. App. 716, 717 (204 SE2d 519) (1974). Although there was evidence in this case that other employees besides the appellant had access to the premises, the jury could reasonably have concluded that, as the employee in charge of the premises, the appellant enjoyed a right of access which was superior to that of anyone else other than Ms. Howard, who denied any knowledge of the presence of the contraband. The evidence showed without dispute that co-defendant Winston had entered the premises to use the telephone only about 30 minutes before the raid and that Grover, who was not even an employee, was merely using the basement as a temporary resting place because she was eight months pregnant and was not feeling well.

“If contraband is not in an open, notorious and equally accessible area, the equal access rule does not apply. This rule is not invoked as to persons who visit the [premises] prior to the search unless they are shown to have been on the premises either previously or frequently so as to have equal access with the defendant. [Cit.]” Manbeck v. State, 165 Ga. App. 625, 626 (3) (302 SE2d 361) (1983). Because the cocaine which was hidden in the electrical boxes would not have been equally accessible to others with less authority and control over the premises than the appellant, and because it could be inferred from the open presence of the other cocaine which was seized that the appellant was aware that drug trafficking was occurring on the premises, we conclude that a rational trier of fact could reasonably have found him guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 28, 1989

Rehearing denied October 16, 1989.

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, John G. Isom, Richard E. Hicks, Joseph J. Drolet, Assistant District Attorneys, for appellee.

Judgment affirmed.

Sognier and Pope, JJ., concur.

On Motion for Rehearing.

On motion for rehearing, counsel for the appellant asserts that in holding that the appellant waived his objection to the introduction of the key into evidence, we overlooked the rule that a failure to object at trial to evidence which has already been ruled admissible in response to a motion to suppress does not constitute a waiver. See Kilgore v. State, 247 Ga. 70 (274 SE2d 332) (1981). However, we reiterate that counsel did not merely fail to object to the introduction of the key as evidence; he affirmatively stated upon inquiry by the trial court that he had “no objection” to it at the time it was tendered. We have no rule in this state which prohibits counsel from affirmatively waiving or withdrawing an objection previously made. The motion for rehearing is accordingly denied.


text:
    A89A1336.
    HOPE v. THE STATE.
    (387 SE2d 414)
   Beasley, Judge.

Hope appeals his conviction for criminal trespass at Hartsfield Airport (OCGA § 16-7-21 (b) (2)).

Hope had been convicted of the offense of criminal trespass committed on four separate occasions at Hartsfield Airport and the records of these convictions were introduced at his trial here. Part of his sentencing in one of these was his agreement, evidenced by his affidavit signed on March 15, 1988, witnessed by his lawyer and the solicitor, that “I shall not occupy any portions of the Hartsfield Air port (sic), specifically the baggage areas. I have been advised that a violation of this provision will cause an arrest of my person. Further, I am aware that this notice is being conveyed to airport authority.”

On November 16, 1988, Atlanta police Detective Hannah, who knew defendant as “Rady Williams” and had dealt with him before at the airport, encountered him sitting in the airport CNN Center at about 5:30 a.m. and arrested him.

Detective Hannah had told defendant on the occasions of his prior four arrests for trespass not to return to the airport. Detective Hannah was also present on October 25, 1987 when Mr. Evans, the Supervisor of the Department of Operations at the airport, told defendant not to return. The airport is owned by the City of Atlanta.

Defendant testified, admitting his prior arrests and sentencing. He acknowledged that the judge had sentenced him to stay away from the airport and that Detective Hannah did not want him there, contending that Hannah had a grudge against him. On the night of November 16, he had been released from the Clayton County jail at midnight and was stopped by a Clayton County officer who gave him a ride to the airport to catch MARTA.

1. Defendant’s first three enumerations deal with whether the officer or the judge of Clayton State Court were “authorized representatives of the owner or rightful occupant” as required by OCGA § 16-7-21 (b) (2); the denial of his motion for new trial; and his contention that he could not be excluded from a public place.

(a) The motion for new trial presents a procedural issue not addressed by either party but potentially affecting our jurisdiction. Defendant’s present counsel was appointed to represent him below. He conducted the trial and, on the day sentence was imposed, February 10, 1989, filed the Notice of Appeal.

On February 24, defendant filed his pro se Motion for New Trial on the general grounds and alleging two trial failures of his counsel. It was heard on March 15. Counsel participated only as a witness concerning the trial tactics. The court held that “the defendant is not capable of representing himself and that Attorney Bradley is to continue handling his appeal and is to be in full control of defendant’s case.” The motion was denied and the attorney was directed to proceed with the appeal.

Thus, we are confronted with the issue of our jurisdiction, based on both a timely notice of appeal and a timely motion for new trial filed and ruled upon thereafter. See generally Shirley v. State, 188 Ga. App. 357 (1) (373 SE2d 257) (1988). The timely filing of the motion for new trial made the otherwise timely notice of appeal premature, but it ripened when the judge’s denial of the motion was entered. Atkinson v. State, 170 Ga. App. 260 (1) (316 SE2d 592) (1984).

(b) Defendant’s contention concerning Detective Hannah’s authority is not that the detective was without authority to make the arrest, see State v. Giangregorio, 181 Ga. App. 324 (352 SE2d 193) (1986), but that there was no showing that the City of Atlanta, owner of the airport, had specifically authorized him to prohibit Hope from going onto the airport property.

Municipalities are empowered and authorized by the Constitution to provide police protection, public transportation, and terminal facilities. Ga. Const. Art. IX, Sec. II, Par. III. Atlanta has done so. Ga. Laws 1973, p. 2188 et seq. (Act reincorporating Atlanta.) Appendix I, Pars. (9) & (14) provide for the acquisition, operation, regulation, and control of airports by Atlanta, and Par. (32) provides for the “preservation and protection of property and equipment of the City and the administration and use of same by the public, and to prescribe penalties and punishment for violations thereof . . . .”

Defendant did not dispute at trial that the airport is owned by the City; his argument was that the detective and the judge who sentenced him and prohibited his return to the airport were not owner, occupant, or authorized representatives. However, a police officer, whether possessing power of arrest or not, is a representative of the city of which he is a sworn officer while protecting the property of that city, wherever located. See authorities cited in Giangregorio, supra at 326 (special concurrence).

An officer holds, at a minimum, the same status with regard to criminal trespass as does a maintenance man or security guard for a private owner. Rayburn v. State, 250 Ga. 657 (2) (300 SE2d 499) (1983); W. L. N. v. State, 170 Ga. App. 689 (1) (318 SE2d 80) (1984); cf. Watson v. State, 190 Ga. App. 671 (371 SE2d 811) (1989). Further, in October 1987, the supervisor of the Department of Aviation Operations of the airport advised defendant in the presence of Detective Hannah not to return. This also was sufficient notice. See State v. Raybon, 242 Ga. 858 (252 SE2d 417) (1979).

Bowman v. State, 258 Ga. 829 (376 SE2d 187) (1989) is of no help to defendant. It holds instead that, having been ordered from a private place, one’s belief that he is standing on public property from which he has not been ordered to move by public authority may negate the requisite intent.

Such is not the situation here. First, there was sufficient evidence that defendant knew he was banned from the airport. Second, he was arrested in the CNN Center in the airport, not from one of the public concourses used to access the boarding areas or MARTA transportation. Defendant’s position that access to “public areas” may never be restricted is not tenable. Adderley v. Florida, 385 U. S. 39, 47 (87 SC 242, 17 LE2d 149) (1966); Alonso v. State, 231 Ga. 444 (202 SE2d 37) (1973).

The evidence was sufficient.

2. The fourth enumeration contends that the prosecution and court failed to abide by USCR 31.3 in that defendant’s four prior convictions for criminal trespass at the airport were impermissibly admitted.

During the State’s case, the prior convictions were not introduced. Defendant testified, but did not put his character into issue on direct examination. OCGA § 24-9-20 (b); see generally Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988). His testimony did, however, raise the issue of his knowledge that he was not to go on airport premises. He was asked during cross-examination if he had ever been told by anyone not to occupy any portion of the airport. He answered that he had “[n]ever written that statement.” In response, the prosecution tendered the affidavit, quoted above, which he had signed.

The only objections voiced against this evidence were that it was not relevant and that the document was not authenticated; neither was meritorious.

Thereafter, the prosecution elicited that Detective Hannah had told defendant not to return to the airport and that he had been incarcerated for doing so. Objection was made that the State was improperly injecting character and a motion for mistrial was made and denied. The denial of the motion is not argued here, even were we to consider it embraced within the enumeration, and it will not be further considered. Rule 15 (e) (2). Harris v. State, 186 Ga. App. 756, 757 (3) (368 SE2d 527) (1988).

It was only when the certified copies of the prior offenses were tendered that it was contended that the notice required by USCR 31.3 (A) had not been given and that they had been tendered without the court’s conducting the hearing mandated by USCR 31.3 (B). Counsel for defendant did not dispute that he had received copies of the four other accusations and sentences, only that the required “Notice of Intent” had not been filed. The failure to comply with that rule is the only error enumerated.

USCR 31.3 (E) provides that “[n]othing in this rule is intended to alter the rules of evidence relating to impeachment of witnesses.” See Jones, supra. The notice required by that rule is not applicable to an impeachment situation. Hernandez v. State, 182 Ga. App. 797 (357 SE2d 131) (1987); see Minter v. State, 258 Ga. 629 (373 SE2d 359) (1988). The introduction of defendant’s affidavit was appropriate impeachment and no compliance was required. Cooper v. State, 188 Ga. App. 629 (2) (373 SE2d 796) (1988).

The door having been opened to this area of inquiry by proper cross-examination and counsel having acknowledged that he received copies of the objected-to evidence, the failure to file the notice as to the other convictions is not harmful and presents no reversible error. Todd v. State, 189 Ga. App. 538, 539 (1) (376 SE2d 917) (1988).

Decided October 16, 1989.

James W. Bradley, for appellant.

Keith C. Martin, Solicitor, for appellee.

3. Finally, defendant contends that the court erred in not dismissing the accusation upon oral motion made in mid-trial. The accusation did not allege the name of the person or persons who had given him notice not to return to the airport. The list of witnesses contained only the name of Detective Hannah. When the admonition of Evans came to light through Hannah’s testimony, defendant moved to dismiss the accusation because it “fails to state who gave him notice,” adding that his defense was based on Hannah’s giving notice and he was surprised by evidence about Evans.

“A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment and may be raised anytime; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.” State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977). Special demurrers are required to be in writing and made before pleading to the indictment or they are waived. OCGA § 17-7-111; McArthur v. State, 169 Ga. App. 263 (1) (312 SE2d 358) (1983).

Defendant’s complaint qualifies only as a special demurrer and was waived. See Gower v. State, 71 Ga. App. 127, 129 (2) (30 SE2d 298) (1944). Further, considering the ruling in Division 1 concerning Detective Hannah’s authority, there would have been no error in any event. Miller v. State, 182 Ga. App. 700, 701 (356 SE2d 900) (1987).

Judgment affirmed.

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

       The judge hearing this case was the judge in the previous cases and said on the record, out of the jury’s presence, that he had told defendant not to return to the airport; this was not evidence.


text:
    A89A1505.
    ARNOLD v. THE STATE.
    (387 SE2d 417)
   McMurray, Presiding Judge.

Defendant was indicted for aggravated assault in that he “did unlawfully commit an assault upon the [victim] by shooting him with a firearm, ... a deadly weapon.” The evidence adduced at a jury trial showed that during the evening of March 13, 1988, defendant went to the “Ram’s Den” night club at the “[c]orner [of] Hill Street and Martin Luther King” in Atlanta, Georgia. Defendant attempted to enter the club, but he was asked to leave by the owner of the business. Defendant withdrew, went to his automobile and drove to the front of the night club. Defendant then “all of a sudden . . . pulled his gun out” and fired into the club. The victim was standing in the front door and he was twice wounded, “hit once in the arm, and once in the stomach.” Defendant fled. Defendant was found guilty of the crime charged and this appeal followed. Held:

1. Defendant asserts the general grounds.

“The weight of the evidence and the credibility of witnesses are questions for the triors of fact. Washington v. State, 169 Ga. App. 806, 807 (315 SE2d 37) (1984). ‘(T)he testimony of the defendant and his witnesses can be disbelieved by the factfinders if the (S)tate’s evidence is sufficient to authorize the verdict of guilty. (Cits.)’ Post v. State, 156 Ga. App. 191, 192 (274 SE2d 154) (1980).” Richardson v. State, 173 Ga. App. 695 (1) (327 SE2d 813). In the case sub judice, the State’s evidence was sufficient to authorize the jury’s finding that defendant was guilty of aggravated assault beyond a reasonable doubt under the standard of proof required in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See OCGA § 16-5-21 (a) (2).

2. Next, we address defendant’s contention that “[t]he trial court committed reversible error by allowing the District Attorney to impermissibly place [his] character in issue within the meaning of OCGA § 24-9-20 [(b)].” This Code subsection provides, in pertinent part, that “no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.”

In the case sub judice, the State’s attorney asked defendant three times on cross-examination if he is a violent person. Defendant responded negatively. After the third inquiry, the State’ attorney asked defendant whether he is “the same Jeffery Jerome Arnold named in indictment 12604 charged and convicted for aggravated assault?” Defendant responded, “Yes[, but] that happened when I was young.” Defense counsel objected and argued that the State impermissibly placed defendant’s character in issue. The State’s attorney argued that he was offering this evidence to prove the falsity of defendant’s responses that he is not a violent person.

In Jones v. State, 257 Ga. 753 (363 SE2d 529), the Supreme Court held “that only where the defendant makes an election to place his good character in issue may the State offer evidence of the defendant’s general bad character or his prior convictions under the authority of OCGA § 24-9-20 (b).” Jones v. State, 257 Ga. 753, 754 (1), 758, supra. In the case sub judice, defendant did not voluntarily place his character in issue. He merely responded to questions which placed his character in issue; i.e., “You are a rather violent person, aren’t you?”; “But again you admit you are violent?” and “[B]efore I’ve asked you twice if you were a violent person and you said you weren’t; is that correct?” This line of cross-examination was obviously an endeavor to compel defendant to respond to questions which placed his character in issue and which insured an excuse for the State’s introduction of evidence of defendant’s prior criminal record. We disapprove of this endeavor and adhere to the rule that the State cannot rebut or question the presumption of a defendant’s good character unless the defendant first chooses to place his character in issue. To say otherwise, would render meaningless one of the primary objectives of OCGA § 24-9-20 (b), to preserve the presumption of a defendant’s innocence. See Jones v. State, 257 Ga. 753, 754 (1), 756, supra. Consequently, since defendant did not voluntarily elect to place his character in issue, the trial court erred in allowing the State to attempt to impeach defendant and place his character in issue through the introduction of evidence of defendant’s prior criminal record. Compare Richardson v. State, 173 Ga. App. 695, 696 (2), supra. See State v. Byrd, 255 Ga. 665, 666 (341 SE2d 455), where there was no objection made to the State’s attorney’s questions to a defendant on cross-examination regarding the defendant’s involvement in prior criminal activity.

Decided October 16, 1989.

M. Muffy Blue, for appellant.

Lewis R. Slaton, District Attorney, John M. Turner, Joseph J. Drolet, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.

3. It is unnecessary for this court to reach defendant’s remaining enumeration since the alleged error raised therein is unlikely to occur upon retrial.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.