author: Deen, Presiding Judge. Birdsong, Chief Judge,

text:
    74522.
    ALBERMARLE, INC. v. EATON CORPORATION.
    (357 SE2d 887)
   Deen, Presiding Judge.

The appellant, Albermarle, Inc., owns property in DeKalb County, which it purchased from Adair Realty Company on October 24, 1966. On March 28, 1966, Adair had leased the premises to Cutler-Hammer, Inc., which manufactured and assembled electric motor control centers. The initial term of that lease was for a 15-year period, with options to renew for two 5-year terms. The lease specifically limited these options to the lessee and not to any assignee of the lease. The lease further defined “lessee” as the original lessee, its successors, or its assignees if the lease was validly assigned.

On March 30, 1979, Cutler-Hammer, Inc., was merged into Eaton Corporation, the appellee (Eaton). Following the merger, Eaton made the rental payments and continued to operate essentially the same business as Cutler-Hammer, Inc. On January 18, 1980, Eaton notified the appellant’s leasing agent of the merger and that the lease had legally passed to Eaton. On February 9, 1981, Eaton gave notice of its decision to exercise the first renewal option. At that time, the appellant did not reject that renewal, but on September 18, 1984, the appellant advised Eaton that the second renewal option would not be honored, pursuant to the lease provision denying such options to any assignee of the original lessee.

The appellant subsequently sought declaratory judgment that Eaton, as an assignee, was not entitled to exercise the second renewal option. This appeal follows from the trial court’s grant of summary judgment for Eaton, after finding that Eaton was not an assignee within the meaning of the lease provision in question. Held:

The issue identified by the parties in this case is whether a successor corporation constitutes an assignee of a merged corporation by virtue of the merger. Both parties acknowledge that this question has not yet been addressed in Georgia, and that other jurisdictions are split on the issue.

Typical merger statutes provide that all property of a merged corporation vests in the successor corporation without further act or deed. See OCGA § 14-2-216. Certain jurisdictions have taken the view that the passage of property interests by operation of law under such merger statutes does not operate as a breach of a covenant barring assignment. See, e.g., Segal v. Greater Valley Terminal Corp., 83 N. J. Super. 120 (199 A2d 48) (1964). Other jurisdictions, emphasizing the right of a lessor to select his tenant, have taken the opposite view regarding such transfers by operation of law. See Citizens Bank & Trust Co. of Md. v. Barlow Corp., 456 A2d 1283 (Md. 1983). It is an interesting conflict of views, but the facts of the instant case do not present this court with the opportunity to adopt either view.

In this situation involving a corporate merger, while it may not be inaccurate to refer to a surviving corporation as an assignee of a merged corporation, the survivor is more properly described as the successor of the merged corporation. Because the express terms of the lease defined “lessee” as the original lessee and its successors, and because Eaton was the successor of Cutler-Hammer, Inc., Eaton was entitled to exercise the renewal options.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur and also concur specially.

Decided May 26, 1987.

Barry L. Katz, for appellant.

Michael A. O’Quinn, Theodore Freeman, for appellee.

Birdsong, Chief Judge,

concurring specially.

I concur fully in the reasoning, conclusions and judgment of the majority. Additionally, I feel compelled to observe that Albermarle, whether it considered Eaton as a successor corporation or an assignee of Cutler-Hammer, had acquiesced in the first five-year renewal in 1981 exercised by Eaton under the right of renewal conferred under the lease. Albermarle could have argued its present position in 1981 but having acquiesced in Eaton’s first renewal could not but have induced a reasonable belief in Eaton that Albermarle would consent to the second renewal, thus removing any concern in Eaton to look elsewhere. See Smith v. Hanna Mfg. Co., 68 Ga. App. 475 (23 SE2d 552). Because Albermarle honored the first notice, this conduct acts as an estoppel against Albermarle to assert any assumed right to reject Eaton’s second renewal as an “assignee.” See Hicks v. Gentry, 104 Ga. App. 3, 5-6 (3) (120 SE2d 915).

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


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    74261.
    BRANNAN AUTO PARTS et al. v. RAYMARK INDUSTRIES.
    (357 SE2d 807)
   Deen, Presiding Judge.

Appellee Raymark Industries brought an action for conversion of automobile parts against appellant Brannan Auto Parts, Inc., and appellants James Brannan, president of the corporation, and Johnny Glass, a corporation official. A Gwinnett County jury found for the individual defendants but against the corporate defendant, assessing actual damages of $50,000, punitive damages of $25,000, and litigation expenses of $15,000. Brannan Auto Parts, Inc., moved for a new trial on the general grounds and, upon denial of the motion, filed an appeal with this court. The following are enumerated as error: (1) the verdict and judgment are contradictory, inconsistent, and contrary to law in finding the individual defendants not liable while imposing liability on the corporate defendant; and (2) the court erred in denying defendants’ motions for directed verdict because the plaintiff allegedly failed to prove either the amount of goods converted or the value of the converted items. Held:

1. Appellant first contends that the verdict and judgment are inconsistent and unlawful in finding for the individual defendants and against the corporate defendant. Scrutiny of the trial transcript and the record reveals that, following closing arguments, the trial court, outside the jury’s presence, displayed to both counsel the special verdict form which he proposed to give the jury. The form offered the jurors five choices for each kind of damages (actual, punitive, and expenses of litigation) sought by the plaintiff, viz:

“Regarding ACTUAL damages, we, the jury, find:
1. For the Plaintiff against all Defendants $_
2. For the Plaintiff against Brannan Auto Parts, Inc. $-
3. For the Plaintiff against James F. Brannan, Jr. $_
4. For the Plaintiff against Johnny A. Glass $_
5. For the Defendants.”

Identical choices were offered for punitive damages and litigation expenses.

Upon displaying the proposed verdict form, the trial court invited comment from counsel, in reply to which defense counsel remarked, “I think it’s loaded up against the defendants, your honor.” The court pointed out that it was necessary to provide the jury with options with respect to the separate defendants but invited suggestions for an alternative form, to which offer defense counsel responded with a rather general comment. The court then suggested to defense counsel that he draft a verdict form more to his liking during the noon recess. Upon reconvening after the lunch break, the court asked defense counsel, “Do you have any suggestion on the verdict?” The latter replied, “No, sir,” and the court continued: “I really don’t know how we can improve on it. . . . If you’ve got any suggestion, I will be glad to see it.” Counsel made no further comment regarding the verdict form other than an oblique reference to it at the end of the jury charge, after the jury had retired.

On the basis of our review of the transcript and the rest of the record, we find that the error, if any, was not preserved for appellate review. The potential for an inconsistent verdict, if any, was evident on the face of the form of the jury verdict. Therefore, appellant waived its right to raise inconsistency as error by failing to make a proper objection to the form of the verdict. Counsel voiced his objection to the form of the verdict in only the most general terms (“it’s loaded up against the defendants”), without the required degree of specificity. Moreover, when the court afforded him an opportunity to submit an alternative form, he did not do so. Therefore, any objection to the form of the verdict, and the potential inconsistency of the verdict, if any, is deemed to have been waived, and we find the trial court properly denied appellant’s motion for new trial as to this ground. “ ‘[I]n the absence of a specific and timely objection, a party waives error relating to the manner in which questions are submitted to the jury.’ ” Frostgate Warehouses v. Cole, 244 Ga. 782, 783 (262 SE2d 98) (1979). See OCGA § 9-12-1 et seq.; Dansby v. State, 165 Ga. App. 41, 42, 43 (299 SE2d 579) (1983). This enumeration is without merit.

Decided April 7, 1987

Rehearing denied May 27, 1987

G. Hughel Harrison, Samuel H. Harrison, for appellants.

L. Thomas Cain, Jr., for appellee.

2. Examination of the transcript and record reveals that, although there were some inconsistencies in the evidence offered regarding the quantity of goods converted, as well as their value, sufficient competent evidence was adduced to permit the jury to calculate the amount of damages within a range of reasonable certainty. Ingram v. Summerlin, 179 Ga. App. 832 (348 SE2d 68) (1986). Denial of the motion for directed verdict was therefore proper. OCGA § 9-11-50. This enumeration, too, has no merit.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    74431.
    FRANCIS v. UNION BANK et al.
    (357 SE2d 837)
   Deen, Presiding Judge.

On May 14, 1981, the appellant, Deborah Francis, purchased a new automobile in California. She made a $2,000 cash down payment and financed the remaining indebtedness with the appellee, Union Bank, to be paid over a term of 48 monthly installments beginning June 13, 1981. It is undisputed that the appellant’s payment performance was erratic, with most of the payments being late.

In December 1984 the appellant moved to Decatur, Georgia, without advising Union Bank that she was removing the vehicle from the state of California. On March 22, 1985, the appellant’s vehicle was repossessed for Union Bank by the other appellee, Automotive Recovery Bureau, Inc., because of the delinquent payment of the indebtedness and the appellant’s removal of the vehicle from California. The appellant subsequently commenced this action against the appellees, seeking damages for the repossession, as well as for an intentional infliction of emotional distress. The trial court granted summary judgment for the appellees, and this appeal followed. Held:

1. One of the terms of the consumer credit contract agreed to by the appellant was that she could not “remove the vehicle from the state for a period in excess of 30 days. . . .” The contract further provided that should the buyer default on any term or condition of the contract, Union Bank could “without notice or demand, take immediate possession of the vehicle.” There was no question but that the appellant violated this contractual term. Her only contention is that this term was unenforceable under OCGA § 11-2-302, due to un-conscionability. However, we find nothing unconscionable about imposing such a term in a consumer credit contract where the subject matter property is a motor vehicle. Accordingly, Union Bank was entitled to repossess the vehicle in this case, and the trial court properly granted summary judgment for the appellees.

Decided May 13, 1987

Rehearing denied May 27, 1987

Sonja L. Salo, for appellant.

E. Penn Nicholson III, Wendy L. Hagenau, for appellees..

2. Because of the holding in Division 1, we need not address whether Union Bank’s past acceptance of late payments created a factual issue of waiver of strict compliance with the timely payment terms of the contract.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    74566.
    CRONAN v. RICKETT et al.
    (357 SE2d 841)
   Deen, Presiding Judge.

In December 1978 appellant Cronan, who is right-handed, received a gunshot wound in his left hand while performing his duties as a City of Atlanta police officer. His little finger and the adjacent metacarpal structure required amputation. In December 1980 he appealed to the Police Pension Fund (the Board), chaired by appellee Rickett, for a disability pension, which was granted effective April 14, 1981.

In notifying Cronan (pursuant to Ga. Laws 1945, pp. 1067, 1072) that he had been awarded the pension sought, the Board informed him that he would be required to submit to physical examinations at the end of each of the next three years. In July 1983 the Board notified him that he would be required to undergo another physical examination at the end of two years “to determine if you are able to return to work.” He was reexamined in June 1985, and the examining physician found that appellant’s disability at that time was minimal, and that he was capable of performing all the duties of his former position except a narrow range of activities associated with the function of a “street cop.” Cronan was thereupon notified, in December 1985, that he had been found to be “no longer totally and permanently disabled”; that he would be offered a desk job at his old pay, position, and status; and that his pension would cease effective January 1, 1986. Cronan declined the offer of reinstatement, and on March 21, 1986, after a hearing, the Board informed him that, because he was no longer classified as disabled and had refused the offer of a suitable job, his pension would be discontinued forthwith.

Cronan then sought judicial review in the Fulton County Superior Court, and on August 25, 1986, that court, applying the appellate standard of review, found that the evidence supported the Board’s decision. In the interim between the commencement of his pension in 1981 and the initiation of the proceedings below, Cronan had been employed first as a polygraph examiner and then as a night watchman.

Cronan appeals from the superior court’s order, enumerating as error the court’s rulings regarding the following particulars: (1), (3), (4), the Board’s allegedly erroneous interpretation of the Police Pension Act and the alleged failure of the evidence regarding his continuing ability vel non to support the Board’s decision; (2) the alleged impropriety of the Board’s “modification” of its original award in the light of the principle of res judicata; (6) the alleged lack of evidence as to the equivalency of Cronan’s present job as a night watchman and his former position as a police officer; and (5) alleged violations of the Fourteenth Amendment to the United States Constitution and Art. I, Sec. I, Par. I of the Constitution of Georgia. Held:

Ga. Laws 1945, p. 1072, provides as follows: “If the [Board’s] determination be that the applicant is totally and permanently disabled, he shall be retired subject, however, to the following conditions: (a) the Board . . . shall have the right to at least once a year require the pensioner to submit to a medical examination for the purpose of determining whether or not the pensioner has sufficiently recovered from his disability and is able to return to his former position; (b) if the Board, after such examination, determines that the pensioner is not actually totally and permanently disabled but is able to return to his former position or employment he occupied at the time of his retirement and such employment and status as to position, pay and service credit at the time of retirement is offered to such pensioner and he takes the former position or fails or refuses to take such offer, then the payment of such disability pension shall cease.” Instructive on this point are analogous provisions of OCGA § 47-17-81. Subsection (a) of this statute requires that “[a]ny dues-paying member who is rendered totally and permanently disabled by disease or injury so as to be unable to perform substantially all of the duties of the position to which the member was regularly assigned when the disability originated or so as to be unable to engage in any occupation or gainful employment for which the member is reasonably suited by virtue of the member’s background, training, education, and experience shall be entitled to disability benefits ... for life or until the member’s disability ceases. ...” Subsection (e) of this Code section requires that “[o]nce each year during the first five years following the commencement of disability benefits under this Code section, and once in every three-year period thereafter, the board may require a disability beneficiary ... to undergo a medical examination ... by physicians designated by the board . . . The designated physicians shall report to the board, following each such examination, the current status and condition of the recipient’s disability.” Subsection (f) provides, in pertinent part, that “[a] disabled member’s disability benefits shall cease;

“(1) Upon his return to gainful employment with the employer for which he worked at the time his disability originated; . . .

“(3) If the board determines on the basis of any medical examination that the member has sufficiently recovered from his disability so as to again be able to perform substantially all of the duties of the position to which he was regularly assigned when the disability originated, or so as to be able to engage in an occupation or gainful employment for which he is reasonably suited by virtue of his background, training, education, and experience. . . .” Code section 47-17-101 states that “[a]ll rights and benefits under this chapter shall be subject to future legislative change or revision, and no beneficiary shall be deemed to have any vested right to any annuities or benefits under this chapter.”

Ga. Laws 1981, p. 4381, provides at Section 3 (b), p. 4383, the relevant definition of “Disability . . . incurred in line of duty.” This definition employs language consistent with that of the cited provisions of Ga. Laws 1945 and OCGA § 47-17-81: “total and permanent disability to pursue one’s regular, assigned or comparable duties with such city. . . .”

Our examination of the record of the instant case and of the relevant Acts and Code sections indicates that, contrary to appellant’s contention, the Board was precisely following the statutory mandate in requiring the June 1985 examination and, upon receiving the designated physician’s report that Cronan had retained only minimal disability, in offering to place him in a job “comparable” to that which he formerly held, and at the same “employment and status as to position, pay and service credit.” The superior court, sitting as an appellate body, could properly have done nothing other than affirm the Board’s decision.

Given the evidence and the relevant law, we find none of appellant’s enumerations of error to have merit.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

Decided May 14, 1987

Rehearing denied May 27, 1987

J. Michael Walls, for appellant.

David D. Blum, for appellees.


text:
    74602.
    MID-AMERICAN ELEVATOR COMPANY, INC. v. GEMCO ELEVATOR COMPANY, INC.
    (357 SE2d 838)
   Deen, Presiding Judge.

On August 17, 1982, the appellant, Mid-American Elevator Company, Inc., and the appellee, Gemco Elevator Company, Inc., entered into a joint venture agreement for the furnishing, installation, and maintenance of escalators in certain MARTA stations. Mid-American was to furnish the escalators and Gemco was to install and maintain them for a base contract price of $332,000. Performance plans and problems proliferated and escalated to such an extent that in late 1984, Mid-American claimed Gemco owed it $146,965.78, and Gemco claimed that Mid-American owed it an additional $536,069.94 for extra work and materials. The dispute was submitted to an arbitrator, who awarded Gemco $216,273.71. The superior court denied Mid-American’s application to vacate or modify the arbitration award, and this appeal followed. Held:

Under OCGA § 9-9-93 (b) (3), an arbitration award may be vacated for “[a]n overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made. ...” Under OCGA § 9-9-94 (b) (1), an arbitration award can be modified where “[t]hei;e was a miscalculation of figures or a mistake in the description of any person, thing, or property referred to in the award. . . .” Mid-American contends that the arbitrator miscalculated the amount of the award by allowing a double credit of $45,706 and by incorrectly determining the number of compensable, additional work hours, and that such miscalculation warranted modification, if not vacation, of the award.

The documentary evidence before the arbitrator included twenty-three invoices for extra work and materials submitted by Gemco, and a spread sheet that delineated necessary extra work at a cost of $45,706. In making his award, the arbitrator disallowed invoices eighteen through twenty-three, on the basis that the charges were dupli-cative of the approved charges on the spread sheet. The arbitrator vehemently denied that any charges contained in any other invoices also were reflected on this spread sheet, and the superior court accepted the denial. However, the president and owner of Gemco himself acknowledged that the first fifteen invoices approved by the arbitrator in fact included charges that also appeared on the spread sheet. In short, contrary to the trial court’s finding that there was no evidence of any miscalculation, the conclusion is inescapable that some miscalculation did result in the form of a double credit for some of the charges, although not the entire $45,706 as contended by Mid-American.

Decided May 13, 1987

Rehearing denied May 27, 1987

Peter M. Degnan, Geoffrey H. Cederholm III, for appellant.

Gemco stated that the entire project required 20,523 man hours, 10,843 more than originally estimated. The arbitrator concluded that part of the declared extra work, i.e., assembly of the escalators, had to be considered part of the original contract performance, and thus was not compensable as extra work. The arbitrator then applied a perplexing equation to determine the number of hours to disallow. Because the counted invoices reflected a total of 16,310.5 man hours, the arbitrator subtracted the actual extra hours (10,843) from 16,310.5, and then subtracted the difference (5,467.5) from 16,310.5 to obtain the total of 10,843 countable extra hours. In other words, by use of the above inexplicable formula, the arbitrator actually compensated Gemco for all the extra hours claimed, despite holding that not all of the extra hours were compensable.

“The function of the trial court in proceedings to confirm or vacate an arbitration award should be severely limited in order not to frustrate the purpose of avoiding litigation by resorting to arbitration.” Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236 (335 SE2d 708) (1985). Nevertheless, where mistakes of the magnitude in this case are made, the statutory remedies of modification or vacation of an award should not be ignored. In the instant case, were the partial double credit the only defect of the award, modification perhaps would be feasible. However, we agree with Mid-American that the award must be vacated because the number of countable extra hours was erroneously computed and no basis for determining such a discount appears in the record. In short, there was such an “imperfect execution of the [arbitration] that a final and definite award upon the subject matter submitted was not made. . . OCGA § 9-9-93 (b) (3). Both miscalculations may be corrected upon rehearing of the matter. OCGA § 9-9-94 (d).

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.

R. Daniel McGinnis, for appellee.


text:
    74638.
    BURDAKIN v. HUB MOTOR COMPANY.
    (357 SE2d 839)
   Deen, Presiding Judge.

John Burdakin brought suit against Hub Motor Company (Hub) for performing negligent repairs to the undercarriage of his truck and also alleged a violation of the Georgia Fair Business Practice Act (FBPA), OCGA § 10-1-390 et seq. Hub was granted a motion for partial summary judgment on Count 1 which alleged the violation of the FBPA and Burdakin appeals. Held:

Burdakin’s 1978 General Motors “Jimmy” truck was involved in a collision which resulted in extensive damage to its undercarriage including the frame, and was taken to Hub’s body shop for repairs. After the work was completed, a Hub employee discovered that the truck was unsafe to test drive because the rear brakes were bad. Burdakin was informed of the brake problem, but instructed Hub not to repair them. Because of problems appellant had in receiving a check for the repairs from the insurance company handling the claim, appellant did not pick up his vehicle for five months after the repairs were completed. He claims that he had no problems with the brakes while driving home, but that it was very difficult to steer and control. Approximately two days later, he notified the body shop manager of the problem and the manager told him to bring it back for inspection so that any necessary repairs could be made. Burdakin claims he had earlier been ordered off Hub’s property by its vice-president because of a dispute over his delay in picking up the truck and requested the body shop manager to pick it up. The manager denies this assertion. Approximately two months later, appellant sent Hub a letter demanding that the vehicle be picked up for repairs. The body shop manager replied by telephone and Burdakin referred him to his attorney.

In opposition to appellee’s motion for summary judgment, appellant filed the affidavit of an expert witness, an engineer, who inspected the truck and determined that it had been improperly repaired, that the defects rendered it “extremely unsafe and dangerous to operate,” that the defects were patent in nature and readily discoverable by a routine visual examination, and that a person responsible for the repairs to the undercarriage would not need to test drive the vehicle to determine that the repairs were defective and incomplete.

Burdakin contends that Hub violated the FBPA by improperly repairing his vehicle, knowingly transferring a dangerous vehicle back to him while representing that it had been properly repaired, and in failing to pick it up for further repairs.

Decided May 13, 1987

Rehearing denied May 27, 1987

Albert R. Sacks, Richard T. Taylor, for appellant.

Glenn Scott Bass, for appellee.

The trial court found that the alleged oral misrepresentations involved essentially “a single private controversy.” We agree and find that the trial court correctly held that the purpose of the FBPA is “to protect the public from acts and practices which are injurious to consumers, not to provide an additional remedy for private wrongs which do not and could not affect the consuming public generally.” Zeeman v. Black, 156 Ga. App. 82-83 (273 SE2d 910) (1980); DeLoach v. Foremost Ins. Co., 147 Ga. App. 124 (248 SE2d 193) (1978). The acts of Hub which Burdakin claims harmed him are personal to him and do not have a potential harmful effect on the consuming public generally. The appellee’s duty involved only that of exercising reasonable care in repairing the truck. The situation therefore involved only a repair agreement between the parties and did not involve the introduction of any act or practice into the stream of commerce. Appellant’s contention that Hub’s misrepresentation falls within the scope of OCGA § 10-1-393 (b) (5), which provides that it is unlawful practice for a business to represent that its “goods and services have sponsorship, approval, characteristics, ingredients, uses, benefits or qualities that they do not have” is not valid. A misrepresentation that a vehicle has been repaired does not fall within this provision and the alleged misrepresentation does not fall within any of the specific acts listed.

Appellant’s reliance upon Paces Ferry Dodge v. Thomas, 174 Ga. App. 642 (331 SE2d 4) (1985), is not warranted. In that case the defendant car dealer put a car in its sales lot and represented to the consuming public generally that it was “new when it was deteriorated or representing the car was of a particular standard, quality, or grade” when the dealer could have readily determined that it was not. Id.

The FBPA does not apply to the negligent repair of an individual vehicle when the damaged vehicle’s owner brings it to a body shop and enters into a repair agreement and the body shop represents only that it has been repaired when it has not. Accordingly, the trial court did not err in granting Hub Motor Company’s motion for partial summary judgment as to Count 1 of Burdakin’s complaint.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


author: Sognier, Judge.

text:
    73664.
    THE STATE v. OLIVER.
    (357 SE2d 889)
   Sognier, Judge.

The State appeals from the trial court’s grant of Oliver’s motion to suppress.

Evidence disclosed that Oliver leased his residence from Chris Lightfoot, the owner of several properties in Cherokee County. About thirty days prior to the search and seizure involved here, Lightfoot notified Oliver that he should make a list of any repairs or maintenance needed at his residence, as Lightfoot and a maintenance crew would be coming around in about a month to make any necessary repairs. On the afternoon of January 8, 1986 Lightfoot and his crew went to Oliver’s residence; Oliver was not at home and Lightfoot let himself in with his own keys, as he kept keys to all properties he owned. In the course of making repairs Lightfoot went to the master bedroom and saw two sawed-off shotguns lying on the floor by a mattress. The maintenance men made the repairs listed by Oliver and Lightfoot went through the house checking for any other problems. One bedroom door was locked, and after picking the lock, Lightfoot opened the door and saw a large pile of marijuana on the floor. According to Lightfoot, “[t]here were drying ovens and paraphernalia all over the place.” Lightfoot had also observed paraphernalia on the breakfast table, and in checking for other maintenance problems had opened kitchen cabinets and found what appeared to be more drugs. He also opened the refrigerator and there appeared to be drugs in the refrigerator compartment. Lightfoot then called the sheriff’s office and Officer Oliver Maloney came to the residence in response to Lightfoot’s call. About thirty or forty minutes later, Sergeant T. O. Carroll of the Cherokee County Sheriff’s Office also arrived. Neither officer had a search warrant. Lightfoot pointed out the various items he had observed and they were seized by Sergeant Carroll. At the time he was notified of Lightfoot’s call, Sergeant Carroll was in the CID office in Canton, Georgia, and knew before he departed that he was going to search for drugs and other contraband. Sergeant Carroll testified that there was no reason he could not have obtained a search warrant before going to Oliver’s residence, but he made no effort to do so.

The State argues that no warrant was necessary to search Oliver’s residence because Lightfoot, as owner of the property, had authority to consent to the search of Oliver’s residence. We do not agree. “The authority which justifies the third-party consent does not rest upon the law of property, . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” (Emphasis supplied.) United States v. Matlock, 415 U. S. 164, 171, n. 7 (94 SC 988, 39 LE2d 242). Lightfoot did not have mutual use of the property with Oliver, nor was he a co-inhabitant of the residence. In fact, Lightfoot testified that under the terms of his lease to Oliver, Lightfoot had no authority to enter the premises in Oliver’s absence. Nor does the fact that the officers believed in good faith that Lightfoot had authority to consent to their search make their search and seizure without a warrant lawful. “Law enforcement officers carry the burden when determining whether a third party has authority to consent to a warrantless search of another person’s property. See OCGA § 17-5-30 (b). An officer’s belief that a third party has authority to consent to the search of another person’s property should not only be based on information previously obtained in his investigation, but should also be based on the facts and circumstances existent at the time of the search. This is true particularly where there are no exigent circumstances which authorize bypassing the Constitutional safeguard of obtaining a warrant. See generally Chapman v. United States, 365 U. S. 610, 615 [81 SC 776, 5 LE2d 828].” Browning v. State, 176 Ga. App. 420, 423 (1) (336 SE2d 41) (1985). In the instant case the officers made no effort whatsoever to determine if Lightfoot had authority to consent to the search of Oliver’s residence, and the search was not based on any information obtained previously in their own investigation. Also, as in Chapman, supra, no reason was offered for not obtaining a search warrant, and no exigent circumstances existed necessitating a war-rantless search. No suspect was fleeing; the search was of permanent premises, not a movable vehicle; and no evidence of contraband was threatened with removal or destruction, since Oliver was not at home when Lightfoot first entered the premises or at any other time thereafter while the search was being conducted. Certainly, if it was deemed necessary to guard the premises until a warrant was obtained, Officer Maloney could have guarded the premises and prevented anyone from entering until Sergeant Carroll obtained a warrant.

We are aware that the Supreme Court of the United States and other federal courts have made an exception to the exclusionary rule when police officers rely in good faith upon warrants issued by a detached and neutral magistrate. United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677); United States v. Butler, 763 F2d 11 (1st Cir. 1985); United States v. Fama, 758 F2d 834 (2nd Cir. 1985). However, those cases are inapposite to the facts of the instant case, because here the police were not acting in good faith in reliance on a warrant issued by a detached and neutral magistrate; rather, they had no warrant and made no effort to obtain one.

A trial court’s decision on questions of fact and credibility of witnesses at a suppression hearing must be accepted unless clearly erroneous. Pittman v. State, 162 Ga. App. 51, 52 (2) (289 SE2d 531) (1982). We find no error here, because a landlord cannot validly consent to the search of his tenant’s quarters. Daniel, W., Ga. Criminal Trial Practice (1985 ed.), § 4-27; Chapman, supra. Since the landlord’s consent to search was not valid, it follows that the warrantless search of Oliver’s residence and seizure of items found therein were unlawful. Browning, supra.

Decided May 27, 1987.

Rafe Banks III, District Attorney, Wallace W. Rogers, Jr., Assistant District Attorney, for appellant.

George J. Thomas II, for appellee.

Judgment affirmed.

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


author: Pope, Judge. Deen, Presiding Judge,

text:
    74052.
    DAWSON v. THE STATE.
    (357 SE2d 891)
   Pope, Judge.

Defendant, Albert Louis Dawson, his wife, Phyllis H. Dawson, and Mitchell Ray Park were indicted on 3 counts of violating the Georgia Controlled Substances Act (possession of marijuana, cocaine and methamphetamine with intent to distribute). Park entered a plea of guilty to the charges and defendant and his wife were jointly tried. Both defendant and his wife made a motion for directed verdict of acquittal at the close of the State’s case; the trial court granted the motion as to defendant’s wife but denied defendant’s motion. Defendant was convicted by a jury on all 3 counts and appeals.

The evidence adduced at trial shows that on September 28, 1985, an informant of the Forsyth County Sheriffs Department made a “controlled buy” of marijuana from Park. Later that day, pursuant to a search warrant, certain officers of the department conducted a search of Park’s mobile home and the surrounding premises. At the time of the search, defendant, his wife, their ten-year-old child and Park were in the mobile home. The search of the home yielded various quantities of marijuana, cocaine and methamphetamine, as well as drug paraphernalia and an arsenal of firearms. A search of defendant’s pickup truck, which was parked on the premises, yielded no drugs; however a Smith and Wesson .357 caliber revolver and a special deputy’s badge issued by Fulton County to defendant were recovered. (The badge had been cut into pieces and laminated back together). A .22 caliber revolver was found in defendant’s wife’s car, which was also parked on the premises.

Testimony of the officers conducting the search indicated that the smell of marijuana was pervasive when they arrived at the premises. The officers also testified that defendant was belligerent and displayed a hostile attitude. There was also testimony that defendant repeated several times that the officers didn’t know who they were messing with, and that defendant tried to persuade them to let him and his wife go, and in return he would consent to drug testing and a search of their home.

Defendant gave a slightly different version of the events that transpired that day. Defendant testified that the officers conducting the search, particularly Officer Sims, were belligerent and that they used profanity in front of defendant’s child. Defendant also testified that the officers offered to let him go if he would consent to a blood and polygraph test and let them search his house. Defendant testified that when he accepted the offer he was told to shut his mouth.

Defendant testified that he was at Park’s home on the day of the search to help Park unload some furniture. He admitted to being at Park’s home at the time the informant allegedly made the controlled buy from Park but testified that he took no part in the conversation between Park and the informant, which took place outside. (This testimony was corroborated by the informant.) Defendant also testified he had no actual knowledge that Park was selling contraband, although defendant intimated he suspected that might be the case. Defendant denied that any of the marijuana, cocaine or methamphetamine found during the search belonged to him.

Park testified that the marijuana, cocaine, methamphetamine, drug paraphernalia and weapons found in the trailer (with the exception of a sawed-off shotgun which Park testified belonged to his roommate) belonged to him and not to the defendant. When confronted on cross-examination with a prior inconsistent statement, Park indicated that some of the marijuana in the living room may have belonged to defendant and that defendant may have smoked marijuana earlier in the day on the day in question. However, Park maintained his testimony, which was not contradicted by his earlier statement, that the defendant was unaware of the existence of the cocaine and methamphetamine and had no knowledge of the drug buys, which Park testified were not made in defendant’s presence.

1. Defendant first argues the State attempted to place his character in issue by attempting to enter evidence of other occurrences involving defendant without prior notice as required by Uniform Superior Court Rule 31 and after the trial court had granted defendant’s motion in limine with respect to such evidence. We have carefully reviewed the record pertaining to this contention and, for the reasons stated hereinbelow, find no error.

In the first instance complained of, the record shows that although the trial court denied defendant’s motion for mistrial, it sustained defendant’s objection to the State’s question and offered curative instructions to the jury. “As we stated in Holcomb v. State, 130 Ga. App. 154, 155 (202 SE2d 529) (1973): ‘Motions for mistrial are largely in the discretion of the trial judge . . . and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court’s discretion will not be overturned.’ See also Prater v. State, 148 Ga. App. 831, 833 (253 SE2d 223) (1979). We do not consider the improper question by the prosecuting attorney so ‘flagrantly prejudicial’ as to require a mistrial. The question was not answered by the witness, so no prejudicial information (if there was any) was presented to the jury. As we do not believe the mere asking of the question involved would so prejudice the jury as to deprive [defendant] of his right to a fair trial, we hold that the trial [court] did not abuse [its] discretion in denying the motion for a mistrial.” Chatham v. State, 155 Ga. App. 154, 157 (270 SE2d 274) (1980).

In the remaining instances complained of on appeal, the trial court sustained defendant’s objections, but offered no curative instructions. The record shows, however, that no curative instructions were requested and that the trial court properly cautioned the State against continuing the improper examination of the witness. The record indicates that the witness did not answer the questions, and that the questions propounded were not so “flagrantly prejudicial” so as to mandate the granting of a mistrial. “In the absence of a demonstration that a mistrial was essential to preservation of a defendant’s right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial, even where no curative instructions are given.” Little v. State, 178 Ga. App. 268, 270 (342 SE2d 712) (1986). Under the circumstances of the present case, we find no error in the trial court’s denial of defendant’s motion for mistrial.

2. Defendant also enumerates as error the trial court’s denial of his motion for a directed verdict of acquittal and argues the State failed to carry its burden of proof as to Counts 2 and 3 of the indictment (the cocaine and the methamphetamine charges). The State concedes that the evidence adduced at trial as to these offenses was circumstantial. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis of guilt, save that of the guilt of the accused. As the State correctly asserts in its brief, the question of whether every other reasonable hypothesis has been excluded is generally a question for the jury. On the other hand, the trial court is authorized, as usual, to take the case from the jury and direct a verdict of acquittal if the State clearly fails to meet its burden. Should a trial court decline to direct the verdict and the jury then finds the defendant guilty, we are obliged to review the evidence in a light most favorable to the jury verdict. However, we will not be blinded by the jury verdict when a reasonable hypothesis of innocence appears from the evidence or the lack thereof.” (Citations and punctuation omitted.) Muckle v. State, 165 Ga. App. 873 (1) (303 SE2d 54) (1983).

A review of the record reveals the State presented no evidence of defendant’s actual possession of either cocaine or methamphetamine; however, such a conclusion does not end our inquiry. “ ‘(A) person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. . . .’ Thomas v. State, 153 Ga. App. 686, 689 (266 SE2d 335) [(1980)]. . . With regard to defendant. . . , we find the evidence of constructive possession [as to the cocaine and methamphetamine is] lacking. ‘It is well established that merely having been in the vicinity of contraband does not, without more, establish possession. (Cits.)’ Donaldson v. State, 134 Ga. App. 755, 756 (216 SE2d 645) [(1975)].” Blount v. State, 181 Ga. App. 330, 332 (352 SE2d 220) (1986). Hence, we find a directed verdict of acquittal was demanded as a matter of law as to Counts 2 and 3 of the indictment and remand for sentencing not inconsistent with this holding. Blount, supra; Shockley v. State, 166 Ga. App. 182 (303 SE2d 519) (1983). Cf. Camp v. State, 181 Ga. App. 714 (4) (353 SE2d 832) (1987).

Judgment affirmed in part and reversed in part.

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

Deen, Presiding Judge,

dissenting in part.

I must respectfully dissent as to the majority’s finding that a directed verdict of acquittal was demanded as a matter of law as to Counts 2 and 3 of the indictment.

After conviction, all evidence must be construed to uphold the verdict. The State’s theory was that the appellant acted together with another named Park in selling drugs out of the latter’s trailer. Appellant was in the house approximately 36 hours while there was much traffic in and about the premises. Drug sales were made during this period. Viewing the evidence in its totality, such as the false law enforcement badge, scales, the artificial head of lettuce, the weapons, rolling trays, the marijuana and other drugs, and the smell of marijuana, a jury could find joint constructive possession of the substance found in the trailer.

Decided May 27, 1987.

Martin B. Findley, for appellant.

Rafe Banks III, District Attorney, T. Russell McClelland II, Assistant District Attorney, for appellee.

While appellant contended that the alleged odor of marijuana was really the odor of five dogs living in the house, and that he was there moving furniture most of the time rather than possessing the drugs with the intent to distribute, I believe that a jury question was raised as to whether Park alone was guilty or whether appellant was a party to the crime of possession of the controlled substances found in the trailer. There is more here than being at the scene of the crime or, as alluded to in the majority opinion of “merely having been in the vicinity of contraband.” I would affirm the judgment of the trial court in its entirety.

I am authorized to state that Presiding Judge McMurray and Judge Beasley join in this dissent.


author: Birdsong, Chief Judge.

text:
    74255.
    BRIDGERS v. THE STATE.
    (357 SE2d 894)
   Birdsong, Chief Judge.

Albert Bridgers was convicted of child molestation and sentenced to fifteen years with ten to serve followed by five years’ probation. He brings this appeal enumerating two asserted errors. Held:

1. In his first enumeration of error, Bridgers complains that the trial court erred in allowing the victim (an 11-year-old female) to testify to remarks made by appellant’s older daughter during a conversation with the victim after the acts of molestation charged which indicated that Bridgers had done similar acts in the past. During the victim’s testimony, she testified that Bridgers, obviously intoxicated, climbed into bed with her and placed his hands upon her breasts and private parts. The victim was frightened and was allowed over objection as to hearsay to testify that the appellant’s younger daughter heard some commotion and asked if the victim would like to come into bed with the younger daughter. The two girls went into the bathroom where the victim related what had occurred. The younger daughter did not at first believe the accusation until she saw her father in the bed just occupied by her friend (the victim). This conversation was allowed over the objection ostensibly to show fresh complaint and the actions of the victim. Bridgers raises no error in this appeal as to the admission of this testimony. The victim testified that after she and the younger daughter had called the appellant’s wife (and mother of the two daughters), the girls awoke the older sister and the conversation with the older daughter which is the object of this enumeration occurred. The record resounds with the silence caused by the absence of an objection to this testimony. At no time during the trial was an objection entered, nor was a motion to strike or a motion for mistrial made. Now for the first time on appeal counsel argues that the overruling of his objections to the hearsay nature of the conversation with the younger daughter removed any requirement for him to object to the subsequent conversation with the older daughter as it would have involved an act in futility. See Cauley v. State, 137 Ga. App. 814, 815 (224 SE2d 794).

We reject this reasoning. In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the appealing party might have. See Sides v. State, 213 Ga. 482, 487 (5) (99 SE2d 884); McGiboney v. State, 156 Ga. App. 222 (274 SE2d 667). The reason for this rule is clear. If the appellant has an objection, there is an obligation to call the matter to the court’s attention so the trial judge will have an opportunity to remedy the situation. Gober v. State, 247 Ga. 652, 654-655 (278 SE2d 386). Moreover, it is manifest that the predicate for any objection to the first daughter’s remarks is entirely different and thus not apropos to grounds of an objection to the second daughter’s remarks. Even assuming error arguendo (error which we do not find present), the posture of the evidence renders it highly probable that the objectionable remark did not contribute to the finding of guilt. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

2. In his second enumeration, Bridgers complains the verdict form utilized by the trial court was prejudicially misleading because the court allowed the jury to consider only three verdicts, i.e., not guilty, guilty of child molestation, or simple battery as a lesser included offense of child molestation. Bridgers complains the form should have repeated the possibility of a finding of not guilty specifically as to simple battery. Bridgers never denied his guilt of the touching of the child except by his plea and admitted that he was so drunk at the time he did not know what he had done. Thus the charge of the court, under the evidence, authorized the jury to find that Bridgers did not have a criminal intent to do any unlawful act and thus to find him not guilty or that he did an intentional act but without an intent to arouse sexual desires or with intent to arouse sexual desires. The charge and the form of findings were designed to assist the jury in making appropriate conclusions and verdict, and did so. No jury of reasonable understanding could have been misled by the form utilized nor the options offered therein. There is no merit in this enumeration. See Jackson v. State, 237 Ga. 663, 664 (229 SE2d 345).

Decided May 27, 1987.

George H. Law III, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Chandelle Turner, Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    74264.
    BAKER v. THE STATE.
    (357 SE2d 896)
   Birdsong, Chief Judge.

Mark E. Baker was the driver of an automobile which crashed, killing his female passenger, Monteen Smith. Baker pled guilty to vehicular homicide in the first degree, reckless driving, improper lane usage, defective equipment, driving without insurance, and driving without a license. He was sentenced, as to the vehicular homicide charge, to 15 years, two to serve and remainder on probation; and he was ordered to pay restitution of $50 per week towards support of Ms. Smith’s small children, until the youngest child reaches 18 years, marries or otherwise becomes self-supporting.

Baker contends on appeal this order of restitution is illegal because no restitution hearing was held for consideration of, and findings as to, underlying factors set out in OCGA § 17-14-10. Cannon v. State, 246 Ga. 754 (272 SE2d 709); Garrett v. State, 175 Ga. App. 400 (333 SE2d 432); Patterson v. State, 161 Ga. App. 85 (289 SE2d 270).

The State concedes there was no such hearing, the factors were not considered and no record was made (Garrett, supra) ensuring consideration of the factors set forth in OCGA § 17-14-10; but says the defendant is entitled to adjudication of the restitutory amount only when that amount is in dispute (citing Johnston v. State, 165 Ga. App. 792, 793 (302 SE2d 708)), and that the appellant did not object to the restitution order but was silent when it was given, citing Johnson v. State, 156 Ga. App. 511 (274 SE2d 669). We do not find that these just-cited cases render statutory error harmless or cut off the right of appeal of such error, if the amount ordered is “undisputed” and the appellant was silent when the order was given. OCGA § 17-14-10 provides: “In determining the nature and amount of restitution, the ordering authority shall consider: (1) The present financial condition of the offender and his dependents; (2) The probable future earning capacity of the offender and his dependents; (3) The amount of damages; (4) The goal of restitution to the victim and the goal of rehabilitation of the offender; (5) Any restitution previously made; (6) The period of time during which the restitution order will be in effect; and (7) Other appropriate factors which the ordering authority deems to be appropriate.” This was not done. The result is that the order is unclear, uncertain and vague as to the number of children and their ages, how long it is anticipated this restitution will be made, and what happens if the youngest child marries, becomes self-supporting or dies while another is still a minor.

Decided May 27, 1987.

J. Richardson Brannon, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

As in the Johnson case cited by the State at 156 Ga. App. 511, this order and finding amount was “undisputed” because the appellant, not having had a restitution hearing, was not given a meaningful opportunity to dispute it. Moreover, a reason the appellant “remained silent” before the trial court when the restitution was imposed, might have been that the trial court immediately advised the appellant he could “appeal these decisions to the Appellate Courts for correction of . . . error[s].” We decline to hold that appellant waived that right by relying upon it to dispute the decision on appeal. Although its design and intention is laudatory, the trial court erred in failing to hold a restitution hearing in accordance with OCGA § 17-14-10, and the error was not harmless. The case must be remanded to the trial court to reconsider the matter consistent with the statutes and the case law.

Judgment reversed and case remanded with direction.

Been, P. J., and Pope, J., concur.


text:
    73784.
    DIXIE CONSTRUCTION PRODUCTS, INC. v. SOUTHEASTERN COUNCIL ON COMPENSATION INSURANCE et al.
    (357 SE2d 831)
   Sognier, Judge.

Dixie Construction Products, Inc. (Dixie) filed suit against Southeastern Council on Compensation Insurance (SCCI) and State Farm Fire & Casualty Company to recover an alleged overpayment of workers’ compensation premiums paid to State Farm because of improper classification codes assigned to certain employees of Dixie. The trial court granted both defendants’ motions for summary judgment on the ground that Dixie had failed to exhaust its required administrative remedies prior to instituting suit, and Dixie appeals.

Decided May 11, 1987

Rehearing denied May 28, 1987

Appellant contends it was not necessary for it to seek an administrative hearing before the Insurance Commissioner, as this matter was not one pertaining to basic rate-making as contemplated by OCGA § 34-9-130. We agree and reverse.

OCGA § 34-9-130 (a) provides that basic rates charged by insurance carriers for workers’ compensation insurance shall be filed with and approved by the Insurance Commissioner. OCGA § 34-9-130 (c) provides, inter alia, that “[a]ny party at interest may appeal from any decision of the Insurance Commissioner made under this Code section in the manner provided by law.” Appellees argue that under this provision, appellant was required to pursue administrative remedies before instituting suit.

The parties to a workers’ compensation insurance contract are bound by the rates approved by the commissioner for coverage of such a contract. Walker v. Bituminous Cas. Corp., 74 Ga. App. 517 (40 SE2d 228) (1946). It is clear, however, that responsibility for applying the proper classifications to an employer’s business rests with the insurance carrier. Id. In statutory construction, “‘[i]t is fundamental that the determining factor is the intent of the legislature and we look first to the words of the statute to determine what that intent was and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was.’ [Cit.] In fact, ‘where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden. [Cit]’ [Cit.]” Williamson v. Lucas, 171 Ga. App. 695, 697 (320 SE2d 800) (1984). Since the action complained of by appellant in the case sub judice is the improper application of classification codes to certain of its employees, and as that function was outside the duties of the Insurance Commissioner, it is clear that the subject matter of this suit was not a “decision of the Insurance Commissioner made under this Code section.” Under the plain and unambiguous meaning of the statute, therefore, the existence of an administrative remedy was irrelevant. As appellees were not entitled to judgment as a matter of law, the trial court’s grant of summary judgment in their favor must be reversed. OCGA § 9-11-56 (c).

Judgment reversed.

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

Robert A. Eisner, Christopher G. Knighton, for appellant.

Edward W. Killorin, Clayton H. Farnham, Richard K. O’Donnell, for appellees.

       Although OCGA § 34-9-130 was amended in 1982, the new statute did not become effective until January 1, 1984. It is undisputed that at all times relevant to this action, the former statute governed.


author: Beasley, Judge.

text:
    74321.
    CHAPMAN v. BURKS et al.
    (357 SE2d 832)
   Beasley, Judge.

Plaintiff Chapman appeals the grant of summary judgment to her uninsured motorist carrier, Commercial Union Insurance Company, and defendants Burks and Robinson. She had filed this suit on May 17, 1984, for personal injuries sustained in a four-car collision on May 15, 1982. It was commenced at the same time she voluntarily dismissed a suit against her own driver, which she had instituted in 1983. In the new suit she alleged that the two-year statute of limitation provided by OCGA § 9-3-33 was tolled by her mental and physical total disability for a period immediately following the mishap.

After discovery which included plaintiffs deposition, plaintiff’s insurer moved for summary judgment although it was not a party. Pursuant to OCGA § 33-7-11 (d) it may do so. See Vaughn v. Collum, 136 Ga. App. 677 (222 SE2d 37) (1975), where the non-party insurer’s motion to dismiss, also on the basis of the statute of limitation, was decided on its merits.

The trial court agreed that the action was time-barred as a matter of law and granted summary judgment to the insurer and to the two defendants, even though only one of the latter had filed a similar motion. This is permitted. “ ‘(S)ummary judgment can be granted to a non-moving party provided that the grant is proper in all respects. [Cit.]’ [Cits.]” Eiberger v. West, 247 Ga. 767, 770 (1) (a) (281 SE2d 148) (1981). On appeal, only the insurance company has filed an ap-pellee brief, but this will not limit application of the decision to defendants as well.

Chapman maintains that her suit may be found timely in that there is a factual question to be resolved by a jury as to whether or not the statute of limitation was tolled under OCGA § 9-3-90 because she was mentally incompetent to handle her affairs for a period of nine to ten days after the collision. It is the first few days, of course, that count.

The trial court found that based on her deposition, Chapman demonstrated that she was not mentally incapacitated as contemplated by the law so as to toll the statute, because her deposition testimony showed that following the collision she was able to care for herself, was aware of what was going on about her, and could recall the collision in detail. The court cited Tri-Cities Hosp. Auth. v. Sheats, 156 Ga. App. 28, 30 (273 SE2d 903) (1980). The court did not mention her affidavit, which was submitted in opposition to the motion for summary judgment.

Chapman contends that her affidavit, taken together with her deposition, shows sufficiently that she was unable to manage the ordinary affairs of her life during the relevant three days immediately after the collision. She contends also that the statements in the affidavit were not eviscerated by any inconsistency in the deposition as to her mental incapacity.

Appellee insurer, on the other hand, maintains that Chapman’s deposition shows as a matter of law that she did not suffer from any mental incapacity following the collision which could toll the statute. In addition, it contends that her affidavit was an intentional contradiction of her deposition testimony in an attempt to create an issue of fact for jury resolution and is not to be considered.

1. Before we consider the evidence, we must focus on the law upon which Chapman relies to give life to her suit. At the time her cause of action arose, the law provided: “insane persons, . . . who are such when the cause of action shall have accrued, shall be entitled to the same time, after the disability shall have been removed, to bring an action, as is prescribed for other persons.” Code Ann. § 3-801. “If either of the foregoing disabilities shall happen after the right of action shall have accrued, and shall not be voluntarily caused or undertaken by the person claiming the benefit thereof, the limitation shall cease to operate during its continuance.” Code Ann. § 3-802.

The law was changed by the Code Commission, effective November 1, 1982 (OCGA § 1-1-9), to read: “persons who are legally incompetent because of mental retardation or mental illness, . . . , who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” OCGA § .9-3-90. “If any person suffers a disability specified in Code Section 9-3-90 after his right of action has accrued and the disability is not voluntarily caused or undertaken by the person claiming the benefit thereof, the limitation applicable to his cause of action shall cease to operate during the continuance of the disability.” OCGA § 9-3-91. Section 90 was amended in 1984, Ga. L. 1984, p. 580, but without making any change notable here.

We point up these changes because the judicially-formulated test has been developed and applied in cases under the various versions of the statute. We do not perceive that the legal concept has changed despite the modernizing of the statutory language, so that if the case precedent construes and applies the law effective in 1982, at the time of the collision and alleged disability, or the law as worded thereafter, it applies to this case as well.

In Chapman’s case, it would be the “insane persons” disability, or as it is characterized now, the “legally incompetent because of . . . mental illness” disability, which rescues her suit. Judicial interpretation has construed this category broadly. As recognized in Tri-Cities Hosp. Auth., supra at 29, which case was affirmed, 247 Ga. 713 (279 SE2d 210) (1981): “[I]n Lowe v. Pue, [150 Ga. App. 234 (257 SE2d 209) (1979)], ‘insane persons’ as used in Code Ann. § 3-801 was construed as including the ‘substantially similar’ term ‘mentally incompetent’ persons, there being ‘ “no distinction between one mentally incompetent and one who is insane.” ’. . . [Allegations that the statute was tolled by reason of the plaintiff’s ‘mental incapacity’ were held to be sufficient to withstand a motion to dismiss under Code Ann. § 81A-112 (b) (6).”

The test for the factfinder to apply has been described rather than neatly bound up in a few clear words, undoubtedly because the concept challenges crisp articulation. The law attempts to confine it to situations where it is not fair to charge a suitor with the running of the clock, because of his mental condition. Building an appropriately sized corral by way of a clear test of words which will fence out tardy suitors whom the law will not forgive, has eluded us.

Tri-Cities, supra at 29-30, captured the test as follows: “ ‘ “[T]he question ... is not whether [the plaintiff] is such an idiot or lunatic or so insane that he ought to be sent to the asylum, or even have a guardian for his person, but, was he . . . so “ ‘mentally incompetent’ ” (non compos mentis or insane), so unsound in mind, or so imbecile in intellect, that he could not manage his ordinary affairs of life? If there be such a degree of unsoundness of mind or imbecility as to incapacitate one from managing the ordinary business of life, it (would authorize a finding that the plaintiff) was “ ‘mentally incompetent’ ” and thus (a finding) that the statute was tolled during the period of time the (plaintiff) is “ ‘mentally incompetent’ ” and until this disability shall have been removed. [Code § 3-801 . . .”] [Cit.]’ Lowe, 150 Ga. App. at 235-236, supra.” Tri-Cities goes on: “The test for mental incapacity is not whether one did not manage his own affairs, acquiescing in the management thereof by others, or whether one has merely managed his affairs unsuccessfully or badly. That one was not ‘bright’ or not clear about some matters occurring during the period is not evidence of mental incompetency. Gulf Life Ins. Co. v. Wilson, 123 Ga. App. 631 (181 SE2d 914) (1971). The test is one of capacity — whether the individual, being of unsound mind, could not manage the ordinary affairs of his life. Kell v. Bridges, 77 Ga. App. 424 (48 SE2d 780) (1948) ... [It means] an individual lacking in the capacity to manage his own affairs.” At page 32, the opinion implies that evidence that “he was without sufficient mental capacity to perform or understand his conduct during the relevant period” would meet the test.

Part of the Tri-Cities explanation was quoted and applied as the test in Curlee v. Mock Enterprises, 173 Ga. App. 594, 598 (327 SE2d 736) (1985), and in Whisnant v. Coots, 176 Ga. App. 724, 725 (337 SE2d 766) (1985). In Curlee and in Whisnant, we found the evidence fell short of creating a jury question as to mental incapacity. In TriCities, 247 Ga., supra at 714-715, the Supreme Court of Georgia found sufficient evidence upon its review of Sheats’ deposition to send the question of tolling to the jury. Thus we have those three cases to measure this one by.

2. In those three cases, as in this one, it was not simply a matter of application of the test. Common to all four situations was the problem of what evidence plaintiff could legally rely on, when there was arguably a material conflict between what plaintiff said in various portions of his testimony.

The law as has been most recently stated and clarified, and thus as applies here, is that on summary judgment the self-contradictory testimony of a party-witness, if a reasonable explanation is not offered for the contradiction, must be construed against the party-witness. That is, the favorable portions of the contradictory testimony are excluded. This rule of evidence applies even when the party-witness is the respondent rather than the movant in summary judgment. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

As instructed in Prophecy Corp., supra at 30, on summary judgment the questions of whether the testimony is self-contradictory and whether a reasonable explanation has been offered are questions of law for the court to decide.

The first inquiry is whether, comparing the testimony in the deposition and in the affidavit, it is self-contradictory with regard to plaintiff’s mental capacity during the first three days following the collision. We find that it is not, for in both the deposition and in the affidavit she described the mental agony she was in due to the great pain she was experiencing, the inability to retain food while at the same time suffering diarrhea, the belief that she had lost the baby with whom she was four months pregnant, the majority of the time spent in sleep, the crying, the passing out and dizziness when she attempted bathroom trips.

In the affidavit, she amplified somewhat on her mental condition, stating that she was in a daze at the scene of the collision, was delirious and unaware of all that was going on during those first days home in bed, was at that time unable to communicate intelligently because of her physical and mental condition, and was suffering some hallucinating, severe pain, and little understanding of what was happening.

We do not see a conflict which amounts to self-contradiction so as to require “a reasonable explanation” for the contradiction. Insofar as there is one, considering the viewpoint of the trial court and appel-lee, it is explained by her affidavit. Although they conclude that she knew during those days what was happening and described what occurred, it is evident from her affidavit that her memory of the experience improved in the intervening years and that while she now was aware of what was happening to her and around her, she was not then aware. Also, of course, she learned from others some of the pieces she did not then have cognizance of. See as somewhat analogous the Supreme Court’s view in Prophecy Corp., supra at 30-31, Division 3.

Decided May 12, 1987

Rehearing denied May 28, 1987.

Charles E. Muskett, for appellant.

Consequently, there was no legal requirement to excise her testimony insofar as it favored the finding of mental incapacity during the first few days after the collision. The evidence in this case is substantially distinguishable from that in Curlee, supra, where plaintiff demonstrably managed numerous and complicated affairs of his life, and in Whisnant, supra; where plaintiff described physical rather than mental incapacity and both she and her husband confirmed her mental capacity.

Finally, taking all of the record into account, we must apply “the general rule that on motion for summary judgment all evidence is to be construed against the movant.” Prophecy Corp., supra at 29. This of course includes reasonable deductions and inferences. Norton v. Ga. R. Bank &c., 253 Ga. 596, 603 (322 SE2d 870) (1984); Prudential Property & Cas. Ins. Co. v. Pritchett, 169 Ga. App. 564, 567 (3) (313 SE2d 706) (1984). We conclude that there is sufficient evidence of mental incapacity for the jury to decide the issue.

In so doing, we caution that OCGA §§ 9-3-90 and 9-3-91 allow only mental, and not physical, disability to toll the time limitation. This was reiterated in Whisnant v. Coots, supra at 726. But we do not discount the effect which physical disability may have on mental capacity. It is, in the final analysis, a matter of proof. Here it does not “compel” or “demand” a finding of no mental incapacity such as to warrant summary judgment. See Eiberger v. West, 247 Ga. 767, 769, supra. “Where the facts are in doubt or dispute, this question [of whether or not a cause of action is barred by the statute of limitation] is one of fact to be determined by the trier of fact,. . . Ordinarily the question of mental capacity is one of fact to be determined by a jury. [Cit.]” Curlee v. Mock Enterprises, supra at 596 (2) and 599 (3).

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.

Robert P. Bleiberg, Richard B. Eason, Jr., for appellees.


text:
    74593.
    RENZ v. THE STATE.
    (357 SE2d 843)
   Deen, Presiding Judge.

Deborah Renz appeals from her conviction on a charge of attempted prostitution. She filed a demurrer, which is now treated as a motion to dismiss upon the general grounds. She enumerates as error the trial court’s denial of the demurrer and of her motion in limine that no evidence of prior similar transactions be admitted in evidence, and further assigns error to the alleged placing of her character in issue resulting from the use of the similar-transaction evidence. She also enumerates as error the trial court’s denial of her motion for mistrial based on the use of testimony regarding the operation of “escort agencies” as covers for prostitution in metropolitan Atlanta, and also regarding the aforesaid similar transactions during which she was admittedly associated with one or more escort agencies. Finally, she enumerates as error the trial court’s denial of her motions for directed verdict and for new trial. Held:

Our scrutiny of the record in the case sub judice reveals that there is no merit in any of appellant’s enumerations of error. According to the testimony, there are many “escort services” advertised in the classified section (“yellow pages”) of the metropolitan Atlanta telephone directory, and most of the “escort services” listed are also listed under “massage parlors.” These establishments bear such titillating, tempting, and tantalizing titles as “A Better Service,” “A Private Service,” “Abracadabra,” “Absolutely Positively,” “Adventurous Escorts,” “Lil’ Rascals,” “Midnight Express,” “No. 1 Part-Timers,” “Personal Touch,” “Pisces,” and “Ready Teddies.” They operate 7 days a week by appointment, offer Swedish massages, and honor major credit cards.

Appellant acknowledged that she modeled for her customers in lingerie and in the nude for a referral fee to the agency, plus a tip for her services. She denied that she was a prostitute or performed sexual intercourse, but a witness for the state, a former client, testified, “but the lady put a condom on me and did put her mouth on my penis.” He said the charge was about $300.

Appellant stated that she had bought the condoms found in her purse because her husband suffered from herpes and she needed them so they could have relations. She herself suffered from herpes simplex of the lips. Her husband regularly drove her from job to job and was, according to appellant, a ready source of protection in case a customer became violent or tried to harm her. She acknowledged that most of her customers were married, out-of-town businessmen, and that she systematically checked new customers’ driver’s licenses and business cards to make sure they were genuine. This careful check on identity also served to insure the clients’ awareness that they “had something to lose” in case anything untoward later occurred. Like her professional colleagues, appellant worked under an alias so as to prevent identification, and stated that the agencies, in an attempt to dissociate themselves from illegal activity, seldom permitted the “models” to come by the office. She said that the type of modeling work she did generally consisted of what occurred in providing services for the “escort service” customers. A law enforcement officer testified that appellant’s husband stated to him the belief that prostitution should be decriminalized. A former client, whose credit card charge slip was found in appellant’s possession when she was arrested on the charges below, testified that her “modeling” for him consisted of the performance of sex acts.

The evidence adduced by the State was more than sufficient not only to overcome the allegations of insufficiency of evidence which formed the basis of the general demurrer and of the motions for mistrial, for directed verdict, and for new trial, but also to authorize a reasonable trier of fact to conclude that the State proved beyond a reasonable doubt every element of the offense charged. OCGA §§ 16-4-1; 16-6-9; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

As to the trial court’s denial of the in limine motion regarding the use of similar-transaction evidence, it is well settled that such evidence is admissible for the purpose of showing motive, intent, identity, bent of mind, modus operandi, or common plan or scheme. Kilgore v. State, 251 Ga. 291, 297 (305 SE2d 82) (1983); Dudley v. State, 179 Ga. App. 252 (345 SE2d 888) (1986). The only requirements are that the defendant be shown to be the perpetrator in such transactions, and that there be sufficient similarity between the prior transactions and the offense being prosecuted that proof of the former tends to prove the latter. See, e.g., Williams v. State, 251 Ga. 749 (312 SE2d 40) (1983); Hamilton v. State, 239 Ga. 72 (235 SE2d 515) (1977); French v. State, 237 Ga. 620 (229 SE2d 410) (1976); Lucas v. State, 178 Ga. App. 150 (342 SE2d 377) (1986). The fact that such evidence may incidentally place the defendant’s character in issue is of no legal moment. Adams v. State, 178 Ga. App. 261 (342 SE2d 747) (1986). Moreover, the trial transcript in the instant case shows clearly that appellant’s own counsel “opened the door” to such evidence, and that the trial court was correct in so ruling. OCGA § 24-9-20; Brock v. State, 179 Ga. App. 519 (347 SE2d 230) (1986).

Judgment affirmed.

Pope, J., concurs. Birdsong, C. J., concurs in judgment only.

Decided May 14, 1987

Rehearing denied May 28, 1987

Gregory Z. Schroeder, for appellant.

Linda S. Finley , Assistant Solicitor, for appellee.


text:
    74649.
    CALDWELL v. THE STATE.
    (357 SE2d 845)
   Deen, Presiding Judge.

Appellant Caldwell was convicted of burglary, involving the theft of a bicycle from the screened porch of an apartment, and sentenced to ten years’ imprisonment. Three witnesses, including the bicycle’s owner, testified that they saw a person answering to the description of defendant/appellant walking through the yard of the apartment complex at about the time the bicycle was alleged to have disappeared; two of these same witnesses, neighbors of the bicycle’s owner, testified to seeing this person riding a bicycle away from the complex some two to four minutes after he was first seen on the grounds; two witnesses (including the owner/victim and one of the neighbors) testified that they had heard a “clanking” sound such as might have been made by the closing of a screen door. None of the witnesses actually saw the defendant or anyone else enter the screened porch and move the bicycle from where it usually was.

One of the witnesses summoned the local police immediately after observing the actions narrated, supra, and shortly thereafter appellant was picked up with a bicycle in his possession. According to the victim, she had bought her bicycle several months previously for the price of $20; she had regularly kept her bicycle on the screened porch; the bicycle was not there after the stranger (identified as the defendant) had been seen on the premises; and the bicycle recovered from the defendant was not hers.

The testimony of the investigating officer was that the victim’s bicycle was never recovered. There is no evidence in the record as to the ownership of the bicycle found in defendant’s possession, or how he happened to have it.

At the close of the state’s evidence, the defense moved for a directed verdict on the basis that the state had not established the elements of the offense sufficiently to support a conviction. The motion was denied. The defendant then took the stand and denied that he had entered the screened porch or taken the bicycle; he further denied that he had been in the vicinity at all. The defense presented no other evidence. Following his conviction, Caldwell appealed to this court, enumerating as error (1) the sufficiency of the evidence and (2) the trial court’s denial of his motion for a directed verdict of acquittal. Held:

1. OCGA § 16-7-1 provides, in relevant part, that “[a] person commits the offense of burglary when without authority and with the intent to commit a felony or theft therein, he enters . . . the dwelling house of another ... or any part thereof.” The essential elements of burglary are unauthorized entry and intent to commit a theft or other felony. Without proof of the essential element of unauthorized entry, a burglary conviction cannot stand. Wells v. State, 151 Ga. App. 416 (260 SE2d 374) (1979); Knowles v. State, 124 Ga. App. 377 (183 SE2d 617) (1971). An unauthorized entry cannot be inferred from mere recent possession of stolen goods. Wells v. State, supra. As for intent, circumstantial evidence (e.g., presence at the scene at the crucial time, recent possession of goods having been identified as having been stolen) must often be relied upon for proof of the element of intent. Kinney v. State, 155 Ga. App. 95 (270 SE2d 209) (1980). The trier of fact may find intent upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is being prosecuted. OCGA § 16-2-6; Mallette v. State, 119 Ga. App. 24 (165 SE2d 870) (1969). Mere presence at the scene of the crime, however, is insufficient, without more, to support a conviction. Thornton v. State, 119 Ga. 437, 439 (46 SE 640) (1903). Parham v. State, 166 Ga. App. 855, 856 (305 SE2d 599) (1983). When a defendant is found in possession of allegedly stolen goods, the identity of those goods must be positively established in order to sustain a conviction. Collins v. State, 176 Ga. App. 634 (337 SE2d 415) (1985); Tommie v. State, 158 Ga. App. 216 (279 SE2d 510) (1981); Davis v. State, 154 Ga. App. 803 (269 SE2d 874) (1980).

In the instant case, three witnesses identified defendant/appellant as the person seen on the apartment grounds at the time when the victim’s bicycle allegedly disappeared. No one saw the defendant — or anyone else — actually enter or leave the screened porch, however. Two witnesses saw him leaving the scene on a bicycle; but the bicycle found in his possession shortly thereafter was not identified as having belonged to the victim or as being the bicycle that usually was on the screened porch; in fact, the victim in open court expressly denied that the bicycle found in Caldwell’s possession belonged to her.

Our careful examination of the record sub judice, including the trial transcript, persuades us that the net of circumstance, often sufficiently strong and well-wrought to capture and contain the most elusive suspect, was in this case too loosely woven and too riddled with holes to support a conviction. We find the evidence, when viewed in the light most favorable to the verdict, insufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that the appellant was guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We must, therefore, reverse the conviction.

Decided May 14, 1987

Rehearing denied May 28, 1987.

Wilton E. Stone, Jr., for appellant.

H. Lamar Cole, District Attorney, Elise B. Ossen, Assistant District Attorney, for appellee.

2. Having held, supra, that appellant’s first enumeration of error was meritorious, we find it unnecessary to reach his second enumeration.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.


author: Pope, Judge.

text:
    73655.
    BENTLEY v. THE STATE.
    (358 SE2d 274)
   Pope, Judge.

Jimmy L. Bentley was convicted of possession of cocaine and was sentenced to serve ten years.

1. The evidence adduced at trial was sufficient to enable any rational trier of fact to find appellant guilty of possession of cocaine, a violation of the Georgia Controlled Substances Act, beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant argues that the trial court erred in allowing the State to elicit testimony from Sergeant Edge about needle marks he observed on appellant’s arms. The record shows that the State’s theory of the case was that appellant had injected cocaine. On direct, the State asked Edge if he had observed anything unusual about appellant’s arms. Edge then replied with his testimony about observing needle marks. No objection to this testimony was made by appellant’s counsel. On cross, appellant’s counsel went into great detail with Edge about the needle marks. It was at this point that appellant moved for a mistrial on the basis that his character had been improperly put into issue. We find no error. The evidence adduced on direct was relevant to the State’s theory of the case, that appellant had injected cocaine. Evidence which is otherwise admissible does not become inadmissible because it incidentally put appellant’s character into issue. Calloway v. State, 165 Ga. App. 511, 512 (301 SE2d 678) (1983).

3. Appellant argues that the trial court erred in charging the jury that presence of cocaine in the blood of appellant was evidence that he had ingested cocaine and that some time within the immediate past appellant had possessed the cocaine he ingested. The charge is based upon Stevens v. State, 165 Ga. App. 814 (1) (302 SE2d 724) (1983). Appellant argues that because the representatives of the Georgia Crime Lab testified that the parent compound cocaine was not found in the blood analyzed, and because appellant denied possession, it was an erroneous charge. We do not agree. The record shows that while no parent compound cocaine was found, cocaine metabolites were found in appellant’s blood, and that the quantity found suggested that he had ingested a large quantity of cocaine in the 24-hour period preceding the blood test. Further, appellant’s co-defendant testified that appellant had ingested cocaine on the night in question. Appellant’s reliance on the dissent by Judge Carley in Stevens is unfounded. There, Judge Carley argued that the evidence against Stevens was entirely circumstantial, and that evidence that he ingested cocaine within the 24-hour period before the blood test was not evidence that he possessed the cocaine which was found in his co-defendant’s possession. In the present case there is direct testimony that both the co-defendant and appellant possessed cocaine and ingested it. Thus, the charge was proper.

Decided May 28, 1987.

John Kirby, for appellant.

Robert F. Mumford, District Attorney, for appellee.

4. Finally, appellant argues that it was improper for the trial court to charge that it is unlawful to possess, distribute, dispense, administer, sell or possess with intent to distribute cocaine. While the court did charge the entire section, a further reading of the charge shows that the court gave further instructions which confined the jury’s consideration to the issue of possession. In such a case, there is no error. Caithaml v. State, 163 Ga. App. 429 (2) (294 SE2d 674) (1982).

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


author: Banke, Presiding Judge.

text:
    73785.
    MORELAND v. THE STATE.
    (358 SE2d 276)
   Banke, Presiding Judge.

The appellant was convicted of armed robbery and aggravated assault. The primary witnesses against him were the victim and the appellant’s brother, an admitted accomplice in the crime.

The victim testified that while she was on duty as a convenience store cashier during the early morning hours of July 11, 1985, a man wearing, among other things, a ski mask and full-length blue jeans walked into the store, pointed a handgun at her and said, “Give me the money.” With the assailant continuing to point the pistol at her, the victim walked behind the counter to the cash register and activated what was evidently a silent burglar alarm, following which the assailant repeated his demand for money. The victim replied that she did not have any, whereupon the assailant cocked the weapon. The victim then immediately “hit the [cash register] button,” causing the register to open; and the assailant simultaneously fired the weapon, hitting an ice machine located directly behind her. He then took approximately $14 from the cash register and fled the store. The victim testified that she “believed,” from observing the appellant’s eyes and listening to his voice, that he was the same person who had robbed her.

The appellant’s brother testified that he and the appellant had gone to the store on the night in question with the intention of robbing it. He stated that he had been dressed in shorts at the time, whereas the appellant had been dressed in blue jeans, and that he had waited outside while the appellant donned a ski mask and went inside. The brother stated that he heard a gunshot shortly after the appellant entered the store, immediately following which the appellant ran back outside and fled down a back alley, leaving him at the scene to be arrested by police upon their arrival there a few moments later. Although the brother was jointly indicted for armed robbery along with the appellant, he was allowed to plead guilty to robbery by intimidation, for which he evidently received a probationary sentence.

The appellant’s two primary contentions on appeal are that the aggravated assault charge and the armed robbery charge should have been merged because they were based on the same conduct and that there was insufficient corroboration of his brother’s testimony to support a guilty verdict. Held:

1. We must agree with the appellant that the aggravated assault was included in the armed robbery as a matter of fact under the circumstances of this case. One crime is included in another as a matter of fact if it is established by proof of the same or less than all the facts required to prove the other, i.e., if all the evidence needed to establish the one is “used up” in proving the other. See OCGA § 16-1-6 (1); Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (1982). In the present case, the state argues that the appellant’s initial conduct in pointing the pistol at the store clerk was sufficient in and of itself to establish the “use of an offensive weapon” element of armed robbery (OCGA § 16-8-41 (a)) and that the actual firing of the weapon may thus be viewed as the type of “gratuitous violence” which will support a separate conviction of aggravated assault. See Coaxum v. State, 146 Ga. App. 370 (246 SE2d 403) (1978). However, it appears without dispute from the victim’s testimony that it was not the initial pointing of the pistol at her which prompted her to open the cash drawer but the subsequent cocking of the weapon by the assailant after she had told him she had no money. The actual firing of the weapon, according to the victim, occurred virtually at the same moment, as she was hitting the button to open the drawer. Under such circumstances, the firing of the weapon cannot be viewed as a separate and independent act of gratuitous violence but must be considered as an inextricable part of the robbery itself. It follows that a separate conviction for aggravated assault based on such conduct is prohibited by OCGA § 16-1-7 (a) (1). Accord Hambrick v. State, 256 Ga. 141 (4) (344 SE2d 639) (1986); Young v. State, 177 Ga. App. 756 (341 SE2d 286) (1986); Luke v. State, 171 Ga. App. 201 (2) (318 SE2d 833) (1984); Chitwood v. State, 170 Ga. App. 599 (4) (317 SE2d 589) (1984); Hizine v. State, 148 Ga. App. 375 (1) (251 SE2d 393) (1978). Compare Harvey v. State, 233 Ga. 41 (209 SE2d 587) (1974) (wherein the assault was not committed until after the completion of the robbery); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981) (wherein the assault and the intended robbery were directed towards at least two different individuals). The aggravated assault conviction is consequently vacated.

2. The appellant contends that the trial court erred in failing to give his requested jury charge to the effect that an accused may not be convicted of two separate crimes based on the same conduct. Although this issue is rendered moot in the present case by our decision to vacate the aggravated assault conviction, it occurs to us that a set of circumstances could conceivably arise in which the issue of whether one crime was included in another as a matter of fact would itself be a question of fact to be resolved by the jury. In such a case, a proper charge on OCGA § 16-1-6 (1) would undoubtedly be required.

3. It has repeatedly been held that the testimony of an accomplice may be corroborated by “slight evidence” tending to connect the accused to the crime or leading to the inference that he is guilty. See, e.g., Dickerson v. State, 161 Ga. App. 178 (1) (288 SE2d 131) (1982). We find ample independent evidence in this case to corroborate the testimony of the appellant’s brother, who, it is clear, was not himself the actual perpetrator of the robbery, since he was dressed in shorts at the time of his arrest only a few seconds after its commission while the perpetrator was described as having worn full-length jeans. Given the victim’s testimony that, based on the tone of his voice, the size of his head, and the appearance of his eyes, she believed it was the appellant who had robbed her, we conclude that the evidence as a whole was sufficient to permit a rational trier of fact to find him guilty of armed robbery beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. The trial court gave a full and correct charge on the need for corroborating evidence to substantiate the testimony of an accomplice, and the trial court’s refusal to give the appellant’s requested charge on the issue consequently did not constitute reversible error. See generally Ennis v. State, 249 Ga. 222 (290 SE2d 50) (1982).

Decided May 28, 1987.

Tamara Jacobs, for appellant.

E. Byron Smith, District Attorney, Tommy K. Floyd, Assistant District Attorney, for appellee.

5. The appellant contends that the trial court erred in failing either to give him a probationary sentence pursuant to the First Offender Act, OCGA § 42-8-60 et seq., or to make him eligible for early parole consideration pursuant to OCGA § 17-10-1 (b). This enumeration of error is patently without merit, as such matters are entirely within the discretion of the trial court, and, contrary to the appellant’s assertions on appeal, there is nothing whatsoever in the record to indicate that the trial court was unaware of any of its sentencing options. Moreover, with respect to the court’s failure to impose first-offender treatment, we note that no such option was in fact available in that, subsequent to the enactment of the First Offender Act in 1968 (Ga. L. 1968, pp. 324, 325, as amended), the robbery statute was amended by Ga. L. 1976, pp. 1359, 1360, to provide that “[adjudication of guilt or imposition of sentence [for robbery] shall not be suspended, probated, deferred, or withheld. . . .” See OCGA § 16-8-41 (c).

6. For the foregoing reasons, the appellant’s conviction and sentence for armed robbery are affirmed, while his conviction and sentence for aggravated assault are vacated.

Judgment affirmed in part and vacated in part.

Carley and Ben-ham, JJ., concur.