text:
    A98A0528.
    MILLIKEN v. THE STATE.
    (498 SE2d 127)
   Birdsong, Presiding Judge.

Appellant Leonard Scott Milliken appeals his conviction of aggravated assault, kidnapping, and DUI. Held:

1. Appellant’s contention that there is insufficient evidence to sustain his conviction of kidnapping and aggravated assault, under a Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) standard, is without merit.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737).

Appellant was contemplating suicide and visited Wal-Mart, his former place of employment. The police were called, and they put appellant in a taxicab and told the victim, the cab driver, to drive appellant home. Appellant subsequently pulled a loaded pistol on the victim and told him to take him back to Wal-Mart; appellant kept the gun pointed at appellant’s head until the cab arrived at Wal-Mart. This affected the victim so badly that he did not realize that he was “headed back to Wal-Mart.” The pointed gun made the victim nervous; he “didn’t know what time [appellant] was going to pull the trigger.” The victim testified that he took appellant back to Wal-Mart “[b]ecause [he] was looking down a gun that had bullets all the way around, blunt bullets.” He would not have taken appellant to WalMart if the gun had not been pointed at his head. (Note: Upon his return to Wal-Mart appellant eventually drove away in his own car and was apprehended. Following his apprehension, a sample of appellant’s blood was drawn at the hospital; the State Crime Lab tested the sample and found it had a blood-alcohol content of 0.14 grams percent ethyl alcohol.)

Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of DUI and kidnapping of which he was found guilty. Jackson v. Virginia, supra. (Note: The trial court merged the aggravated assault conviction, Count 3, into the kidnapping conviction, Count 4. See generally Herring v. State, 224 Ga. App. 809, 815 (6) (481 SE2d 842); compare Gober v. State, 203 Ga. App. 5, 8 (8) (416 SE2d 292) with Heard v. State, 170 Ga. App. 130, 132 (4) (316 SE2d 504). Appellant does not enumerate this merger as error.)

2. Appellant enumerates that “[t]he lower court’s denial of appellant’s amended motion for new trial alleging ineffective assistance of trial counsel for trial counsel’s failure to request a jury charge on false imprisonment, the lesser included offense of kidnaping, was error.”

(a) Appellant has not enumerated that the trial court erred by failing to charge the jury that false imprisonment was a lesser included offense of kidnapping. Accordingly, this issue has not been preserved for appellate review. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649); accord Unden v. State, 218 Ga. App. 463, 466 (5) (462 SE2d 408). Rather, the issue here before us is whether the trial court erred in denying appellant’s amended motion for new trial because appellant’s trial counsel was inadequate in failing to request a charge that false imprisonment was a lesser included offense of the kidnapping charge. The issue preserved on appeal is not tantamount to the enumeration of an instructional error.

(b) A trial court does not commit reversible error in denying a motion for new trial where, as in this case, “there exists the requisite evidence to support the verdict within the meaning of Jackson v. Virginia, supra, and no reversible error otherwise has been committed.” Palmore v. State, 213 Ga. App. 140, 141 (2) (444 SE2d 581). In such cases the verdict will stand.

To sustain a claim of inadequacy of counsel, appellant must satisfy the two-prong test of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). Appellant’s trial counsel testified at the motion for new trial hearing that he was aware that false imprisonment might be a lesser included offense of kidnapping and that appellant might be entitled to a charge to that effect, but a decision had been made that this “was not an alternative that [the defense] wanted to use.” This decision was based on a number of tactical reasons. Tactically the requesting of the lesser included offense charge “would have essentially guaranteed a conviction in our mind ... on that misdemeanor charge as opposed to an all or nothing kidnaping acquittal or conviction.” Further, the defense “had reason to believe that the primary witness against [appellant] on the kidnaping . . . , the taxi driver . . . would either recant his testimony or would fail to show or might even die before trial.” Part of the trial strategy was that there existed a possibility that appellant could be acquitted on the kidnapping charge, but on a lesser included charge, it was perceived that the jury would have selected that charge. Moreover, trial counsel believed the false imprisonment charge was not going to be supported by the evidence because “asportation was pretty much going to be proved.” Although trial counsel could not recall having a conversation with appellant, after appellant testified, regarding whether to make a belated request for the lesser included offense charge, trial counsel did speak with his assisting counsel who recalled discussing with appellant before trial the issue of asportation and “the potential of the lesser included” offense charge.

To prevail on a claim of inadequacy of counsel, appellant has the burden of showing that counsel’s performance was deficient and that the deficient performance prejudiced the defense by creating a reasonable probability of a different outcome but for counsel’s errors; an appellate court evaluates counsel’s performance from his perspective at trial time. Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844). Counsel’s decision as to which theory of defense to pursue is a matter of strategy and tactics; and, as a general rule, matters of tactics and strategy, “whether ‘wise or unwise,’ [do] not amount to ineffective assistance of counsel.” Berry v. State, 267 Ga. 476, 482 (4) (i) (480 SE2d 32). Moreover, there is no evidence that the election not to request a lesser included offense charge was due to inexperience or lack of preparation; rather, the hearing transcript establishes that the charge was not requested due to an informed strategic choice by trial counsel. Compare Van Alstine v. State, 263 Ga. 1, 4 (426 SE2d 360). Hill v. State, 228 Ga. App. 362 (492 SE2d 5) is distinguishable from the case at bar. The trial court found that appellant’s counsel did not render ineffective assistance of counsel but “made a strategic decision not to request a jury charge on false imprisonment based on his determination that the element of asportation was supported by the evidence and his client would be better served by following an all- or-nothing tactic in defense of the kidnaping charge.” “A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous and the defendant must overcome the strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct.” Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110). The trial court’s findings in this case also were supported by the presumption that in the absence of contrary evidence, counsel’s actions are presumed strategic in nature. Adams v. State, 217 Ga. App. 532, 533 (2) (458 SE2d 171), citing Earnest v. State, 262 Ga. 494, 496-497 (422 SE2d 188); Stanley v. Zant, 697 F2d 955 (11th Cir. 1983), cert, denied, 467 U. S. 1219 (104 SC 2667, 81 LE2d 372) (1984). (Neither this rebuttable presumption nor the validity of the trial court’s finding is overcome merely by any misapprehension of trial counsel that false imprisonment in violation of OCGA § 16-5-41 constitutes a misdemeanor offense. Appellant’s trial counsel would even be more apt to elect to pursue an all or nothing defense knowing that the punishment for false imprisonment is “for not less than one nor more than ten years.” OCGA § 16-5-41 (b).) As the findings of the trial court are not clearly erroneous, the findings are affirmed. Kelly, supra. Appellant’s enumeration that the trial court erred in denying his motion for new trial is without merit.

Decided February 26, 1998

Rosemary M. Hathaway, Debra G. McDonald, for appellant.

Harry N. Gordon, 'District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Smith, JJ, concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A0623.
    BAKER et al. v. THE STATE.
    (498 SE2d 290)
   Eldridge, Judge.

A Douglas County jury found appellants Leah Melissa Baker and Tammy Renee Smith guilty of first degree arson for the burning of their mobile home, ostensibly in order to alleviate financial woes. Without contesting the factual basis for their convictions, they appeal and raise nine issues of law. We affirm.

1. In their first and second enumerations of error, appellants contend that the trial court: (1) erred by refusing to permit the defense to conduct individual voir dire of each juror separately on the issue of homosexuality, because the opinions expressed by some jurors during general voir dire allegedly “tainted” the remaining jury pool on the issue; and (2) erred by refusing to grant a mistrial when 50 percent of the jurors indicated problems with homosexuality during voir dire. These contentions are without merit.

The record shows that during voir dire of the first panel of prospective jurors, defense counsel’s questions attempted to form a connection between the Judeo/Christian beliefs of the jurors and a religious “prejudgment” of homosexuals that, as defense counsel put it, “if not repentant, homosexuals would burn in the fires of hell.” The questioning was apparently unfettered, and, apparently, several Douglas County, Georgia, residents expressed religious beliefs in opposition to homosexuality. Defense counsel did not inquire as to whether any of the jurors’ religious views on homosexuality would impact on their ability to be fair and impartial to appellants and to judge appellants’ guilt or innocence based on the evidence and the charge of the court.

At the conclusion of the first panel’s voir dire, defense counsel made a motion for mistrial, arguing to the trial court that “jurors who hold those beliefs [are] unable to be fair and impartial because they come before this court and they come to judge my clients, having already prejudged them of a much greater crime than arson, Your Honor, of a crime against their Savior.” Discussion between defense counsel and the trial court then traveled along these metaphysical/ religious lines, as reflected in some 63 transcript pages of dialogue. Eventually, the trial court denied the motion for mistrial, concluding that the only relevant issue regarding homosexuality and religious beliefs is whether a prospective juror’s religious beliefs relating to homosexuality would impact on his or her ability to fairly and impartially judge the appellants in the trial of the case. The trial court then limited voir dire questions on homosexuality to this issue. When questions were posed to the jurors along these lines, no juror responded that he or she could not be fair and impartial to appellants. The response of the jurors made it clear that their religious beliefs regarding homosexuality would not impact on their ability to fairly and impartially judge appellants’ guilt or innocence based upon the evidence and the charge of the court.

As to this enumeration of error, we find that:

(a) Defense counsel’s religious “prejudgment” argument assumes that those who hold Judeo/Christian beliefs cannot “render unto Caesar the things which are Caesar’s and unto God the things that are God’s.” This assumption is without authority. A belief in God’s ultimate judgment does not automatically preclude a person from fairly and impartially sitting in judgment of others based upon the laws of the commonwealth.

(b) OCGA § 15-12-133 gives defense counsel the right to examine jurors individually. The right does not encompass isolated examination. Whitlock v. State, 230 Ga. 700, 705-706 (198 SE2d 865) (1973). “The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.” Id. at 706 (5). We have reviewed the jurors’ general response to defense counsel’s proper questions regarding homosexuality as it relates to the ability to be fair and impartial in the trial of this case. Based thereon, we find that appellants have not shown any prejudice resulting from the voir dire procedure utilized by the trial court.

(c) A mistrial is not a viable remedy before a jury has been impaneled and sworn. Swint v. State, 199 Ga. App. 515 (405 SE2d 333) (1991). However, overlooking the nomenclature used, the jurors’ expression of religious opposition to homosexuality provided no basis for a remedial motion, when those same jurors also indicated that they could be fair and impartial to the homosexual appellants in the trial of the arson charges against them. OCGA § 15-12-163. The trial court correctly determined that such was the pertinent issue. “When the venireman indicates that he can render a fair and impartial verdict based solely upon the evidence presented at trial, he is prima facie competent to serve.” (Citation and punctuation omitted.) Nelson v. State, 199 Ga. App. 487, 489 (5) (405 SE2d 310) (1991).

2. No objection was registered with regard to the introduction of a tape recording of appellants’ bankruptcy hearing. “Reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make.” (Citation and punctuation omitted.) Allison v. State, 217 Ga. App. 580, 582 (2) (459 SE2d 557) (1995).

3. Likewise, appellants’ three tape-recorded statements made to an arson investigator were admitted without objection. Prior to trial, defense counsel had been provided with transcripts of the tape recordings and, during trial, suggested that the jury be provided with transcripts so that they could “read along while they hear it.” In addition, no issue regarding discovery of the tapes pursuant to OCGA § 17-16-1 et seq. was raised by appellants in the trial court. Accordingly, any claims of error based on the admission or the discovery of the tapes are waived for purposes of appellate review. Brewer v. State, 219 Ga. App. 16, 19 (4) (463 SE2d 906) (1995).

4. In enumerations 5 and 6, appellants contend that the trial court erred by denying a motion for mistrial based upon prosecutorial misconduct and by refusing to individually voir dire the jurors as to the effect of such misconduct. These contentions are meritless.

Defense counsel informed the trial court that she had seen and heard the prosecutor talking and laughing with a juror regarding a mutual acquaintance. The conversation lasted approximately two minutes while defense counsel watched. Thereafter, defense counsel made a motion for a mistrial on the basis of prosecutorial misconduct and requested that the jurors be voir dired as to who may have witnessed the prosecutor’s conversation. Based upon the defense motion: (1) the trial court chastised the prosecutor; (2) the trial court, outside the presence of the remaining jurors, dismissed the juror with whom the prosecutor had spoken; and (3) the trial court voir dired the remaining jurors as to whether any juror had seen the prosecutor, or any witnesses, speak with members of the jury. No juror responded affirmatively. Following the trial court’s curative actions, defense counsel neither renewed her motion for mistrial nor requested individual voir dire of the jurors on the subject.

In order to preserve an issue for appellate review after curative actions have been taken, the motion for mistrial must be renewed or the issue is barred. See O’Kelley v. State, 175 Ga. App. 503, 508 (4) (333 SE2d 838) (1985); see also Bowman v. State, 222 Ga. App. 893, 895 (476 SE2d 608) (1996); Pless v. State, 260 Ga. 96, 99 (390 SE2d 40) (1990). Appellants’ failure to renew the mistrial motion is fatal to a claim that the trial court’s thorough curative actions were somehow insufficient.

Further, with regard to individual voir dire of the jurors as to the prosecutor’s misconduct, we do not find reversible error in the failure to give what was not requested.

5. In their seventh enumeration, appellants challenge the testimony of two state arson experts, contending that one expert’s testimony was based solely upon the written report of the other expert and was, thus, cumulative and improperly “bolstering.” Appellants contend that the trial court erred in admitting such testimony over objection. Our review of the transcript citations provided by appellants reveals no such objection was made at trial. This claim of error is waived. Lewis v. State, 208 Ga. App. 656, 658 (431 SE2d 445) (1993).

Decided February 26, 1998

Cathy M. Alterman, Thomas M. West, for appellants.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

6. Appellants contend in enumeration of error no. 8 that the trial court erred by failing to charge the jury on reckless conduct. This claim of error, unsupported by argument or citation of authority, is deemed abandoned. Court of Appeals Rule 27 (c) (2).

7. Finally, we find no error in the trial court’s refusal to charge the jury on the defense of “equal access.” The Equal Access Doctrine is a defense as to the element of “possession” in a case involving contraband and has no application herein. See, e.g., Ancrum v. State, 197 Ga. App. 819, 821 (399 SE2d 574) (1990); Brown v. State, 190 Ga. App. 324, 327 (378 SE2d 908) (1989); Jackson v. State, 188 Ga. App. 834, 838 (5) (374 SE2d 777) (1988).

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

       Appellants were indicted for three counts of first degree arson, naming the mortgage holder and insurance company as victims in Counts 1 and 2, and charging foreseeable endangerment to human life in Count 3. Appellants were found guilty on all three counts. Counts 2 and 3 were merged into Count 1 at sentencing.

       As to relevancy, the appellants are a homosexual couple; their defense to the charge of arson was that people in the community who abhorred their homosexuality deliberately set fire to their mobile home.


author: Birdsong, Presiding Judge.

text:
    A98A0624.
    FOWLER et al. v. SMITH et al.
    (498 SE2d 130)
   Birdsong, Presiding Judge.

This appeal was transferred to this Court by the Supreme Court of Georgia. Appellants/plaintiffs Glenda Fay Fowler, Steven Anthony Smith and Larry Smith appeal the final judgment of the superior court entered on a jury verdict in favor of appellees/defendants, Ruth Fuller Smith, James Don Smith individually and as administrator of the estates of Troy A. Smith and Ethel J. Smith, and United States Fidelity & Guaranty Company, and from a grant of a motion for directed verdict in behalf of appellees/defendants Fidelity Federal Savings Bank and Fleet Real Estate Funding Corporation.

Ethel Smith died intestate in January 1992, survived by her husband, Troy Smith, and seven children. Troy Smith died intestate in November 1992. Their estates included a 12.17-acre tract on which was a house, barn and other structures. The house was in poor condition, and the barn and other structures were dilapidated. During probate a dispute arose among various heirs as to the disposition of their parents’ estate. During a hearing before the probate court in March 1995 on a petition for an accounting and final settlement, a recess was taken to allow the parties an opportunity to meet and attempt settlement. James Smith, administrator of his parents’ estate, met with his three appellant siblings and mutual agreements were reached between appellants and James regarding property disposition. It was agreed that James would receive a truck; sisters Connie and Glenda would receive the household furnishings; brothers Larry, Steve and James would receive the “outside” equipment and tools; and, to “keep the family together,” a “deal” was made that James would be allowed to purchase the real estate, subject to the approval of the court, provided he could obtain financing. However, the siblings did not stipulate that any particular price would be paid for the house or require James to discuss purchase price with them before consummating a purchase. The siblings reported to the probate judge that the case had been settled and that James would buy the house. This agreement was never reduced to writing. Subsequent to the agreement, James listed the house with a real estate broker with instruction to sell it if he could not obtain financing or if someone else was willing to pay more than he. The realtor recommended that the house be priced under quick sale conditions, that is, priced to be sold within 30 days, because it was unoccupied and was deteriorating with time. The broker’s market analysis determined that the house had a top end sale or fair market value of $54,200 with an expected quick sale price of $50,000 to $52,000. James obtained bank financing and put a contract on the house for $51,000 with direction to the broker to sell it to anyone who offered more. The house remained on the market under multiple listing until closing, but no other purchase offers were received. James and his wife, Fuller Smith, ultimately bought the house at a private sale for $51,000. After closing James re-roofed a portion of the house, replaced some rotted decking, and supported the north-side rafters because of a sway in the roof.

In processing James’ request for financing, the bank appraiser appraised the property at $70,000 based on his assumption that the house was in average condition; however, he did not inspect the interior of the house. Appellees/defendants retained a second appraiser who testified that the house was worth $59,000, “as is.” However, this appraisal was made after James replaced part of the roof of the house. A motion to approve the sale was filed with the probate court which issued an order approving the sale that same day. It was stipulated by counsel that no notice was given to any heir, notice was never published in the newspaper, and no hearing was held on the petition. James financed the property purchase through Fidelity Federal Savings Bank (Fidelity), which subsequently was merged into Regions Bank. A security deed was conveyed to Fidelity who assigned it to Fleet Real Estate Funding Corporation (Fleet). (Regions Bank, Fidelity, and Fleet hereafter are collectively referred to as “Bank.”)

Three of the heirs appealed the probate court’s order to sell to the superior court and brought suit to set aside the deeds and for defalcation of fiduciary duty. The superior court denied appellants/ plaintiffs’ motions for summary judgment. At the close of appellants’ case, the Bank made a motion for directed verdict which was granted. Appellants’ motion for directed verdict to set aside the deeds was denied; the jury returned a verdict in favor of the remaining defendants. Final judgment was entered for the defendants. On appeal, appellants enumerates 16 errors. Held:

1. (a) We decline to address appellants’ enumerations of error 2, 4, 6, 8, 12, and 15. “Denial of a motion for summary judgment is rendered moot by the court’s entry of judgment on the verdict.” Ga. Power Co. v. Irvin, 267 Ga. 760, 767 (6) (482 SE2d 362), citing Kicklighter v. Woodward, 267 Ga. 157, 162 (5) (476 SE2d 248). Thus, “[a]n appellate court . . . will not review the denial of a motion for summary judgment following a trial on the merits.” Acuff v. Proctor, 267 Ga. 85, 86 (5) (475 SE2d 616).

(b) Appellants have filed several separate enumerations (see generally OCGA § 5.-6-40) asserting on various grounds that the trial court erred in denying plaintiffs’ motion for directed verdict and in granting the Bank’s directed verdict motion. In determining whether a trial court erred by denying a motion for a directed verdict, the standards in Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35, 36 (2) (416 SE2d 105) apply. Further, in reviewing the denial of a motion for directed verdict an appellate court must determine “whether there is any evidence to support the jury’s verdict.” Ga. Power Co. v. Irvin, supra at 762 (1). “We must construe the evidence in the light most favorable to the prevailing party” (id.); and “[u]pon appellate review of a denial of a motion for directed verdict, this court will consider all relevant admissible evidence of record whether admitted or elicited during the plaintiffs’ case in chief or subsequent thereto.” Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 576 (3) (b) (377 SE2d 15).

Regarding the granting of a motion for directed verdict, “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). A party is not entitled to a directed verdict if “there was some evidence to support the jury’s verdict.” Southern Water Technologies v. Kile, 224 Ga. App. 717, 719 (1) (481 SE2d 826), citing Carden v. Burckhalter, 214 Ga. App. 487, 488 (1) (b) (448 SE2d 251) (any evidence to support a contrary verdict test).

2. Appellants enumerate that for various grounds the trial court erred in denying their motion for directed verdict against the administrator, his surety, the purchasers (administrator and his wife), and the Bank, and in granting the Bank’s motion for directed verdict. The parties have cited no case that is directly on point with all the relevant facts attendant in the case at bar. However, we find that those cases cited by appellees/defendants and which are hereafter discussed are more persuasive in the disposition of this controversy.

(a) Appellants entered a “compromise” agreement with appellee James as to the disposition of certain of the family property and agreeing to allow James to buy the real property at issue, and this agreement was reported to the probate court for its approval. “ ‘[I]n equity the termination of family controversies affords a consideration which is sufficient to support a contract made for such purpose.’” Fulford v. Fulford, 225 Ga. 9, 16 (3) (165 SE2d 848). Compromises, especially of family controversies, are favored by the courts as tending to prevent litigation. See id. “ ‘Nor is it necessary that a contract shall state definitely and specifically all facts in detail to which the parties may be agreeing, but as to such matters it will be sufficiently definite and certain if it contains matter which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves. That is certain which may be made certain.’ ” Id. at 17. By their compromise agreement the parties in essence mutually agreed that, for purpose of family unity, the property dispositions agreed upon by them were those “most advantageous to the estate,” within the meaning of OCGA § 53-8-20 et seq. Thus, the fact that a higher price might have been obtained if someone other than James had purchased the property is, standing alone, of no legal consequence in this particular case. Appellants’ contention that no binding contract was entered due to a lack of mutual assent as to the sales price of the realty is without merit. The record reveals ample evidence from which the trial court could conclude that the purchase of the premises by James was an inseparable part of the oral compromise agreement entered by the parties to keep the family together, and that it was implicitly intended that the property was to be sold for a fair price. In Georgia, every contract whether oral or written includes the implied duty of good faith. See, e.g., West v. Koufman, 259 Ga. 505, 506 (384 SE2d 664). Good faith in a compromise agreement between relatives at most would require that James purchase the house for reasonable value under the attendant circumstances. See also OCGA § 9-2-7 (implied promise to pay for transfer of property). Assuming without deciding that James was required to pay a reasonable value for the property, whether he did so gave rise to an issue of fact for jury resolution. See Century 21 &c. v. Jones, 204 Ga. App. 96, 97 (418 SE2d 435). Evidence exists that the home was unattended and in a deteriorating condition, and that the reasonable sales price for a quick sale (sale within 30 days) was in a range of $50,000 to $52,000. James paid a sales price within that range. The record supports a finding that James acted in good faith in listing the property for quick sale and purchasing it for an amount within the range of a reasonable quick sale price.

(b) An agreement for compromise, such as exists in -this case, need not be in writing, especially when the parties orally affirm the existence thereof before the trial court. See Fulford, supra at 17; but cf. Beckworth v. Beckworth, 255 Ga. 241, 245 (3) (a) (336 SE2d 782). Additionally, appellees relied to their detriment on the conduct of the appellants and, in reliance on the compromise agreement announced before the probate court, purchased the property. Assuming arguendo, the statute of frauds had required that such agreements be in writing, appellants by their conduct waived their rights to contest either the existence or validity of this compromise agreement. See generally Mauldin v. Weinstock, 201 Ga. App. 514, 520 (4) (411 SE2d 370) and progeny; Fernandez v. Bank of Dahlonega, 217 Ga. App. 739, 743 (4) (b) (459 SE2d 424); Crotty v. Crotty, 219 Ga. App. 408, 412 (3) (465 SE2d 517); see Guthrie v. Moran, 192 Ga. 607 (1), 613 (15 SE2d 890).

(c) As there existed a valid compromise agreement between the siblings, a public or private sale in accordance with the provisions of OCGA § 53-8-34 is not required. Compare Hennessey v. Froehlich, 219 Ga. App. 98, 100 (464 SE2d 246) and King v. King, 199 Ga. App. 496, 498 (2) (405 SE2d 319). The probate court did not lack jurisdiction as asserted by appellants.

3. The trial court did not err in granting the motion for directed verdict of appellee Bank. Pretermitting the issue whether appellants had an adequate remedy at law which would preclude equitable relief is the issue whether the Bank was protected as an innocent purchaser. In view of our holdings in Division 2, above, James had an interest in the subject property which he could legally convey to the Bank, and the order of the probate court was not irregular on its face. The Bank had no actual or constructive notice of wrongdoing of appellants because there was none. Powell v. Harrison, 180 Ga. 197 (178 SE 745) is distinguishable and not controlling. Additionally, as the Bank obtained its interest for value, a presumption of good faith attached to the Bank which is not overcome by any evidence of record. See Anderson v. Streck, 190 Ga. App. 224, 226 (378 SE2d 526). The security deed is not void or voidable as to the Bank as its security interest was obtained as an innocent purchaser for value. Cf. Lyday v. Burkes, 261 Ga. 465, 466 (405 SE2d 472). If a judgment entered pursuant to the granting of a directed verdict is right for any reason, it will be affirmed. Star Mfg. v. Edenfield, 191 Ga. App. 665, 668 (382 SE2d 706).

Decided February 26, 1998

David J. Blevins, for appellants.

Michael A. Corbin, for appellees.

4. Appellees were the prevailing parties in this suit. But, even had appellants prevailed, it would have rested in the trial court’s discretion whether to award attorney fees pursuant to the equitable “common fund” doctrine. Ewing v. First Nat. Bank &c., 209 Ga. 932, 933-934 (76 SE2d 791) (trial court has discretion whether to award attorney fees from common fund or by proportional contribution from those who accept the benefits of plaintiff’s efforts); compare Walker v. Walker, 266 Ga. 414 (2) (467 SE2d 583).

Appellants’ 16 enumerations of error are without merit.

Judgment affirmed.

Johnson and Smith, JJ, concur.


author: Smith, Judge.

text:
    A97A1765.
    R. J. GRIFFIN & COMPANY v. CONTINENTAL INSURANCE COMPANY.
    (497 SE2d 586)
   Smith, Judge.

This is an appeal of the grant of summary judgment in favor of the surety on a construction performance bond and the corresponding denial of summary judgment for the general contractor obligee. We must decide whether a subcontractor’s refusal to return funds belonging to the general contractor is covered by the subcontractor’s performance bond issued in favor of the general contractor. Under the plain language of the subcontract and the bond, as well as the final waiver and release executed by the surety, we conclude that the subcontractor’s wrongful retention of funds is a breach of the subcontract and covered under the terms of the bond. The trial court therefore erred in granting summary judgment to the surety and in denying summary judgment to the obligee.

The facts underlying this litigation are not in dispute. R. J. Griffin & Company was the general contractor on a hospital project in Tampa, Florida. Griffin hired Doyle Electric Services, Inc. as a subcontractor, and the terms of the subcontract required Doyle to furnish a performance bond. Doyle obtained a performance bond from Continental Insurance Company. At the end of the project, Doyle and Continental both executed a separate final waiver and release of claims.

Doyle performed not only the contract work but a significant amount of additional work on change orders, including the installation of a generator. Doyle was paid twice for the generator work as the result of a clerical error and refused to return the overpayment. While the trial court agreed that Doyle had an equitable obligation to return the double payment, it concluded that Continental’s performance bond did not cover Doyle’s refusal to return the money. The trial court therefore denied summary judgment to Griffin while granting summary judgment to Continental. From this ruling Griffin appeals.

In determining the scope of coverage of the performance bond at issue here, we must follow the applicable rules of construction. In contrast to the general rule that policies of insurance are construed strictly against the insurer, the obligation of a surety is construed strictly in the surety’s favor. Arnold v. Indcon, L.P., 219 Ga. App. 813 (1) (466 SE2d 684) (1996); Johns v. Leaseway of Ga., 166 Ga. App. 472 (304 SE2d 555) (1983). But it is also true that no construction of a surety’s bond is “required or even permissible when the language employed by the parties in the contract is plain, unambiguous and capable of only one reasonable interpretation.” (Citation and punctuation omitted.) Id. at 472-473.

Turning to the surety bond itself, we note that the parties to the bond are Griffin (obligee), Doyle (principal) and Continental (surety). The bond obligates the surety “to perform fully and complete the work mentioned and described in said subcontract and any and all modifications thereof pursuant to and in accordance with the undertakings, covenants, terms, conditions and agreements thereof, if the principal fails ... to so perform fully and complete said work.” The question presented is whether the obligation to “perform fully” includes the obligation to cure all breaches of the subcontract, not just the physical completion of the work. Under the plain language of the bond, we find that it does. The surety’s contract is not limited to physical “work” — the contract obligates it to “perform fully” as well as “complete the work ... in accordance with the undertakings, covenants, terms, conditions and agreements.”

This is in accord with our decision in McDevitt & Street Co. v. K-C Air Conditioning Svc., 203 Ga. App. 640 (418 SE2d 87) (1992). In that case, Employers Insurance of Wausau issued a performance bond for a plumbing subcontractor. Wausau attempted to escape liability on the ground that the subcontractor had completed the work on the project, although that work later proved defective outside the period of the warranty provided by the subcontract. This Court rejected a limitation of the surety’s liability to mere completion of the physical work, observing: “ ‘Sureties . . . are jointly and severally liable with their principal unless the contract provides otherwise.’ OCGA § 10-7-1. Since Wausau’s obligation under the bond remained in full force and effect until K-C’s obligations under the subcontract were terminated, and there was evidence that K-C did not ‘well and truly perform’ within the statute of limitation, the trial court erred in directing a verdict in Wausau’s favor.” Id. at 645 (6).

Here, Continental’s suretyship contract binds it to complete the work in accordance with the subcontract, and the subcontract itself provides that “subcontractor’s guarantors, surety, or sureties agree to be bound to contractor with respect to such remedies notwithstanding any provision of the bonds provided.”

Under the subcontract, Doyle agreed “to perform and furnish, all labor, supervision, services, material, equipment, tools, scaffolds, transportation and all other things necessary to complete the work described in Exhibit ‘A,’ in accordance with the following standard terms and conditions.” Among those terms and conditions, Doyle agreed to hold in trust for its subcontractors, suppliers, and material-men all payments made by Griffin, to reimburse Griffin for back-charges, and to protect Griffin from possible consequences of any other breach or default. Finally, Doyle agreed that if it should “fail in the performance or the observance of any of the covenants, conditions or other terms of this subcontract, then . . . contractor shall . . . have the right to exercise any one or more of” certain enumerated remedies. Griffin’s remedies under the subcontract were “cumulative and shall be in addition to every remedy given hereunder or under the prime contract documents, or now or hereafter existing at law or in equity.”

The trial court found that Doyle wrongfully retained the funds and had an obligation to return them. Continental has not appealed that finding, and it was not enumerated as error in this appeal by Griffin. See generally Patterson v. Professional Resources, 242 Ga. 459, 462 (249 SE2d 248) (1978). Doyle has therefore breached its obligations under the subcontract, and Continental by the language of its surety bond has agreed to perform fully Doyle’s obligations if Doyle fails to do so.

B & B Elec. Supply Co. v. H. J. Russell Constr. Co., 166 Ga. App. 499 (304 SE2d 544) (1983), a case involving a public works bond under OCGA § 36-82-100 et seq., is inapposite here. In B & B, a subcontractor on an Atlanta Housing Authority project failed to pay one of its suppliers. Because the subcontractor had failed to obtain a payment bond as required under the subcontract, the supplier made a claim for payment under a performance bond issued to AHA, the owner of the project. After noting special requirements for a bond in favor of a public body that are not applicable here, this Court rejected the claim, holding that the supplier could not claim under the performance bond because that bond was issued for the owner’s sole benefit and the supplier “had no contractual obligations or other privity with” the general contractor. Id. at 502.

Decided February 12, 1998

Reconsideration denied February 27, 1998

Griffin, Cochrane & Marshall, Harry L. Griffin, Jr., William H. Parkman, for appellant.

Richard A. Gordon, for appellee.

The fact situation here is quite different. It does not involve a claim for a general contractor’s failure to pay a subcontractor or supplier for work performed. Instead, as noted above, the subcontractor has breached a direct obligation to the general contractor under its written subcontract, the surety expressly undertook to “perform fully ... in accordance with the undertakings, covenants, terms, conditions and agreements” on behalf of the subcontractor, and the bond was issued in favor of the general contractor. Under these circumstances, Continental is bound to Griffin under the terms of its surety-ship bond for Doyle’s breach of its subcontract by wrongfully retaining Griffin’s funds.

Moreover, Continental and Doyle also executed a final waiver and release in favor of Griffin. In this release, Continental expressly agreed “to be bound by the terms and conditions of this waiver and release,” which included an agreement to “guarantee the performance of [Doyle] with respect to each and every term and condition of this waiver and release and does hereby agree to guarantee the performance of the undersigned with respect to each and every term and condition of this waiver and release and to continue in effect the obligations assumed with respect to the original subcontract.” By. signing the release, Doyle expressly waived any outstanding claims and also represented that “no obligations, legal, equitable or otherwise, are owed by the undersigned in connection with its work on the project.” Continental thereby guaranteed Doyle’s statement that it owed nothing and reaffirmed its obligation to guarantee the performance of Doyle under the subcontract.

Under the plain language of the bond, the subcontract, and the release, the trial court erred in granting summary judgment to Continental and denying summary judgment to Griffin.

Judgment reversed.

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

       Continental did not attempt to file a brief until over two months after it was due, and its brief was refused for filing. Court of Appeals Rule 26 (b). Because of Continental’s failure to submit a timely brief, we accept Griffin’s statement of facts as true and correct. Court of Appeals Rule 27 (b) (1).


author: Blackburn, Judge.

text:
    A97A2154.
    BELL v. OWENS et al.
    (497 SE2d 591)
   Blackburn, Judge.

William Bell appeals the jury verdict and judgment in favor of the Owens children, Donna Elaine Owens, Jason Owens, Bryan Owens, and Dawn O. Godwin, contending that the trial court erred in denying his motions for directed verdict and in giving an erroneous charge in this land dispute. The Owens children sued William Bell, an adjoining landowner, to establish ownership of a disputed tract of land.

Bell and the Owens children own adjoining tracts of land in Haralson County. At one point, the entire property was owned by Otis Bennett. In 1949, Bennett sold approximately four acres of the property to C. M. Clackum. This four-acre tract was ultimately purchased by Bell in 1982.

In 1950, Bennett sold the remaining portion of the property to C. L. Owens. The deed described the property conveyed as the entire parcel “except four (4) acres sold to C. M. Clackum.” This property was later sold to Roy Williams, and after his death, his widow, Virginia Williams, deeded the tract to the plaintiffs, her grandchildren.

Sometime in the 1950s, Roy Williams had constructed a barbed wire fence on the property, ostensibly on the dividing line between the two tracts. In 1987, Bell, the present owner of the four-acre tract, had a survey prepared showing that his property line extended beyond the fence line and into the property then owned by the Owens children. Bell claimed ownership of the land between the fence and the survey line and cut down trees on the property. In addition, he removed a new cattle wire fence which the Owens children had erected to repair the deteriorated barbed wire fence built by Williams. The Owens children filed suit to establish ownership of the disputed section and sought damages for the destruction of the trees and removal of the fence. The jury found that the fence was the boundary line and awarded the Owens children $275 in damages and $2,400 in punitive damages.

1. Bell contends the court erred in denying his motion for directed verdict as to the establishment of the boundary line, arguing that there was no evidence the fence represented the actual boundary. A directed verdict is proper only when there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a); Metromedia Steakhouses Co. v. Ray, 219 Ga. App. 716, 717 (2) (466 SE2d 618) (1995). On appeal, the standard of review of a trial court’s denial of a motion for directed verdict is the “any evidence” standard. F.A.F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

“A boundary line which is in dispute, uncertain or unascertained may be established either (a) by oral agreement, if the agreement is accompanied by actual possession to the line or is otherwise duly executed or (b) by acquiescence for seven years as provided in [OCGA § 44-4-6]. A line is uncertain or unascertained if its location on the ground is unknown even where the line is clearly described in the deeds (Warwick v. Ocean Pond Fishing Club, 206 Ga. 680 (58 SE2d 383) (1950)).” (Citations omitted; emphasis supplied.) Cothran v. Burk, 234 Ga. 460, 461-462 (216 SE2d 319) (1975).

“When a line has been located and established by seven-years’ acquiescence as provided by [OCGA § 44-4-6,] the line thus located and established is binding on the grantees of the coterminous owners. . . . Disputed lines between adverse claimants of land, and questions of where old fences stood in the past, and how long they stood in certain localities, are peculiarly questions of fact for the jury. In the determination of the boundary between two tracts of land the jury [is] not obliged to govern their findings by recent surveys rather than by evidence of an old rail fence recognized by the former owners as the boundary line.” (Citations and punctuation omitted; emphasis supplied.) Dye v. Dotson, 201 Ga. 1, 4-5 (39 SE2d 8) (1946).

In this case, the jury was authorized to find that the parties’ predecessors in title acquiesced in the old fence as the boundary line for more than seven years. There was evidence that the fence was built in 1953 and recognized as the boundary line up until 1987, when Bell commissioned a survey of the property. Although Bell contends that the true property line is clear from the legal description in his deed, the jury could have concluded that the line was uncertain or unascertained at the time the fence was established because it had not been identified on the ground. See Cothran, supra; Warwick, supra. There was evidence that none of Bell’s predecessors in title objected to the location of the fence. Accordingly, the jury was entitled to conclude that the fence was established as the boundary line pursuant to OCGA § 44-4-6, and the court did not err in denying Bell’s motion for directed verdict on this matter. For the same reasons, the court did not err in charging the jury on the relevant principles regarding the establishment of a boundary line.

2. Bell contends that the trial court erred in denying his motion for directed verdict as to plaintiffs’ damages, arguing that there was insufficient evidence of the value of the trees that were wrongfully cut down or of the damage to the fence. “The burden is on the plaintiff to show both the breach and the damage, and this must be done by evidence which will furnish the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages.” (Citation and punctuation omitted.) Solon Automated Svcs. v. Pines Assoc., 156 Ga. App. 34, 35 (274 SE2d 12) (1980). However, “[t]he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the evidence submitted.” (Punctuation omitted.) Gaskins v. Hand, 219 Ga. App. 823, 825 (1) (466 SE2d 688) (1996).

Bell’s contention is without merit, as the evidence provided the jury with a basis to estimate the amount of plaintiffs’ damages. With respect to the value of the fence removed by Bell, Bryan Owens testified that “fencing is generally about a dollar and fifty cents a foot to two dollars. . . . [I]t’s at least fifteen hundred in materials.” This testimony constituted some evidence of the value of the fence and provided the jury with a basis to estimate plaintiffs’ damages.

With respect to the trees, Shane Bell testified that about ten to fifteen trees were cut down, some of them big trees. Phillip McIntyre testified that the value of all the trees cut down was about $350, and that most of the big trees were on plaintiffs’ side of the fence while most of the little ones were on Bell’s side. Numerous photographs were introduced into evidence showing the fallen trees on the ground, as well as a videotape of the area. All of this constituted some evidence from which the jury could reasonably estimate the amount of plaintiffs’ damages. Accordingly, the trial court did not err in denying Bell’s motion for directed verdict as to damages.

3. Bell contends the trial court erred in denying his motion for directed verdict as to punitive damages. The record reveals that Bell’s attorney moved for a directed verdict on this issue at the close of plaintiffs’ case. The court stated that it would not rule on the motion at that time. Bell did not renew his motion after the close of all evidence or otherwise seek to obtain a ruling on the motion before the case was submitted to the jury. “It is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver. See, e.g., Flowers v. Slash Pine Elec. Membership Corp., 122 Ga. App. 254 (176 SE2d 542) (1970).” (Punctuation omitted.) Harris v. State, 190 Ga. App. 343, 348 (4) (b) (378 SE2d 912) (1989). As Bell never sought to obtain a ruling on his motion following the close of evidence, he has waived this issue on appeal. Moreover, the jury was authorized to conclude that Bell wilfully destroyed plaintiffs’ property and that punitive damages were appropriate. See Sims v. Majors, 178 Ga. App. 679, 681 (2) (344 SE2d 501) (1986) (punitive damages authorized for wilful trespass).

Judgment affirmed.

Johnson, J., and Senior Appellate Judge Harold R. Banke concur.

Decided February 16, 1998

Reconsideration denied February 27, 1998

Thomas E. Maddox, Jr., for appellant.

Murphy, Murphy & Garner, Michael L. Murphy, for appellees.


author: Birdsong, Presiding Judge. Eldridge, Judge,

text:
    A97A1779.
    BOHANNON v. THE STATE.
    (498 SE2d 316)
   Birdsong, Presiding Judge.

A Tift County jury convicted appellant Mary Francis Bohannon of felony involuntary manslaughter, with reckless conduct as the unlawful act in support thereof, for causing the death of her two-month-old baby. The facts are as follows:

Both appellant and her co-defendant, the baby’s father Joseph Turnbull, had severe drinking problems. Responding to a report of concern for the baby’s welfare, a DFCS child abuse investigator visited appellant’s home for a caseworker interview. During this visit, the caseworker drew up a “safety plan” designed to “reduce the imminent risk to the child or children that are in the home at the time”; included in the plan was an instruction for appellant to obtain babysitting when she intended to drink and an instruction for appellant to pick up the baby from the sitter only when she is sober and has not had a drink for 24 hours. After the DFCS worker had written up the safety plan and read it to her, appellant signed the plan, agreeing to the terms thereof. Appellant further admitted therein that she had an addiction to alcohol.

Less than two weeks later, appellant took a day trip to her brother’s home on Pleasure Lake; Turnbull and a neighbor went with her. The baby was taken to a babysitter’s home before the group left for the lake. Appellant and Turnbull consumed alcohol during the trip. Both became intoxicated. They returned from the lake at approximately 12:30 a.m. and stopped at the sitter’s home to pick up the baby. Co-defendant Turnbull was intoxicated and was staggering. Although the evidence as to appellant’s degree of sobriety is conflicting, there exists testimony that she also was drunk. The babysitter could tell the couple had been drinking and attempted to persuade appellant to leave the baby in her care.

Appellant and Turnbull brought the baby back to their home. Since her birth, the baby had slept with appellant and Turnbull in their bed. She had been sleeping on a pillow between Turnbull and appellant for over a week because a nurse practitioner had recommended the baby sleep on a pillow to aid the baby’s respiration problems. After arriving home, appellant personally placed the baby on the pillow between them in the middle of their bed even though she was aware that Turnbull was intoxicated, appeared to be “buzzing,” and “disorient[ed]” and “high.” The intoxicated couple went to sleep. In the night, the baby rolled off the pillow, Turnbull rolled over onto the baby, and the baby was asphyxiated during the overlay. Held:

1. The evidence of record is sufficient, under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to sustain appellant’s conviction of involuntary manslaughter with reckless conduct serving as the underlying unlawful act.

(a) Appellant’s expressed and implied contentions that OCGA § 16-5-60 (reckless conduct), as applied to her, failed to provide the requisite due process notice regarding the type of conduct prohibited and that the underlying offense of reckless conduct could not be proved as a matter of law due to vagueness of the statute (see generally Hall v. State, 268 Ga. 89 (485 SE2d 755)), were not timely raised in the trial court and have not been preserved on appeal. See Newton v. State, 259 Ga. 853, 854 (5), (6) (388 SE2d 698); Arp v. State, 249 Ga. 403 (1) (291 SE2d 495).

(b) “A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.” OCGA § 16-5-3 (a).

Further, “ [t]here can be no conviction of the offense of involuntary manslaughter, either in the commission of an unlawful act, or in the commission of a lawful act without due caution and circumspection, where the homicide is directly due to an independent intervening cause in which the accused did not participate and which he could not foresee. ... To constitute a crime there must be either the joint operation of act and intention, or criminal negligence.’ ” Thomas v. State, 91 Ga. App. 382, 384 (85 SE2d 644); see OCGA § 16-2-1.

Reckless conduct is an unlawful act in this State and constitutes a misdemeanor offense. “A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.” (Emphasis supplied.) OCGA § 16-5-60 (b).

“Thus, the crime of reckless conduct is, in essence, an instance of criminal negligence, rather than an intentional act, which causes bodily harm to or endangers the bodily safety of another.” (Emphasis in original.) Bowers v. State, 177 Ga. App. 36, 38 (1) (338 SE2d 457). “ 'Criminal negligence necessarily implies, not only knowledge of probable consequences which may result from the use of a given instrumentality, but also wilful or wanton disregard of the probable effects of such instrumentality upon others likely to be affected thereby.’ . . . ‘Criminal negligence is something more than ordinary negligence which would authorize a recovery in a civil action. Criminal negligence as used in our Code is the reckless disregard of consequences, or a heedless indifference to the rights and safety of others, and a reasonable foresight that injury would probably result.’ The intent referred to is, of course, not the intent to kill but the intent to commit the unlawful act which proximately results in the death of another.” Thomas, supra at 384.

Moreover, at law “[e]very person concerned in the commission of a crime is a party thereto”; and “a person is concerned in the commission of a crime only if he,” inter alia, “[d]irectly commits the crime.” OCGA § 16-2-20 (a) and (b) (1).

The involuntary manslaughter indictment avers that appellant and Joseph Stanley Turnbull “did then and there, acting together as parties to the crime, unlawfully while in the commission of [r]eckless conduct, a misdemeanor cause the death of [a child] . . . less than 3 months of age, in that the accused caused the child’s death while consciously disregarding a substantial and unjustifiable risk that their acts would cause harm and endanger the safety of [said child] in that the accused did, while in a drunken state, take the child from the safety of a babysitter and place the child in the bed with the accused and, in a drunken sleep, roll on top of the child thereby inflicting injuries to the child’s head and asphyxiating her, such disregard by the accused being a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .” According to the averment, the substantial and unjustifiable risk which appellant and her co-defendant consciously disregarded was that of taking an infant of less than three months old from the safety of the babysitter, while both accused were in a drunken state, and placing the infant in the bed with them both.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Also, evidence admitted at trial by a witness subject to cross-examination thereon, regarding prior consistent or inconsistent statements being offered to bolster testimony where veracity is in issue or to impeach, respectively, is not limited in value merely to prove such matters but also constitutes substantive evidence of the matter asserted. Compare Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) with Gibbons v. State, 248 Ga. 858 (286 SE2d 717).

The evidence viewed in a light most favorable to support the verdiet shows, inter alia, the following: Both appellant and her co-defendant had serious drinking problems; alcohol had control of the accused. Responding to a report of concern for the baby’s welfare, on July 2, 1996, a DFCS child abuse investigator interviewed appellant. Appellant informed the investigator that she had a problem with alcohol, had been to Detox and to AA meetings but did not consider herself to be an alcoholic. The investigator had appellant execute a written safety plan, which is a device designed to reduce the “imminent risk” to a child in the home. The safety issue addressed in this plan was “[t]o insure the safety, health, and well being of [appellant’s] child.” As part of the plan, appellant agreed to acquire a reliable babysitter when she was going out drinking, and that she would “pick up her children and only when she is sober [and] hasn’t had a drink for twenty-four hours.” Appellant also admitted in the plan that she had an “addiction” to alcohol and agreed to work toward sobriety. The investigator read the safety plan terms to appellant and then had her read the terms and sign the plan. Appellant indicated she understood the plan and agreed to it; she did not have any questions regarding the terms of the plan.

On July 13, 1996, less than two weeks after executing the safety plan, appellant left her young baby with a babysitter; she subsequently went drinking with her co-defendant, a Mr. Gilliard and a man named Bill, at her brother’s house. Subsequently, they left and went to retrieve the baby from the sitter. At this time the co-defendant was intoxicated and was staggering. Although the evidence as to appellant’s degree of sobriety was conflicting, there exists testimony that appellant had consumed a six-pack of beer herself, and when she retrieved the baby from the sitter she smelled of alcohol and was drunk, although not staggering drunk. Appellant made an oral, recorded statement in which she admitted she had, at least, four drinks of Lord Calvert’s whiskey and Coke that evening; each drink was free-poured into a sixteen-ounce cup. She made no admission to having drunk beer. She further admitted that she was under the influence of alcohol when she went to get her baby, although she denied being drunk; and she opined that her co-defendant who is an alcoholic “appeared buzzing,” that is, he was disoriented and high at the time. Though the sitter offered to keep the baby because appellant and co-defendant noticeably had been drinking, appellant took the baby home. Appellant, by her own admission, then put the baby on a pillow “in the middle of us” in the bed, so that the baby was positioned between her and the co-defendant; a practice in which she had engaged since the baby was one month old.

Upon awakening the next morning, appellant could not locate the baby in the bed, so she went to Gilliard’s trailer to inquire about it. Appellant informed Gilliard that she could not find her baby; she asked him if they had left the baby at the sitter’s and stated she believed either they had left the baby with the sitter or that the co-defendant had returned the baby to the sitter. Subsequently, Gilliard accompanied appellant back to her trailer to look for the baby; at the trailer, he obtained a beer from appellant’s refrigerator. He heard appellant scream; either appellant or the co-defendant then entered the living room area holding the dead baby. The co-defendant had been lying on top of the baby in his sleep. The co-defendant started screaming that he had killed his baby. Appellant believes her baby’s death might have been prevented if the co-defendant “hadn’t been so intoxicated”; and with existing hindsight, she “wouldn’t have been drinking to begin with,” as “[she] feel[s] that might be a part of the reason” for the baby’s death — “just because of alcohol.” Appellant is aware that alcohol impairs hers and everyone’s judgment.

The dissent would assert and we agree that the averred act of the co-defendant of rolling onto the baby, while being in a drunken sleep, is a part of the injurious result of the alleged act of reckless conduct. However, the act of criminal negligence giving rise to reckless conduct was the act of appellant who, then knowing she was under the influence of alcohol, personally placed her less than three-month-old baby in the bed to sleep between herself and the male co-defendant who she also then knew was “intoxicated,” “buzzing,” “disoriented,” and “high.” (This act being done even though she was aware, pursuant to the safety agreement she previously had executed, that her baby’s safety was placed in jeopardy by being in her possession while she had been drinking.)

The state of mind underlying the offense of which appellant was convicted did not require criminal intent; rather the offense could be and was accomplished by an act of criminal negligence. OCGA § 16-2-1. Criminal negligence has been properly defined as “ ‘reckless conduct such as shows an indifference to the injurious results of a negligent act, and indifference to the safety of others, and a lack of consideration for their welfare.’ ” Lewis v. State, 180 Ga. App. 369, 371 (3) (349 SE2d 257). The underlying unlawful act of reckless conduct averred against appellant in the involuntary manslaughter charge was that the appellant “did, while in a drunken state, take the child from the safety of a babysitter and place the child in the bed with the [two] accused. . . .” Contrary to the dissent’s contention, the negligent conduct here averred perforce included the drunken state of the actor at the time when the baby was placed in the bed between the two accused; the state of intoxication of the two accused was an inextricable part of appellant’s criminally negligent act. Appellant’s drunkenness cannot be shunted aside under a claim that it constitutes mere status.

“[T]he State’s obligation was to show that [(!)] [appellant, in committing this averred unlawful act,] consciously disregarded a substantial and unjustifiable risk that [her] conduct would cause harm or endanger the safety of another person[, said person being a baby less than three months old,] and [(2)] that such disregard constituted a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Emphasis supplied.) Turnipseed v. State, 186 Ga. App. 278, 280 (2) (367 SE2d 259). This conscious disregard was accomplished at the moment when the intoxicated appellant placed her three-month-old baby in bed so that it would be defenselessly lying between herself and the co-defendant who was known to her at the time to be intoxicated to the point of being disoriented and high.

The Southwest Medical Examiner, Division of Forensic Sciences, GBI, gave the following expert testimony regarding these so-classified child “overlay” cases: “Based on my experience with these type of cases, . . . there is usually not an intent. Usually, the baby is laying in bed with adult sized individuals, and these individuals are either intoxicated or morbidly obese and have overlaid the child without realizing the child is beneath them. •. . . [I]n most of these instances, the main primary things are intoxication, whether it’s alcohol or drugs, and morbid obesity are the two main factors. I don’t remember any cases being discussed about a heavy sleeper because a baby is going to be moving. Most of us [are] aware what’s around us when sleeping with babies and realize[ ] that they’re there.” (Emphasis supplied.) He also testified, based on his experience, that the sense of awareness, judgment, and physical skills of intoxicated people are less than when they are sober. This expert testimony, viewed in the light most favorable to the verdict and in conjunction with the other admissible evidence of record, is sufficient to support a jury finding a “conscious disregard” from the act of placing a baby, less than three months old, in a bed so that it would be between the two intoxicated and subsequently sleeping adults. In this regard, there exists sufficient evidence from which the jury could determine that this act of the appellant constituted an inherently risky act with the identifiable consequence and that, at the moment the act occurred (that being the moment the child was positioned in the bed by appellant), it was reasonably foreseeable (identifiable) to appellant that “a substantial and unjustifiable risk” of an overlay incident existed, thus endangering the safety of the baby. It was further a matter for jury resolution whether such a conscious disregard constituted a gross deviation from the standard of care which a reasonable person would exercise in the situation. See also Cowan v. State, 218 Ga. App. 422 (461 SE2d 587). Moreover, as the “conscious disregard” arose at the moment the child was positioned in the bed, it is of no relevance regarding appellant’s culpability that she and her co-defendant were asleep when the resulting act of fatal overlay occurred.

Accordingly, there exists ample evidence, under a Jackson v. Virginia standard, to sustain appellant’s conviction of involuntary manslaughter as such offense was averred. While we have the greatest sympathy for appellant’s plight, this Court “must interpret the law and apply it with an even hand; the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or[, as in this case,] the heart-rending misfortune of the unlucky.” Floyd S. Pike Elec. Contractors v. Williams, 207 Ga. App. 86, 89 (2) (e) (427 SE2d 67).

2. The State was allowed, over appellant’s objection, to impeach Gilliard with a statement of the witness recorded two days prior to trial by the prosecution. The prosecutor claimed that the recorded statement was a work product and the trial court overruled appellant’s objection. Under Title 17, Chapter 16, OCGA, the recorded statement does not qualify for a work product exception, as it was a statement within the meaning of OCGA § 17-16-1 (2) (A) and did not merely constitute “notes or summaries made by counsel” within the meaning of OCGA § 17-16-1 (2) (C). See generally Forehand v. State, 267 Ga. 254, 256 (3) (477 SE2d 560). However, appellant did not request a continuance; the only remedy requested by appellant was that the prosecutor not be allowed to examine the witness over his prior statement. Appellant made no attempt at trial to assert how she would be prejudiced and made no claim that the prosecution was acting in bad faith. The sanction of evidence exclusion is severe and can be imposed only “where there has been a [timely] showing of prejudice to the defense and bad faith by the State.” Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696); OCGA § 17-16-1; see Bell v. State, 224 Ga. App. 191 (480 SE2d 241). The purpose of requiring this showing when the objection is made is to allow the trial court to fashion a remedy that will restore to the defendant the discovery rights provided by the legislature. See generally Hammitt v. State, 225 Ga. App. 21, 23-25 (482 SE2d 437) (Blackburn, J., concurring specially). While a continuance of proper length, coupled with the right to recall the witness, would have restored such rights to appellant, appellant elected not to request this relief. Id. at 25. “ ‘In no case will the trial judge’s ruling be reversed for not going further than requested.’ ” Lyon v. State, 262 Ga. 247, 249 (3) (a) (416 SE2d 523). This enumeration is without merit.

3. The trial transcript is replete with admissible evidence that appellant suffered from an acute alcohol problem prior to the death of her child. This evidence had some relevance to establish circumstantially both appellant’s indifference to the injurious results of her reckless conduct and her indifference to the safety of her baby at the time of her act; evidence as to the nature and extent of her alcohol problems also had some relevance circumstantially to establish that her conduct was in conscious disregard of a substantial and unjustifiable risk of an overlay incident. Moreover, this circumstantial evidence was relevant to establish her severe pattern of alcohol abuse and her knowledge of her problem and of the danger it could pose to her baby. Cf. Bohannon v. State, 208 Ga. Ápp. 576, 580 (2) (d) (431 SE2d 149). “ ‘If evidence is relevant and material to an issue in a case, it is not inadmissible because it incidentally puts the defendant’s character in issue.’ ” Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395). “ ‘[T]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.’ ” Id. The trial court did not abuse its discretion in admitting the safety plan or evidence of appellant’s alcohol problems existing prior to the baby’s death.

4. The admission of similar transaction evidence regarding incidents of appellant’s public drunkenness following the death of her child did not meet the standards of admissibility set forth in Williams v. State, 261 Ga. 640 (409 SE2d 649). However, the trial transcript is replete with admissible evidence regarding appellant’s pattern of alcohol abuse prior to and at the time of her baby’s death, including that she had attended a program at Midstep for alcoholics, had been to (Habira) Detox, and had attended AA meetings. The transcript also revealed that appellant’s second cousin, who was a licensed practical nurse, had reported appellant due to the cousin’s deep concern for the welfare of the child. This cousin had once suffered from alcohol problems and recognized the danger it posed. DFCS responded to this report, and a safety plan was developed to protect the child. This plan, signed by appellant, in part stated: “[Appellant] admits to have an addiction to alcohol. [She] will work towards sobriety.” It further stated: “[Appellant] will inquire about addiction classes at Mental Health by July 2/96 . . .; [she] will continue to seek medical attention for infections and liver disorder . . .; and [appellant] will notify worker of when she is to begin addiction classes by July 15/96.”

In view of the unrebutted, cumulative and admissible evidence of appellant’s pattern of alcohol addiction and abuse, it is highly probable that the inadmissible evidence of appellant’s drunkenness, occurring after the death of the baby, did not contribute to the verdict. Accordingly, the error was harmless. Compare Tuggle v. State, 211 Ga. App. 854, 857 (2) (d) (440 SE2d 740); cf. Stirrat v. State, 226 Ga. App. 350, 352 (2) (b) (486 SE2d 640); Bohannon, supra at 580 (2) (d).

5. Appellant objected to the admission of certain photographs of the deceased infant. The State subsequently elected to introduce only three of the photographs. These photographs were taken prior to the baby’s body being received at the autopsy room and depicted the baby’s body with a taped tube inserted in its mouth and certain monitoring cables affixed on its chest; the photographs do not reveal that the body had been subjected to any form of surgical invasion. The medical expert utilized these photographs while giving medical testimony regarding the cause of death; he also testified that in his opinion the manner of death was accident and that he did not observe any evidence of chronic abuse of the baby. We find that the photographs were relevant to aid the jury in understanding the testimony of the medical expert. “[E]ven though pre-autopsy photographs are duplicative and may inflame the jury, if the photographs are relevant and material to any issue in the case, they are admissible.” Thomas v. State, 259 Ga. 202, 204 (4) (378 SE2d 686). The trial court did not abuse its discretion in the admission of these three photographs. Compare Brown v. State, 260 Ga. 153, 157 (6) (391 SE2d 108) (photo of decomposing body with animal and insect infestation of face admissible where relevant to issue in case).

Judgment affirmed.

Andrews, C. J, Pope, P. J., Johnson and Blackburn, JJ., concur. Ruffin and Eldridge, JJ., dissent.

Eldridge, Judge,

dissenting.

The death of Mary Bohannon’s baby was a tragedy. Her continued prosecution for that death is, to my mind, a travesty. As a matter of law, the evidence in this case can never be sufficient to sustain Bohannon’s conviction for the offense as indicted.

If it is legal to sleep with one’s baby, which it is, it cannot be illegal to sleep with one’s baby after drinking alcohol. Drinking alcohol is itself a legal act and cannot make a crime out of another legal act, unless the legislature specifically provides for it. See OCGA §§ 40-6-391 (driving under the influence of alcohol); 16-11-41 (public drunkenness).

It is irrelevant that Bohannon signed the DFCS “safety plan.” Bohannon cannot be prosecuted for violating the DFCS safety plan. It is not against the law.

The plan is being used to bootstrap Bohannon’s actions into the State law offense of “reckless conduct.” In the majority opinion, proof of the essential elements of “reckless conduct” is totally dependent upon proof that Bohannon violated the safety plan. As the majority puts it, Bohannon’s act of putting the baby in the bed “was being done even though she was aware, pursuant to the safety agreement she previously had executed, that her baby’s safety was placed in jeopardy by being in her possession while she had been drinking.” Therein lies the selective prosecution of Mary Bohannon. Another person who did the same act would not be prosecuted because she did not sign a plan, i.e., she was without the requisite “awareness.” In Georgia, an act is not designated as a crime depending upon who commits it. Our criminal laws do not work that way.

In reality, swayed by public outrage over the death of the baby, Mary Bohannon was prosecuted for being an alcoholic parent. This becomes apparent to anyone who conducts more than a cursory reading of the majority opinion. Her prosecution as an alcoholic parent is the reason why:

(a) Two “similar transactions” which demonstrate only, as the majority puts it, Bohannon’s “public drunkenness,” are considered harmless. After the baby’s death, Bohannon twice became extremely intoxicated, once passing out by the side of the road and once having to be forcibly removed from another’s home. These two incidents showed absolutely nothing about the indicted act; had nothing to do with parenting or acts toward the baby; occurred after the baby’s death; and were completely inadmissible under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). But the majority finds the incidents “harmless.” Why? Because the incidents show “appellant’s pattern of alcohol addiction and abuse,” of which the record was already “replete.” This is reversible error in itself.

(b) The majority finds it appropriate that the trial transcript is filled with “evidence that appellant suffered from an acute alcohol problem.” However, Bohannon was not indicted for having “an acute alcohol problem.” This evidence showed nothing about the indicted act of sleeping with her baby while intoxicated. Presumably, one who does not have an acute alcohol problem, but sleeps with her baby while intoxicated, will also be prosecuted therefor. Presumably. Thus, this evidence was simply inadmissible character evidence. Its admission was reversible error.

(c) The majority finds that the DFCS safety plan provided the requisite notice as to the dangerous act that Bohannon “consciously disregarded,” i.e., drinking. According to the majority, the plan showed Bohannon’s “knowledge of her problem [drinking] and of the danger it [drinking] could pose to her baby.” Under the majority’s analysis, the plan put Bohannon on notice that any act toward the baby was “reckless conduct,” if she had been drinking. In other words, “Of course she knew she shouldn’t sleep with the baby after drinking. She signed the plan! She knew she shouldn’t be around the baby at all after drinking.” Accordingly, the State was relieved of the burden of proving Bohannon’s conscious disregard of any specific act, including the indicted act. This is reversible error.

(d) The majority finds that the testimony of the Southwest Medical Examiner provides sufficient evidence of a “conscious disregard” of the results of sleeping with one’s baby while intoxicated. The medical examiner testified as to his personal experience with intoxication in “overlay’ cases. However, his personal experience demonstrates nothing about Bohannon’s “conscious disregard” of the indicted act. This is reversible error.

(e) The majority opinion makes reference to Bohannon as an alcoholic parent no less than 26 times throughout, but the majority declines to address alcoholism as a status that cannot provide a basis for prosecution, absent specific legislation to that effect. Robinson v. California, 370 U. S. 660 (82 SC 1417, 8 LE2d 758) (1962); Grimes v. Burch, 223 Ga. 856 (159 SE2d 69) (1968); cf. Powell v. Texas, 392 U. S. 514 (88 SC 2145, 20 LE2d 1254) (1968).

In short, the majority finds the crime in the actor, not the act. Bohannon can sleep with her baby, she just cannot be drunk and sleep with her baby. However, our criminal laws do not work in that way, either.

“No greater good could be done than by withdrawing emotion as a force from the administration of justice.” Bleckley, C. J., 9 Ga. Bar Assn. Annual Report, pp. 54, 61 (1887). For now, an act of “parenting under the influence” that results in injury may not be penalized by styling it “reckless conduct.” The essential elements of reckless conduct must be present: (1) proof of the commission of a specific act which is inherently dangerous in itself, whether or not injury has occurred; and (2) proof of the defendant’s conscious disregard of the specific, identifiable danger inherent in doing the act. Daniels v. State, 264 Ga. 460, 464 (448 SE2d 185) (1994). Herein, these essential elements simply are not present.

Following hard on the heels of Hall v. State, 268 Ga. 89 (485 SE2d 755) (1997), this case has followed “the traditional jurisprudential course” discussed by Justice Carley in his dissent thereto. Id. at 95. The evidence is in and the sufficiency thereof available for analysis in light of the expressed concerns. The state law offense of “reckless conduct” has become a catchall crime, wherein the State may reach conduct that it just does not like.

Meanwhile, if indeed Mary Bohannon is suffering from, as the majority puts it, “the heart-rending misfortune of the unlucky,” her current misfortune is in this Court’s refusal to recognize a basic, childhood tenet: the exercise of two legal rights does not make a wrong. Even if the unintended result of that exercise may be tragic. Whether one approves or not, Bohannon had a legal right to drink, and she had a legal right to sleep with her baby. The legislature may make her specific act a crime. This Court cannot.

Decided February 27, 1998

Benson, Phillips & Hoffman, Herbert W. Benson, for appellant.

C. Paul Bowden, District Attorney, Gregory A. Clark, Assistant District Attorney, for appellee.

Mary Bohannon’s conviction should be reversed. I dissent.

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

       An act’s inherent dangerousness, in and of itself, and its obvious, foreseeable consequences provide the requisite “notice” to the citizens of this state that such act may have criminal liability as “reckless conduct,” regardless of whether injury occurs. Hall v. State, 268 Ga. 89 (485 SE2d 755) (1997); Conyers v. State, 260 Ga. 506 (397 SE2d 423) (1990); Horowitz v. State, 243 Ga. 441 (254 SE2d 828) (1979).


author: Andrews, Chief Judge. Pope, Presiding Judge,

text:
    A97A2227.
    ARP et al. v. PAYNE.
    (497 SE2d 810)
   Andrews, Chief Judge.

Jerri Ann Arp and Randy James Arp sued Nilmarg Payne for injuries they allegedly suffered in a rear-end automobile collision which they claim was negligently caused by Payne. On appeal from the judgment entered on a jury verdict in favor of Payne, the Arps claim that the trial court erred by refusing to qualify the prospective jurors as to possible interest or relationship they may have had with Payne’s nonparty automobile insurance carrier and with the uninsured motorist carrier against which the Arps made a claim for underinsured motorist benefits.

With respect to both Payne’s nonparty insurance carrier and the Arps’ uninsured motorist carrier, whether or not it was a named party, the trial court’s refusal to qualify the prospective jurors was error requiring a new trial. Atlanta Coach Co. v. Cobb, 178 Ga. 544 (174 SE 131) (1934). The trial court was required, upon request by the Arps, to qualify prospective jurors as to possible interest or relationship in a nonparty insurance carrier having a financial interest in the outcome of the suit. Id.; Weatherbee v. Hutcheson, 114 Ga. App. 761, 764 (152 SE2d 715) (1966). In like fashion, the Arps were entitled to qualification of prospective jurors as to possible interest or relationship in an insurance carrier having a financial interest in the outcome of the suit as a party defendant. Id.; Thompson v. Sawnee Elec. Membership Corp., 157 Ga. App. 561 (278 SE2d 143) (1981). Because the trial court refused to so qualify the prospective jurors, a presumption of harmful error arose which, unless rebutted, required the grant of a new trial. Atlanta Coach Co., supra at 549-551.

Payne attempted to rebut the presumption of harmful error by producing affidavits given after the trial by the jurors who heard the case and by the prospective jurors struck by the Arps during jury selection. The affidavits stated that none of the affiants had any disqualifying interest or relationship with either of the insurance carriers. As the Supreme Court held in Atlanta Coach Co., this attempt was insufficient to rebut the presumption of harmful error. Taking affidavits after the verdict when the jurors who served were competent to testify for, but not against, their qualifications did not suffice to show harmless error. Id. at 551-553; Dalton v. Vo, 230 Ga. App. 413 (497 SE2d 245) (1998). The Arps were entitled to qualification of the prospective jurors on this issue in open court before the verdict. Atlanta Coach Co., supra at 552; see Widener v. Mitchell, 137 Ga. App. 730, 732 (224 SE2d 868) (1976); Whaley v. Sim Grady Machinery Co., 218 Ga. 838 (131 SE2d 181) (1963); OCGA §§ 15-12-133; 15-12-135.

Judgment reversed.

Pope, P. J., and Blackburn, J., concur specially.

Pope, Presiding Judge,

concurring specially.

I concur in the holding reached by the majority in this case. I write separately, however, to express my disagreement with the contention found in footnote 2 of the majority opinion that in order to avoid potential prejudice the better approach to jury qualification in cases like this would be not to qualify prospective jurors regarding any relationship they might have with a specific insurer involved in a given case, but instead, only qualify them as to any financial interest they might have in the outcome of the case, as advocated by Judge Johnson in Byrd v. Daus, 218 Ga. App. 145 (1) (460 SE2d 819) (1995), and Judge Beasley in her special concurrence in Franklin v. Tackett, 209 Ga. App. 448 (433 SE2d 710) (1993).

As set forth in my special concurrence in Dalton v. Vo, 230 Ga. App. 413 (497 SE2d 245) (1998), in this enlightened age, it can and should be presumed that prospective jurors already realize that liability insurance coverage is likely to be present in cases involving motor vehicle accidents. See Smith v. Crump, 223 Ga. App. 52, 55-56 (476 SE2d 817) (1996); Dubose v. Ross, 222 Ga. App. 99, 100-101 (473 SE2d 179) (1996). Therefore, I do not believe the approach advocated in footnote 2 would have any significant effect in reducing the potential for prejudice about which the majority is concerned. Moreover, as fully set forth in Crump, failing to qualify prospective jurors regarding any relationship they might have with a specific insurer having an interest in the outcome of a case, itself, poses its own risk to the right of trial by an impartial jury. 223 Ga. App. at 55-56.

Decided February 27, 1998

L. Cleveland Burton, Keith Williams, for appellants.

Downey & Cleveland, Joseph C. Parker, Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, for appellee.

Consequently, I believe that the best approach would be to continue to qualify prospective jurors about any relationship they might have with any interested insurer, as is mandated by Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549 (174 SE 131) (1934). After such qualification, however, to avoid any potential prejudice that might arise from the qualification itself, or the prospective jurors’ own common knowledge, I would recommend that the trial court give specific limiting instructions that the existence or lack of insurance in a given case is not material and is not to be considered in reaching a decision in the case.

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

       The record does not reflect whether after being served with the claim the uninsured motorist carrier elected to become a named party by answering in its own name or elected to participate indirectly by answering in the name of the alleged tortfeasor. OCGA § 33-7-11 (d); Smith v. Phillips, 172 Ga. App. 459, 460-461 (323 SE2d 669) (1984).

       As was stated in Dalton, supra at 414, n. 2, “[t]his holding is required by the Supreme Court of Georgia’s decision in Atlanta Coach Co., supra. However, we agree with Judge Johnson in Byrd [v. Daus, 218 Ga. App. 145, 146 (460 SE2d 819) (1995)], and with Judge Beasley in her special concurrence in Franklin v. Tackett, 209 Ga. App. 448 (433 SE2d 710) (1993), that the better ápproach would he to question the jury as to any financial interest in the outcome of the case without directly identifying the insurer.”


author: Ruffin, Judge.

text:
    A97A2351.
    HARRIS v. THE STATE.
    (497 SE2d 810)
   Ruffin, Judge.

After a bench trial, the trial court found Roger Willie Harris guilty of possession of drugs by an inmate in a correctional institute (OCGA § 42-5-18 (b)) and possession of marijuana (OCGA § 16-13-30). Harris appeals. For the following reasons, we dismiss this appeal for lack of jurisdiction.

In two enumerations of error, Harris argues that OCGA §§ 42-5-18 (b) and 16-13-21 (16) are unconstitutionally vague. Each of these enumerations raises the question of our jurisdiction to consider this appeal. Except in limited situations, not here pertinent, the Supreme Court has exclusive jurisdiction of constitutional construction. See Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1). In this instance, the record does not show that the trial court ever ruled on Harris’ challenge to the constitutionality of either statute. Nor does the record reveal that Harris elicited any ruling on this issue. Since there is no ruling on the constitutionality of either statute, “[t]he issue is not properly presented for appellate review in this case . . . as it was not explicitly argued and ruled on below.” Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997); Dye v. State, 205 Ga. App. 781 (1) (423 SE2d 713) (1992); see generally Marr v. Dept. of Ed., 264 Ga. 841 (452 SE2d 112) (1995). Accordingly, this appeal is dismissed. Appeal dismissed. Birdsong, P. J., and Eldridge, J., concur.

Decided February 27, 1998.

Nicholas Pagano, for appellant.

Thomas J. Charron, District Attorney, Michael S. Moody, Debra H. Bernes, Assistant District Attorneys, for appellee.


author: Smith, Judge. Beasley, Judge,

text:
    A97A2498.
    McGRAW v. THE STATE.
    (498 SE2d 314)
   Smith, Judge.

Laura S. McGraw filed a motion for discharge and acquittal of the DUI charges against her. The trial court denied the motion. This direct appeal followed, and we affirm.

McGraw was stopped for speeding (82 mph) on Highway 78 by DeKalb County Police Officer J. S. Clayton. After smelling alcohol on McGraw’s person, the officer conducted a series of field sobriety tests and an alcosensor test. Based on these tests, McGraw was arrested and charged with driving under the influence of alcohol. Her license was taken pursuant to OCGA § 40-5-67 (a). In lieu of her license, McGraw was given a traffic citation with a renewable, 180-day temporary driving permit. Officer Clayton then requested a blood test. McGraw agreed to the test, and the test results showed her blood alcohol concentration to be 0.11. The State did not pursue an administrative suspension of McGraw’s license pursuant to OCGA § 40-5-67.1.

1. The State’s motion to dismiss this appeal is denied. Although the issue raised has a constitutional dimension, in Wright v. State, 228 Ga. App. 717, 719 (492 SE2d 581) (1997), the Supreme Court of Georgia referred a similar issue, raised by the same appellate attorney, to this Court, and we decided that case on its merits.

2. In a single, convoluted enumeration of error, McGraw raises a due process challenge to the State’s retention of her plastic driver’s license under OCGA § 40-5-67.1. As we understand her argument, she maintains that OCGA § 40-5-67.1 (f) (1) clearly requires the arresting officer to confiscate a DUI defendant’s license and forward it to the Department of Public Safety for suspension. The State has every right to suspend a person’s license when he or she registers an alcohol level above 0.1. But the statute provides no method for retrieving a license following a successful appeal, and here, Officer Clayton never initiated an administrative license suspension proceeding. McGraw argues she was therefore left without a remedy for retrieving her license. Since a driver’s license is a property interest, its retention violated her due process rights, and the only available remedy to her was to ask for discharge and acquittal in the DUI case.

After considered reflection, we conclude that McGraw’s argument is essentially a backdoor challenge to OCGA § 40-5-67.1, on the basis that the provisions of this statute were not applied to her but should have been. McGraw apparently contends that because her blood alcohol was 0.11, the State was required to administratively suspend her license. She then argues that, if OCGA § 40-5-67.1 had been applied to her (as allegedly required), the Code section would have violated her due process rights because it contains “no remedy to retrieve her plastic license.” This argument is wholly meritless.

(a) McGraw has no standing to raise a constitutional challenge to OCGA § 40-5-67.1. “[This] case does not involve an administrative hearing to determine whether appellant’s driver’s license should be suspended, the conduct of which hearing is addressed in OCGA § 40-5-67.1. . . . [Cit.] It involves a criminal trial to determine appellant’s guilt of driving under the influence, the conduct of which trial is not addressed in OCGA § 40-5-67.1.” Keenan v. State, 263 Ga. 569, 570 (436 SE2d 475) (1993).

(b) The property right referenced by McGraw is not in the plastic license itself, but in the right to drive represented by the license. “The license grants persons the privilege to operate a vehicle on the public highways.” Quitter v. Bowman, 262 Ga. 769, 771 (425 SE2d 641) (1993); see also Bell v. Burson, 402 U. S. 535 (91 SC 1586, 29 LE2d 90) (1971). No dispute exists that McGraw has retained her privilege to drive by virtue of the issued traffic citation. No property interest deprivation is therefore involved.

(c) McGraw’s driver’s license was properly seized and retained pursuant to OCGA § 40-5-67 (a). “Whenever any resident or nonresident person is charged with [DUI], the law enforcement officer shall take the driver’s license of the person so charged. The driver’s license shall be attached to the court’s copy of the . . . citation and shall be forwarded to the court having jurisdiction of the offense.” OCGA § 40-5-67 (a). Thereafter, depending on the ultimate disposition of the DUI charges, the driver’s license will either be returned by the trial court to the defendant or forwarded to the Department of Public Safety for suspension. OCGA § 40-5-67 (c) (1), (2).

If McGraw wishes the return of her plastic license, a favorable disposition of the DUI charges against her is therefore the available statutory remedy. No double jeopardy issue exists here. Wright, supra.

Judgment affirmed.

Andrews, C. J., McMurray, P. J, Birdsong, P. J., Ruffin and Eldridge, JJ, concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

I respectfully dissent from the ruling on the merits because this case should be dismissed, but not for the reason advanced by the State.

The reason McGraw’s appellate brief is convoluted is because it is an ill-conceived attempt to obtain an interlocutory ruling on a direct appeal. There is no doubt that the right to a direct appeal is afforded when a plea of double jeopardy is denied. OCGA § 5-6-34 (a) (1); Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982). But defendant’s plea was, in its true nature, a vain effort to categorize the confiscation of the license which authorized her to drive as a punishment for the criminal charges of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)), driving with an unlawful alcohol concentration (formerly OCGA § 40-6-391 (a) (4), now OCGA § 40-6-391 (a) (5)), and speeding (OCGA §§ 40-6-181; 40-6-182; 40-6-183).

McGraw admits in her motion and on appeal that the driver’s license was taken by the law enforcement officer as provided by OCGA §§ 40-5-67 and 40-5-67.1. The former section provides for the issuance of a temporary permit, which she had and did not seek an extension of. See OCGA § 40-5-67 (b) (3) and Department of Public Safety Rule § 570-3-.23.

If she is acquitted of the DUI criminal charges, she will regain it, but if she is convicted, it will be administratively suspended or revoked. OCGA § 40-5-67 (b) and (c). “[T]he suspension of a driver’s license at an administrative hearing is not punishment, nor is the hearing a prosecution, for the purposes of double jeopardy” (Emphasis supplied.) Nolen v. State, 218 Ga. App. 819, 823 (463 SE2d 504) (1995) . See also Wright v. State, 228 Ga. App. 717, 718 (492 SE2d 581) (1997); Martinez v. State, 221 Ga. App. 483 (471 SE2d 551) (1996) . That clearly being the law when McGraw filed her motion and plea in bar, an administrative suspension, whether valid or not, cannot be the basis for a plea in bar of the criminal prosecution based on double jeopardy grounds. The administrative action is “outside” the pending criminal DUI charges. Wright, supra at 719.

Decided February 27, 1998.

William C. Head, for appellant.

Ralph T. Bowden, Jr., Solicitor, Noah H. Pines, W. Cliff Howard, Assistant Solicitors, for appellee.

Thus, McGraw should have obtained a certificate of immediate review and complied with the procedure set out in OCGA § 5-6-34 (b) if she wanted to challenge existing law and seek to have it overruled. She did obtain a certificate on other matters, but not this one. Or she should have gone ahead with the trial, which she complained in her motion was inordinately delayed although she did not file a motion for speedy trial as provided by OCGA § 17-7-170. Instead, she filed a direct appeal and thus further delayed the trial and the final administrative disposition on her license. But a direct appeal will not lie from the denial of a double jeopardy plea in bar based on temporary suspension of a driver’s license, because such action by the State does not constitute punishment.

       McGraw also contends that she has had difficulty in renting cars and cashing checks without her plastic license. However, she has provided no authority for the proposition that there is a constitutional due process right to rent cars and cash checks using a plastic Georgia driver’s license.

       “EO]r enters a plea of nolo contendere” was added in 1997. Ga. L. 1997, p. 760, § 19.