author: Birdsong, Presiding Judge.

text:
    A93A0172.
    WATKINS v. THE STATE. LEWIS v. THE STATE.
    A93A0173.
    (430 SE2d 105)
   Birdsong, Presiding Judge.

Rufus Watkins and Harold W. Lewis appeal their judgments of conviction and sentences.

Case No. A93A0172

1. Appellant Watkins went to the victim’s house in Fulton County and, using a knife in a threatening manner, took $45 from the victim. Appellant then took a gun and subsequently took the victim’s automobile and forced the victim to accompany him. Shortly thereafter, appellant met appellant Lewis and another co-accused, and the three men drove to Jeffersonville, Georgia. Near Jeffersonville, the victim’s watch was taken from him, and all three of the men searched the victim’s car for documents which they could use to sell the vehicle. Neither the gun nor the knife was used to threaten the victim when the watch was taken, although the victim was aware appellant Watkins had previously threatened him with these weapons. Held:

Appellant Watkins asserts the evidence was insufficient to support the verdict of guilty of armed robbery. The indictment count avers that the armed robbery was committed by appellant and two co-accomplices and that a watch, some money, and an automobile were taken both by intimidation and by use of a pistol. Appellant Watkins claims, however, that the evidence shows the taking of the money was done by knife and that a gun was only later used to force the victim to his car, and that subsequently the victim’s watch was taken by a co-accomplice not in Fulton County and not by gunpoint.

The standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) applies in determining evidence sufficiency.

(a) The issue of venue as to each of the takings is not reasonably raised by this enumeration of error. Nevertheless, we conclude that venue did exist as that portion of Count 2, armed robbery, which was averred as having been committed by use of a pistol in the taking of the victim’s money and automobile.

The record reveals that the three averred criminal takings of property occurred during the course of a continuous criminal transaction having as a single scheme or design, the plan to obtain unlawfully as much property and money from the victim as possible. Cf. Clemson v. State, 239 Ga. 357, 359 (1) (236 SE2d 663), citing, inter alia, Coker v. State, 234 Ga. 555 (216 SE2d 782). In Coker, under the attendant facts, escape, armed robbery, rape, kidnapping and motor vehicle theft were deemed to constitute a continuous series of criminal acts. In the case at bar, the victim was robbed of his money and automobile in Fulton County, and appellant and other co-accomplices continued to exercise control over the victim’s property as he unwillingly was transported place to place in this automobile. See generally OCGA §§ 16-8-11; 17-2-2. However, the record also reveals that it cannot be determined in which county the watch in fact was subsequently taken. “If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” OCGA § 17-2-2 (h); see also Bundren v. State, 247 Ga. 180 (1) (274 SE2d 455). Examining the record in its entirety raises a serious question whether there exists evidence from which it could be determined beyond a reasonable doubt that the watch was taken in Fulton County. The direct and circumstantial evidence of crime situs tends to establish that the watch was taken somewhere in the vicinity of Jeffersonville, Georgia, which was stated as being approximately 70-90 miles from Atlanta. Also, the record tends to establish that it was co-accomplice Hutchson who asked for and was given the victim’s watch, and the first time the victim saw Hutchson was in Jeffersonville. Moreover, the watch was taken when the vehicle was stopped at a point on a road where a third party driving by also stopped to inquire if assistance was needed; this location is shown to be within a few miles of Jeffersonville. Thus, while it cannot be determined with pinpoint precision where the watch was taken, the relevant evidence of record reasonably excludes Fulton County as the crime situs of the taking of the watch. But in view of our ultimate disposition as to the averment of the taking of the watch (see subdivision (2c) below), we need not determine whether venue rested in Fulton County over this particular act.

(b) Regarding the averment in the armed robbery charge pertaining to the taking of the money, the evidence shows that a knife and not a gun was used when the money was initially taken. The knife blade did not appear to be open, but the blunt end of the knife was held against the victim’s neck. Thereafter, in the victim’s house and during the continuing course of the armed robbery, while appellant Watkins was still exercising control over the victim’s money, a pistol also was taken from the victim. Upon taking the pistol, appellant “put the knife up and had the pistol in its place” as the offensive weapon concomitantly used to retain his illegal control and possession over appellant’s money. The pistol at times was placed against the victim’s head and touched his skin (as had the blunt end of the knife when held against the victim’s throat). The victim then was taken outside at gunpoint where appellant unlawfully seized the victim’s automobile and forced the victim to accompany him. Subsequently, appellant met and was joined by the co-accomplices. Under these circumstances, we conclude that any discrepancy between the averment and the proof as to the use of the pistol, during the course of taking the money during the continuous armed robbery transaction, would not constitute a fatal variance; the record reveals that no fair risk exists that appellant was misled in the preparation of his defense and appellant is adequately protected against being placed in jeopardy twice for the same offense. Compare Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303); Glass v. State, 199 Ga. App. 530 (405 SE2d 522).

(c) The record establishes that the subsequent taking of the victim’s watch was perpetrated, after the lapse of a significant period of time from the taking of his money and car, by a co-accomplice and by means of intimidation; there is no evidence either that appellant or any of his co-accomplices used a pistol concomitantly in the taking of the watch, or, that there was any other manifestation of the weapon’s presence at the time of this taking. At no time immediately before, during or after the taking of the watch was a threat made to use the weapon or was it displayed. The armed robbery count of which appellant was convicted was broadly drafted so as to include therein an averment that the offense of armed robbery was accomplished by the taking of specified property both by means of intimidation and by use of a pistol, an offensive weapon. Intimidation is not an alternate means of commission of the statutory offense of armed robbery; rather, robbery accomplished by intimidation is a lesser included offense of armed robbery. OCGA § 16-8-41 (a). Thus, the armed robbery count as crafted contains averments pertaining to the commission of an armed robbery offense under OCGA § 16-8-41 (a), by use of an offensive weapon, and of the lesser offense of robbery by intimidation under OCGA §§ 16-8-40 and 16-8-41 (a). The State has failed in this instance to prove by competent evidence of record beyond a reasonable doubt that the taking of the watch was accomplished by concomitant use of an offensive weapon; accordingly, while the circumstances of the taking of the watch would support a conviction for the lesser included offense of robbery, it would not support conviction of the greater offense of armed robbery. Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30); compare Miles v. State, 261 Ga. 232, 234 (1b) (403 SE2d 794); Johnson v. State, 195 Ga. App. 56, 57 (1) (392 SE2d 280); Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (a physical manifestation of the weapon or evidence from which its presence may be inferred, concomitant to the taking, is required); Studdard v. State, 185 Ga. App. 319, 320 (2) (363 SE2d 837) (whole court). However, the evidentiary deficiency, as to this matter, does not mandate that the judgment of conviction of armed robbery be set aside in its totality. Rather, as the record reveals appellant was not prejudicially misled in presenting his defense (which would have created a fatal variance) by the crafting of the averment to include the taking of the watch, we need only reverse that part of the armed robbery conviction that is grounded upon averments of fact not supported by sufficient evidence of record. Thus, in this instance, we need only reverse that portion of the armed robbery conviction averred to have been committed by the taking of the watch by intimidation. Foster v. State, 142 Ga. App. 805 (237 SE2d 455). As in Foster, supra at 806, we find that the erroneous part of the judgment “may have affected the sentence^]” and accordingly, will vacate the sentence and remand to the trial court for resentencing.

Subject to the above, there exists ample evidence of record from which any rational trier of fact could conclude beyond a reasonable doubt that, at the date and place averred, appellant was guilty of the offense of armed robbery in that he did unlawfully, with the intent to commit theft, take from the person and immediate presence of Francis L. Mullins, $45 in money and a 1990 Volkswagen, of value, the property of Francis L. Mullins, by use of a pistol, an offensive weapon, as averred in Count 2 of the indictment. Jackson v. Virginia, supra. Accordingly, we affirm appellant’s judgment of conviction of armed robbery to this extent and remand the case to the trial court for resentencing.

2. Appellant asserts his alleged illegal, warrantless arrest tainted any subsequent statement made to law enforcement officers. Appellant was arrested after exiting a dwelling house of another person located in another county.

(a) At trial, appellant made a motion to exclude appellant’s pretrial statement; no motion to suppress this statement had been filed prior to arraignment. The trial court ruled that appellant’s motion to suppress the confession was untimely, pursuant to USCR 31.1 and 31.2. Appellant claimed that he had learned only that day in court that the arrest had taken place in another county; however, he made no showing on the record that he had ever requested the trial court to extend the filing time or that he could not have learned of the geographic location of the arrest prior to arraignment through the exercise of due diligence. We agree that the motion in substance and effect was a motion to suppress evidence, and that the trial court correctly concluded it was untimely. USCR 31.1 requires that all such motions be filed at or before arraignment unless the time is extended by the judge; accordingly, this enumeration is without merit. Van Huynh v. State, 258 Ga. 663 (2) (373 SE2d 502).

(b) Assuming the suppression motion had been timely, nevertheless we would affirm the trial court’s express and tacit findings regarding the admissibility of appellant’s statement.

(1) Appellant neither cites authority for the contention nor argues in his appellate brief that the deputy sheriff who arrested him lacked the requisite probable cause. Accordingly, the issue of lack of probable cause for arrest has been abandoned. Court of Appeals Rule 15 (c) (2).

(2) Appellant asserts, citing OCGA §§ 17-4-25 and 36-8-5, that there is no authority for a sheriff from one county to make a warrant-less arrest in another county. However, neither statute prohibits on its face a warrantless arrest, based on the requisite probable cause and executed either with or without exigent circumstances, by a sheriff or his deputy in a county other than their own.

A deputy sheriff is an agent of the sheriff and in effecting the proper discharge of his duties is empowered with the same duties and powers as the sheriff. Veit v. State, 182 Ga. App. 753, 756 (2) (357 SE2d 113); see also OCGA § 15-16-23. Thus, a deputy sheriff is vested with the same arrest powers as is the sheriff.

Ordinarily, as a matter of legal policy, a peace officer has power of arrest only in the territory of the governmental unit by which he was appointed, but there are exceptions to this rule. City of Winterville v. Strickland, 127 Ga. App. 716, 718 (2) (194 SE2d 623). Several statutes of this state contemplate that the sheriff is empowered to exercise law enforcement powers reasonably beyond the territorial limits of his own county. Compare OCGA §§ 36-69-3 (a) (1); 40-13-30; see, e.g., Bruce v. State, 183 Ga. App. 653 (359 SE2d 736). Although appellant had been driving the car, it appears that at some point in time he left the car, with the victim still in the trunk, in the possession of his co-accomplices and went to a house in Wilkinson County. The arresting deputy testified in an out-of-court hearing that when he and the sheriff drove to arrest the accused they had a co-accomplice with them who was giving them directions to “an old house out in the country” where appellant was supposed to be located; and that neither he nor the sheriff had any idea where the house was located until they started following the co-accomplice’s directions. He also testified that he had time, if he had thought it necessary, to obtain a warrant. The trial court made a finding that there existed exigent circumstances surrounding the warrantless arrest; and the officer had every reason to believe that he needed to get to appellant’s location to arrest him. Subsequently at trial, the deputy testified that the two co-accomplices had told him that they were to go back to the location and get appellant, and that “if I had . . . taken [the] time to get a warrant and [the co-accomplices] had not shown back up there, [appellant] could have left the area. ... I figured in the time frame, that it was best to go on and apprehend the other one without a warrant to keep him from leaving the area.” The arrest occurred between the early morning hours of 5:30 a.m. (when the deputy first learned of appellant’s complicity and whereabouts) and 6:25 a.m. (when appellant’s statement was witnessed). We cannot be oblivious to the fact that the situs of appellant’s arrest probably was just inside the county line of Wilkinson County, and the county line is “messed up right in there.” Further, the sheriff’s office had an agreement that when necessary it could enter Wilkinson County without prior coordination because “when you work and deal in these small communities, you just don’t have time.” This constitutes further circumstantial evidence of the difficulty and delay that would have been encountered had the deputy attempted to ascertain the precise location of appellant’s arrest situs and thereafter tried to find the appropriate official to issue the arrest warrant in the early morning hours.

Although the testimony of the deputy may be somewhat unclear and partially self-contradictory, we conclude the ruling of the trial court as to the existence of exigent circumstances was not clearly erroneous. There exists some evidence, albeit circumstantial, to support the trial court’s ruling and to show that, if a warrantless arrest had not been timely made, it was likely a failure of justice would have occurred for want of reasonable availability of an official authorized to issue an arrest warrant. Further, independent examination of the record in its totality causes us to conclude that exigent circumstances for a warrantless arrest did exist.

Under the existing exigent circumstances, the deputy sheriff had the authority to make a warrantless arrest beyond the territorial limits of his own county of the appellant who at the time of the arrest had left the house and was outside. The existence of exigent circumstances due to the fact a suspect might flee or otherwise elude arrest is analogous to exigency existing in situations of hot pursuit (compare City of Winterville, supra), and will render reasonable and lawful the exercise of police conduct that otherwise might be unreasonable and illegal. See Meneghan v. State, 132 Ga. App. 380, 383 (2d) (208 SE2d 150) (exigencies precluded obtaining either search or arrest warrants).

(3) Accordingly, we conclude that appellant’s arrest was lawful, and that the trial court did not err in finding appellant’s statement was voluntary and admissible. Even if there exists but “scanty facts,” an appellate court will not reverse a trial court’s determination that a confession was properly admitted in evidence, unless such determination is clearly erroneous. See Maggard v. State, 259 Ga. 291, 292 (1) (380 SE2d 259).

3. Appellant asserts the trial court erred in sentencing appellant on the armed robbery count rather than the theft by taking count. In view of the disposition directed in Division (lb) and (lc) above, this enumeration need not be addressed.

4. The photograph of the victim in his car trunk taken a month after the incident had some relevance, albeit slight, to corroborate his testimony regarding how he was transported in the trunk of the vehicle, and to establish the dimensions of the trunk. The trial court has discretion in the admission of such evidence. See generally Carroll v. State, 261 Ga. 553 (2) (408 SE2d 412); Norman v. State, 197 Ga. App. 333, 334 (4) (398 SE2d 395). The record fails to establish that such discretion was breached in the admission of this photograph. Eiland v. State, 130 Ga. App. 428 (1) (203 SE2d 619), prohibiting use of posed photographs and movies which are substantially different from the facts of the case, is distinguishable. Further, applying the high probability test of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869), we find that even if error had occurred it would have been harmless.

Case No. A93A0173

5. Appellant Lewis was found guilty of false imprisonment and theft by receiving stolen property (the victim’s car). Appellant asserts the evidence did not support his conviction of theft by receiving stolen property; he contends the victim was never physically separated from his car and that he merely lost temporary control over the use of the vehicle when he was involuntarily placed in the trunk.

The record establishes that, after the victim had been initially kidnapped and his money and watch taken by appellant Watkins, appellant Lewis joined in a criminal conspiracy with appellant Watkins and another co-conspirator, which, inter alia, included a conspiracy to sell the victim’s automobile which was then under the possession and control of appellant Watkins, a co-conspirator, notwithstanding the victim’s involuntary presence in the vehicle. During the course of and in furtherance of this conspiracy, appellant Lewis participated in the search of the interior and trunk of the stolen vehicle for documents, including documents of title for the automobile. Conspiracy, as here, can be shown by circumstantial evidence. Even if a person enters a conspiracy after it is already formed, he is deemed in law a party to all acts done by the other co-conspirators, before or afterward, in the prosecution of the enterprise. As to duration, a conspiracy may extend beyond the actual commission of the criminal offense charged; it may expressly or impliedly include such matters as possession and disposition of the spoils, depending on the nature and scope of the agreement which was entered into, expressly or impliedly, by the alleged conspirators. Jackson v. State, 225 Ga. 39, 44-45 (4) (165 SE2d 711). Under OCGA § 16-8-7 (a), theft by receiving stolen property, the term “receiving” means acquiring possession or control or lending on the security of the property. The evidence is overwhelming that the victim at no time regained possession and control over his vehicle during the course of this conspiracy, notwithstanding his physical presence in the vehicle. The victim was continuously denied such possession and control by the acts of the co-conspirators committed during the course and in furtherance of the conspiracy. When the victim was placed in the trunk or his liberty otherwise restricted by being subjected involuntarily to the will of the co-conspirators, the co-conspirators were in control and possession of the automobile sufficient to support appellant Lewis’ conviction for theft by receiving stolen property (OCGA § 16-8-7 (a)). Cf. Emmett v. State, 199 Ga. App. 650 (405 SE2d 707) (driver bound, placed in back of hijacked truck, truck used during attempted armed robbery and abandoned; accused’s intent to take truck for his temporary use without owner’s authorization evinced an intent to commit a theft).

Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, supra.

6. The trial court did not err in refusing to give appellant’s requested “two theories” charge, as the two theories charge is applicable only when the case is dependent solely on circumstantial evidence. Hamilton v. State, 260 Ga. 3 (4b) (389 SE2d 225); Stephens v. State, 201 Ga. App. 737, 738 (2) (412 SE2d 568). The evidence against appellant Lewis was both direct and circumstantial; the charge was not required.

7. The trial court did not err in refusing to grant a directed verdict of acquittal. On appeal of the overruling of a motion for directed verdict, an appellate court can consider all relevant evidence of record whether presented before or after the motion was made. See Bethay v. State, 235 Ga. 371, 375 (1) (219 SE2d 743). Evidence of appellant’s guilt was sufficient, under the reasonable doubt standard of Jackson v. Virginia, supra, to support his conviction of the offenses of which he was found guilty. Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367); Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889). Moreover, there exists no reversible error of law as to appellant Lewis’ convictions; this is not a case where “there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311). This enumeration of error is without merit.

8. Appellant asserts the trial court erred in receiving information on prior convictions during the sentencing phase, as adequate notice had not been provided as prescribed by OCGA § 17-10-2 (a). The notice required by this statute need not be in any particular form and can be oral; all that is required is clear notice to an accused of all previous convictions that the State intends to introduce at trial. Fox v. State, 163 Ga. App. 601, 602 (2) (295 SE2d 563). Appellant was given notice of the State’s intent to introduce certain prior convictions to invoke the recidivist sentencing provisions of OCGA § 17-10-7. The State, however, conceded this particular notification was inaccurate as all the offenses therein listed as having been committed by appellant had been committed by another person.

The recidivist charge had two counts. The first count pertained solely to appellant Lewis; the second count pertained only to appellant Watkins. None of the three offenses listed in the first count was committed by Lewis. No copies of the indictments pertaining to any of the felony offenses referred to in the recidivist count were attached thereto. At the sentencing hearing the State introduced a copy of an indictment establishing appellant Lewis’ conviction for burglary. Clear notice of this conviction was not contained in the recidivist charge pertaining to Lewis. Appellant objected to the introduction of this conviction but did not request a continuance. In this case, although the recidivist charge ordinarily would suffice as notice within the meaning of OCGA § 17-10-2 (a), it was deficient. Not only did the recidivist charge not give clear notice of the burglary offense, it was drafted so as to potentially mislead appellant Lewis by referring only to offenses which he had not committed. Clear notice was not provided within the meaning of Fox, supra.

Decided March 11, 1993.

Richard E. Hicks, for appellant (case no. A93A0172).

Hurl R. Taylor, Jr., for appellant (case no. A93A0173).

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, for appellee.

However, the record demonstrates conclusively that appellant’s counsel was aware of the existence of appellant’s prior conviction for burglary and of the circumstances surrounding the conviction, as shown by his following statement made on the record in appellant’s presence: “In 1988, [appellant] was convicted that was a plea of a burglary, went to a halfway house or diversionary center, and while he was in the diversion center he completed his G.E.D. . . . other than that one infraction, pretty much has a clean record.” (Emphasis supplied.) This showing, coupled with the failure of appellant to request a continuance, establishes that he and his counsel had adequate notice and opportunity to investigate the circumstances surrounding the prior conviction introduced in aggravation, and was prepared to present mitigating matters surrounding this offense at the sentence hearing. In these circumstances, any error resulting from the failure of the State adequately to notify appellant of its intent to admit the prior conviction in aggravation was rendered harmless beyond a reasonable doubt. Cf. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38); compare Day v. State, 188 Ga. App. 648, 650 (8) (374 SE2d 87).

Judgment in Case No. A93A0172 is affirmed in part, reversed in part, and remanded with direction. Judgment in Case No. A93A0173 is affirmed. Pope, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A92A1946.
    RALSTON v. ETOWAH BANK et al. ETOWAH BANK v. CARSON et al.
    A92A1947.
    (429 SE2d 102)
   Andrews, Judge.

In 1981, James Carson and his wife, Viola Carson, created a joint checking account with right of survivorship in their names at Etowah Bank. See OCGA § 7-1-810 et seq. In 1986, Ms. Carson requested the Bank to add her nephew, Joseph Ralston, as a party to the joint account. The Bank added Ralston to the existing account without notifying Mr. Carson, or otherwise obtaining his approval. See OCGA § 7-1-814. Ms. Carson died on March 7, 1988, and on March 10, 1988, at Ralston’s request, the Bank transferred $50,000 from the joint account into an account established at the Bank under Ralston’s control. After Mr. Carson discovered the $50,000 withdrawal, he sued the Bank under tort and breach of contract theories alleging it wrongfully disbursed the $50,000. The Bank brought a third-party complaint against Ralston claiming he was unjustly enriched, and liable for any sums recovered by Mr. Carson against the Bank. Ralston counterclaimed against the Bank for damages he allegedly suffered as a result of the Bank’s negligence.

The trial court granted partial summary judgment in favor of Mr. Carson against the Bank for the amount of the $50,000 withdrawal, plus interest. Mr. Carson’s claims for punitive damages and attorney fees were reserved for trial under the terms of a subsequent pre-trial order. Prior to trial, the Bank voluntarily paid the judgment in favor of Mr. Carson. The trial court granted partial summary judgment in favor of the Bank on its third party complaint against Ralston in the amount of the $50,000 withdrawal, plus interest. Ralston’s claim for damages against the Bank was preserved in the pre-trial order.

The case was tried before a jury, which rendered a verdict in favor of Mr. Carson and against the Bank under the negligence claim in the amount of $9,217.85 for attorney fees, and an additional $50,000 for punitive damages. On Ralston’s claim against the Bank, a verdict was rendered in favor of the Bank. The Bank appeals in Case No. A92A1947, and Ralston appeals in Case No. A92A1946.

Case No. A92A1947

1. The Bank claims the trial court erred in granting partial summary judgment in favor of Mr. Carson. The record reflects the Bank voluntarily paid the judgment. “[T]he voluntary payment of the judgment by an appellant renders moot the issues sought to be determined on appeal.” Imperial Body Works v. Nat. Claims Svc., 158 Ga. App. 241, 243 (279 SE2d 534) (1981).

2. We find no error in allowing the jury to consider Mr. Carson’s claims for attorney fees and punitive damages under a negligence theory. In its pre-trial grant of partial summary judgment, the trial court awarded compensatory damages under Count 1 of Mr. Carson’s complaint, which can be liberally construed to state a tort claim for negligent disbursement of funds in the account. The pre-trial order recited the previous award of compensatory damages in favor of Mr. Carson, and preserved the claims for attorney fees and punitive damages based on the Bank’s alleged negligence.

Evidence showed the Bank added Ralston as a party to the joint account in violation of OCGA § 7-1-814. Once the joint account was established in the names of Mr. and Ms. Carson, its terms could be changed only by “closing the account and reopening it under different terms,” or “[b]y presentation to the [Bank] of a modification agreement in a form satisfactory to the [Bank] and signed by all parties with a present right of withdrawal.” OCGA § 7-1-814; Rawlins v. Campbell, 199 Ga. App. 472, 473 (405 SE2d 111) (1991). Under OCGA § 7-1-814 a public policy has been established that “the terms of a multiple-party account, including the designation of those parties who have the right of withdrawal, can be changed only by compliance with the requirements of [the statute].” (Emphasis in original.) Id. When Ralston was added, the account was neither closed and reopened, nor was Mr. Carson notified. The Bank’s actions could constitute not only a breach of its contractual obligations under the joint account (compare Bank South, N. A. v. Harrell, 181 Ga. App. 64, 67 (351 SE2d 263) (1986)), but also a tortious breach of the public policy imposed under OCGA § 7-1-814 upon creation of the account. See Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 62 (390 SE2d 55) (1989); First Ga. Bank v. Webster, 168 Ga. App. 307, 308 (308 SE2d 579) (1983); Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 916 (423 SE2d 257) (1992).

3. Nevertheless, the evidence under Carson’s negligence claim was insufficient to support the award of punitive damages against the Bank. Under OCGA § 51-12-5.1 (b) “[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . .” (Punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (408 SE2d 811) (1991). “Mere negligence, although gross, will not alone authorize the recovery of punitive damages.” (Citations and punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (389 SE2d 355) (1989). The Bank’s actions in adding Ralston to the account, failing to notify Mr. Carson, and disbursing funds to Ralston, is evidence of negligence, perhaps gross negligence, but it is not the type of clear and convincing evidence necessary to support the imposition of punitive damages under OCGA § 51-12-5.1 (b). The trial court erred in denying the Bank’s motion for a directed verdict on punitive damages, and all punitive damages must be written from the judgment.

4. The basis for seeking recovery of attorney fees in this case was stubborn litigiousness, or the causing of unnecessary trouble and expense. OCGA § 13-6-11. Thus, the issue is whether a bona fide controversy existed between the parties. Read v. Benedict, 200 Ga. App. 4, 6 (406 SE2d 488) (1991). Since there was a bona fide controversy regarding the punitive damages sought by Mr. Carson throughout the litigation, recovery of attorney fees was not authorized, and the Bank’s motion for a directed verdict on this issue should have been granted. Pleasant Hill Acres v. Todd, 158 Ga. App. 730, 732 (282 SE2d 148) (1981). The award of attorney fees must, likewise, be written from the judgment.

5. There is no merit in the Bank’s contention that the trial court was without authority to amend its summary judgment order in favor of Mr. Carson to reflect pre-judgment interest. The pre-trial order granting partial summary judgment in favor of Mr. Carson “was interlocutory, not res judicata as to the issues resolved therein, and [remained] subject to revision by the trial court at any time prior to final judgment.” Glover v. J. C. Penney Cas. Ins. Co., 181 Ga. App. 753, 754 (353 SE2d 587) (1987).

6. Assuming the trial court erred by allowing Mr. Carson to invoke the rule of sequestration as to a Bank officer subpoenaed by him, without any showing the witness was considered hostile or adverse, the error was harmless. See Travelers Ins. Co. v. Trans State, 172 Ga. App. 763, 764 (324 SE2d 585) (1984).

Case No. A92A1946

7. Ralston argues the trial court erred by granting partial summary judgment to the Bank on its third-party claim finding him liable to the Bank for the $50,000 he withdrew from the joint account. Ralston concedes he was added to the joint account in violation of OCGA § 7-1-814, but contends that when the Bank added him as a party to the joint account at Ms. Carson’s direction, he obtained a contractual right to withdraw funds from the account.

The only relation between Mr. Carson’s action against the Bank, and the Bank’s third-party claim against Ralston is that Ralston is alleged to have been unjustly enriched by refusing to return the $50,000 withdrawal to the account. This is a separate cause of action against Ralston for withdrawal of these funds not dependent upon the outcome of Mr. Carson’s claim against the Bank. See Quality Ford Sales v. Greene, 201 Ga. App. 206, 207 (410 SE2d 389) (1991). “Only one who is secondarily liable to the original defendant may be brought in as a third-party defendant, as in cases of indemnity, subrogation, contribution, warranty and the like.” (Citations omitted.) Id. at 207; OCGA § 9-11-14. There was no basis for a third-party complaint by the Bank against Ralston, and the trial court erred in granting partial summary judgment in favor of the Bank.

We find, however, Ralston’s assertion of error was rendered moot when, apparently recognizing his precarious position, he paid the $50,000 into the registry of the court. In a separate cause of action, consolidated with the present case, Ralston paid the $50,000 to the court, and asked for a determination as to ownership of the funds. The trial court subsequently entered a pre-trial order finding Ralston had interpleaded the funds, and ruling that he had no claim to them. No error is claimed in the entry of this order. The trial court allowed Ralston to proceed to trial on his claim against the Bank seeking damages incurred as a result of the Bank’s negligence.

8. Ralston claims the trial court erroneously excluded evidence of how Ms. Carson intended to dispose of her estate; a copy of her will; evidence of her intentions for the funds in the account, and evidence of Mr. Carson’s financial circumstances. The trial court properly excluded all of this evidence on the basis that it was not relevant to the issue of whether the Bank negligently harmed Ralston. The trial court allowed evidence of the actual transaction between Ms. Carson and the Bank, including all her actions taken and statements made requesting Ralston’s addition as a party on the account. Ms. Carson’s intentions in making the request, and the source of funds in the account were not relevant to whether the Bank properly responded to her request.

9. We find no support in the record to sustain Ralston’s claim that the trial court improperly excluded testimony regarding the Bank’s responsibility to a party to the account.

10. Ralston claims the trial court erred by refusing to allow him to testify as to what he felt had been accomplished when he went to the Bank with Ms. Carson. Ralston had already testified as to his recollection of everything which occurred while he and Ms. Carson were at the Bank. In any event, after the trial court sustained an objection to the question, Ralston failed to proffer the testimony he claims was improperly excluded. Accordingly, the claimed error was not preserved for appellate review. Bowman v. State, 186 Ga. App. 544, 549 (368 SE2d 143) (1988), rev’d on other grounds, 258 Ga. 829 (376 SE2d 187) (1989).

Judgment affirmed in Case No. A92A1946, and affirmed with di rection in Case No. A92A1947. Birdsong, P. J., and Beasley, J., concur.

Decided February 22, 1993

Reconsideration denied March 12, 1993

Bishop & McElyea, Barry W. Bishop, M. Ellen McElyea, for Etowah Bank.

Edmund A. Waller, for Ralston.

Bray & Johnson, Roger M. Johnson, for Carson.

       Since Mr. Carson claims the Bank improperly changed the terms of the joint account by adding Ralston without compliance with OCGA § 7-1-814, this is not a case where the Bank is protected from liability for payments made to a proper party. Compare OCGA §§ 7-1-816; 7-1-820; 7-1-810 (7); Echols v. Trust Co. Bank, 198 Ga. App. 340 (401 SE2d 565) (1991).


text:
    A92A2162.
    WATSON v. WACHOVIA NATIONAL BANK OF GEORGIA, N. A.
    (429 SE2d 111)
   Andrews, Judge.

Watson sued Wachovia National Bank for interference with her interest in real property acquired under the terms of a divorce decree. Watson appeals from the trial court’s order granting summary judgment in favor of the Bank.

Under a divorce decree dated October 6, 1986, Watson was granted exclusive possession of the former marital residence and the right to receive half of the proceeds when the house was eventually sold. The decree ordered the former husband, in whom the house was titled, to make the mortgage payments on the house, and not to create any additional liens or encumbrances against the property. In December 1987, the former husband borrowed money from the Bank, and without notice to Watson, and in violation of the divorce decree, created a second mortgage on the property by conveying the property at issue to the Bank in a deed to secure debt as security for the loan.

The Bank presented evidence that its title examination of the public records conducted prior to the loan closing failed to reveal Watson’s interest in the property under the divorce decree. A lis pendens notice respecting the property was filed of record during the pendency of the divorce proceedings in 1985, but the doctrine of lis pendens does not apply to give notice where, as here, the conveyance at issue occurred long after the final divorce decree was entered. Bacote v. Wyckoff, 251 Ga. 862, 864, fn. 1 (310 SE2d 520) (1984); Patent Scaffolding Co. v. Byers, 220 Ga. 426, 433 (139 SE2d 332) (1964). Moreover, the former husband signed an owner’s affidavit at the loan closing stating that he knew of no claims under any unrecorded instrument, nor of any suits, judgments or liens which could affect title to the property. Watson does not claim the divorce decree was recorded, but asserts her open, exclusive possession of the property was sufficient to put the Bank on notice, and trigger an affirmative duty to inquire as to her rights in the property. See OCGA § 44-5-169; Bacote, supra at 866.

Watson contends the debt deed placed on the property in favor of the Bank interfered with her property rights, and ultimately caused the loss of her interest in the property by foreclosure. After the debt deed was recorded in December 1987, the Bank became aware of the existence of the divorce decree and Watson’s interest in the property, however, there is no evidence the Bank took any action to interfere with Watson’s interest, possession, or use of the property. In August 1986, after conferring with her attorney, Watson consented to an agreement whereby her former husband refinanced the debt over the property. The Bank relinquished its debt deed; the property was conveyed by deed to secure debt to a new lender; and Watson consented in writing to substitution of the new mortgage over the property. Subsequently, the former husband defaulted, and the new lender foreclosed on the property terminating Watson’s interest.

The trial court granted summary judgment to the Bank on the basis that Watson’s loss of property rights in the foreclosure by the new lender was not the result of any action taken by the Bank, but was caused when, against the advice of her attorney, Watson waived her rights and voluntarily agreed to the substitution of the mortgage in favor of the new lender.

Pretermitting the waiver issue, we agree the Bank was entitled to summary judgment. The interest Watson claims in title to the property was granted to her, not by deed, but under the terms of the judgment for divorce. See Richardson v. Park Avenue Bank, 173 Ga. App. 43 (325 SE2d 455) (1984) (divorce decree transfers interest in property as would a deed); LeBlanc v. Easterwood, 242 Ga. 99 (249 SE2d 567) (1978); OCGA § 9-11-70. Given that the judgment by which Watson obtained an interest in the property was not recorded, her open possession of the property was the only notice which could prevent the Bank from claiming the status of a bona fide purchaser for value without notice, and asserting the priority of its debt deed over Watson’s interest under the divorce judgment. See Eavenson v. Parker, 261 Ga. 607 (409 SE2d 520) (1991). Thus, possession sufficient to put the Bank on notice of her interest was essential to Watson’s claim against the Bank. Assuming without deciding such possession was sufficient to provide notice to the Bank under OCGA § 44-5-169, Watson’s interest in the property by virtue of the unrecorded judgment would have had priority over the Bank’s subsequent recorded debt deed. See Price v. Watts, 223 Ga. 805-806 (158 SE2d 406) (1967) (construing OCGA §§ 44-2-1 and 44-2-2). Since there is no evidence the Bank made or acted on any claim, its interest was superior to Watson’s, nor did it otherwise interfere with her possession of the property, there was no basis for a claim the Bank interfered with Watson’s interest in or possession of the property. See OCGA §§ 51-9-1; 51-9-3.

Decided February 26, 1993

Reconsideration denied March 12, 1993

Walker & Bailey, David S. Walker, Jr., for appellant.

Alston & Bird, T. Michael Tennant, Elizabeth A. Gilley, A. McCampbell Gibson, for appellee.

Appellee’s motion to dismiss the appeal is denied.

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


text:
    A92A1846.
    WILLIAMS v. THE STATE. BUTLER v. THE STATE.
    A92A2082.
    (429 SE2d 153)
   Birdsong, Presiding Judge.

Larry Bernard Williams and Evelyna Ree Austin Butler appeal their convictions for possession of cocaine with intent to distribute. Williams and Butler were tried jointly with two others. Their appeals are here consolidated.

The evidence viewed most favorably to the jury’s verdict (Rigenstrup v. State, 197 Ga. App. 176, 181 (398 SE2d 25)) shows that law enforcement officers searched a mobile home where appellant Larry Williams and his girl friend appellant Evelyna Butler lived with Williams’ mother, co-defendant Juanita Williams and her husband, co-defendant Freddie Swain. Five pieces of cocaine weighing 1.1 grams were found in a pocketbook in the master bedroom occupied by appellant Williams’ mother and her husband. This bedroom was locked with a chain which had to be broken by officers to enter. A piece of cocaine weighing less than one gram was found beneath a sofa-bed in the den, where some children slept. On the den floor was found $252 in cash. No cocaine was found in appellants Williams’ and Butler’s bedroom; officers found an unloaded shotgun in appellants’ bedroom and a loaded pistol underneath the mattress, and appellant Williams had $158 in cash in his wallet.

Testified to by a law officer and admitted in evidence was appellant Larry Williams’ written statement: “It was my drugs and not my mother and father’s. I hid the drugs in the trailer in my room, crack cocaine. The drugs were in my mother and father’s room.” Appellant Evelyna Butler testified she was a resident of Pennsylvania but had been staying with her co-defendants for several months. Held:

Case No. A92A1846

1. After an officer testified as to appellant Williams’ written statement, the witness testified that in interviews, the other co-defendants denied possession of the cocaine. Larry Williams moved for mistrial and asserts error on the basis that it was error to admit other co-defendants’ statements implicating Williams when those co-defendants did not testify and were not available for cross-examination. See Hall v. State, 161 Ga. App. 521, 522 (1) (289 SE2d 313). However, in the first place, the statement of the co-defendants did not implicate Williams or any other person in possession of the cocaine. It simply denies their own possession. Moreover, even assuming error, the trial court sustained Williams’ objection, admonished the prosecutor, and instructed the jury to give that question and answer no consideration. Defense counsel did not immediately move for mistrial, but did so only after questioning on an unrelated subject. On motion for mistrial, the trial court again told the jury to give no consideration to the question and answer and to disabuse their minds of it. Even assuming there was objectionable error and that the motion for mistrial was timely made (see Cantrell v. State, 201 Ga. App. 93, 95 (410 SE2d 193)), we are satisfied that the trial court adequately cured any misimpression of the jury and did not abuse its discretion in denying a mistrial. See Moss v. State, 200 Ga. App. 253, 254 (407 SE2d 477).

2. During deliberations the jury asked whether Williams’ statement was struck from the record or had been admitted in evidence. Evidently the jury’s confusion on this point arose from the trial court’s admonition not to consider the “question and answer” as to the other co-defendant’s denial of possession, which was made immediately after testimony concerning Williams’ statement. The trial court simply advised the jury that “an alleged statement by [Williams] has been admitted into evidence,” and then recharged the jury on the law of admissions.

In support of his allegation of error on this point, appellant implies in his brief that his statement was never admitted in evidence. This is incorrect. Williams’ statement was admitted in evidence; the trial court correctly so informed the jury and did not err or cause appellant prejudice by restating the law on admissions, and cautioning the jury to receive any alleged statement with caution as to its voluntariness and merit.

3. We have reviewed the evidence and find it sufficient to enable any rational trier of fact to find appellant Williams guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, he could not have been entitled to a directed verdict of acquittal.

Case No. A92A2082

4. We reverse the conviction of Evelyna Ree Austin Butler. The State showed no evidence associating appellant Butler directly or indirectly with the cocaine found, except by her presence. The search was conducted under a “no-knock” warrant at 2:00 a.m. The cocaine in Juanita Williams’ purse was locked in Juanita Williams’ bedroom; this bedroom door was barred by a chain which the officers had to break to enter. The other small amount of cocaine was beneath the sofa-bed in the den where children slept and which was freely accessible to all persons in the mobile home, including juveniles and two other female guests who were not charged with a crime even though a plastic bag containing cocaine residue was found in their bedroom. Appellant Evelyna Butler did not own or lease the mobile home and no cocaine was found on her person or in her bedroom. Any evidence that she possessed cocaine with intent to distribute is constructive and is entirely circumstantial as to her presence in the trailer and her occupancy of Larry Williams’ bedroom, where no cocaine was found.

We have consistently held that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Carroll v. State, 202 Ga. App. 544, 546 (415 SE2d 37); Hunt v. State, 196 Ga. App. 694 (396 SE2d 802). Where there is evidence other than a defendant’s own equal access connecting an accused to contraband, it is for the jury to determine guilt or innocence. As in Nations v. State, 177 Ga. App. 801 (341 SE2d 482), there is no evidence connecting appellant Butler to the cocaine other than her equal access to it. The State has apprised us of no evidence that Butler had access to Juanita Williams’ and Freddie Swain’s bedroom, which was bolted with a chain. This chain was placed on that door presumably to keep others out besides the police, whom it would not deter. There is no evidence that appellant Butler had any connection to the cocaine residue found in the bedroom occupied by the two female guests, who were not charged, or to the cocaine found underneath the sofa-bed in the den, other than her equal access to it along with everyone who entered the trailer. Her “equal access” to the cocaine is not like that of the defendant in Hunt, supra. Butler denied possession of the cocaine and appellant Larry Williams stated affirmatively that the cocaine was his and that he “hid the drugs” in his room and placed it in his mother’s bedroom. Williams did not implicate Butler; to the contrary, his statement shows he “hid the drugs,” either in his room or in his mother’s room which was kept chained. The evidence does not support a finding beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, per Jackson v. Virginia, supra, that appellant Evelyna Butler was in knowing actual or constructive possession of cocaine with intent to distribute.

Decided March 12, 1993.

Ernie M. Sheffield, for appellant (case no. A92A1846).

Conger & Fryer, Paul Fryer, for appellant (case no. A92A2082).

J. Brown Moseley, District Attorney, for appellee.

Moreover, the jury charge of the trial court erroneously instructed the jury that they should acquit the defendants if they found that “persons other than the defendants in this case had equal opportunity to possess . . . the contraband.” Specific objection was made but the charge was not corrected. Although the charge as a whole required a finding of “knowing” possession, the slanting of this statement on “equal access” might have authorized the jury to convict Butler solely based on her equal access to or proximity to the drugs with others, even though there was no additional evidence other than her equal access to connect her with the drugs.

Judgment affirmed in Case No. A92A1846. Judgment reversed in Case No. A92A2082. Beasley and Andrews, JJ., concur.


text:
    A92A1888.
    In the Interest of L. L., a child.
    (429 SE2d 156)
   Birdsong, Presiding Judge.

L. L. appeals from the juvenile court’s finding of delinquency. He alleges that the State failed to prove every essential element of the crime with which he was charged and that the juvenile court erred by allowing the State’s expert witness to testify that a substance was a “dangerous drug” within the meaning of OCGA § 16-13-71.

The evidence shows that at school L. L. found a film canister containing a white powder. L. L. showed the canister containing the powder to some of his fellow students, discussed what the substance might be with them, told some it might be cocaine, and allowed some of the students to taste the substance. The students who tasted the substance said that it tasted like Alka Seltzer, or ground up aspirin, or Tylenol. After one of the students told the principal that L. L. had the substance, the principal spoke with L. L. about the canister, and, although first denying information about the canister, L. L. related to the principal that he had found the canister, showed it to his friends as discussed above, and threw the canister away. With L. L.’s assistance, the principal retrieved the canister, and called the police. Later, a police officer field tested the substance in the canister and it tested positive for cocaine.

Subsequently, the crime laboratory tested the substance and found it to be not cocaine but diphenhydramine, which is listed as a dangerous drug (OCGA § 16-13-71 (b) (299)), but is also the active ingredient in sleep aids and antihistamines and sold under brand names such as Benadryl, Equate, and Tylenol PM. Indeed, possession of “Diphenhydramine — up to 12.5 mg. in each 5 cc’s when used in cough preparations and up to 50 mg. per single dose when used as a nighttime sleep aid or used as an antihistamine and labeled in compliance with FDA requirements” are “exceptions to and exemptions from subsection (b) of this Code section.” OCGA § 16-13-71 (c) (8). As the labeling requirements do not apply to consumers (21 USC § 352; see United States v. Articles of Drug, 306 FSupp. 247 (D. Colo. 1969), the State was obligated to prove L. L. possessed more than 50 mg. of the drug.

At trial, the State called the expert witness who tested the substance in the canister. This witness testified that although he had tested the drug, he had not weighed the drug and could not testify, based upon accurate measurements, whether the amount of the drug was less than the amount excepted in OCGA § 16-13-71 (c) (8). Instead, the witness gave a “fair guess” that he estimated the substance “to be in the neighborhood of four to five hundred milligrams, which is four or five tenths of one gram.” The expert also testified that based upon his experience the substance he tested was either from Benadryl or some other over-the-counter drug and the amount he tested is the “typical amount” for a single capsule of over-the-counter medication. Held:

Assuming arguendo, without deciding, that the child’s conduct in these circumstances might rise to the level of “possessing” a dangerous drug as proscribed by OCGA § 16-13-72, we nevertheless find, under the circumstances of this case, the State has not proven its case on possession of the dangerous drug. Possession of “up to 50 mg. per single dose when used as a nighttime sleep aid or used as an antihistamine and labeled in compliance with FDA requirements” is an exception to the prohibition in the statute, and the State did not prove with competent evidence that L. L. possessed more than 50 mg. of the drug. The State’s expert’s guess about the weight of the drug is not competent evidence. Further, even the expert’s guess was inconsistent because he testified that the amount he tested was the “typical amount” of one capsule of over-the-counter medication, i.e., the amount exempted by OCGA § 16-13-71 (c) (8). Therefore, the State has simply failed to present competent evidence necessary to establish L. L.’s guilt.

Having reviewed the evidence in the light most favorable to the juvenile court’s determination, we conclude that no rational trier of fact could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided March 12, 1993.

Joel E. Williams, Jr., for appellant.

Dupont K. Cheney, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Judgment reversed. Beasley and Andrews, JJ., concur.


text:
    A92A1992.
    WALTON v. THE STATE.
    (429 SE2d 158)
   Birdsong, Presiding Judge.

Appellant Terry Lee Walton appeals from the order of the superior court dismissing his appeal. Appellant was convicted of DUI in probate court and appealed his conviction to the superior court. The superior court found that the record before it affirmatively shows that appellant never formally waived a trial by jury, and that in the absence of a specific written waiver of jury trial, the probate court was without jurisdiction. On February 22,1990, the superior court ordered remand of the proceedings to the probate court with direction that if upon the “recall of this case” appellant refuses to waive a trial by jury, the case should then be transferred to the superior court for trial, but that if appellant waived a jury trial, the case could be tried in probate court. On March 12, 1990, appellant appealed the order of the superior court to this court. On September 26, 1990, this court reversed the superior court’s holding and remanded the case with direction on the grounds the superior court should have decided the waiver issue anew. Walton v. State, 197 Ga. App. 263 (398 SE2d 221). The Supreme Court granted certiorari. On April 11, 1991, the Supreme Court issued its opinion in Nicholson v. State, 261 Ga. 197 (403 SE2d 42), holding that waiver was not an issue effecting subject matter jurisdiction, but instead, raised only an issue of personal jurisdiction, which issue could be waived by failure to insist timely upon such right. On June 11, 1991, the Supreme Court reversed this court and remanded said case with direction in Walton v. State, 261 Ga. 392 (405 SE2d 29); in doing so, the Supreme Court explained its holding in Nicholson, supra, and concluded Walton had waived his right to demand a jury trial (Walton, supra at 261 Ga. 393 (1)). The Supreme Court also concluded that an appeal pursuant to OCGA § 40-13-28 is not an appeal de novo, and expressly disapproved that language in Anderson v. City of Alpharetta, 187 Ga. App. 148 (369 SE2d 521), indicating that an appeal pursuant to OCGA § 40-13-28 “to the superior court is a ‘de novo proceeding.’ ” Walton, supra, 261 Ga. at 394. The Supreme Court then issued the following language of direction to this court: “In enacting OCGA § 40-13-28, the General Assembly provided for a right of appeal ‘on the record’ to the superior court. Thus, the mandate of the superior courts is to review asserted errors of law in the proceedings below under general appellate principles. The appellant may not raise issues not litigated in the court below, but he is entitled to a review of the record which ensures that the evidence has been received in conformity with statutory and constitutional standards and that it supports the conviction, including application of the standards set out in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). ... If the conviction is properly supported by the evidence, the conviction would stand; if not, an acquittal would be required.” Walton, supra at 261 Ga. 394. This court subsequently vacated its earlier order and remanded the case to the superior court with direction (Walton v. State, 203 Ga. App. 888 (418 SE2d 148)); in this opinion, we expressly acknowledged that this case was remanded to us by the Supreme Court “for such further action as might be necessary to give effect to [its] opinion” and incorporated the judgment of the Supreme Court within our judgment (id.). This court then issued the following language of direction to the superior court: “Appellant ‘did not demand a jury trial in probate court, and, thereby, waived it.’ [Cit.] The superior court is further directed to consider the merits of appellant’s appeal by ‘review(ing) asserted errors of law in the (probate court) proceedings . . . under general appellate principles. . . . (A)ppellant may not raise issues not litigated in the (probate) court. . . , but he is entitled to a review of the record which ensures that the evidence has been received in conformity with statutory and constitutional standards and that it supports the conviction, including application of the standards set out in Jackson v. Virginia, [supra]. If the conviction is properly supported by the evidence, the conviction would stand; if not, an acquittal would be required. The superior court (is) not, however, (to) make an independent finding of guilt or innocence based on the evidence submitted, as would be done were the appeal, in fact, de novo.’ ” Walton, supra at 203 Ga. App. 888.

The superior court received notice of remittitur on May 15, 1992. On May 19, 1992, the superior court entered an order dismissing appellant’s appeal, although the order reflects, inter alia, that “this court has reviewed the record of the probate court as transmitted to this court. Although sparse, no errors were found.” (The record reflects that the original notice of appeal to the superior court, dated August 28, 1989, indicates that appellant stated a transcript of the trial would be filed for inclusion with the record on appeal. No such transcript has been forwarded for our review.)

Appellant’s sole enumeration of error is that “the superior court erred in dismissing appellant’s appeal without allowing appellant an opportunity to be heard, in contravention of an order of the Court of Appeals and resulting in the violation of appellant’s right to due process under the 5th and 14th Amendments of the United States Constitution and Article I, Section I, Paragraph I of the Constitution of the State of Georgia [1983].” In support of this enumeration, appellant argues he was denied, inter alia, a meaningful opportunity to submit an enumeration of errors and an appellate brief. Appellee contends that no error has occurred, and that any error was rendered harmless as the trial court did review the record before finding no errors. Held:

1. Appellant was issued a traffic citation for DUI in violation of state law, to-wit: OCGA § 40-6-391 (a) (1); he was convicted in probate court of driving under the influence of alcohol. Although appellant’s notice of appeal asserts that this court has jurisdiction of this appeal in that it involves “a conviction for a non-capital felony,” a conviction under OCGA § 40-6-391 (a) (1) is not a felony conviction. OCGA § 40-6-391 (c).

2. The order of this court states unequivocally on its face that “[t]he superior court is further directed to consider the merits of appellant’s appeal.” Walton, supra at 203 Ga. App. 888. The trial court failed to comply with this direction by dismissing appellant’s appeal rather than reaching a final determination thereof. Although the trial court may have reviewed the record sua sponte for errors of law, failure to reach final determination of the merits of appellant’s appeal substantially departs from the direction of this court and of the holding of the Supreme Court on which our direction is based. To protect and effectuate our judgment and that of the Supreme Court, this case will be remanded to the superior court for compliance with the directions mandated by this court in Walton, supra at 203 Ga. App. 888 and the resulting order of remittitur. Ga. Const. of 1983, Art. VI, Sec. I, Par. IV; see Ga. Const. of 1983, Art. VI, Sec. V, Par. III and Art. VI, Sec. VI, Par. VI.

3. Further, the trial court’s order reveals that it did not affirmatively determine the issue of sufficiency of the evidence notwithstanding the direction of this court, and the recognition by the trial court that “in this case no error is asserted nor even mentioned by the appellant except in one instance in the [superior court hearing] transcript where appellant’s attorney mentions the insufficiency of the evidence.” (Emphasis supplied.) Rather, the trial court elected to dismiss the appeal. However, it did review the trial record, concluding that the record was “sparse” and that no errors were found, and added an end note to its order stating that it had re-reviewed Jack son v. Virginia, supra, and “finds nothing to require an appellate court to seek out error where none is asserted.” The issue of evidence sufficiency should have been addressed expressly pursuant to our direction even if it becomes necessary to apply, in the absence of a transcript and in the proper disposition of the appeal, the precedent of Gilbert v. City of Manchester, 204 Ga. App. 422 (419 SE2d 487) (lack of transcript does not result in reversal of conviction). Compare Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500) (assume evidence supported findings absent transcript); see also Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160) (presumption in favor of regularity of all proceedings in a court of competent jurisdiction).

4. Appellant also asserts, citing Walker v. Walker, 247 Ga. 502, 503 (277 SE2d 45), that his failure to file timely an enumeration of error and appellate brief was without fault on his part, as he was entitled to rely reasonably on Anderson, supra, which was the controlling law at the time he appealed de novo to the superior court from the probate court. We agree that relying on the precedent of Anderson, supra, appellant would not necessarily have been required to provide an enumeration of error (see generally OCGA § 5-6-48 (f)) and an appellate brief addressing such enumeration, as he would have received an appeal de novo, and likewise would not have had to file a transcript of the probate proceédings or an authorized statutory substitute (see generally OCGA § 5-6-41) thereof in order to prevail on an appeal de novo. Thus, although we are unaware of any precedent that is so factually similar as to be per force controlling, fundamental fairness dictates that our direction can be effectuated adequately by adopting a procedure (for the disposition of this particular case only) which will allow appellant to have a reasonable opportunity to submit such matters for superior court consideration. Accordingly, we will remand this case so both the spirit and the letter of our direction to the trial court can be fulfilled thereby ensuring that our order will be effectuated. Ga. Const. of 1983, Art. VI, Sec. I, Par. IV, supra; OCGA §§ 15-1-3 (6); 15-2-8 (7).

Regarding the general procedures for obtaining a trial transcript: see generally OCGA § 5-6-41 (b), (g) and (i). But see Ward v. State, 188 Ga. App. 372 (3) (373 SE2d 65) (absent demand for transcript at demanding party’s request, the reporting of a misdemeanor case is not required as a matter of law); Sheriff v. State, 184 Ga. App. 180 (361 SE2d 53); Page v. State, 159 Ga. App. 344 (6) (283 SE2d 310); Williams v. State, 140 Ga. App. 87, 89 (230 SE2d 94) (defendant in misdemeanor case was not denied transcript erroneously absent demand therefor at own expense); cf. Ivory v. State, 199 Ga. App. 283, 284 (1) (405 SE2d 90) (no asserted issues remained for review where transcript incomplete).

Accordingly, to effectuate the order and direction given to the superior court following remand in Walton, supra at 203 Ga. App. 888 (Ga. Const. of 1983, supra; OCGA § 15-2-8 (7)), and in the interests of fundamental fairness and justice (OCGA § 15-1-3 (6)): (1) the order of the superior court is vacated; (2) the appeal will be reinstated; and (3) appellant will be provided a reasonable time to file with the superior court a transcript or permissible substitute therefor (OCGA § 5-6-41) of the probate proceedings sought to be appealed, an enumeration of errors, and an appellate brief. Disposition of the appeal will thereafter be made in accordance and consistent with the directions of Walton, supra at 261 Ga.; Walton, supra at 203 Ga. App., and the holdings in this opinion.

Decided March 12, 1993.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction. Beasley and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A92A2022.
    FIRST UNION NATIONAL BANK OF GEORGIA v. DAVIES-ELLIOTT, INC.
    (429 SE2d 161)
   Cooper, Judge.

Appellant is a bank with which appellee, a corporation, had a checking account. In this action for damages arising from the bank’s alleged negligence in cashing a check, the bank appeals from a trial court order granting appellee’s motion for partial summary judgment on the issue of the bank’s liability.

We view the facts in a light most favorable to the bank as the non-moving party. Brandywine Townhouses v. Morrison, 200 Ga. App. 425 (1) (408 SE2d 422) (1991). Elliott is the president and sole stockholder of appellee corporation. When he started the corporation, he made his girl friend, Davies, secretary of the corporation and an authorized signatory on the corporation’s checking account with the bank. Soon thereafter, Davies executed a document giving Elliott an unlimited general power of attorney. Several months later, Elliott and Davies’ relationship terminated, and Davies left town. Elliott examined the corporation’s checkbook after Davies threatened in a letter to “award” herself “damages” but did not discover any missing checks, though Davies had in fact taken the last check. While Elliott closed other bank accounts on which Davies was an authorized signatory, he chose to keep the corporation’s account open and simply remove Davies’ name as an authorized signatory. To do this, Elliott went to the bank and told the branch manager he wanted to take a signatory’s name off an account. Elliott also had a personal consumer account with the bank, and he did not specify which account he was referring to. The branch manager gave him a name deletion form requiring both his signature and that of Davies. He signed his own name in her presence and left with the form. While Elliott was at the bank, one of the tellers mentioned that she had cashed a check on another account for Davies, and he told her not to worry because he would cover it if the check was not good. Two or three days later, Elliott returned with the form, complete with his own signature and that of Davies, whose signature he had signed pursuant to the power of attorney.

The parties agree that the name deletion form was returned to the branch manager no later than Friday, March 15, 1991. It was then sent by courier to the commercial banking department in Atlanta, where it was received on Tuesday, March 19, 1991. However, the branch manager had given Elliott a form for a consumer rather than a commercial account, and the new employee who received the form for processing was not sure what to do with it and set it aside to discuss with her supervisor later. That same night, a check signed by Davies for $35,500 was paid by the bank. When the bank refused to reimburse appellee’s account, appellee brought this action.

1. The bank argues that the trial court erred in concluding that its failure to act on appellee’s name deletion request within at least a full weekend and two working days constituted negligence as a matter of law. In reaching its conclusion, the trial court analogized the request to drop a signatory’s name to a request to stop payment on a check and applied the law governing the latter request. See OCGA § 11-4-403. However, we are not convinced that this analogy is apt, for it is not totally clear that a name deletion request must always be treated with the same urgency as a stop payment request. Although appellee presented expert testimony opining that a prudent banker will recognize that a name deletion request requires immediate attention and will treat it in a manner similar to its treatment of a stop payment request, a summary judgment cannot be granted to a plaintiff on the basis of opinion testimony. See Ginn v. Morgan, 225 Ga. 192 (2) (167 SE2d 393) (1969); Fussell v. Jones, 198 Ga. App. 399 (2) (401 SE2d 593) (1991). Nor can we concur with the trial court’s conclusion that the bank was negligent as a matter of law in allowing a trainee to process the form. Accordingly, questions of fact remain as to the nature of the bank’s duty to appellee and whether it breached that duty under the circumstances of this case. “ ‘Issues of negligence . . . are ordinarily not susceptible of summary adjudication whether for or against the plaintiff or the defendant, but must be resolved by a trial in the ordinary manner.’ [Cits.]” Brandywine, supra at 427. The trial court therefore erred in granting appellee partial summary judgment on the issue of the bank’s liability.

2. The bank also contends that the trial court erred in rejecting on summary judgment its defense based on the equitable doctrine of constructive fraud. Specifically, the bank alleges that Elliott as appellee’s agent failed to inform the bank that Davies was no longer secretary of the corporation; failed to inform the bank that he signed Davies’ name on the name deletion form pursuant to the power of attorney rather than getting her actual signature; failed to inform the bank that Davies had left in displeasure and threatened to “award” herself “damages”; and affirmatively told a bank employee that he would cover Davies’ check from another account if it was not good. The trial court focused solely on Elliott’s failure to disclose his reliance on the power of attorney to sign Davies’ name and concluded that since the power of attorney was valid, the bank could not have been harmed by the nondisclosure. However, this analysis missed the crux of the bank’s argument, which is that appellee failed to disclose information indicating the urgency of the situation and made an affirmative statement arguably indicating that urgency was not necessary, and thus should be estopped from asserting a cause of action based on the bank’s failure to act with the required sense of urgency. “Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.” OCGA § 23-2-51 (b). Nondisclosure may provide the basis for constructive fraud where a party is under an obligation to communicate. OCGA § 23-2-53. “The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case,” id., and whether the particular circumstances of a case give rise to an obligation to disclose will generally be a jury question. See Graham v. Hogan, 185 Ga. App. 842 (2) (366 SE2d 219) (1988). Thus, questions of fact remain regarding whether appellee was obligated to disclose information indicating the urgent nature of appellee’s request and whether the bank was justified in relying on appellee’s failure to indicate the need for immediate action in treating appellee’s request as a routine rather than urgent matter.

3. In light of our reversal of the grant of partial summary judgment based on the issues discussed in Divisions 1 and 2, we need not address the bank’s remaining enumerations of error.

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

Decided March 12, 1993.

Newton, Smith, Durden, Kaufold & Rice, Howard C. Kaufold, Jr., for appellant.

Glen A. Cheney, Spivey, Carlton & Edenfield, J. Franklin Eden-field, for appellee.


text:
    A92A2120.
    GARCIA v. THE STATE.
    (429 SE2d 164)
   Cooper, Judge.

Appellant was indicted for practicing medicine without a license and numerous violations of the Georgia Controlled Substances Act and the Georgia Dangerous Drug Act. The charges stemmed from an investigation into allegations that appellant was prescribing controlled substances without a legitimate medical purpose while his license was not in current status. The jury returned a verdict of guilty on most of the charges, and appellant appeals from the judgment of conviction and sentence entered on the jury’s verdict and from the denial of. his motion for new trial.

Prior to arraignment, appellant filed extensive pretrial motions, including a motion to quash the indictment. One of the grounds alleged in his motion to quash was the improper reconvening of the grand jury. Appellant contended that in November 1990, the grand jury for Upson County had been summoned, sworn and charged; that on November 5, 1990 the grand jurors were discharged; that on January 11, 1991, the grand jurors reconvened, without order of the court and without being resworn or recharged, and returned the indictment against appellant. The State moved to dismiss appellant’s motion to quash, arguing that the motion to quash was improper because appellant’s motion alleged deficiencies which did not appear on the face of the indictment. At a hearing on the motion, the trial judge ruled that the proper way to attack the indictment for a deficiency which did not appear on the face of the indictment was by a plea in abatement. Appellant’s counsel requested that the trial judge treat that portion of the motion to quash as a plea in abatement, but the trial judge refused to either treat the motion as a plea in abatement or grant appellant leave to file a plea in abatement. The trial judge then granted the State’s motion to dismiss the motion to quash as it related to those grounds which alleged deficiencies not appearing on the face of the indictment.

In State v. Byrd, 197 Ga. App. 661 (399 SE2d 267) (1990), the State appealed the trial court’s grant of a defendant’s motion to quash the indictment on the grounds that the grand jury had not properly reconvened. This court held that “a grand jury, properly drawn, duly summoned and sworn and then discharged, may reconvene in the same term only upon order of the superior court and must be rechárged.” Byrd, supra at 663. We reaffirmed this holding in Ward v. State, 205 Ga. App. 485 (423 SE2d 22) (1992) in which we reversed the trial court’s denial of the defendant’s motion to quash made on the same ground as the motion in Byrd. Although a motion to quash is not the proper method of attacking an indictment for a defect which does not appear on the face of the indictment (State v. Houston, 134 Ga. App. 36 (1) (213 SE2d 139), rev’d in part on other grounds, 234 Ga. 721 (218 SE2d 13) (1975)), Georgia courts have long recognized authority for treating motions to quash as pleas in abatement. See Bryant v. State, 224 Ga. 235 (161 SE2d 312) (1968); Houston, supra at (2); cf. Allen v. State, 110 Ga. App. 56 (137 SE2d 711) (1964) (trial court should have allowed defendant to present evidence in support of his motion to quash challenging manner of selecting grand jurors). Appellant timely filed a motion which challenged the improper reconvening of the grand jury which indicted him. He stated facts in his motion which, if supported by the evidence, would form the basis for a dismissal of the indictment against him. Ward, supra; Byrd, supra. Notably, this issue was raised in both Ward and Byrd through motions to quash indictments. “ ‘It is an elementary rule of pleading that substance, not mere nomenclature, controls.’ [Cit.]” Houston, supra; McDonald v. State, 222 Ga. 596 (1) (151 SE2d 121) (1966). The trial court refused to consider the substance of the motion and summarily dismissed parts of appellant’s motion because they were properly the subject of a plea in abatement. We conclude that the trial judge erred in not allowing appellant to present evidence in support of his contention that the grand jury was improperly reconvened.

Decided March 12, 1993.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Because of our reversal, it is unnecessary to consider appellant’s remaining enumerations of error.

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


text:
    A92A2151.
    BELCHER et al. v. JAMES et al.
    (429 SE2d 165)
   Birdsong, Presiding Judge.

Appellants Belcher appeal the grant of summary judgment to defendants Ernest and Terri James, in this suit following the drowning of plaintiffs’ decedent, James Belcher, in the James’ swimming pool. The material facts are that when Mr. James came home from work, he found Mr. Belcher and three children swimming in his pool; he asked Mr. Belcher who was watching the children and Mr. Belcher, who was swimming in the deep end, replied that he was watching the children. James said, “I will be right back,” and went inside to change shoes. After James went inside, Mr. Belcher began swimming underwater but stayed under too long; the boys got worried and called James. Mr. James came out but did not enter the pool. A visiting teen-aged boy went in the pool and retrieved Mr. Belcher.

Appellants contend James was responsible for what happened in the pool, including Mr. Belcher’s drowning, because James testified he thought he was “responsible” for the pool and because a booklet provided by the pool manufacturer warned that one person must assume “primary responsibility” for supervising the pool. Appellants also contend Mr. Belcher was an invitee to whom James owed the highest duty of care. Held:

1. Appellees’ motion to dismiss is denied. The matter of payment of costs below for depositions or other material not transmitted to this court appears in this case to be a billing dispute best settled by those affected, and we shall not decline to hear the merits of the appeal on the basis thereof, this being a matter of our discretion under OCGA § 5-6-48 (c), and dismissal of appeal being generally appropriate only when an appellant’s failure to pay costs was material, unreasonable, and inexcusable, which we do not find. See, e.g., Jones v. State, 123 Ga. App. 672 (182 SE2d 190).

2. Construing the evidence most strongly against the Jameses, as movants, and in favor of appellants, as respondents to motion for summary judgment (Brandywine Townhouses v. Morrison, 200 Ga. App. 425, 426 (408 SE2d 422)), we assume Mr. Belcher was in the pool by invitation and was not a mere licensee but was an invitee in a relation of mutual benefit to the parties. It is established in Georgia that “[a] landowner is not an insurer of the safety of children, even if he chooses to build a swimming pool.” Gregory v. Johnson, 249 Ga. 151, 155 (289 SE2d 232). “The duty imposed is to exercise reasonable care to prevent foreseeable injury, not to protect against any injury.” Id. This is more so true where the party harmed was an adult under no apparent disability. We have said the owner of a residential pool owes social guests as licensees a duty to not wilfully or wantonly injure them (Walker v. Daniels, 200 Ga. App. 150, 154 (407 SE2d 70)); and we have also held that the proprietor of property owes an invitee the duty of ordinary care (Walker, supra); and owners of nonresidential pools owe “an affirmative duty to exercise ordinary and reasonable care for the safety and protection of invitees swimming in the pool.” Id. at 155.

Assuming appellees owed Mr. Belcher the highest applicable duty of care (ordinary care, id.), nevertheless, they were not insurers of his safety. Gregory, supra. Neither the pool manufacturer’s booklet nor James’ own belief that he was “responsible” for the pool made him an insurer of Mr. Belcher’s safety. There is no evidence James breached the duty of ordinary care in any manner; it is merely insisted that James owed the duty of extraordinary care to Mr. Belcher and that he should not have left Mr. Belcher unattended. However, the duty of extraordinary care generally applies in cases of known defect or danger or known propensity to injure, or to wilful or wanton injury. See OCGA §§ 51-3-2; 51-1-3. Mr. Belcher was an adult. Even assuming Mr. Belcher was not a good swimmer, no reason appears that James should have known it, as Mr. Belcher was swimming in the deep end of the pool when they spoke. No reason appeared that Mr. Belcher could not exercise ordinary care for his own safety or was in any danger or disability. There is no evidence of a dangerous condition which caused Mr. Belcher’s drowning. As to the claim that the Jameses negligently failed to post notice of “rules,” there is no evidence that had they done so Mr. Belcher would not have drowned, and there is no evidence Mr. Belcher violated any supposed rule. There is no evidence that anything the Jameses did or did not do caused Mr. Belcher’s unfortunate drowning.

Appellants’ case is based on the argument that even though Mr. Belcher was an adult, James was required by law or by the circumstances to watch over Mr. Belcher, as it is “foreseeable” that all persons who swim may drown. This argument places an impossible burden on owners of pools and would render them insurers of a person’s safety in their pools, contrary to the law stated in Gregory, supra.

3. As to appellants’ assertion that summary judgment was premature, OCGA § 9-11-56 (a) provides that “at any time after the expiration of 30 days from the commencement of the action ... [a party may] move [for summary judgment]”; if the pleadings and evidence on file show entitlement to judgment, it shall be granted forthwith. Id. at (c). In response to appellees’ motion, it was appellants’ burden to provide evidence showing that issues remained for trial and that appellees had no right to a judgment. See Owen v. M & M Metro Supply, 198 Ga. App. 420, 422 (401 SE2d 612). Appellants may not speculate that further discovery might unearth evidence disentitling appellees to judgment; otherwise there would be no end to litigation.

Judgment affirmed. Beasley and Andrews, JJ., concur.

Decided March 12, 1993.

Howard Beer, for appellants.

Sharon W. Ware & Associates, James F. Cook, Jr., for appellees.


text:
    A92A2166.
    KENNEDY v. THE STATE.
    (429 SE2d 167)
   Birdsong, Presiding Judge.

Jared Mitchulon Kennedy appeals from the order of the trial court denying his motion for new trial. Appellant was convicted of violating the Georgia Controlled Substances Act, OCGA § 16-13-30, sale of cocaine. Held:

1. An agent of the GBI testified that, on October 8, 1991, she and a named confidential informant (Cl) approached Dwight Winters and the Cl inquired if Winters had any cocaine; Winters directed the agent to ride around the block. Upon returning, the agent observed appellant handing two small “rocks” of crack cocaine to a man named Lonnie Curtis who gave them to the agent. The agent and Curtis argued over price, and appellant offered to throw in an extra piece of cocaine. The GBI agent then purchased one of the two rocks of cocaine, plus the piece that appellant had handed her, for $20, tendering the money to Curtis. Appellant’s pretrial statement was introduced in evidence wherein he admitted being a crack user, and that he sold only to support his habit and to pay some bills, but he denied any recollection of selling cocaine in October 1991, and before the month of November. Appellant admitted in open court that, on October 8, 1991, he was with Dwight Winters, that he saw both the GBI agent and the Cl passing within arm’s reach in a vehicle, that he made a casual remark to the GBI agent about her looks, that Lonnie Curtis was there too, and that when the vehicle returned a second time appellant saw someone approach it; however, appellant testified he and Winters were just walking around, that he was not selling any drugs, that he did not sell any drugs to this GBI agent, and that he did not have any cocaine on his person that night. The agent’s testimony, regarding the sale of drugs to her by appellant and another man, was basically corroborated by the Cl who is a deputy sheriff in Rhea County, Tennessee, and who was working as a member of a mini-drug task force.

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 (1) (393 SE2d 737). 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 drug offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided March 12, 1993.

J. Terry Brumlow, for appellant.

2. Appellant asserts that prejudicial error was committed when the State questioned appellant concerning the past sale of cocaine, as such questioning was irrelevant, immaterial, and it impermissibly brought appellant’s character in issue. After appellant denied during cross-examination that he had testified (during direct examination) that he had never sold drugs, an objection was posed to the State’s follow-up question whether appellant had “ever sold drugs.” However, appellant simultaneously answered the follow-up question in the affirmative and his answer appears in the record. The trial court immediately sustained the objection, admonished the prosecutor for asking the question, and instructed the jury that “the question was improper; it’s totally irrelevant and immaterial, and you shouldn’t consider the fact that question was asked at all in reaching your verdict.” Appellant made no objection thereafter as to the content or effectiveness of this curative instruction, nor did he make a motion for mistrial. We find no reversible error because of these distinct reasons:

(a) The curative instruction, when viewed in conjunction with the sequence in which the question, answer, and objection were tendered on the record, was adequate to preclude any harm or prejudicial impact flowing from either the question or appellant’s response thereto. Allen v. State, 259 Ga. 303, 304 (2) (379 SE2d 513); Sabel v. State, 250 Ga. 640, 643 (5) (300 SE2d 663).

(b) Appellant neither objected to the effectiveness of the curative instruction nor thereafter requested a mistrial. “Trial courts have broad discretion in handling matters such as these and, here, the court granted the relief [appellant] requested. ‘In no case will the trial judge’s ruling be reversed for not going further than requested.’ ” Lyon v. State, 262 Ga. 247, 248 (3) (416 SE2d 523).

(c) Evidence of appellant’s prior drug sales previously had been admitted before the jury, as such information was contained within appellant’s pretrial statement. Assuming error occurred, as enumerated, it was harmless as the stricken question and answer were merely cumulative in nature. “[E]vidence is harmless where admissible evidence of the same fact is before the jury.” Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642); compare Gaither v. State, 259 Ga. 200 (2) (378 SE2d 464); see also Sabel, supra.

Judgment affirmed. Beasley and Andrews, JJ., concur.

Darrell E. Wilson, District Attorney, Rebecca B. Tierce, Assistant District Attorney, for appellee.


text:
    A92A2206.
    GREEN v. THE STATE.
    (429 SE2d 169)
   Cooper, Judge.

Appellant was convicted by a jury on misdemeanor charges of driving under the influence, driving too fast for conditions and striking a stationary object. He appeals from the judgment and sentence entered on the conviction, raising as his sole enumeration of error the trial court’s exclusion of the transcript from appellant’s implied consent hearing.

Viewed in a light most favorable to the jury’s verdict, the evidence adduced at trial reflects that on March 23, 1991, an officer with the Lee County Sheriff’s Department responded to a call about an automobile accident. When the officer arrived at the scene, he discovered a Jeep Cherokee which had struck a tree resting in a ditch along the roadway. There was no one in the area of the Cherokee, but the officer received information that Emergency Medical Services had transported appellant to the local emergency room. The officer noticed that the windshield on the driver’s side of the Cherokee was cracked in a manner consistent with a person’s head having struck the windshield and that the steering wheel was bent, indicating that a person’s legs may have been forced upward into the wheel. The officer went to the emergency room and saw appellant who was sitting on the examination table with his head bleeding and complaining that his chest and legs hurt. Appellant smelled of alcohol and exhibited physical signs of alcohol intoxication such as slurred speech and dilated pupils. In response to the officer’s question regarding what happened to him, appellant stated “I guess I went to sleep.” Appellant first agreed to submit to a blood test but subsequently changed his mind. Later that day, Officer Bass, who had known appellant for about three years, went to the hospital to talk to appellant. He noticed that in addition to a cut on his forehead, appellant showed signs of alcohol intoxication and had the imprint of a steering wheel on his chest as well as bruised knees. In response to Officer Bass’ question about what happened, appellant stated: T must have went to sleep and run off the road.” Appellant also told Officer Bass that Michael Byrd had been in the vehicle with him and that prior to the accident they had both been at a club drinking. The Cherokee was registered to Byrd’s stepfather, who along with Byrd’s mother, had been at the same club earlier. Byrd’s mother and stepfather left the club with another couple and left the keys to the Cherokee with Byrd. Appellant testified at trial that he did not remember the accident but that when he and Byrd left the club, Byrd was driving the Cherokee. Both officers testified at trial that based on appellant’s injuries, the condition of the Cherokee and their experience in investigating traffic accidents, they were of the opinion that appellant had been driving the Cherokee at the time of the accident.

During his opening statement, appellant’s attorney began to refer to statements made by Michael Byrd the night of the accident. The prosecutor objected on the ground that any statements made by Michael Byrd were hearsay since Byrd was not in court to testify. Appellant’s attorney responded that he intended to read into evidence Byrd’s testimony at the implied consent hearing. The prosecutor then stated that he had not had an opportunity to cross-examine the witness, and the trial judge ruled that Byrd’s testimony at the implied consent hearing was inadmissible and directed appellant’s attorney not to make any further reference to statements made by Byrd.

OCGA § 24-3-10 provides that “[t]he testimony of a witness since deceased, disqualified, or inaccessible for any cause which was given under oath on a former trial upon substantially the same issue and between substantially the same parties may be proved by anyone who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.” Appellant argues that the trial judge erred in excluding the testimony from the implied consent hearing because Byrd was inaccessible as required by OCGA § 24-3-10. The prosecutor stated that Byrd had been subpoenaed and was in Mississippi. However, pretermitting whether Byrd was inaccessible, OCGA § 24-3-10 requires that the former testimony must have been given in a proceeding having substantially the same issue and parties. The purpose for that requirement is “ ‘to ensure that the party against whom the testimony is now offered had an opportunity adequately to cross-examine the witness at the previous proceeding. (Cits.)’ [Cit.]” Vanhouten v. State, 193 Ga. App. 871, 873 (2) (389 SE2d 534) (1989). “As the issue in the [implied consent] hearing was solely to determine certain facts concerning the [appellant’s] refusal to take a chemical test under the implied consent law, . . . , the issue was not the same as that for which he was tried.” Vanhouten, supra. Furthermore, appellant failed to establish that the State had an opportunity to cross-examine Byrd at the hearing. Accordingly, we conclude that the trial court did not abuse its discretion in excluding the former testimony.

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

Decided March 12, 1993.

Ralph L. Phillips, for appellant.

John R. Parks, District Attorney, Henry 0. Jones III, Assistant District Attorney, for appellee.