text:
    A91A1309.
    GILL v. BOWMAN.
    (410 SE2d 780)
   McMurray, Presiding Judge.

The records of the Georgia Department of Public Safety (“Department”) demonstrated that within a five-year period appellant was convicted of driving under the influence of alcohol (DUI) on two occasions in the Recorder’s Court of the City of Woodbury and on one occasion in the Superior Court of Meriwether County. Accordingly, the Department declared appellant to be a habitual violator pursuant to OCGA § 40-5-58 and revoked appellant’s driver’s license.

Appellant challenged the Department’s decision, asserting the DUI convictions rendered in the Recorder’s Court of the City of Woodbury were void and subject to collateral attack. The Department rebuffed appellant’s challenge and he appealed to the superior court.

The superior court determined that the Department properly declared appellant to be a habitual violator. Thereupon, appellant sought, and we granted, a discretionary appeal. Held:

Appellant takes the position that the DUI convictions rendered in the Recorder’s Court of the City of Woodbury are void because the uniform traffic citation complaint forms were not signed by the judge of the Recorder’s Court. In this regard, appellant argues that the uniform traffic citation complaint forms serve as the records of conviction, OCGA § 40-13-1, and that such records have no effect because they were not signed by the judge. See OCGA § 5-6-31. Appellant’s argument misses the mark.

Although the uniform traffic citations in the Recorder’s Court do not bear the judge’s signature, duplicate uniform traffic citation forms were signed by the judge and sent to the Georgia Department of Public Safety. The duplicates were certified by the Department. Thus, the duplicates properly were considered by the Department and the superior court in determining whether appellant was a habitual violator. OCGA § 40-5-2 (f) (1); see Love v. Hardison, 166 Ga. App. 677 (2) (305 SE2d 420). The duplicates demonstrate that appellant was twice convicted of DUI in the Recorder’s Court of the City of Woodbury. One conviction was the result of a bond forfeiture; the other conviction was the result of a guilty plea.

Decided September 9, 1991

Reconsideration denied September 25, 1991

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

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, C. Latain Kell, Neal B. Childers, Assistant Attorneys General, for appellee.

Appellant also contends the Recorder’s Court convictions cannot be used in determining whether he is a habitual violator because they do not show affirmatively that he waived his right to counsel and trial by jury. We cannot consider this contention because it constitutes a collateral attack upon appellant’s habitual violator status. Such an attack cannot be made unless a conviction is void on its face. Earp v. Fletcher, 183 Ga. App. 593 (359 SE2d 456); Love v. Hardison, 166 Ga. App. 677 (1), supra. The constitutional infirmities raised by appellant would not show that the DUI convictions rendered in the Recorder’s Court of the City of Woodbury are void on their face. Love v. Hardison, 166 Ga. App. 677 (1), supra.

Even if appellant can collaterally attack the recorder’s court convictions, he cannot do so on the ground that they fail to show affirmatively a waiver of a jury trial. Inasmuch as appellant failed to object to being tried without a jury, his right to a jury trial was waived. Nicholson v. State, 261 Ga. 197, 200 (6) (403 SE2d 42); Kolker v. State, 200 Ga. App. 72 (406 SE2d 514).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A91A1521.
    WHITENER v. THE STATE.
    (410 SE2d 796)
   McMurray, Presiding Judge.

Following a jury trial, defendant was convicted of homicide by vehicle in the first degree. She appeals. Held:

1. Defendant moved to suppress the results of a blood alcohol test which was taken approximately two hours after the collision. (The State demonstrated that the concentration of alcohol in defendant’s blood at that time was .11 grams percent.) In this regard, defendant argued that the arresting officer did not have probable cause to arrest her and that, therefore, the subsequent seizure of defendant’s blood sample was tainted. The motion to suppress was denied.

In her first enumeration of error, defendant contends the trial court erred in denying the motion to suppress. This contention is without merit.

“A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed ... an offense. [Cits.]” Callaway v. State, 257 Ga. 12, 13 (2) (354 SE2d 118). What facts and circumstances were known to the officer at the time of defendant’s arrest?

The collision occurred on December 12, 1990, at approximately 4:30 p.m. Conducting an investigation at the scene of the collision, the officer learned that defendant momentarily drove her vehicle on the wrong side of the road and hit the vehicle in which the victim was a passenger head on. The victim was not wearing a seat belt. She “rolled” out of the other vehicle after the collision and was found on the side of the road. She suffered a fractured skull and multiple trauma and died en route to the hospital.

The arresting officer noticed an odor of alcohol on the defendant’s breath and inside her vehicle. Defendant told the officer that she had had three beers. She was transported to the hospital where she was treated for her injuries. About two hours after the collision, the officer arrested defendant on suspicion of driving under the influence of alcohol, driving on the wrong side of the road, driving without a driver’s license and vehicular homicide. Following her arrest, defendant gave her consent for a blood alcohol test.

We have no hesitation in concluding that, “ ‘[b]ased on these facts, the warrantless arrest was both reasonable and necessary to prevent a failure of justice.’ [Cit.]” Waits v. State, 172 Ga. App. 524, 525 (323 SE2d 624). As in State v. Greene, 178 Ga. App. 875 (344 SE2d 771), where defendant was arrested for driving under the influence because he exuded a strong odor of alcohol and was unsteady on his feet, the facts and circumstances known to the officer warranted a belief that defendant committed an offense. “The same strictness of proof required for a finding of guilt is not necessary for probable cause.” Hall v. State, 200 Ga. App. 585, 587 (1) (409 SE2d 221).

The arrest of defendant was legal. It follows that the seizure of defendant’s blood was not tainted and that the trial court did not err in denying defendant’s motion to suppress.

2. Defendant asserts that the trial court erred in failing to strike the testimony of an expert witness who testified that the concentration of alcohol in defendant’s blood was .11 grams percent. In this regard, defendant points out that the blood sample was taken more than two hours after the collision and argues that the witness failed to specify the concentration of alcohol in her blood at the time of the collision. This assertion is without merit.

Although the expert did not pinpoint the amount of alcohol in defendant’s blood at the time of the collision, he testified that it takes approximately 30 minutes for the level of blood alcohol to peak and that it diminishes over time. The clear implication of the expert’s testimony was that defendant’s blood alcohol level exceeded .11 grams percent at the time of the collision. At any rate, the expert’s testimony was admissible, its weight was a matter for the jury to decide. See McGhee v. State, 253 Ga. 278, 280 (5) (319 SE2d 836).

3. Defendant contends she should not be deemed guilty of homicide by vehicle in the first degree because the victim was not wearing a seat belt at the time of the collision. She recognizes that the victim’s failure to wear a seat belt is not to be “considered evidence of negligence” or have a bearing “on any question of liability. ...” OCGA § 40-8-76.1 (d). She insists, however, that the victim’s failure to wear a seat belt should be considered in determining the “cause” of death. In this regard, she asserts that her conduct was not the proximate cause of the victim’s death since the victim was not wearing a seat belt. We disagree.

In our view, the victim’s failure to wear a seat belt can play no role in determining whether defendant is guilty of vehicular homicide. “[The victim’s] failure to wear a seat belt may arguably be a proximate cause of [her] death but was not an event that can sensibly be described as an intervening cause of [her] injuries; it was, rather, a condition precedent — among many — to the accident, making [her], under the facts of this case, more vulnerable to injury. We can imagine that in another case, the wearing of a seat belt might contribute to the death of a victim, but it hardly could be claimed that this circumstance would absolve the defendant as constituting an intervening cause.

“So long as the defendant’s negligence proximately caused the death of another, the crime has been committed, even if there are other factors which also are proximate causes of the death. As opposed to the civil context, in which compensating deserving victims is the aim, in the criminal context it simply is not relevant that the victim was negligent, unless the defendant’s conduct did not substantially contribute to the cause of death. [Cits.]” State v. Dodge, 567 A2d 1143, 1144 (Vt. 1989).

As one court put it, quoting Perkins, Criminal Law (3d ed.), pp. 785, 790, “ ‘[Njegligence on the part of the deceased . . . has no bearing upon either responsibility or imputability in the determination of guilt or innocence ... if it was a substantial factor thereof, an act which is a direct cause of a socially harmful occurrence is always a proximate cause.’ ” People v. Richardson, 428 NW2d 698, 699 (Mich. App. 1988). Inasmuch as defendant’s conduct was a “substantial factor” in causing the victim’s death, it was a proximate cause of the victim’s death. See State v. Nester, 336 SE2d 187, 189 (W.Va. 1985) (fact that victim did not wear a seat belt did not break the causal connection between defendant’s wrongful conduct and victim’s death).

Decided September 12, 1991

Reconsideration denied September 25, 1991

Warren & Akin, Kelley A. Dial, for appellant.

Darrell E. Wilson, District Attorney, Paul F. Cardin, Assistant District Attorney, for appellee.

“Without question, the [victim] would be alive today were it not for the fact that defendant crossed the center line . . . [The victim’s] failure to wear a safety belt does not bear on the criminal conduct of defendant. . . .” People v. Richardson, 428 NW2d 698, 699, supra.

Even if we were to hold that the victim’s failure to use a seat belt should play a role in determining defendant’s guilt, the record is devoid of evidence demonstrating that the victim would not have died if she had worn a seat belt. Thus, in any event, the jury was not presented with evidence enabling it to determine what effect the non-use of a seat belt had on the issue of causation. See Boatwright v. Czerepinski, 194 Ga. App. 697, 698 (391 SE2d 685).

4. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of homicide by vehicle in the first degree beyond a reasonable doubt. Howard v. State, 177 Ga. App. 589 (1) (340 SE2d 212).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1755.
    STEWART et al. v. RICHARDSON.
    (411 SE2d 309)
   McMurray, Presiding Judge.

This is a stockholders’ derivative action brought by two minority stockholders, plaintiffs Flowers and Stewart, against the majority stockholder, defendant Richardson. Plaintiffs sought damages by reason of the sale of substantially all of the assets of Residential Brokers, Inc., without notice to the minority stockholders. Plaintiffs appeal from the grant of summary judgment in favor of defendant. Held:

The uncontradicted evidence shows that Residential Brokers, Inc., was insolvent in that the corporation’s total assets were less than the sum of its total liabilities. OCGA § 14-2-1201 (a) (2). Therefore, the corporation was authorized to sell, lease, exchange, or otherwise dispose of all or substantially all of its property under terms and conditions determined by the board of directors. OCGA § 14-2-1201 (b) (1) (A). Defendant was the sole director of Residential Brokers, Inc. A sale of assets of a corporation pursuant to OCGA § 14-2-1201 does not require shareholder approval. OCGA § 14-2-1202 (a). Plaintiffs’ action was not well founded in the law and the superior court did not err in granting defendant’s motion for summary judgment.

Decided September 16, 1991

Reconsideration denied September 25, 1991

William A. Wehunt, for appellants.

Chesnut & Livingston, Tom Pye, for appellee.

Three of plaintiffs’ enumerations of error are predicated upon an alternative ground stated for defendant’s motion for summary judgment, that plaintiffs failed to make an ante litem demand on the corporation pursuant to OCGA § 14-2-742. In view of our holding that the grant of summary judgment was authorized under the alternative theory discussed above, these enumerations of error are moot.

Plaintiffs’ final enumeration of error, contending that the trial judge erred in sustaining objections to two affidavits filed by plaintiffs, is also without merit. The affidavit of plaintiff Flowers, stating that defendant “removed from sale assets which would have revealed that the company was in a solvent condition at the time of the sale,” was properly excluded as conclusory. Abrahamsen v. McDonald’s Corp., 193 Ga. App. 868, 870 (2) (389 SE2d 386). The affidavit of witness Wan was also conclusory, and even if considered, would not create a genuine issue of material fact.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0839.
    BLUM v. AIR CENTER GWINNETT, INC.
    (411 SE2d 88)
   McMurray, Presiding Judge.

Plaintiff Blum alleges that he entrusted his airplane to defendant Air Center Gwinnett, Inc., for storage and security, and that defendant allowed some unknown party to pillage, damage and remove parts from the aircraft. Plaintiff appeals the grant of summary judgment to defendant. Held:

In 1976 or 1977, plaintiff arranged with defendant’s predecessor, Roman Aviation, to have his airplane inspected and flown from another airport to the Gwinnett County Airport. Plaintiff also entered into an oral agreement with an agent of defendant’s predecessor that, in exchange for a fee, it would exercise normal diligence in protecting the airplane against unauthorized use and other harm so long as the airplane was tied down at Gwinnett County Airport. For a year or two after the move, plaintiff sometimes flew the airplane. When not in use and after plaintiff ceased flying it, the airplane was tied down at the Gwinnett County Airport.

While there was never any written contract between plaintiff and defendant, or its predecessor, they charged a tie down fee for most of the period plaintiff’s airplane was located at Gwinnett County Airport. Plaintiff was last billed by defendant’s predecessor on September 30, 1986, apparently for the final quarter of 1986. Shortly thereafter, ownership of the predecessor corporation changed. The nature of the succession of the business to defendant is not shown on the record and for purposes of summary judgment we presume that defendant succeeded to the rights and obligations of the predecessor corporation. Defendant continued to bill plaintiff for the tie down for the first two months of 1987 and enclosed a tie down agreement for plaintiff’s signature which contained a provision absolving defendant of responsibility for theft or damage to a customer’s airplane. When plaintiff did not respond to these mailings defendant ceased billing plaintiff for tie down fees. Plaintiff was not billed for services rendered after February 1987, although he continued to be billed for charges accrued prior to that date. If this cessation of billing for tie down fees while plaintiff’s airplane remained on the premises appears anomalous it might be explained by evidence that, as early as 1980, plaintiff’s airplane had been moved to and remained at a location not leased by or controlled by defendant, or its predecessor. In this connection, we note that there is no evidence that plaintiff was aware that the location to which his airplane had been removed was not a portion of the premises of defendant or its predecessor. Plaintiff paid the fees for which he was billed, albeit generally not in a timely fashion.

Over the period of years that followed plaintiff’s cessation of flying the airplane, he would go to the airport and check on it approximately once every three months. The airplane was locked and plaintiff had the key. At the location where the airplane had been tied down for several years “anybody who wanted to could just walk right up to it.” In October of 1988 plaintiff discovered that the airplane had been cannibalized.

Plaintiff relies on the obligations arising from the oral contract of 1976 or 1977. Defendant would avoid that contract on several theories. Defendant contends the oral contract is unenforceable since it is an agreement that is not to be performed within one year from the making thereof and thus must be in writing pursuant to OCGA § 13-5-30 (5) in order to be binding. However, such is not correct since this statute of frauds provision is not applicable to an agreement for an indefinite period terminable at will or where there is a possibility of performance in one year. Vitner v. Funk, 182 Ga. App. 39, 42 (2), 43 (354 SE2d 666); Gatins v. NCR Corp., 180 Ga. App. 595, 598 (349 SE2d 818). Defendant’s reliance upon Yarborough v. Hi-Flier Mfg. Co., 63 Ga. App. 725 (12 SE2d 133) is misplaced as that case may be distinguished on the facts since it involves a contract which provided that it should continue from year to year unless terminated pursuant to a condition subsequent, in the nature of a defeasance provision. See White v. Simplex Radio Co., 188 Ga. 412, 415 (3 SE2d 890).

Defendant further contends that the mailing of the tie down agreement with terms incompatible with the oral contract should be viewed as notice to plaintiff of a termination of the oral agreement. This contention presumes delivery of the letter to plaintiff. “Before any presumption arises that a letter has been received through the mails it must be shown that ‘the letter (1) was written; (2) was properly addressed to the party; (3) contained the correct postage; and (4) was duly mailed in the United States Post Office.’ [Cits.]” Edmondson v. Air Svc. Co., 123 Ga. App. 263 (2) (180 SE2d 589). A presumption of plaintiff’s receipt of the letter from defendant does not arise under the evidence in the case sub judice since there is no evidence that the letter was properly addressed to plaintiff and contained correct postage.

Defendant also contends that the cessation of the billing for the tie down fee subsequent to February 1987 placed plaintiff on notice of the termination of the oral contract. However, in our view this change presents at most a question of fact as to whether it amounted to reasonable notice of termination. Defendant continued to bill plaintiff for the previously accrued charges and there is no indication in the record that these continued bills from defendant clearly indicated the cessation of the tie down fees. This combined with the tardy payment schedule which had been the custom in regard to plaintiff’s account over the years with both defendant and its predecessor precludes any conclusion as a matter of law that the cessation of billing for the tie down fee amounted to reasonable notice to plaintiff of the termination of the oral contract.

While there may have initially been a bailment created when defendant’s predecessor assumed possession of the airplane in order to accomplish the inspection and transport of the airplane to Gwinnett County Airport any such bailment terminated upon return of possession of the airplane to plaintiff. The relationship which continued under the portion of the oral contract concerning the tie down of the airplane at the airport may not properly be characterized as a bailment since plaintiff retained access to the airplane. Mossie v. Pilgrim Self-Service Storage, 150 Ga. App. 715 (2) (258 SE2d 548).

Decided September 25, 1991.

George P. Graves, for appellant.

Butler, Wooten, Overby & Cheeley, Robert D. Cheeley, Patrick A. Dawson, for appellee.

Under the particular facts and circumstances of the case sub judice, the oral contract is a sufficient predicate for a breach of contract claim and since defendant has failed to disprove any element of plaintiff’s claim by uncontroverted evidence, we hold that the state court erred in granting defendant’s motion for summary judgment. Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637). We do not reach the issue of whether a misfeasance by defendant in the performance of its duties under the oral contract will support a tort action. However, see in this regard Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 94 (3) (406 SE2d 502); Parker Motor Co. v. Spiegal, 33 Ga. App. 795, 796 (2) (127 SE 797).

Judgment reversed.

Sognier, C. J., concurs. Andrews, J., concurs in the judgment only.


text:
    A91A1171.
    BLACKERBY v. HENSON.
    (411 SE2d 91)
   McMurray, Presiding Judge.

On May 27, 1988, Gloria Jean Henson (plaintiff) filed an action against Robert Michael Blackerby (defendant) and alleged that defendant negligently drove his car into plaintiff’s vehicle on May 30, 1986. Defendant was served with process on August 24, 1989. On September 19, 1989, an answer was filed on defendant’s behalf by attorney Ted H. Reed. On October 3, 1989, attorney Arthur H. Glaser filed an answer on defendant’s behalf and specifically raised the statute of limitation as a defense. On August 8, 1990, defendant filed a motion to dismiss, contending that plaintiff’s complaint should be dismissed because it was served after the applicable two-year statute of limitation and “some fifteen . . . months after suit was filed.” The trial court denied defendant’s motion to dismiss, finding that defendant waived the statute of limitation defense by failing to assert it in the answer filed on September 19, 1989. We granted defendant’s application for interlocutory appeal. Held:

Decided September 25, 1991.

Drew, Eckl & Farnham, Arthur H. Glaser, Jane R. Leitz, for appellant.

Harris P. Baskin, Jr., for appellee.

OCGA § 9-11-15 (a) allows a party to “amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” A pretrial order has not been entered in the case sub judice. Further, defendant’s October 3, 1989, answer raised the statute of limitation defense, as did his October 8, 1990, motion to dismiss. Consequently, the trial court erred in finding that defendant waived the statute of limitation defense by failing to assert it in the September 19, 1989, answer. Gober v. Hosp. Auth. of Gwinnett County, 191 Ga. App. 498 (1) (382 SE2d 106). The case is therefore remanded for a determination of whether plaintiff exercised diligence in serving defendant over 15 months after expiration of the applicable statute of limitation. See Forsyth v. Brazil, 169 Ga. App. 438, 439 (313 SE2d 138).

Judgment reversed and case remanded.

Sognier, C. J., and Andrews, J., concur.

       An “ORDER OPENING DEFAULT” was filed on October 4, 1989, accepting defendant’s payment of all accrued costs and ordering “that said default is opened as provided by law.” However, nothing in the record shows that defendant was in default for failing to file a timely answer or that a default judgment was entered against defendant for any reason.


text:
    A91A1186.
    CAIN v. THE STATE.
    (411 SE2d 92)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, with simple assault and was tried before a jury. No trial transcript appears in the record, but a stipulation of the case filed pursuant to OCGA § 5-6-41 (i) appears in the record and provides, in pertinent part, as follows:

“Defendant was arraigned on September 4, 1990 and notified that his trial date would be November 26, 1990. Subsequently, he was sent notice by the court by mail that his trial date was November 26, 1990. On November 26, 1990 at the call of the calendar, Defendant announced ready for his jury trial and stated that his witnesses were present. The trial judge appointed Cheryl Harper to represent the Defendant for the purpose of explaining the dangers of proceeding without an attorney. After discussing the matter with Defendant, counsel asked to be appointed to represent Defendant at trial. The court consented. Defense counsel asked for a continuance on the basis of her inability to prepare. The court denied the continuance on the following factors: Defendant had announced ready for trial; Defendant’s witnesses were present; Defendant had been advised that this was a trial calendar and that he should appear ready for trial; and the case was not a complex case. The court advised counsel that he would allow her to withdraw if she so chose.

“Shortly prior to the start of the trial, counsel for the Defendant was advised by counsel for the State that he intended to introduce evidence of a prior aggravated assault by the Defendant on the victim in this case, Carolyn Cain. A pretrial hearing was held. The court held that it was admissible under two theories. First, it was admissible as prior difficulties between the parties. Second, the court held that even if it were a similar transaction under Rule 31 of the Uniform Rules of State Court, he would shorten the ten day notification period as allowed by the statute. The court stated that the purpose of the rule is to prevent trial by ambush. Because counsel for the State notified opposing counsel of the intent to introduce this evidence as soon as he learned of it, the time period should be shortened. The rule was substantially complied with by the State.

“Trial commenced mid-afternoon. During opening statement, counsel referred to the Defendant’s prison record. Carolyn Cain testified that she is the former wife of Defendant. She and her sister were at the apartment of her child’s father on March 18, 1990. Defendant was at his mother’s apartment, which is next door to the apartment where Ms. Cain was visiting. Defendant came outside of that apartment and came over to see Ms. Cain. Defendant asked her for a divorce. She would not agree. He continued to discuss terms of settlement of the divorce. He became very angry and raised his arm in a clinched fist as if to strike her and moved toward her in a threatening manner. He stated, ‘If you take anything else from me I will kill you.’ The action placed her in immediate fear of bodily injury. She was afraid he was going to hurt her at that moment.

“Gerald Collings testified for the defense. He was a friend of Defendant and was present on March 18, 1990. He stated that Defendant and Carolyn Cain argued back and forth for a long period of time. Carolyn Cain told Defendant that she would see him in jail. The Defendant was very angry. He did not see Defendant approach Ms. Cain.

“Defendant testified that he and Carolyn Cain had a pleasant conversation which was short. He denied threatening her or advancing on her.

“In rebuttal, the State called the victim’s mother who testified that the Defendant shot at Ms. Carolyn Cain at a prior time. No objection was made to this testimony.

“At this time the State closed its case.

“Counsel for the State referred to the shooting in its closing. No objection was made by defense.

“The jury returned a guilty verdict.”

This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for continuance, thereby preventing his court appointed attorney an opportunity to prepare for trial.

“Granting or refusing a continuance is a matter within the sound discretion of the trial court, and absent a clear showing of abuse, this court will not reverse for refusing to grant a continuance. [Cits.]” Pope v. State, 140 Ga. App. 643 (1) (231 SE2d 549). In the case sub judice, the trial court denied defendant’s motion for continuance because “Defendant had announced ready for trial; Defendant’s witnesses were present; Defendant had been advised that this was a trial calendar and that he should appear ready for trial; and [that] the case was not a complex case.” However, defendant was not represented by an attorney when he announced ready for trial and complications arose on the day of trial when the State’s attorney announced that she intended to introduce similar transaction evidence against defendant.

“In determining whether or not an accused has adequately waived his right to counsel and elected to exercise his constitutional right to represent himself, the courts will apply the standard set forth in Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1937). Faretta v. California, [422 U. S. 806 (95 SC 2525, 45 LE2d 562)]. Taylor v. Ricketts, 239 Ga. 501 (238 SE2d 52) (1977), applied the Johnson v. Zerbst standard that ‘A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, supra at 464. It is also clear from Johnson v. Zerbst that the trial judge has the responsibility of determining whether the accused has intelligently waived his right to counsel. ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.’ Johnson, at 465.” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49).

In the case sub judice, nothing in the record shows that defendant was advised of his right to counsel before announcing ready for trial or that an attorney would be appointed by the court to represent defendant if he could not afford counsel. Further, the trial court did not determine whether defendant knowingly and voluntarily waived his right to counsel. Instead, the trial judge appointed an attorney “to represent the Defendant for the purpose of explaining the dangers of proceeding without an attorney.” The newly appointed attorney apparently determined that defendant was not aware of the hazards of proceeding without counsel as she “asked to be appointed to represent Defendant at trial.” Under these circumstances and in light of complications defense counsel faced in challenging the similar transaction evidence uncovered by the State on the day of trial, we find an abuse of discretion in denying defendant’s motion for a continuance. See Turner v. State, 162 Ga. App. 806 (1) (293 SE2d 67).

Decided September 25, 1991.

Thomas R. Moran, for appellant.

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

2. It is unnecessary to address defendant’s final contention as any error is unlikely to occur upon retrial.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge. Pope, Judge,

text:
    A91A1352.
    THE STATE v. CORLEY.
    (411 SE2d 324)
   Birdsong, Presiding Judge.

This is a prosecution for possession of marijuana. The State appeals the trial court’s grant of the motion to suppress of appellee Joseph Mitchell Corley. Held:

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. Morgan v. State, 195 Ga. App. 732, 735 (394 SE2d 639); State v. Combs, 191 Ga. App. 625, 627 (382 SE2d 691).

The evidence is disputed in some aspects, but construed in favor of the trial court’s ruling, it shows that appellee Corley and Tim Tanner were in the parking lot of a convenience store near a pickup truck which Tanner had been driving and to which he claimed ownership. Tanner was sitting in another vehicle and appellee was standing in the parking lot when police, including a narcotics officer whom appellee knew, stopped their vehicle alongside appellee and began to talk to him. Tanner got out of the vehicle where he was sitting and went towards the pickup truck. The officer testified that when he and his partner pulled into the parking lot, appellee walked over to their car and spoke to them; and that he detected a slight slurring in appellee’s speech. Appellee denied having done this, and testified, “What would I want to walk over to a narcotics car for when we’ve got marijuana in [the] truck for to talk to him when [sic] I know he’s a narcotics agent.” The police directed both Tanner and appellee to empty their pockets; they did so, emptying their pockets on the hood of the pickup truck. According to the police, they asked Tanner if they could “look inside” his truck, and Tanner said yes. According to appellee and Tanner, consent to search was never asked; the police simply went inside the truck and started looking around. The searching officer saw a closed drawstring “Crown Royal” bag “laying on the seat in the middle of the driver’s [side].” He could not see inside it, but suspected it contained illicit drugs, and he opened it and discovered less than an ounce of marijuana. The officer further testified that after the search appellee stated, “Tanner didn’t have anything to do with it, that it was his.” (Emphasis supplied.)

Appellee, who was the passenger in Tanner’s vehicle on that evening but was standing outside it when the police drove up, contends he never gave permission to search, he was not under arrest, the marijuana was not in plain view, and he had a reasonable expectation of privacy in the searched premises; the State contends appellee, as a mere passenger, had no standing to complain of the search because he had no reasonable expectation of privacy in the passenger compartment of Tanner’s vehicle, citing McGhee v. State, 253 Ga. 278, 279 (319 SE2d 836) and Mecale v. State, 186 Ga. App. 276, 277-278 (367 SE2d 52).

Appellee testified that he did not approach the officer’s car because “what would I want to walk over to a narcotics car for when we’ve got marijuana in [the] truck . . . when I know he’s a narcotics agent.” He thus again, albeit in a sarcastic manner, asserted an interest in the marijuana which was in the closed bag in the front seat, and for reasons hereafter discussed, had a reasonable expectation of privacy in the premises such that the search not incident to arrest violated his constitutional rights. See Mecale, supra; State v. Scott, 176 Ga. App. 887, 888-889 (339 SE2d 276). See Rakas v. Illinois, 439 U. S. 128, 148 (99 SC 421, 58 LE2d 387).

This is an appeal by the State of the trial court’s granting of appellee’s suppression motion; and it is our obligation on appeal to construe the evidence most favorably to support the trial court’s ruling. See Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). Immediately following the search and also at the suppression hearing, appellee readily asserted an interest in the contraband; at no time did appellee expressly deny that the marijuana was his. This critical fact pattern clearly distinguishes the case at bar from Rakas, supra, McGhee, supra, and Mecale, supra. Further, the bag containing the contraband was not in the trunk, the glove compartment or under the passenger seat, areas where appellee conceivably might not enjoy a reasonable expectation of privacy. Rakas, supra at 148. Rather, the contraband in this case was in a closed Crown Royal bag “laying on the seat in the middle of the driver’s seat” of a pickup truck, an area within an arm’s reach of the appellee passenger and clearly not outside the range of his reasonable expectation of privacy. In Rakas, the Supreme Court of the United States had an opportunity to declare that all passengers of vehicles would henceforth lack sufficient expectation of privacy to challenge the search of the automobile in which they were riding; the majority made no attempt to assert such a broad holding. Rather a reading of Rakas reveals that repeatedly the Supreme Court noted the defendants had failed to assert, at any time, that they owned or possessed the rifle or shells seized, that is, defendants never asserted an interest in the property seized; moreover, the Court expressly determined that the areas such as a glove compartment, under the car seat, and the trunk are storage areas in which a passenger qua passenger simply does not normally have a legitimate expectation of privacy. Rakas, supra at 148-149.

As stated, in this case the seized property was not found in any area normally used by the vehicle owner for storage, but was found lying in a bag on the pickup truck seat in the approximate location of the middle of the driver’s seat. Under the circumstances here presented, we are satisfied appellee was vested with that reasonable expectation of privacy necessary to authorize him to contest whether the police violated his Fourth Amendment rights during the course of their search and seizure. In this regard, a subjective expectation of privacy is reasonable if it is one that society is prepared to recognize as reasonable. Rakas, supra at 143-144. In this instance, viewing the facts and drawing all reasonably permissible inferences therefrom to support the trial court’s ruling, as we are required to do, we find: (a) appellee claimed an interest in the contraband and from appellee’s assertion of the broad claim that he owned “it,” it may reasonably be inferred he also was asserting ownership in the bag in which the contraband was being carried (not that that is essential in the disposition of this case); and, (b) appellee either owned or partially owned the vehicle (as discussed below) or was in the vehicle as a passenger with the owner’s consent. Although not necessary to the disposition of this case, it also reasonably may be inferred (a) that at some point in time appellee carried marijuana and scales into the vehicle with him, and these contraband items were carried in a Crown Royal bag — the closed bag in which the items were found during the search; and (b) appellee placed the bag on the front seat of the pickup truck where the closed bag was found, lying in the open, by the officer.

It is apparent beyond doubt that society is prepared to accept as reasonable that both vehicle owners and their authorized passengers may carry bags and parcels with them into the automobile; it is further our view that society is prepared to recognize a right of privacy in the contents of those closed packages and bags, which legitimate passengers and vehicle owners carry with them into the vehicle at least to the extent of vesting the passenger or owner with lawful authority to assert a violation of Fourth Amendment rights due to an illegal search or seizure of those objects. We cannot comprehend that society is willing to give up the reasonable expectation of a right of privacy to closed packages and bags, placed in plain view and within reasonable proximity of the person asserting a legitimate interest therein — thereby in essence vesting the police with virtual carte blanche authority to conduct illegal searches and seizures thereof with impunity — merely because those items must be transported in an automobile to travel from point A to point B in the company of the owner or person claiming an interest therein. Accordingly, we find appellee did enjoy a subjective expectation of privacy in the bag and its contents in this instance within the meaning of Rakas. Rakas, supra at 143-144, citing Katz v. United States, 389 U. S. 347, 361 (88 SC 507, 19 LE2d 576) (Harlan, J., concurring).

Incidentally, although the weight of evidence in this case is that the vehicle belonged to the co-defendant Tanner, appellee’s suppression motion referred, at least twice, to the vehicle as the “defendant’s vehicle.” Also during the suppression hearing, appellee testified that the officer “told both of us to stand over there, while he searched our car,” and that he did not protest the search because “what am I supposed to say to him? You can’t search my car.” (Emphasis supplied.) The trial court made no express finding of fact other than to hold that “there is a conflict in the testimony.” Thus, .conceivably the trial court could have found as fact that the pickup was either jointly or exclusively owned by appellee. Regardless of who owned the vehicle, however, for the reasons stated above, we find that appellee had the requisite reasonable expectation of privacy to contest the legality of this particular search and seizure.

Even assuming the officer asked for and obtained a consent to search, his question to Tanner, the avowed owner of the truck, was: “Do you care if I look inside of it”; whereupon, Tanner having said “no, go ahead,” the officer proceeded to open the closed drawstring bag in the front seat. It is apparent that, according to the officer’s own testimony, as in State v. Diaz, 191 Ga. App. 830, 832 (383 SE2d 195), the officer asked merely for permission to “look inside” the vehicle and “gave ... no indication that he intended to seize and examine the contents of any items or containers therein. ‘This was the outer extent of investigation consented to; the scope of the consent clearly did not extend to a full-blown search of the interior and [containers found therein]. ... We know of no case which has allowed police officers arbitrarily to expand the scope of a consent search.’ ”

Decided September 25, 1991.

Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellant.

William E. Frey, for appellee.

Where the validity of the search is dependent on the consent of a defendant and the evidence shows without dispute that the scope of the search exceeded the scope of the consent, the search is unlawful. Amato v. State, 193 Ga. App. 459, 460 (388 SE2d 54). The basis for the search in this case was the consent given by the owner of the vehicle, Tanner, and it is plain that the officer’s search of the closed container in the front seat exceeded the scope of the consent given by Tanner, and was unlawful.

Judgment affirmed.

Cooper, J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

While I agree with the result reached by the majority, I feel compelled to write separately to express my opinion that the only statement contained in the record, which justifies a finding that the defendant asserted a possessory interest in the contraband, is the testimony of the arresting officer that: “Mr. Corley later stated, during the time that they were sitting outside the vehicle, that Mr. Tanner didn’t have anything to do with it, that it was his.” When this statement is considered in context, it is probable that defendant was referring to the marijuana found in Mr. Tanner’s truck. The other statements quoted in the majority opinion are either obviously sarcastic remarks or are otherwise irrelevant to the standing issue.


author: Sognier, Chief Judge.

text:
    A91A1216.
    SLEETH v. THE STATE.
    (411 SE2d 79)
   Sognier, Chief Judge.

This appeal is the second appearance of this case before the Court of Appeals. In Sleeth v. State, 197 Ga. App. 349 (398 SE2d 298) (1990), we affirmed William Eric Sleeth’s convictions for burglary, arson, and possession of marijuana, but remanded the case to the trial court for a hearing on his claim of ineffective assistance of counsel at trial. The trial court held the requisite hearing and decided the question adversely to Sleeth, denying his motion for new trial. He appeals.

At trial, evidence was adduced that appellant and Deborah Thompson were romantically involved from August 1988 until early November, when she ended the relationship. Thompson testified that in the days after she broke off relations with appellant, he made harassing telephone calls to her home and accosted her at their mutual place of employment. Thompson’s home was burglarized between 5:30 a.m. and 4:00 p.m. on November 15, 1988, and was destroyed by fire at about 9:00 p.m. on November 26. An investigator testified that the fire was deliberately set by someone who poured an accelerant inside and outside the house. Several witnesses placed appellant’s car in the vicinity of Thompson’s home the evening of the fire, and some of the personal items stolen from her home during the November 15 burglary were found under a mobile home in which appellant was living.

In support of his claim of ineffective assistance of counsel, appellant contends his trial attorney (a) failed to interview or present the testimony of witnesses who would have supported his defense of alibi for the November 15 burglary; (b) improperly prevented appellant from testifying at trial; (c) failed to obtain a transcript of appellant’s committal hearing and consequently was unprepared to impeach the trial testimony of a fire department witness; (d) failed to interpose certain objections to testimony and to the court’s opening charge to the jury; and (e) was hostile to appellant and his interests. We will consider these arguments seriatim.

(a) We find no merit in appellant’s contention that counsel failed to interview or call for testimony at trial a number of alibi witnesses. At trial, three witnesses testified that they had seen or been with appellant during some portion of the day of November 15, and two witnesses testified concerning his whereabouts at various times on November 26. Appellant testified at the hearing that he had given counsel an extensive list of witnesses whom appellant claimed would provide a complete alibi for November 15. Counsel, however, explained during his hearing testimony that either he or his investigator interviewed several of these witnesses, but that he rejected them as trial witnesses either because they could provide only cumulative testimony or because their testimony would not have supported appellant’s version of the events. Further, he noted that under appellant’s own handwritten narrative of his activities on the 15th, even if counsel had called every witness listed by appellant, there would still have been a gap of several hours during which no one could vouch for his whereabouts.

“We agree that ‘effective representation’ involves more than courtroom conduct by the advocate. The exercise of the highest order of skill during the trial would fall short ‘if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance.’ [Cit.]” Harrell v. State, 139 Ga. App. 556, 558 (3) (228 SE2d 723) (1976). Here, however, we find no violation of that duty, as counsel obviously either interviewed the prospective witnesses and determined their testimony would not be helpful or made a strategic decision not to call them because they could not conclusively establish an alibi defense. See Nichols v. State, 257 Ga. 558-559 (2) (a) (361 SE2d 486) (1987). “The decisions on which witnesses to call, whether and how to conduct cross-examinations, . . . and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. . . . The fact that the case could have been tried differently on behalf of the defendant does not mean that he failed to receive a vigorous and competent defense.” (Citations and punctuation omitted.) Stripling v. State, 155 Ga. App. 636, 637 (2) (271 SE2d 888) (1980).

(b) Appellant’s argument concerning his failure to testify at trial is similarly without merit, as counsel testified at the hearing he advised appellant not to testify because he could open the door to admission of evidence of his prior convictions, and the trial transcript reveals that in response to a direct query from the trial judge, appellant stated he did not wish to testify. See Sutton v. State, 238 Ga. 336, 337-338 (232 SE2d 569) (1977); accord Powell v. State, 198 Ga. App. 509, 511 (402 SE2d 108) (1991).

(c) At the hearing, appellant did not produce the transcript of the committal hearing, and thus failed to support his argument concerning the allegedly contradictory testimony of the fire department witness. Accordingly, we must presume counsel’s actions were not prejudicial to appellant. See generally Hasty v. State, 195 Ga. App. 427 (394 SE2d 800) (1990).

(d) In appellant’s prior appeal, we held that the testimony challenged by appellant was admissible, Sleeth, supra at 349-350 (2), and also found no harm in the jury instruction at issue. Id. at 349 (1).

(e) We find nothing in the record to support appellant’s contention that trial counsel was so hostile to appellant as to prejudice his defense. Indeed, the record suggests that counsel proceeded with an effective defense of appellant even though appellant was reluctant to discuss his case with counsel. To establish that he received ineffective assistance of counsel, appellant must show both that counsel’s performance was defective and also that the deficiency prejudiced the defense. Powell, supra at 510. Our review of the trial transcript reveals that counsel aggressively cross-examined the State’s witnesses, presented alibi witnesses on appellant’s behalf, interposed proper objections, and otherwise conducted the trial within the range of reasonable professional conduct. See generally id. at 510-512. Consequently, we affirm the judgment of the trial court.

Decided September 10, 1991

Reconsideration denied September 26, 1991.

Ronald C. Conner, for appellant.

Robert F. Mumford, District Attorney, Alan S. Clarke, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Banke, Presiding Judge.

text:
    A91A0785.
    THE STATE v. HUNT et al.
    (411 SE2d 273)
   Banke, Presiding Judge.

The appellees were indicted for “manufacturing marijuana by means of production” and “possession of marijuana in excess of one ounce” based on the discovery of marijuana plants growing in the vicinity of appellee Hunt’s home. The appellees filed special demurrers to the first count of the indictment, asserting that it failed to “describe how the manufacturing of marijuana is accomplished” in that it did not specify “how or by what means the marijuana is extracted from the natural marijuana plant or manufactured independently by means of chemical synthesis. The trial court granted these special demurrers, and the state filed this appeal pursuant to OCGA § 5-7-1 (1), contending that the trial court erred in ruling that “one cannot manufacture marijuana by growing same.” Held:

The appellees were charged under OCGA § 16-13-30 (j) (1) which provides as follows: “It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana. The term, “manufacture” is defined by the Code section to mean “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis . . . ,” OCGA § 16-13-21 (15); while “production” is defined to include “the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.” OCGA § 16-13-21 (24). Thus, the Code section applies by its express terms to the cultivation or planting of marijuana. Accord Hunter v. State, 198 Ga. App. 41 (400 SE2d 641) (1990); Blitch v. State, 188 Ga. App. 487 (373 SE2d 227) (1988); Kelleher v. State, 185 Ga. App. 774 (365 SE2d 889) (1988); Fatora v. State, 185 Ga. App. 15 (363 SE2d 566) (1987); Hendrixson v. State, 167 Ga. App. 517 (4) (306 SE2d 350) (1983). It follows that the trial court erred in concluding that “one cannot manufacture marijuana by growing same” and in dismissing Count 1 of the indictment based on that conclusion.

Decided September 3, 1991

Reconsideration denied September 27, 1991

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellant.

Cramer, Weaver & Edwards, Timothy C. Cramer, Mullins, Whalen & Shepherd, Samuel H. Sullivan, Walter M. Henritze, Jr., for appellees.

Judgment reversed.

Carley and Beasley, JJ., concur.


text:
    A91A0850.
    HALL v. THE STATE.
    (411 SE2d 274)
   Banke, Presiding Judge.

Hall appeals her convictions of obstruction of a law enforcement officer, disorderly conduct, and driving with an expired license and improper taillights.

A Clayton County police officer activated the blue lights on his marked police car to stop the appellant’s vehicle after observing that it was being operated without taillights at 1:12 a.m. The stop occurred in the City of Forest Park. As the officer was radioing his location, the appellant exited her car, approached the driver’s side door of the police car, and exclaimed through the partially opened window: “Why did you stop me? L wasn’t speeding, I’ve done nothing wrong. The only reason you stopped me is because you’re a male chauvinist pig.” She thereafter ignored repeated requests by the officer to produce her driver’s license and began walking back towards her car, whereupon the officer grabbed her by the arm and again demanded that she produce her license. When she refused, he attempted to place her under arrest for obstructing an officer and operating her vehicle without proper taillights. According to the officer, she pulled away from him and attempted to hit him, requiring him to push her against the vehicle in order to handcuff her. Held:

1. The appellant challenges the sufficiency of the evidence to support her conviction of obstruction of an officer. The offense consists of “knowingly and willfully obstrüct[ing] or hindering] any law enforcement officer in the lawful discharge of his official duties. ...” OCGA § 16-10-24 (a). The evidence was clearly sufficient to show that the officer was acting in the lawful discharge of his official duties when he stopped the appellant’s vehicle for the offense of driving an improperly equipped vehicle. See OCGA §§ 40-8-7 and 40-8-23. “Whether the actions of a defendant actually had the effect of hindering or impeding the officer is a decision for the trier of fact.” Patterson v. State, 191 Ga. App. 359 (1) (381 SE2d 754) (1989). “[A] factfinder could find that refusal to provide identification to an officer could hinder the officer in the execution of the officer’s duties.” Bailey v. State, 190 Ga. App. 683, 684 (379 SE2d 816) (1989). It follows that the evidence was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of obstruction of an officer. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 3, 1991

Reconsideration denied September 27, 1991

James W. Studdard, for appellant.

Catherine R. Hall, pro se.

Keith C. Martin, Solicitor, for appellee.

2. We agree with the appellant that her conviction and sentence for the offense of disorderly conduct under OCGA § 16-11-39 (3) must be reversed, inasmuch as the statute prohibiting such conduct was declared unconstitutional by the Georgia Supreme Court prior to the entry of the judgment of conviction. See Satterfield v. State, 260 Ga. 427 (395 SE2d 816) (1990).

Judgment affirmed in part and reversed in part.

Carley and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    A91A1055.
    ANDREWS v. THE STATE.
    (411 SE2d 52)
   Beasley, Judge.

Appellant, Gregory Andrews, was convicted of armed robbery. OCGA § 16-8-41. Pursuant to an order of the Georgia Supreme Court, a petition for habeas corpus filed by him was denied, but he was granted the right to file the present out-of-time appeal.

Meda Ruth Green was working at the G & R Grocery Store in Spalding County on the morning of December 17, 1987. Appellant came into the store on two occasions. The first time, he was in the store for about four to five minutes. The second time, he spent approximately ten minutes in the store before robbing Green with a knife, tying her up, and running out of the store. She quickly freed herself, followed him out of the store and saw him enter a dark-blue station wagon with the word Chevrolet written across the windshield in white letters.

She alerted the sheriff’s department and described the robber, his clothing, and his car. A lookout was posted. Within the hour, appellant was apprehended and transported back to the store. He was exhibited to Green while standing handcuffed outside the patrol car.

She testified that, although he had changed his jacket and hat after robbing the store, there was no question in her mind that appellant was the man who had robbed her. She described the man who had robbed her as having a moustache, being approximately 5 6 to b'l" in height, and wearing a tan suede jacket and a stocking-type cap. She also testified that she had given appellant a large amount of silver coins but no pennies. When arrested, he had many coins in his pocket.

1. Appellant contends that the trial court erred in denying his motion to suppress the testimony relating to the identification of him by the victim at the pretrial showup, as well as her in-court identification testimony.

The practice of showing suspects singly to a witness for identification purposes has been widely condemned. Daniel v. State, 150 Ga. App. 798 (1) (258 SE2d 604) (1979). “However, our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. [Cits.]” Arnold v. State, 155 Ga. App. 782, 783 (1) (272 SE2d 751) (1980).

The showup to Green was reasonably and fairly conducted shortly after the offense and at its location. When the robber was in the store, the victim had ample opportunity to view him in a lighted area. As shown by her accurate description of him, her degree of attention was well focused. She confidently identified appellant as the robber. The length of time between the crime and the showup was less than an hour. The trial court did not err in admitting the pretrial and in-court identification of appellant by the victim. See Duck v. State, 250 Ga. 592, 596 (3) (300 SE2d 121) (1983); McCounly v. State, 191 Ga. App. 266 (2) (381 SE2d 552) (1989). Daniel v. State, supra, states the four factors to be primarily considered. Focusing on opportunity, degree of attention, accuracy of description, and certainty, there was not a substantial likelihood of an in-court misidentification. Neil v. Biggers, 409 U. S. 188, 199-200 (93 SC 375, 34 LE2d 401) (1972).

2. Appellant also contends that the trial court erred in its charge to the jury on reasonable doubt.

Appellant complains about the italicized portion of the charge, “And a reasonable doubt is not a conjectural doubt, it is not a fanciful doubt, it is not an imaginative doubt, neither does it mean a possibility that the accused may be innocent; but as I’ve just said to you, ladies and gentlemen, it means a doubt that is founded upon reason and leaves your minds hesitating, unsettled, and undecided.”

Decided September 3, 1991

Reconsideration dismissed September 27, 1991

Mullens, Whalen & Shepherd, Samuel H. Sullivan, for appellant.

Gregory Andrews, pro se.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

Although it is not part of the superior court’s suggested pattern criminal charges, a challenge to this language was rejected in Williams v. State, 210 Ga. 207, 208 (1) (78 SE2d 521) (1953), and Deering v. State, 123 Ga. App. 223 (3) (180 SE2d 245) (1971). Giving it did not invade the province of the jury or shift the burden of proof, as appellant argues. No error was committed.

Judgment affirmed.

Banke, P. J., and Car ley, J., concur.


author: Carley, Presiding Judge.

text:
    A91A1077.
    DAVIS v. AUTO-OWNERS INSURANCE COMPANY.
    (411 SE2d 84)
   Carley, Presiding Judge.

Appellant-plaintiff filed a claim for no-fault income benefits pursuant to an automobile liability insurance policy issued by appelleedefendant. When appellee denied the claim, appellant initiated the instant action to recover not only those benefits, but also statutory penalties, attorney’s fees, and punitive damages. Appellant appeals from the trial court’s order granting appellee’s motion for summary judgment.

OCGA § 33-34-4 (a) (2) (B) provides for no-fault benefits for “the loss of income or earnings. . . .” It is undisputed that, at the time of his injury, appellant derived his income or earnings from “store [d] salvageable metal on [his] property” which he sold “in Atlanta when [he was] able to obtain transportation.” According to appellant, he “now possesses] scrap metal in [his] salvage yard sufficient to make several more trips to Atlanta but [he is] unable to do so because of [his] physical disability.” Appellant urges that this evidence sufficiently demonstrates that he has suffered a compensable “loss of income or earnings” and that the trial court erred, therefore, in granting summary judgment in favor of appellee.

Decided September 13, 1991

Reconsideration denied September 27, 1991

Joseph M. Todd, for appellant.

Cannon & Meyer Von Bremen, William E. Cannon, Jr., for appellee.

When a claimant is seeking to recover no-fault income benefits pursuant to OCGA § 33-34-4 (a) (2) (B) and he is paid periodically by the job rather than regularly at a fixed rate, he must “show that he had ‘. . . jobs waiting for him at the times he was unable to work [and] . . . what they were, [and] that . . . he did not have the opportunity later to do these yo6s[.]. . [Cit.]” (Emphasis supplied.) State Farm Mut. Ins. Co. v. Moss, 152 Ga. App. 84, 85 (2) (262 SE2d 248) (1979). Obviously, appellant will have the opportunity later to sell such scrap metal as he already possesses and stores in his salvage yard. Construing the evidence most favorably for appellant, he has suffered, at most, a delay in such income or earnings as he derives from his inventory of scrap metal, rather than a compensable loss of any income or earnings. Accordingly, the trial court correctly granted summary judgment in favor of appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Andrews, Judge.

text:
    A91A1096, A91A1097.
    CITY OF MONROE et al. v. JORDAN; and vice versa.
    (411 SE2d 511)
   Andrews, Judge.

Jordan sued the City of Monroe and Latimore for injuries she sustained when the automobile she was driving collided with a City owned trash truck driven by Latimore as an employee of the City. A jury returned a verdict in favor of Jordan. Both defendants appeal and Jordan cross-appeals.

Case No. A91A1096

1. Jordan’s motion to dismiss the defendants’ appeal is denied. The defendants failed to file a notice of appeal within 30 days after their motion for a new trial was denied. The defendants moved the trial court pursuant to OCGA § 9-11-60 to set aside the order denying the new trial and re-enter it, showing by affidavits that counsel for the defendants had not received a copy of the earlier order until more than 30 days had expired after it was entered. The trial court heard argument on the motion, set aside the order, and re-entered it. The defendants thereafter filed a notice of appeal within 30 days of the reentered order. Jordan’s motion to dismiss asserts that the trial court lacked authority to re-enter the order because the term of court at which the original order was entered had expired.

The record shows that counsel for the defendants did not receive timely notice of entry of the order denying the motion for a new trial. Pursuant to this showing, the trial judge acted within his authority to grant the motion brought under OCGA § 9-11-60 to set aside the order and re-enter it based upon lack of timely notice. Cambron v. Canal Ins. Co., 246 Ga. 147-149 (269 SE2d 426) (1980). See Beach’s Constr. Co. v. Moss, 168 Ga. App. 462 (309 SE2d 382) (1983) (failure of counsel or a party acting pro se to receive notice of trial recognized as defect authorizing the trial court to set aside judgment pursuant to OCGA § 9-11-60). The trial court acted properly at a subsequent term of court because this was not a modification or revision affecting the substance or merits of a decree which must be accomplished during the term in which the decree was entered. See Robinson v. Kemp Motor Sales, 185 Ga. App. 492, 493 (364 SE2d 623) (1988).

2. In enumerations of error one, two, and three, defendants claim the trial court erred by denying their motion in limine, and admitting evidence that defendant Latimore had been previously involved in two automobile accidents while working as an employee for defendant City of Monroe, and that in one of the accidents he had been charged with driving under the influence of alcohol. Jordan claims the two previous incidents and the DUI charge are relevant to the issue of punitive damages in that they show the City had notice that Latimore was an unsafe driver, consciously disregarded this notice, and allowed him to continue driving on the job.

Defendants contended in the motion in limine and before the court in pre-trial argument on the motion, that the two prior incidents were not sufficiently similar to the present incident which did not involve driving under the influence. In this instance, Latimore stopped his truck in his lane of traffic, got out to pick up trash, and Jordan, who was traveling in the same lane, crashed into the back of the truck. Evidence showed that at the point in the road where the truck was stopped, and at the time of day the accident occurred, blinding sunlight obscured the vision of drivers proceeding in the truck’s lane of traffic. Latimore testified the City was aware that within the previous year he had been the driver in two on-the-job automobile accidents, in one of which he was charged with DUI.

“Once liability for the [present automobile accident] has been found to exist, evidence of similar acts or occurrences, or a bad driving record indicating wilfulness or reckless disregard of consequences, may become relevant to punitive damages. . . .” Whidby v. Columbine Carrier, 182 Ga. App. 638, 639 (356 SE2d 709) (1987) overruled on other grounds, 194 Ga. App. 72 (389 SE2d 560) (1989); Thompson v. Moore, 174 Ga. App. 331, 332-333 (329 SE2d 914) (1985). Evidence of the two previous on-the-job automobile accidents in which Latimore was involved was relevant to the jury’s determination of whether Jordan was entitled to an award of punitive damages against the City. The trial court instructed the jury that the evidence could not be considered on the issue of negligence, but only on the issue of punitive damages.

Defendants also argue for the first time on appeal that because the evidence showed only a DUI charge against Latimore and not a plea of guilty, the trial court should have excluded any evidence of the DUI. Though not supported by the record, defendants state in their brief that Latimore in fact entered a plea of nolo contendere to the DUI charge at issue. There is no merit in this assertion. Asserted error must be demonstrated in the record. State v. O’Quinn, 192 Ga. App. 359, 360 (384 SE2d 888) (1989). Although a guilty plea to DUI, if relevant, may be admitted as an admission, and a plea of nolo contendere is not admissible (Beal v. Braunecker, 185 Ga. App. 429, 431-432 (364 SE2d 308) (1987); Reese v. Lyons, 193 Ga. App. 548 (388 SE2d 369) (1989); OCGA § 17-7-95 (c)), where the issue was not adequately raised by objection at trial, it will not be considered on appeal. Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 638 (385 SE2d 746) (1989).

Moreover, the form of the verdict indicates that, although a verdict was rendered in favor of the plaintiff and damages awarded, the jury specifically found no punitive damages against either defendant. Since the trial court properly instructed the jury to consider the contested evidence only on the issue of punitive damages, the defendants have failed to show they were harmed. Rogers v. Eckerd Drugs of Ga., 149 Ga. App. 788, 789 (256 SE2d 130) (1979).

3. In the fourth enumeration of error, defendants argue that by refusing to bifurcate the punitive damages claim from the main trial, the trial court erroneously allowed the jury to consider evidence relevant to punitive damages (defendant Latimore’s previous accidents) which was prejudicial to the defendants on the issue of liability. The cause of action in this case arose after July 1, 1987 so OCGA § 51-12-5.1 governs the procedure by which punitive damages are considered. “Prior to the enactment of [OCGA] § 51-12-5.1, a trial judge had discretion under OCGA § 9-11-42 (b) to try the issue of punitive damages in a tort case separately from the remainder of the case, in a bifurcated procedure, or in a separate trial. [Cits.] Thus, in regard to the adjudication of issues concerning the recoverability and amount of punitive damages in a tort case, OCGA § 51-12-5.1 made a bifurcated trial mandatory, whereas it had previously been discretionary with the trial court.” McClure v. Gower, 259 Ga. 678, 684 (385 SE2d 271) (1989).

OCGA § 51-12-5.1 (d) (1) and (2) provides that: “(1) An award of punitive damages must be specifically prayed for in a complaint. In any case in which punitive damages are claimed, the trier of fact shall first resolve from the evidence produced at trial whether an award of punitive damages shall be made. This finding shall be made specially through an appropriate form of verdict, along with the other required findings. (2) If it is found that punitive damages are to be awarded, the trial shall immediately be recommenced in order to receive such evidence as is relevant to a decision regarding what amount of damages will be sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case. It shall then be the duty of the trier of fact to set the amount to be awarded. . . .”

Under this Code section, before the mandatory bifurcated procedure is implemented to determine the amount of punitive damages, the jury must first consider from the evidence produced at trial whether there is “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,” (OCGA § 51-12-5.1 (b)) in order to determine if an award of punitive damages is authorized.

Here, the jury considered the evidence relevant to punitive damages produced in the main trial, and determined on the verdict form that no punitive damages would be awarded. Since the evidence heard by the jury relevant to punitive damages was properly considered under OCGA § 51-12-5.1, this enumeration of error is without merit.

4. In their fifth enumeration of error defendants contend that the trial court erred by denying their motion brought pursuant to OCGA § 9-11-16 seeking exclusion of Jordan’s expert witnesses because they were not timely identified, or, in the alternative, seeking a continuance of the case to allow defendants additional time to prepare. Two expert witnesses used by Jordan were identified ten days before trial, and defendants deposed these experts on the third and fourth day before trial. More than a year prior to trial, Jordan responded to defendants’ interrogatories stating that no expert witnesses had been obtained at that time, and no supplemental responses were thereafter provided.

This is not a case requiring a continuance because of the surprise appearance at trial of an unlisted witness. Compare Nathan v. Duncan, 113 Ga. App. 630, 638-641 (149 SE2d 383) (1966). Nor does the record establish that exclusion of the witnesses would be proper because their names were deliberately withheld to prejudice the defendants. Compare Jones v. Atkins, 120 Ga. App. 487, 490-491 (171 SE2d 367) (1969). Although defendants’ motion was brought pursuant to OCGA § 9-11-16, which deals with the court’s discretion in crafting a pre-trial order to control the case, there is no evidence in the record of a pre-trial order, or a pre-trial conference, or a motion requesting such a conference. Under the circumstances, we find no clear abuse of discretion by the trial court in refusing to exclude the testimony of the expert witnesses and in refusing to grant a continuance. Ambassador College v. Goetzke, 244 Ga. 322, 323 (260 SE2d 27) (1979); Payton v. Green, 179 Ga. App. 438, 439 (346 SE2d 884) (1986).

5. Next, defendants contend the trial court erred by excluding testimony from the police officer who investigated the accident that he was told by his supervisor not to charge Jordan with driving her automobile in a manner that contributed to the accident. On direct examination by Jordan’s attorney, the investigating officer testified that he found no contributing factors in the accident on the part of Jordan. On cross-examination, the officer testified that on his written accident report he estimated Jordan’s speed at impact to be 35 mph (the speed limit where the accident occurred), and that he found Jordan’s vision was obscured by sunlight. When asked why, under the circumstances, he did not find there were any contributing factors on the part of Jordan, he responded that was because of what was told him in a conversation he had with his supervisor. The trial judge sustained Jordan’s objection that what the supervisor said was inadmissible hearsay.

Out of the jury’s presence, the defendants proffered testimony from the officer which showed that after investigating the accident, he called his supervisor, described the situation, and the supervisor advised him to charge defendant Latimore and not Jordan. The officer also responded during the proffer that based on his own investigation, apart from what his supervisor had told him, he believed that, given the circumstance of blinding sunlight, Jordan’s speed was a factor contributing to the accident.

Defendants argue that what the supervisor said should have been admitted under OCGA § 24-3-2 as explaining the conduct and motive of the investigating officer in not charging Jordan with contributing to the accident. We agree that the conduct and motive of the officer in not charging Jordan with contributing factors were relevant to the issue of whether Jordan was negligent in any degree which contributed to the accident, and therefore the supervisor’s statement was admissible under OCGA § 24-3-2 to explain the conduct of the officer. Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982); Lloyd v. Tyson, 195 Ga. App. 48, 49 (392 SE2d 551) (1990). However, under the circumstances of this case there was no reversible error. The only effect of the court’s ruling was to exclude what the supervisor said. The defendants were not prevented from otherwise fully cross-examining the investigating officer to demonstrate why he testified on direct examination that he found no contributing factors on the part of Jordan. In other words, the defendants were not prevented from showing, as they did during the proffer, that from his own investigation the officer concluded that Jordan’s speed under the circumstances contributed to the accident, but he did not charge her because of what his supervisor told him. Since exclusion of the exact content of the conversation did not prevent the defendants from adequately explaining the officer’s conduct, we find no reversible error. Moreover, during cross-examination of the plaintiff’s accident experts and Jordan herself, the defendants were able to fully demonstrate their claim that Jordan’s speed in the face of the blinding sunlight contributed to the accident.

Decided September 27, 1991.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Douglas A. Wilde, for appellants.

6. In enumeration seven, the defendants claim the trial court erred by allowing both attorneys representing Jordan to participate in concluding argument to the jury. Since the defendants presented no evidence, they had the right to the opening and the conclusion of the final argument, and Jordan was entitled only to present argument in between, which was, in effect, her concluding argument. Hogsed v. Hogsed, 230 Ga. 232, 233 (196 SE2d 428) (1973); Goforth v. Wigley, 178 Ga. App. 558, 560-561 (343 SE2d 788) (1986). After the defendants waived their right to the opening argument, both of Jordan’s attorneys participated in giving her concluding argument, which was followed by the defendants’ concluding argument. Under the circumstances, the trial court should have limited presentation of Jordan’s concluding argument to one attorney. OCGA § 9-10-182; Bridges v. Schier, 195 Ga. App. 583, 585-586 (394 SE2d 408) (1990); see Goforth, supra at 560-561. Despite the error, defendants have not demonstrated harm requiring reversal. Bridges, supra at 585-586.

7. For the above reasons, we find no error in the trial court’s refusal to grant the defendants’ motion for a new trial.

Case No. A91A1097

8. For the reasons stated in Division 1 of Case No. A91A1096, we find no merit in plaintiff Jordan’s enumerations of error on cross-appeal claiming the trial court erred in granting the defendant’s motion to set aside and re-enter the original order denying defendants’ motion for a new trial.

Judgment affirmed in Case Nos. A91A1096 and A91A1097.

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

Cook, Noell, Tolley & Aldridge, J. Vincent Cook, for appellee.


text:
    A91A0804.
    CRYSTAL CUBES OF STONE MOUNTAIN, INC. et al. v. KUTZ.
    (411 SE2d 53)
   Banke, Presiding Judge.

The appellee sued the appellants, Crystal Cubés of Stone Mountain, Inc., and James Nations, seeking to enforce a settlement agreement. The appellants bring this appeal from the grant of the appellee’s motion for summary judgment.

The salient facts are not in dispute. On February 24, 1989, the parties entered into an agreement whereby the appellee purchased the assets of the appellants’ business. The agreement was executed by appellant Nations both individually and as authorized agent for Crystal Cubes of Stone Mountain, Inc. On March 30, 1989, the appellee, through his attorney, notified the appellants by letter of his intent to rescind the contract on the ground that it had been procured by fraud. Pursuant to this demand, he tendered all benefits he had obtained under the contract and demanded the return of all monies he had paid to the appellants, along with the cancellation of a promissory note and related security agreement he had executed in connection with the sale. The letter specified that the appellee would be present in his attorney’s office on April 10,1989, to receive the funds and promissory note, and that in the event the appellants failed to appear, the tender would be deemed by him to be rejected, resulting in further legal action. On the designated meeting date, the appellants’ attorney advised the appellee’s attorney via a fax machine transmittal, which was subsequently confirmed by the original letter, that the appellants would “accept the offer tendered in your letter” and would deliver the requested funds, promissory note, and security agreement to the office of the appellee’s counsel on the following day. The letter concluded by stating: “If this arrangement is satisfactory with your office, we will send a mutual release and rescission to be executed by your client and returned to this office.” The appellee contends that this constituted a binding and enforceable acceptance of his settlement offer. Held:

1. There is no question that the appellee’s letter of March 30, 1989, was accompanied by a tender of the benefits he had obtained under the contract and otherwise constituted a valid offer to rescind the sale. The appellants contend, however, that their written response on April 10 was not an acceptance of this offer but merely a counteroffer, due to certain variations in the terms relating to the date and place of the proposed delivery of the items requested from them. We disagree. A counteroffer results “[w]here one party makes an offer and the other party purports to accept that offer, but with material changes in the terms. . . .” (Emphasis supplied.) State of Ga. v. U. S. Oil Co., 194 Ga. App. 1, 2 (389 SE2d 498) (1989). The appellants unequivocally agreed in their letter of April 10 to “accept the offer tendered” by the appellee in his letter of March 30. The trial court correctly concluded under the circumstances that the appellants’ proposal to return the requested funds, promissory note, and security deed one day later than originally proposed did not constitute a material change in the terms of the offer. Compare Duval & Co. v. Malcom, 233 Ga. 784 (214 SE2d 356) (1975); Frey v. Friendly Motors, 129 Ga. App. 636 (200 SE2d 467) (1973).

2. The appellants contend that the trial court erred in refusing to strike certain portions of two affidavits submitted by the appellee in support of his motion for summary judgment. The first of these affidavits was executed by an attorney who had represented the appellants during the period when the rescission letters were exchanged and who had signed the April 10 acceptance letter submitted on their behalf, but who had apparently withdrawn as their counsel after they notified him that they did not intend to comply with the terms of the settlement. The motion to strike was based on the appellants’ contention that certain statements contained in this affidavit were inadmissible under OCGA § 24-9-25, which specifies that “[n]o attorney shall be competent or compellable to testify for or against his client to any matter or thing, the knowledge of which he may have acquired from his client by virtue of his employment as attorney or by reason of the anticipated employment of him as attorney.” However, “ ‘only communications which are confidential are protected as privileged[. TJhose which the attorney in the discharge of his duty to his client is of necessity obliged to make public, or those which are made to him for that purpose, cannot be said to be confidential, and are therefore not privileged.’ ” Fowler v. Sheridan, 157 Ga. 271, 273 (121 SE 308) (1923). Thus, a communication made to an attorney “with the intention of having this communication imparted to the opposite party, cannot be considered a confidential communication between client and attorney.” Id. at 274.

The portions of their former attorney’s affidavit which the appellants challenge relate to information which they clearly intended for him to communicate to the appellee’s counsel, specifically, that he (appellants’ counsel) had received authorization from them to settle the dispute on the terms outlined in the appellee’s March 30 letter. It follows that the statements in question were not inadmissible pursuant to OCGA § 24-9-25. We further reject the appellants’ contention that this affidavit was inadmissible on hearsay grounds or on the ground that it contained merely conclusory allegations without revealing the factual basis for them. Compare Parlato v. MARTA, 165 Ga. App. 758 (1) (302 SE2d 613) (1983).

Decided September 3, 1991

Reconsideration denied September 30, 1991.

Harry A. Osborne, for appellants.

Charles W. Chesbro, for appellee.

Dean Kutz, pro se.

The second of the affidavits objected to by the appellants was submitted by the appellee’s counsel. Inasmuch as the portions objected to related only to the fact that the rescission agreement had never been consummated, we similarly find no error in the trial court’s refusal to strike this affidavit.

3. “Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties.” Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (2) (308 SE2d 544) (1983). See also Goss v. Cone, 200 Ga. App. 259 (407 SE2d 484) (1991); OCGA § 15-20-5; Uniform Superior Court Rule 4.12. “The evidence [in the present case] establishes that appellee’s attorney made an offer of settlement to appellants’] attorney and that appellants’] attorney accepted the offer as evidenced by confirming letters written by both attorneys.” Lennon v. Aeck Assoc., 157 Ga. App. 294 (277 SE2d 289) (1981). It follows that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Carley and Beasley, JJ., concur.


author: Carley, Judge.

text:
    A91A0897.
    RACE, INC. et al. v. WADE LEASING, INC.
    (411 SE2d 56)
   Carley, Judge.

In connection with their business relationship, appellee-plaintiff had occasion to give a “security deposit” to appellant-defendants. After the termination of their business relationship, appellee sought the return of its security deposit and, in addition, the payment of certain amounts which it had allegedly earned before their business relationship had been terminated. When appellants refused, appellee brought suit. Appellants answered and filed a counterclaim for abusive litigation. After discovery, appellee moved for summary judgment both as to its main claim against appellant and appellants’ counterclaim against it. The trial court granted summary judgment in favor of appellee and appellants appeal.

1. There was no written agreement with regard to the refundability of the “security deposit” given by appellee to appellants. Appellants urge that a genuine issue of material fact remains as to that issue.

“ ‘ “The cardinal rule in the construction of contracts is to ascertain the intention of the parties.” (Cit.) “The language which the parties have used will be looked to for the purpose of finding that intention, which when it is once ascertained will prevail over all other considerations, in determining the nature of the agreement.” (Cits.) The question remaining is whether (the language) of the contract creates an ambiguity which may be explained by parol. A word or phrase is ambiguous “when it is of uncertain meaning and may be fairly understood in more ways than one.” (Cit.) Language which is unambiguous will not be construed as ambiguous based on extrinsic circumstances. (Cit.)’ [Cit.] Where the language of a contract is plain and unambiguous, no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance. [Cits.]” (Emphasis supplied.) MAG Mut. Ins. Co. v. Gatewood, 186 Ga. App. 169, 172-173 (1) (367 SE2d 63) (1988). “If the terms used are clear and unambiguous they are to be taken and understood in their plain, ordinary, and popular sense. [Cits.] Dictionaries supply the plain, ordinary and popular sense. [Cit.]” Henderson v. Henderson, 152 Ga. App. 846, 847 (1) (264 SE2d 299) (1979). See also OCGA § 13-2-2 (2).

As the very words would indicate, a “security deposit” “is refundable unless the [depositor] has caused damage or injury to the property or has breached the terms of . . .or the laws governing the [underlying transaction].” Black’s Law Dictionary (5th ed. 1979). See also OCGA § 44-7-30 (2) (defining “security deposit” in connection with a “residential rental agreement”). Thus, the refundability of a “security deposit” is implicit and the absence of any express agreement as to the refundability of the “security deposit” given by appellee to appellants is immaterial. Accordingly, the trial court correctly held that “[t]he term ‘security deposit,’ is clear and unambiguous as meaning a deposit for security, which would naturally be returned less any proper charges.” As the undisputed evidence of record shows that there were no proper charges against the security deposit, the trial court correctly granted summary judgment in favor of appellee for the amount of the unrefunded security deposit.

2. Appellee had also alleged that it was entitled to recover from appellants payments which had been made on certain accounts receivable. As to these accounts receivable, appellants did not controvert the showing that they constituted an asset of appellee and represented amounts earned by appellee prior to termination of the business relationship. Indeed, it is undisputed that, if payments on the accounts receivable had been made prior to termination of the business relationship, appellee would be entitled to retain them.

“ ‘ “An action for money had and received lies in all cases where another has received money which the plaintiff, ex aequo et bono, is entitled to recover and which the defendant is not entitled in good conscience to retain.” [Cits.] In such an action “the law implies a promise on the part of any person who has received the money of another to pay that person on demand. The reception of money by one and the demand by the other makes all the privity that is necessary to maintain this action.” [Cits.] “It is immaterial how the money may have come into the defendant’s hands, and the fact that it was received from a third person will not affect his liability, if, in equity and good conscience, he is not entitled to hold it against the true owner.” [Cits.]’ ” Fain v. Neal, 97 Ga. App. 497, 498-499 (103 SE2d 437) (1958). It appears that, as a matter of law, appellee “earned and was entitled to the sum sued for and that [appellants were] in possession of this money, which [they] in good conscience [are] not entitled to retain. . . .” Fain v. Neal, supra at 499. It follows that the trial court correctly granted summary judgment in favor of appellee as to this issue.

3. The trial court’s conclusion that appellee was entitled to prejudgment interest pursuant to OCGA § 7-4-16 is enumerated as error.

OCGA § 7-4-16 relates to the recovery of pre-judgment interest by the owner of a “commercial account.” “Commercial account” is defined, in relevant part, as “an obligation for the payment of money arising out of a transaction to sell or furnish, or the sale of, or furnishing of, goods or services. . . .” OCGA § 7-4-16. The security deposit does not represent “an obligation for the payment of money arising out of” the furnishing of goods or services. The security deposit represents appellants’ obligation to return money to appellee arising out of the termination of their business relationship. Since the security deposit does not represent an obligation for the payment of any goods or services, appellee’s right to secure a refund of its security deposit does not render it the owner of a “commercial account.” Although the accounts receivable may have arisen out of the furnishing of goods by appellee to its customers, they did not arise out of the furnishing of goods by appellee to appellants. Appellants are not liable to appellee on the accounts receivable themselves, but for the failure to forward to appellee the payments which were made on the accounts receivable after the termination of their business relationship. Since appellants’ liability does not arise out of the failure to pay for any goods or services that they received from appellee OCGA § 7-4-16 is inapplicable. Therefore, the trial court erred in awarding appellee pre-judgment interest pursuant to OCGA § 7-4-16.

4. The trial court did not err in granting appellee’s motion for summary judgment as to appellants’ counterclaim for abusive litigation. See Yamaha of Atlanta v. Yamaha Motor Corp. U. S. A., 188 Ga. App. 413, 415 (3) (373 SE2d 95) (1988).

Decided September 3, 1991

Reconsideration denied September 30, 1991

Trauner, Cohen & Thomas, Russell S. Thomas, for appellants.

Land, McKnight, Newlin & Cohen, Robert H. McKnight, Jr., for appellee.

5. Appellee’s motion for the imposition of a penalty for frivolous appeal pursuant to Court of Appeals Rule 26 (b) is denied.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0950.
    KELLEY v. THE STATE.
    (411 SE2d 276)
   Beasley, Judge.

Appellant, Oscar Dwight Kelley, was convicted of criminal attempt to commit murder (OCGA § 16-4-1), aggravated assault (OCGA § 16-5-21), and burglary (OCGA § 16-7-1). He was sentenced as a repeat offender (OCGA § 17-10-7).

Appellant was employed as a gardener and handyman at an apartment complex in Cherokee County. The victim, a 22-year-old woman living in one of the apartments, returned to her apartment alone at approximately 10:00 p.m. She heard a noise in her bedroom and thought it was her boyfriend. She went to the television set to change the channel, and when she turned around the appellant was coming toward her with a knife in his hand. She ran to the door but he blocked her exit. He threw her against the wall, put a knife to her neck, and told her not to scream. Nonetheless, she started screaming, and he began stabbing her. She was able to kick him in the groin, whereupon he fled the apartment through the window in the victim’s bedroom which he had used to gain entry. A pocketbook with money was stolen from the apartment.

Appellant was arrested later that night. A knife and clothes with blood on them were found in his car and apartment. Hair samples on the knife matched the victim’s hair; blood on the clothing matched the victim’s blood.

1. Appellant contends that the trial court erred in sentencing him for the offenses of aggravated assault and attempted murder since the two offenses merged.

In this case the attempt to commit murder and the aggravated assault counts of the indictment were both based on allegations that appellant had stabbed the victim with a knife. Consequently, each crime was established by proof of the same facts, except that criminal attempt required proof that defendant intended to commit murder whereas assault with the knife, as charged, did not require proof of specific intent. OCGA § 16-5-21 (a) (2). Therefore, the aggravated assault conviction merged into the criminal attempt to commit murder conviction. See OCGA §§ 16-1-7 (a); 16-1-6 (a); Mitchell v. State, 187 Ga. App. 40, 44 (4) (369 SE2d 487) (1988); Mills v. State, 187 Ga. App. 79, 80 (4) (369 SE2d 283) (1988).

2. Appellant contends that the trial court erred in not directing a verdict of not guilty on the burglary count.

“A person commits the offense of burglary when, without authority, and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another ...” OCGA § 16-7-1 (a). The indictment alleged that appellant committed the offense of burglary when “without authority with the intent to commit a felony therein to wit: Aggravated Assault, did enter the dwelling of another

Appellant argues that the evidence was insufficient to authorize the jury to find beyond a reasonable doubt that the original entry into the apartment was for the purpose of committing an aggravated assault (as opposed to theft), the victim not having been at home when he entered the apartment. The evidence showed that the victim had only been home for a few minutes when appellant attacked her rather than fleeing the apartment. There was also evidence that he had attempted to coax a 14-year-old girl into his car only hours before the attack on the victim. Generally, specific intent must be proved by circumstantial evidence, and the question of whether a burglary defendant intended to commit a given felony when he entered a dwelling is for determination by the jury under the facts and circumstances proved. Coney v. State, 125 Ga. App. 52, 54 (1b) (186 SE2d 478) (1971).

The evidence was sufficient to have authorized a rational trier of fact in finding appellant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. However, the burglary conviction must be set aside based on the meritorious contention that the court erred by failing in its charge to the jury to define rape.

The court charged that either “assault with a deadly weapon” or “assault with the intent to.commit rape” could constitute “aggravated assault.” The trial court defined the crime of assault and the meaning of the term “deadly weapon” but did not define the crime of rape. See OCGA § 16-6-1 (a). When asked if there were any exceptions to the charge, appellant did except to the jury charge on assault with intent to commit rape, as not being supported by the evidence, but did not complain of the failure to define the offense of rape.

Decided September 3, 1991

Reconsideration denied September 30, 1991.

Wallace W. Rogers, Jr., for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

After deliberating, the jury returned to the courtroom stating that they were confused about, and requested a recharge on, the following: “Did unlawfully then and there without authority with the intent to commit a felony therein, to wit aggravated assault.” In recharge, the court again did not define the crime of rape. When asked if there were any additional questions, the foreperson replied that there were not. Appellant renewed his earlier objection that there was no evidence of intent to commit rape and also complained that the recharge unduly emphasized “that particular charge with intent to rape.”

It cannot be determined from the verdict, which reads “guilty on all 3 counts,” whether the jury convicted appellant of burglary based on entry with intent to commit an assault with a deadly weapon or an assault with intent to commit rape. The omission of a definition of the elements of rape constitutes error requiring reversal of the burglary conviction, even in the absence of a request to so charge. Phelps v. State, 192 Ga. App. 193, 194 (1) (384 SE2d 260) (1989). See OCGA § 5-5-24 (c). Appellant is entitled to a new trial on this count.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Carley, J.,. concur.