author: Banke, Presiding Judge. Pope, Judge,

text:
    A89A2351.
    EMANUEL v. THE STATE. BRUNEIO v. THE STATE.
    A89A2352.
    (393 SE2d 74)
   Banke, Presiding Judge.

Defendants David Emanuel and Mary Elizabeth Bruneio were jointly indicted on charges of selling cocaine and distributing marijuana in violation of the Georgia Controlled Substances Act. They were jointly tried before a jury and found guilty merely of possessing cocaine and marijuana. Their primary contention on appeal is that they should have received a directed verdict of acquittal based on the state’s failure to introduce evidence rebutting their defense of entrapment.

It was established without dispute at trial that the appellants had sold approximately 12 grams of cocaine to an undercover agent and had given him a “small sample” of marijuana in connection with that transaction. Defendant Emanuel testified that he and Bruneio were persuaded to make this sale by a close friend named Dennis Evans, who told them that he had gotten into trouble involving drugs, that he had agreed to “turn people over” to the government in return for a reduced sentence, that the law enforcement agents for whom he was supposed to be informing were angry at him due to his lack of success in producing arrests, and that he needed the defendants to help him make a case against a man named “Dominique,” who was coming to town from Chicago, by posing as drug dealers. Emanuel stated that he and Bruneio resisted Evans’ entreaties at first but were eventually persuaded to help him because of their belief that he was working for the government. “Dominique,” of course, proved to be the drug enforcement agent for whom Evans was informing. Emanuel stated that Evans brought the cocaine and marijuana to their apartment prior to the transaction and subsequently retrieved the remaining drugs, along with the money the agent paid them for the cocaine he purchased.

The undercover agent testified that Emanuel wanted to sell him approximately 50 grams of cocaine for $50 a gram but that he told him he was only interested in purchasing a sample of between 10 and 15 grams. The agent further testified that Emanuel told him “he normally bought the cocaine at $45 per gram and he would normally purchase a hundred grams at a time,” that defendant Bruneio told him the cocaine they wished to sell him was of “high quality,” and that Emanuel advised him that it was “not cut to the street level.” The agent stated that both defendants “snorted” cocaine upon his arrival at their apartment, that Bruneio then removed a “rock” of cocaine from a plastic bag and weighed it, and that he purchased this rock for $600 after determining that it weighed approximately 12 grams.

Emanuel denied that either he or Bruneio had ever used drugs, maintaining that the only person who had used drugs in his apartment on the night in question was Evans. Also, it was established without dispute that the agent had made subsequent requests to purchase drugs from them but that they had refused to meet with him. It was further shown that Emanuel had hired an investigator in an attempt to secure Evans’ presence at trial, but without success. Held:

1. “[T]here exists no ‘per se rule that a defendant is entitled to a directed verdict where the informant is not called to rebut the defendant’s testimony of entrapment. ... (A) defendant’s testimony as to entrapment, even if unrebutted by any other witness to the alleged misconduct, will not entitle him to a directed verdict of acquittal unless that unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands a finding that entrapment occurred.’ State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981).” Goolsby v. State, 184 Ga. App. 390, 391 (361 SE2d 684) (1987).

We believe the jury in this case could reasonably have determined that the defendants had a criminal predisposition to possess drugs (the only offense of which they were found guilty), based on the undercover agent’s testimony that both of them “snorted” cocaine on the night in question. Also, it was inferable from Emanuel’s purported statement to the agent that he “normally” purchased a hundred grams of cocaine at a time as well as from his statement that the cocaine he was selling had not been “cut to street level,” that this was not his first experience with drug trafficking. It follows that the defendants were not entitled to a directed verdict of acquittal on the basis of their entrapment defense. The defendants’ reliance on Perry v. State, 143 Ga. App. 227 (237 SE2d 705) (1977), as authority for a contrary holding is misplaced, as it does not appear that similar evidence of criminal predisposition was present in that case. Construing the evidence in favor of the verdict, we hold that a rational trier of fact could reasonbly have found the defendants guilty of possessing cocaine and marijuana beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The undercover agent testified on cross-examination that Evans had previously been arrested for selling cocaine, that he had agreed to act as an informant in the hope of receiving a lenient sentence on that charge, and that he had ultimately received a probated sentence after pleading guilty to a lesser offense. The defendants contend that during its subsequent redirect examination of the agent, the state was improperly permitted to “bolster[] the credibility of the non-testifying informant,” as follows: “Q. Is it an unusual practice to allow one [drug dealer] to plead out to a lesser sentence in order to get a greater number? A. No, it is not. I would have to say that Mr. Evans was a very good informant . . . who accomplished infiltrating numerous other cocaine distributors where large sales of cocaine were made other than this case. Q. Approximately how many of those type seizures did you make as a result of his information? ... A. I can recall, just thinking now, at least three substantial arrests were in excess of kilograms of cocaine were seized through the utilization of Dennis Evans as an informant.”

This testimony cannot be viewed as improperly bolstering Evans’ credibility, since he was not present in court and did not testify. We note that the defendants’ original objection to this testimony was that it was irrelevant and immaterial. However, the defendants’ entrapment defense was based on the theory that Evans was so desperate to produce an arrest that he was willing to “set up” two close friends who were not even involved in drug trafficking. In this context, the agent’s testimony on redirect examination was relevant to show that Evans’ situation was not in fact that desperate. Thus, the defendants’ objections to this testimony, as stated, were properly overruled.

3. In response to the defendants’ initial objection that the above testimony by the undercover agent lacked relevance, the trial court made the following comment: “I thought y’all’s position was he got a light sentence and there was no good reason for him to have it.” The defendants unsuccessfully moved for a mistrial on the basis of this comment, complaining that it constituted an improper expression of opinion by the court “as to the nature of our testimony as to what we were trying to establish.” On appeal, they contend that the comment “bolstered the state” and was “extremely prejudicial” to the defense. However, we are unable to perceive how the statement could have had either of these effects. “The statutory inhibition (OCGA § 17-8-55) against an expression or intimation of opinion by the trial court as to the facts of the case does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence. [Cits.]” Mathis v. State, 171 Ga. App. 620 (1) (320 SE2d 861) (1984). The trial court did not err in denying the motion for mistrial.

4. The appellants’ remaining enumeration of error is directed to two comments made by the state’s attorney during his closing argument. The first of these comments was to the effect that it is the job of law enforcement agents to keep illicit drugs off the street, “where it ultimately ends up in the hands of your children, your neighbors, your friends, your relatives who pay for the stuff.” The second was an observation that “birds of a feather flock together,” made in the context of an argument that law enforcement agents are forced to rely on drug dealers to locate other drug dealers.

Because the defendants have not provided this court with any argument or citation of authority for their contention that these comments were objectionable, this enumeration of error has technically been abandoned pursuant to Rule 15 (c) (2) of this court. Nevertheless, we hold that there was nothing objectionable about the comments in the context in which they were made. The first was simply an appeal to the jury to consider the evils of drug trafficking and take a firm stand against it. “It is not improper for a prosecutor to appeal to the jury to consider the safety of the community and the desired result of general prevention of crime. [Cit.] A prosecutor’s comment to jurors that they could take part in the war against drug trafficking by convicting the defendant is not an improper appeal. [Cit.]” Callahan v. State, 179 Ga. App. 556, 564 (347 SE2d 269) (1986). As for the second comment, it is clear from the context in which it was made that the state’s attorney was not suggesting that the defendants could be found guilty of using or selling drugs based on their friendship with Evans but was instead attempting to explain to the jury why the state had to rely on information provided by drug dealers to make cases against other drug dealers. Compare Banks v. State, 191 Ga. App. 344 (1) (381 SE2d 548) (1989).

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Birdsong, Beasley and Cooper, JJ., concur. Sognier and Pope, JJ., dissent.

Pope, Judge,

dissenting.

I must dissent. As to the defense of entrapment, OCGA § 16-3-25 provides that “[a] person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” In this case defendant Emanuel’s testimony clearly established a prima facie case of entrapment, which the State did not rebut. “The record is absolutely devoid of evidence . . . that the circumstances surrounding the solicitations by the . . . informant occurred in a way other than that testified to by [Emanuel].” Robinson v. State, 145 Ga. App. 17 (1) (243 SE2d 257) (1978). As was stated by this court in Perry v. State, 143 Ga. App. 227 (237 SE2d 705) (1977) “[i]f the informer’s testimony would disprove the defendant’s testimony, the state should have produced him.” Id. at 228.

However, and despite the total lack of evidence to rebut defendant Emanuel’s testimony establishing the defense of entrapment, the majority cites Goolsby v. State, 184 Ga. App. 390 (361 SE2d 684) (1987), for the proposition that there is no “per se rule” that a defendant is entitled to a directed verdict of acquittal where the informant is not called to testify to rebut the defendant’s testimony of entrapment. Goolsby, however, provides no support for the majority’s position inasmuch as the defendant in that case was acquitted of the original sale initiated by the informant on the basis of entrapment. Moreover, in Goolsby, the evidence clearly established subsequent drug sales that were initiated by the defendant and it was on the basis of subsequent transactions that defendant was convicted of selling drugs. In contrast the undercover agent in this case, as well as defendant Emanuel, testified that the agent tried to contact the defendants following the initial sale for the purpose of buying more drugs but that they refused to have any further contact with him. Thus the majority’s reliance on Goolsby is both misplaced and misleading and offers no basis for the conclusion that the trial court did not err in refusing to grant a directed verdict of acquittal on the basis of defendants’ entrapment defense.

Moreover, regarding predisposition to commit the offense, which the majority posits as the distinguishing factor between this case and Perry, supra, I do not believe, as the majority suggests, that the State was required to show only “that the defendants had a criminal predisposition to possess drugs,” the offense of which they were found guilty, when they were charged with the offenses of selling cocaine and distributing marijuana. Furthermore, I do not believe that the State met its burden of showing the necessary predisposition to commit either the offense of possessing drugs or of selling and distributing drugs. As to the issue of possessing or using drugs the defendant testified that the only person who used drugs on the night in question was Evans, the confidential informant; the undercover agent, however, in response to an unrelated question, interjected testimony that defendants snorted cocaine on the night of the drug buy. The majority also relies on certain facts from which they contend it can be inferred that this was not the defendants’ first experience with drug trafficking. However, in my opinion, unresponsive testimony, inferences and suggestion are not sufficient to meet the State’s burden of showing “beyond a reasonable doubt that the [defendants’ were] predisposed to commit the [offenses.]” (Emphasis supplied.) Griffin v. State, 154 Ga. App. 261, 264 (267 SE2d 867) (1980). Under these circumstances, in which the State neither offered evidence to rebut defendants’ testimony that they were entrapped, nor offered evidence showing the defendants’ predisposition to commit the crimes for which they were charged or convicted, I believe the defendants were entitled to a directed verdict of acquittal. See Robinson v. State, supra; Perry v. State, supra. Consequently, I would reverse. For this reason, I would also find it unnecessary to reach defendants’ remaining enumerations of error. See Perry, supra at 2.

Decided March 16, 1990

Rehearing denied March 30, 1990

Herbert Shafer, Jerome J. Froelich, Jr., for appellants.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, Grover W. Hudgins, Assistant District Attorneys, for appellee.

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


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    A90A0095.
    ZIMMERMAN v. THE STATE.
    (394 SE2d 425)
   Birdsong, Judge.

Frederick Charles Zimmerman was indicted for burglary and aggravated sodomy. The jury found him not guilty of the burglary charge but guilty of aggravated sodomy. Zimmerman refused to allow representation by the appointed public defender or any public defender; he represented himself at trial, assisted by a public defender by the trial court’s order. On appeal, Zimmerman has steadfastly refused the assistance of any public defender; appointed appellate counsel, after filing notice of appeal, has been allowed to withdraw at Zimmerman’s insistence. Appellant Zimmerman has asserted to this court that he will not have a public defender represent him, that he has been unable to retain private counsel, that this court is “not going to receive enumeration [s] of error and brief at all from me [nor] are you to [accept] one from any public defender,” and has announced, “[t]here will not be a hearing until I can get capable and caring counsel.”

No enumerations of error or briefs have been filed in this case, despite repeated extensions of time and notice to Zimmerman that he file enumerations of error or be deemed in waiver. This appeal is subject to dismissal pursuant to Court of Appeals Rule 14 (a); however, without benefit of any allegations of error below, we affirm the verdict of the jury upon a finding that the evidence is sufficient to enable any rational trier of fact to find Zimmerman guilty of aggravated sodomy beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 2, 1990.

Frederick Zimmerman, pro se.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Deen, Presiding Judge.

text:
    A90A0171.
    MONROE v. BROOKS.
    (393 SE2d 463)
   Deen, Presiding Judge.

This appeal arises from a $6,666.60 dispute between two lawyers over a fee that was paid to appellant Monroe in settlement of a case. The complaint and a notice to take deposition and notice to produce were filed by appellee Brooks, an Alabama attorney, in the Superior Court of Fulton County, the county in which Monroe’s office was located, on March 3, 1988. The notice to take deposition and produce documents was set for April 21, 1988, but for unknown reasons Monroe was not served until May 5, 1988; he filed his answer and counter-claim on June 15, 1988. In response to Monroe’s defense that he was a resident of Clayton County, Brooks moved on July 7, 1988, to transfer the case to the superior court of that county. An order to transfer the case was issued on September 23, 1988, and it was filed in the Clayton County Superior Court on October 5, 1988; the record is silent as to when it was docketed, a new case number assigned and notice given by the clerk as required by Rule 19.1 (I) of the Uniform Superior Court Rules.

On November 22, 1988, Brooks’ attorney wrote Monroe requesting his deposition and the production of the documents originally sought on March 3, 1988, when the complaint was filed in Fulton County. Receiving no response, on January 10, 1989, Brooks filed a notice to take deposition and request for production of documents in the Superior Court of Fulton County. On January 17, 1989, Monroe filed a motion for protective order in that same court. No action was taken on these motions and after unsuccessful attempts to communicate with Monroe, on February 15, 1989, Brooks filed a motion to compel discovery in the Superior Court of Clayton County. A hearing was set for March 21, 1989, in the Clayton County Superior Court, after which the trial judge entered an order denying the motion to compel because there was “no discovery pending before this court.” On March 27, 1989, Monroe filed a motion for protective order in the Clayton County Superior Court, and on March 29 Brooks filed his motion to take deposition and request for production of documents in that court. In conjunction therewith, Brooks also filed a response to Monroe’s motion for protective order and a motion to extend the time to complete discovery. A hearing was held on these motions on July 18, 1989, after which the Clayton County Superior Court entered an order partially granting Brooks’ motion to compel and extending the time for completion of discovery an additional 90 days. The trial court issued a certificate for immediate review from this order, and we have granted Monroe’s application for appeal pursuant to OCGA § 5-6-34 (b).

1. The first enumeration of error presents the question of whether, when a case is transferred from one court to another, the time for discovery under Rule 5 of the Uniform Superior Court Rules runs from the filing of the defendant’s answer or from the date the case is transferred. Rule 5 provides: “In order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within [six] months after the filing of the answer. At any time, the court, in its discretion, may extend, reopen or shorten the time for discovery.” (Emphasis supplied.) Ga. Court and Bar Rules, § 3-13. Rule T-13 of the Uniform Transfer Rules states that “[u]pon receipt by the clerk of the court to which the case is transferred of the pleadings, orders, depositions and other papers specified above, such clerk shall assign the case the appropriate number. The case shall continue in the court to which transferred as though initially commenced there and all pleadings, orders, depositions and other papers shall be deemed to be amended accordingly.” Id. at § 8-2.

In the instant case, the record shows that Brooks diligently pursued discovery, but was thwarted in his efforts by the delays in service, and the transfer and docketing of the case in the court of proper venue; and that because of Monroe’s defense of improper venue, no discovery procedures could be initiated prior to the transfer on October 5, 1988, and docketing in the proper forum. The contested discovery was filed on January 10, 1989, although in the wrong court, and again on March 21,1989, along with the motion to compel and extend the time in the Clayton County Superior Court. This was within six months of docketing in that court. The particular question presented here has not been previously confronted by the appellate courts of this state, nor do we believe it was contemplated by Rule 5. Thus, the decision as to whether the time period runs from the filing of the defendant’s answer in the forum in which the complaint was originally filed, or from the time the case is transferred to the court of proper venue, is one which must be left to the discretion of the trial judge. Gray v. Whisenaut, 258 Ga. 242 (368 SE2d 115) (1988); Ambassador College v. Goetzke, 244 Ga. 322 (260 SE2d 27) (1979). Under the circumstances here we conclude that the trial court did not abuse its discretion.

Decided April 2, 1990.

Harvey A. Monroe, pro se.

Crim & Bassler, Candler Crim, Jr., for appellee.

2. Monroe also raises the issue of whether the trial court could extend the time of discovery after the expiration of six months from the filing of his answer or the date of transfer, with or without good cause shown. Rule 5 does not require that cause for the extensions be shown by findings of fact contained in the order, but only that cause be shown. It was apparent from the motions to compel and from the evidence presented in the two hearings on this matter that the time of the discovery procedures could have been considerably shortened had Monroe communicated with Brooks’ attorney; had he divulged the county of his residence before suit was filed; had he responded to Brooks’ first requests and notices for discovery, even though notice was served late; had he consented to the transfer order; or had he responded to Brooks’ later notice and requests for discovery, thereby avoiding the necessity for motions to compel. Under this showing the trial court clearly had cause to extend the time period before its expiration, running from the time the case was transferred; and it would be placing form over substance to hold as a matter of law that the trial court was without authority to grant an extension of time if more than six months had expired from the time it was first filed. Cf. Whisenaut v. Gray, 189 Ga. App. 314 (2) (375 SE2d 619) (1988). As previously stated, an appellate court will not reverse the trial court’s decision on discovery matters absent a clear abuse of discretion, and we find none here.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0536.
    THE STATE v. HARDEN.
    (393 SE2d 465)
   Deen, Presiding Judge.

The appellee, Willie Harden, was charged with possession of cocaine. The trial court granted his motion to suppress, and the State appeals.

At approximately 9:00 p.m. on April 8, 1988, the arresting officer was on routine patrol, checking out an area where people were known to gather and urinate on the public road. The particular area was an unlighted, undeveloped intersection of two roads. The officer slowly approached the area in his patrol car with his lights off, and spotted a pickup truck stopped beside the road. When he suddenly turned on his lights, the three occupants of the truck all shifted towards the passenger side. The officer considered this suspicious and asked the appellant, who was behind the steering wheel, what they were doing on this deserted part of the street. When the appellant responded that they were “cooling it” after a hard day at work by drinking beer, the officer asked him if he would mind stepping out of the truck and allowing the officer to look in the truck, and the appellant agreed to the intrusion.

The officer first patted down the three occupants and then opened the passenger door. All three men were glassy-eyed and nervous, but there was no odor of alcohol about them or the truck. An empty beer can fell out onto the ground. The can had been converted into a homemade pipe by pressing in one side and punching pin holes. There was no beer in the truck, or any other empty cans. The beer can pipe had some ash residue, and the officer called in other officers as backup and to conduct a field test for cocaine.

While they waited for the other officers to arrive, the officer had the appellant and his two cohorts stand at the rear of the truck. As recounted by the arresting officer, one of the appellant’s companions kept saying that “he had to urinate. He had to urinate. And he was walking around with his personal private material out attempting to urinate. Attempting to get further and further from me. I told him to collect his valuables and to step back over towards me.” This particular cohort attempted to escape when another police officer arrived.

A GBI agent subsequently arrived and conducted the field test on the ash residue, which tested positive for cocaine. The three men were arrested, and further search of the truck cab revealed 2 pieces of suspected crack cocaine. Held:

A reasonable suspicion of criminal activity justifies a temporary seizure for questioning limited to the purpose of the stop, and the investigating officer should employ the least intrusive means available to verify or dispel the suspicion. State v. Hodges, 184 Ga. App. 21 (360 SE2d 903) (1987). In the instant case, the arresting officer explained that he came upon the appellant and his cohorts parked in a pickup truck in the area where people were known to urinate on the public road. There was no business or residential development at that area, and the officer’s decision to ask the three occupants of the truck what they were doing there was not unreasonable. The appellant’s explanation that they were drinking beer warranted the officer’s continued investigation, considering his original concern about urination on the public road. (The officer’s decision to investigate may have been further vindicated by the antic of one of the men, “walking around with his personal private material out attempting to urinate.”) The officer’s permissive look into the truck cab was a minimal intrusion. The fact that that intrusion led to the discovery of crack cocaine in the truck cab was unfortunate for the appellant, but did not constitute an unlawful seizure. The trial court was mistaken in granting the appellant’s motion to suppress.

Decided April 2, 1990.

Ralph M. Walke, District Attorney, Tyson Blue, Assistant District Attorney, for appellant.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellee.

Judgment reversed.

Pope and Beasley, JJ., concur.


text:
    A90A0663.
    TAYLOR v. THE STATE.
    (393 SE2d 690)
   Birdsong, Judge.

Appellant, David William Taylor, appeals his conviction of aggravated assault and his sentence.

Appellant leaned through a car window in a shopping center and grabbed a woman about the neck. He began to choke the woman with his hands, held his hands completely around her neck, and tried to push her into the back seat of her car.

Appellant testified he mistakenly thought the woman was his wife and grabbed her by the shoulders; he denied trying to choke her. Appellant made an admission in judicio that even after discovering the woman was not his wife he continued to put his hands on her. Held:

1. Appellant claims that the trial court erred in recharging the jury, upon their request, of the law applicable to certain lesser includéd offenses.

The jury requested recharge on aggravated assault, simple assault, battery and simple battery. The trial court duly recharged as to those crimes. Thereafter a juror asked, “What are our choices as far as that condition?” The trial court responded that he had given “the choices at the end of [his] charge”; and, proceeded to summarize that procedure. Appellant contends that in essence the jury was misled to believe that if they found appellant guilty of one lesser offense, then he would be guilty of aggravated assault.

The recharge of the trial court answered the questions posed by the jurors. See generally Shy v. State, 190 Ga. App. 370 (6) (378 SE2d 920). In determining whether the recharge contained error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error. See Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). “ ‘Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.’ ” Williams v. State, 180 Ga. App. 854 (1) (350 SE2d 837). We do not believe that the recharge in this case would mislead a jury of average intelligence, and we find no error.

2. Appellant asserts that the trial court erred in recharging the jury on the law of aggravated assault by including in the recharge the principle “[a]nd hands may or may not be used as ... an object.” Specifically, appellant asserts that recharging in this manner overemphasized the commission of aggravated assault by use of hands. We disagree. Examining the recharge and the original charge in toto, we find that the recharging did not overemphasize the use of hands principle, and ran no fair risk of misleading the jury.

Further, the facts in the case of Brannon v. State, 163 Ga. App. 340 (2) (295 SE2d 110) clearly are distinguishable. Particularly, we note that in the case sub judice the language complained of was neutral in effect, favoring neither the State nor appellant, and that the language of which appellant complains was identical to the language contained in the first of two sentences in his request for charge number 12. Appellant’s request for charge number 12 incidentally was given verbatim by the trial court in its original charge.

3. Appellant asserts that the trial court erred in denying his motion for mistrial. The State’s witness, the alleged victim, in a non-responsive answer to a question by the prosecutor stated in the presence of the jury that appellant’s wife had called her on the phone, and “it was very obvious that she was calling up with his confession.”

The trial court immediately instructed the jury “to disregard the statement made by the witness.” The trial court subsequently denied appellant’s motion for mistrial, and appellant neither requested further curative instructions nor objected to the contents of the curative instruction given.

“Motions for mistrial are largely in the discretion of the trial judge, especially where the cause of the motion lies in the voluntary remark of a witness not invited by the court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court’s discretion will not be overturned.” Holcomb v. State, 130 Ga. App. 154 (1) (202 SE2d 529).

Decided April 2, 1990.

Hugh E. Smith, Jr., for appellant.

Lewis R. Slaton, District Attorney, David Wright, Assistant District Attorney, for appellee.

In this instance, the remark was not invited by the prosecutor, the answer was made by the victim who was not a trained law enforcement officer, and the nature of the telephone conversation was not revealed but merely appellant’s opinion as to its content. Thereafter, the trial court immediately gave the jury a clear and concise curative instruction to disregard the remark. Under these circumstances, and applying the Holcomb test, we find that the trial court did not abuse its discretion in denying appellant’s motion for mistrial.

4. Appellant asserts that the trial court erred by failing to charge the code section of appellant’s sole defense of mistake of fact. We disagree.

First, assuming but not deciding that the defense of mistake of fact has been reasonably raised by the evidence, we note that the record does not contain any written request by appellant for an instruction as to the contents of OCGA § 16-3-5. In the absence of a written request, there is no error in failing to charge on a lesser included offense. See generally Mosley v. State, 257 Ga. 382, 383 (2) (359 SE2d 653). Moreover in the case sub judice, appellant made a specific written request for the following lesser included offense instruction on mistake of fact: “I charge you that the honest mistaken belief of a fact may negate criminal intent.” This instruction was given verbatim by the trial judge in his charge to the jury. Thus, if there was any error as to the trial court’s charge regarding the defense of mistake, it was directly aided and invited by the conduct of appellant. “[A] defendant cannot complain of a verdict which was brought about by a charge which he had requested.” Morrison v. State, 147 Ga. App. 410 (4) (249 SE2d 131). One cannot complain of a failure to charge that is aided by his own trial tactics, procedures, and conduct. See Morrison, supra; Rush v. Southern Property Mgt., 121 Ga. App. 360, 361 (2) (b) (173 SE2d 744).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A0664.
    ERVIN et al. v. GREAT DANE TRAILERS, INC.
    (393 SE2d 467)
   Birdsong, Judge.

Appellants represent former employees of Great Dane Trailers, Inc., who have sued Great Dane in tort for their development of cancer allegedly as the result of exposure in their place of employment to the chemicals methylene chloride and “Feme Bond.” The trial court dismissed their complaint, finding their sole and exclusive remedy to be in a claim under the Workers’ Compensation Act.

On appeal, appellants argue that Great Dane was a general liability “self-insurer” and, as such, pursuant to OCGA § 34-9-11, is not immune to civil suit. Further, they contend Great Dane as a self-insurer is liable for having failed to maintain appropriate safety measures and policies, and that they are suing Great Dane in its “dual capacity” as a general liability insurer and an employer. Appellants cite in general, Sims v. American Cas. Co., 131 Ga. App. 461, 474 (206 SE2d 121), affd. 232 Ga. 787 (209 SE2d 61). Held:

The parties argue extensively on appellant’s point that Great Dane is a self-insurer for general liability purposes because its general liability insurance policy provides for a $250,000 “deductible” or reimbursement. We find, however, that even if Great Dane were deemed a self-insurer for general liability purposes, or is fully insured for general liability, the point is irrelevant because Great Dane bears no general civil liability for its employees for injury or occupational disease suffered in the course of employment.

It is well settled in this state that a claim under the workers’ compensation act is the employee’s sole and exclusive remedy for injury or occupational disease incurred in the course of employment. This edict is statutory (OCGA §§ 34-9-11 and 34-9-289), as well as judicial, and its policy reasons are well understood. See United States v. Aretz, 248 Ga. 19, 20 (280 SE2d 345); Wright Assoc. v. Rieder, 247 Ga. 496 (277 SE2d 41); Karimi v. Crowley, 172 Ga. App. 761, 763 (324 SE2d 583). If there was any doubt about the construction of § 34-9-289 as to occupational diseases (see Synalloy Corp. v. Newton, 254 Ga. 174, 177 (326 SE2d 470) (dissent)), the legislature subsequently in 1987 amended the statute to remove any equivocation, by deleting the prior reference to possible existence of any common law rights as to some occupational diseases. Ga. L. 1987, p. 1474, Sec. 6. See National Data Corp. v. Hooper, 185 Ga. App. 866 (366 SE2d 189).

We are not persuaded by appellants’ citation of foreign cases involving employees who were injured in some “dual capacity” as, e.g., an employee injured in his employment in a hospital who then suffers malpractice while being treated as a patient in that hospital. Such cases are not necessarily inconsistent with the premise that the employer bears tort immunity for injuries received by the employee in the course of his employment’, appellants in this case were allegedly inflicted with disease not in some “dual capacity” but in the course of their employment. But, we find no rational basis to twist cases involving “dual capacity” of the employee to a principle of “dual capacity” of the employer as being both an employer and an entity insured for general liability to third persons. Such a twisted rationale would obliterate the workers’ compensation law. The Sims case cited by appellant involves tort liability of a party other than the employer who undertook to perform inspections and invoke safety measures.

Decided April 2, 1990.

Clarence L. Martin, for appellants.

Hunter, MacLean, Exley & Dunn, Arnold Young, Douglas M. Muller, for appellee.

The trial court did not err in dismissing appellants’ complaint and finding Great Dane immune to suit for civil liability.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


author: Pope, Judge.

text:
    A90A0687.
    CODY v. THE STATE.
    (393 SE2d 692)
   Pope, Judge.

Defendant was convicted of possession of cocaine with intent to distribute in violation of the Georgia Controlled Substances Act, and appeals. We affirm.

1. Defendant first challenges the sufficiency of the evidence, contending that his conviction was based solely on the uncorroborated testimony of an alleged accomplice in violation of OCGA § 24-4-8. “We find no merit in this enumeration. Acknowledging that corrobo- ' ration of the testimony by a single accomplice is necessary, . . . our courts have held that the corroborating evidence itself need not be sufficient to warrant conviction, but only tend to connect and identify defendant with (the) crime. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. (Cits.) Inman v. State, 182 Ga. App. 209 (355 SE2d 119) (1987). The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said as a matter of law, that the verdict is contrary to the evidence. (Cits.) (Cit.) Cole v. State, 156 Ga. App. 288, 289-290 (1) (274 SE2d 685) (1980).” (Punctuation omitted.) Adams v. State, 191 Ga. App. 16, 18 (381 SE2d 69) (1989).

In the case at bar, the accomplice, a juvenile, testified at trial that he and the defendant were standing on “Rat Row” near Jones Apartments when they saw Officer Williams approach. The accomplice, knowing Officer Williams to be an undercover drug agent, dropped a matchbox he was holding. The accomplice admitted that the matchbox contained five rocks of cocaine and that he intended to sell the cocaine for $20 a rock. The accomplice also testified that the defendant provided him with the cocaine to sell and that he would keep only $4 for every rock of cocaine sold and give the balance of the money received from the sale to the defendant.

Officer Williams testified he saw the defendant, whom he knew by sight, the accomplice and another unidentified man standing on the steps of Jones Apartments engaging in what appeared to be a drug deal. Williams testified that he knew the accomplice had recognized him and that he saw him drop a matchbox to the ground. Williams retrieved the matchbox from where it had been dropped and handcuffed the accomplice. Williams noticed the defendant “easing away” and instructed him to place his hands on Williams’ car. At this instruction, however, defendant began running and was able to escape. We find that this testimony, including defendant’s conduct in fleeing the scene, was sufficient corroboration to authorize the jury to convict the defendant of the crime charged. Accord Drake v. State, 241 Ga. 583 (3) (247 SE2d 57) (1978); Thurston v. State, 186 Ga. App. 881 (1) (368 SE2d 822) (1988).

2. Defendant has failed to support his second enumeration of error by citation of authority or argument; hence it is deemed abandoned pursuant to Rule 15 (c) (2) of this court. Rowell v. State, 176 Ga. App. 309 (1) (335 SE2d 689) (1985).

3. Lastly, defendant contends the trial court erred in denying his motion for new trial urged on the basis of newly discovered evidence, specifically testimony of the accomplice at the hearing on the motion for new trial that he lied at trial when he stated defendant provided him the drugs to sell. The accomplice also testified at the hearing that a person called “Fat Boy,” supplied him the drugs to sell, and instructed him to implicate the defendant.

“The standard for granting a new trial on the basis of newly discovered evidence is well established. It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. All six requirements must be complied with to secure a new trial.

Decided April 2, 1990.

Short & Fowler, Thomas S. Bishop, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, J. David Miller, Assistant District Attorneys, for appellee.

“Pretermitting the question of whether the ‘newly discovered evidence’ meets the first five of the above requirements, it is clear that the effect of [the accomplice’s] new testimony is to impeach the credibility of his earlier sworn statements. The law is settled that a post-trial declaration by a State’s witness that his former testimony was false is not a ground for new trial.” (Punctuation and citations omitted.) Drake v. State, 248 Ga. 891, 894 (287 SE2d 180) (1982). Consequently, the trial court did not abuse its discretion in refusing to grant defendant’s motion for new trial. Accord Burroughs v. State, 186 Ga. App. 40 (13) (366 SE2d 378) (1988).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0125.
    LAWRENCE v. THE STATE.
    (393 SE2d 475)
   Deen, Presiding Judge.

The appellant, Hubert Lawrence, was convicted of child molestation. The victim was the 11-year-old daughter of another member of the church attended by Lawrence; the alleged incident of fondling the child’s breasts and vagina took place in Lawrence’s double-wide trailer following their return from a brief ride in his recreational vehicle. On appeal he attacks the admission of certain evidence, and the sufficiency of the evidence to support the conviction. Held:

1. The victim told her mother about the incident as soon as she got home, but the victim’s mother did not report the matter to the police until several weeks later. At the request of the investigating officer, the victim’s mother allowed the police to record a telephone conversation she had with Lawrence, in which Lawrence indicated that he had only fondled the child. The jury, assisted by a transcript, listened to the recording during the trial, and reheard the recording after beginning its deliberations.

At trial Lawrence objected to the initial admission and playing of the recording on the basis that the State, by not showing that the recording was a good reproduction of the conversation, had failed to lay a proper foundation. He also contended that replaying the recording for the jury was unduly prejudicial.

Decided April 3, 1990.

S. Fenn Little, Jr., for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Lawrence attacks the admissibility of the recording under OCGA § 16-11-66, concerning consensual interception of telephone messages, for the first time on appeal, and we thus will not consider it. Ortiz v. State, 189 Ga. App. 428 (375 SE2d 891) (1988). Granting the jury’s request to rehear the recording was within the trial court’s discretion, and Lawrence has shown no special circumstances making the decision to replay an abuse of that discretion. Sexton v. State, 189 Ga. App. 12 (374 SE2d 824) (1988).

2. Following his arrest, Lawrence was advised of his Miranda rights. He made no request for counsel, but denied fondling the victim. When confronted by the fact of the recorded telephone conversation with the victim’s mother, however, Lawrence admitted the incident. Lawrence contends that this statement was improperly admitted into evidence, because he had not fully understood what was taking place during the interrogation. The interrogating officers, however, testified that Lawrence had been aware of the situation and had freely and voluntarily given the statement.

The trial court’s decision on the admissibility of a statement will be upheld on appeal unless the trial court’s factual and credibility findings are clearly erroneous. Crumbsy v. State, 188 Ga. App. 286 (372 SE2d 669) (1988). We do not find the trial court’s findings in this case to be clearly erroneous.

3. The evidence authorized a rational trier of fact to find Lawrence guilty beyond a reasonable doubt of child molestation as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A0140.
    CEDARTOWN-POLK COUNTY HOSPITAL AUTHORITY v. WATWOOD.
    (393 SE2d 476)
   Deen, Presiding Judge.

The appellee, Dottie Watwood, commenced this action against the appellant hospital after slipping and falling on the appellant’s premises. The only issue in this interlocutory appeal from the trial court’s denial of summary judgment for the appellant is whether the appellee and appellant had equal knowledge of any foreign substance.

Decided April 3, 1990.

Tisinger, Tisinger, Vance & Greer, Robert H. Sullivan, for appellant.

John S. Husser, for appellee.

Around 3:00 p.m. on April 5, 1987, the appellee visited a patient at the appellant hospital. She entered the hospital by walking up the hospital’s front steps, and 20-25 minutes later departed by the same set of steps. However, the steps were very wide, with a handrail in the middle; to enter the hospital the appellee had used the right side of the steps, but had used the left side upon leaving the hospital.

Although it had snowed a couple of days earlier, the weather was sunny and clear on the day of this incident. When she fell, the appellee did not notice any foreign substance. The appellee’s daughter and a friend of the daughter were immediately called to the hospital, and when they arrived shortly thereafter they observed what appeared to be rock salt on the steps and collected samples. A hospital maintenance man testified that he swept the steps twice that day and was sure that no rock salt remained on the steps. The hospital administrator acknowledged that the hospital maintained a supply of rock salt for inclement weather, but claimed that the substance allegedly collected by the appellee’s daughter was different from the hospital’s rock salt. Held-.

The appellant contends that ascending and descending the same steps charges a party with knowledge of the area equal to that of the proprietor, relying upon Miolen v. Edd Kirby Chevrolet, 189 Ga. App. 282 (375 SE2d 266) (1988); Tuck v. Marriott Corp., 187 Ga. App. 567 (370 SE2d 795) (1988); Roberts v. Gardens Svcs., 182 Ga. App. 573 (356 SE2d 669) (1987). That proposition, however, more readily fits the above cases, all of which involve the lighting conditions of the steps or stairways, rather than the undetected presence of a foreign substance. Also, the instant case is on a somewhat different footing, where the hospital steps were divided into two sections by a handrail, and the appellee ascended one section and descended the other. It cannot be held as a matter of law in this case that the appellee’s use of the steps entering the hospital, without more, provided her with equal knowledge of the condition of the section of steps she used exiting the hospital. The trial court properly denied the appellant’s motion for summary judgment.

Judgment affirmed.

Pope and Beasley, JJ., concur.


author: Sognier, Judge.

text:
    A90A0294.
    TEAGUE v. THE STATE.
    (393 SE2d 478)
   Sognier, Judge.

Leeman Ambrose Teague appeals from his conviction of driving under the influence of alcohol.

1. Appellant contends the trial court abused its discretion by failing to grant appellant a new trial based on the trial court’s refusal to entertain testimony from a witness appellant had planned to but did not call at trial. The trial transcript supports the trial court’s finding in the hearing on appellant’s motion for new trial that appellant made no proffer of the witness’ testimony at trial and declined the trial court’s suggestion he ask for a continuance until the witness could be made available.

“Motions for a new trial on the ground of newly discovered evidence are not favored. All applications for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and unless it affirmatively appears that he has abused his discretion in overruling the same, his discretion will not be controlled. [Cits.] It must appear that the evidence itself is newly discovered. . . . [Cits.]” Kitchens v. State, 228 Ga. 624, 626-627 (4) (187 SE2d 268) (1972). Since the trial transcript reveals that the evidence appellant sought to introduce at the hearing was not newly discovered, we find no abuse of the trial court’s discretion here. See generally id. at 627.

2. Appellant enumerates the general grounds, arguing the State failed to prove that he was under the influence of alcohol to a degree which rendered him a less safe driver. See Peters v. State, 175 Ga. App. 463-464 (1) (333 SE2d 436) (1985). Construed to uphold the verdict, evidence was adduced that Officer Dwight Sanford of the Ellijay Police Department followed appellant after observing that appellant’s car did not have proper taillights. Sanford testified that after he saw appellant’s car veer to the wrong side of the road he activated the police vehicle’s blue lights. Appellant did not stop but instead turned onto another road, proceeded down that road straddling the center-line, then turned onto a third road, still on the wrong side, before stopping his vehicle. Sanford testified appellant had difficulty locating his driver’s license and proof of insurance and admitted having been drinking. Sanford noted that appellant was very unsteady on his feet, had to hold onto the car door in order to stand, and smelled strongly of alcohol. Sanford testified he did not conduct a field sobriety test because he felt it would be unsafe for appellant in the condition he was in. During an inventory search of appellant’s vehicle Sanford found a 12-ounce cup less than half full of whiskey. Sanford testified that appellant was informed of his implied consent rights but refused to submit to any testing.

Decided April 3, 1990.

Weaver & Weaver, George W. Weaver, for appellant.

Roger G. Queen, District Attorney, for appellee.

“ ‘This evidence was sufficient to submit to the jury to determine whether [appellant] . . . was less safe than he would have been had he not been affected by alcohol. (Cits.) The record reflects that a rational trier of fact could reasonably have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); (Cit.)’ [Cits.]” Evans v. State, 190 Ga. App. 302 (1) (378 SE2d 903) (1989).

3. “ ‘This court will not review for legal error any sentence which is within the statutory limits — as in the instant case.’ [Cits.]” Branch v. State, 182 Ga. App. 818, 820 (357 SE2d 136) (1987).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A90A0020.
    STEVENS v. THE STATE.
    (393 SE2d 482)
   Beasley, Judge.

Stevens appeals his conviction and sentence for embracery, OCGA § 16-10-91 (a) (1), asserting error in the court’s permitting the prosecutor to ask a State’s witness if she was aware of defendant’s general reputation in the community.

Two of the State’s witnesses, Mr. and Mrs. Cureton, were selected for the jury to try Lamar Jenkins on a charge of burglary. After selection, the jury was dismissed until the following day. That afternoon defendant drove to the Curetons’ home and spoke to Mr. Cure-ton, his wife overhearing parts of the conversation from a distance. The testimony of the Curetons was, and defendant agreed, that he inquired if Mr. Cureton was going to serve on a jury and Cureton responded “a Jenkins’ boy’s case.” Defendant informed Cureton that Jenkins was “my nephew.” According to Cureton, defendant stated “they were trying to set [Jenkins] up” and related some details as to what happened. Defendant asked Cureton to be fair and was assured by Cureton that he “always tried to listen to everything and be fair.” Mrs. Cureton corroborated her husband’s testimony that defendant stated Jenkins was being “set up.” She did not hear any additional details. Defendant could not remember saying “they are trying to set up” his nephew but did not deny it. He did deny giving embellishing comments about the circumstances of his nephew’s case.

The next day the jury was polled individually as to outside contact. Mr. Cureton was excused when he told of the encounter with defendant. Mrs. Cureton served as part of an eleven person jury but asked to be excused, and was, after hearing some of the testimony. A mistrial was declared and defendant was indicted for embracery.

At the beginning of defendant’s trial, but out of the presence of the jury, the District Attorney indicated he intended to ask Mrs. Cureton about her knowledge of defendant’s general reputation in order to establish her perception of a threat from him. Defendant objected “[i]f she’s going to testify as to my client’s bad character and reputation as to a criminal and crook and everything else.” After argument the court ruled: “Well, she can testify as to her reasons, as long as it’s not strictly hearsay, except by general reputation.” Later, during direct examination of Mrs. Cureton, the District Attorney asked if she was acquainted with defendant’s reputation in the community. Objection was interposed that it was not a “proper question.” The objection was overruled and Mrs. Cureton answered affirmatively. The District Attorney then inquired: “[K] nowing his reputation, what did that make you feel about him having contacted your husband about . . . Jenkins’ case?” She replied: “[A]ctually, it was some of the testimony that made me think about it.” Then she explained: “It wasn’t because ... I knew them and all, but it was what they said during the case that. . . made me think a lot about it, and ... I kind of felt like it might have been true, which it might not have been, but I couldn’t get over that part.” So she asked to be excused.

On cross-examination defense counsel asked Mrs. Cureton: “What began to bother you about this was that you had prior knowledge of [defendant] or you knew something about [his family] and it began to bother you, you felt like you couldn’t be impartial?” She answered: “No. It was something that was said in the court case.” On re-direct, Mrs. Cureton responded “yes” to the question whether she was concerned “about the family?” She explained: “I don’t worry about myself, but I do . . . have concern for my children.” This entered into her decision to be removed from the jury because the “way I felt about the case, ... I couldn’t be fair with the boy,. . . couldn’t give fair judgment.” Only the initial objection was made to any of the subject testimony.

One of the ways in which “Embracery” is committed is when a person “[w]ith intent to influence a person summoned or serving as a juror, communicates with him otherwise than is authorized by law in an attempt to influence his action as a juror.” OCGA § 16-10-91 (a) (1). From an appellate perspective this is a comparatively rare crime, and definitive exposition is scarce. Summers v. State, 66 Ga. App. 648, 650 (19 SE2d 28) (1942), explains: “[E]mbracery at common law ‘[c]onsists in any attempt whatever to corrupt, or influence, or instruct a jury in the cause beforehand, or in any way to induce them to be more favorable to the one side than to the other, by money, promises, letters, threats, or persuasions, except only by the strength of evidence and the arguments of counsel in open court at the trial, whether the jury give a verdict or not, or whether the verdict given be true or false.’ ”

Decided April 5, 1990.

John R. Emmett, for appellant.

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

Testimony introduced by the State regarding defendant’s character may be admissible where it is relevant and material and when it is offered for a valid purpose. Walraven v. State, 250 Ga. 401, 407 (4b) (297 SE2d 278) (1982); Tiller v. State, 196 Ga. 508 (3) (26 SE2d 883) (1943); Nelson v. State, 181 Ga. App. 481, 482 (2) (352 SE2d 804) (1987).

The State sought to elicit the victim’s perception of whether defendant’s statements were threatening. Regardless of whether this was a proper purpose to pursue on direct examination of the witness, no basis for reversal appears. After answering affirmatively the question of whether she was familiar with defendant’s reputation, the witness did not say what that reputation was. When pressed as to why she asked to be excused, she explained that it had to do with something that was brought out during the presentation of evidence and did not attribute her actions to knowledge of defendant’s character. Only during redirect were there any implications as to the status of defendant’s character. She stated in effect that because of what she knew about defendant (but did not explain what that was) she was “concerned” for her children. No objection was made to this testimony.

Where an objected-to question is not answered by the witness there is no harmful error. Jackson v. State, 233 Ga. 529, 531 (4) (212 SE2d 366) (1975). For all practical purposes, this was an unanswered question.

It is “highly probable” that error, if any, in permitting the question did not contribute to the judgment. Little v. State, 165 Ga. App. 389, 392 (3) (300 SE2d 540) (1983). Defendant failed to demonstrate harm in the overruling of the sole objection he made. There is no remedy for error without harm. Robinson v. State, 229 Ga. 14, 15 (1) (189 SE2d 53) (1972).

Judgment affirmed.

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


text:
    A90A0161.
    ROSSELL v. THE STATE.
    (393 SE2d 485)
   Birdsong, Judge.

Manuel Almiral Rossell appeals his conviction for aggravated assault, arising out of an incident wherein he cut and stabbed Theodore Smothers with a makeshift razor blade knife, while both were inmates of the DeKalb County Jail. Appellant Rossell was in jail on a burglary warrant sworn out by Smothers after Rossell had attempted by several undesirable methods (including the alleged burglary) to pursue a friendship with Smothers’ mother. Coincidentally, Smothers was jailed for driving with a suspended license, and found himself lodged in the cell adjoining appellant’s cell. The same day Smothers was put in jail, appellant caused his toilet to overflow into Smothers’ cell, and appellant was allowed by a guard to enter Smothers’ cell with a mop to clean up. The guard testified appellant went straight to the back of the cell; according to Smothers, appellant attacked Smothers in his bed with a weapon fashioned from old razor blades. Appellant testified, however, that he and Smothers were friendly and that when he was in Smothers’ cell to clean up, Smothers pulled a “package” from under his mattress and attacked appellant. According to appellant, this “package” was the razor blade weapon, which Smothers dropped and which appellant then picked up and used in self-defense. Held:

1. Appellant contends he was entitled to mistrial because the trial court admitted evidence of a “similar transaction” which was not similar, was prejudicial, and as to which appellant had not been given ten days’ notice of intent to introduce such evidence pursuant to Uniform Superior Court Rule 31.1.

We find no error in the denial of appellant’s motion for mistrial. The evidence objected to came from the victim Smothers; when asked whether he had told appellant that his mother did not want appellant coming to her house, Smothers replied that appellant agreed he “wouldn’t do it” anymore, but then did so again. Smothers was then asked if he confronted appellant about the matter, and “what were the circumstances about that conversation, Mr. Smothers?” On the stand, Smothers said: “Well, one night I had a gun aimed [at] my head when I was watering — when I was feeding the dog and watering the plants.” Appellant’s counsel objected to this statement, but in doing so, conceded to the court that the State and defense had “agreed [Smothers] could go into some threats that might have been made,” however, appellant in essence argued this was not one of the threats the defense had agreed to let in.

The record is not clear what threats the defense had agreed could be admitted in evidence, or that any particular threats were excluded from this agreement. The evidence was admissible as the trial court held, and as appellant’s counsel conceded, was proper, as evidence of prior difficulties, threats or confrontations against the particular victim in an aggravated assault case to show motive, intent, or bent of mind. The ten-day notice requirement of intent to introduce evidence of similar transactions is not controlling here to exclude this evidence, because in the first place the parties had already agreed that “he could go into some threats that might have been made.” The State learned about this incident only a few minutes before Smothers testified to it and therefore could not, in any case, have given appellant ten days’ notice that it would be introduced in evidence. In admitting this evidence, the trial court recognized this fact and effectively “shortened” the notice requirement as Rule 31.1 allows it to do. See Hall v. State, 181 Ga. App. 92 (351 SE2d 236). We find no such prejudicial surprise in this evidence as to warrant holding the trial court abused its discretion in denying a mistrial (see McDermott v. State, 183 Ga. App. 693 (359 SE2d 750)), particularly since it is not even clear the defense was in fact surprised by this evidence or had not at least impliedly agreed to let it in as one of the threats made.

Decided April 5, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, John H. Petrey, Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred in refusing to charge the jury on simple battery. Appellant’s defense was self-defense. He admitted that he had cut Smothers, but only quibbled about the reason he did it. The assault was committed with a deadly weapon, and so could not have amounted to mere simple battery, which is not a lesser included offense of aggravated assault. Powell v. State, 140 Ga. App. 36 (230 SE2d 90). We find no error in the trial court’s refusal to give this charge.

Judgment affirmed.

Cooper, J., concurs. Banke, P. J., concurs in judgment only.


text:
    A90A0332.
    ARNOLD et al. v. FARMERS BANK OF UNION POINT.
    (393 SE2d 486)
   Deen, Presiding Judge.

Appellants Arnold and Aldridge borrowed $205,000 from appellee bank in two separate transactions. The loans were secured by a 104.1-acre tract of real estate which appellants were developing as residential lots around a man-made lake. After appellants defaulted on the loans, the bank foreclosed and the property was sold for $124,000 at public auction. A confirmation application was filed with the lower court and this appeal is brought from the trial court’s order confirming the sale. Arnold and Aldridge contend that there was no competent evidence to support the confirmation order, which held that the sale brought the true market value of the property. Held:

In all proceedings in which the trial court sits without a jury, its findings of fact will not be disturbed on appeal if there is any evidence to support them. Collins v. Brayson Supply Co., 157 Ga. App. 438 (278 SE2d 87) (1981); Adams v. Crowell, 157 Ga. App. 576 (278 SE2d 151) (1981). In confirmation proceedings, the trial court sits as trier of fact, and its findings will not be disturbed if there is any evidence to support them. Alexander v. Weems, 157 Ga. App. 507, 509 (277 SE2d 793) (1981). The value of the subject property is a question of fact. The credibility of the witnesses who testify as to its value and the weight to be given such evidence is solely an issue for the finder of fact. American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 661 (227 SE2d 460) (1976). The party seeking confirmation of the sale bears the burden of establishing the value of the property at the time of the sale. Thompson v. Maslia, 127 Ga. App. 758, 762 (195 SE2d 238) (1972).

The bank presented several witnesses who testified as to the value of the property. One expert witness had been involved in buying and selling real estate in the area for almost 20 years, considered purchasing it at the auction himself (but the price was bid too high), and valued the land at $1,200 per acre. Other witnesses presented by the bank included the Executive Vice-President of Farmers & Merchants Bank of Eatonton and the President of appellee bank. Both men had extensive experience appraising real estate. Appellants’ expert witness, however, based his valuation upon completion of the appellants’ residential scheme for the property, and he assigned the appellants’ per lot asking price to the individual lots. He multiplied that price by the number of lots and reduced the overall value by an arbitrary figure, and based this value upon final sale of the lots some 8-12 years in the future. He offered no evidence as to present value for the entire tract on the date of the sale.

We find the appellee met its burden of proof by establishing the value of the property at the time of the sale, and the trial court’s judgment had evidence to support it. As in Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga. App. 646 (340 SE2d 216) (1986), there was no requirement in the security deed that appellee sell the property in individual tracts. We find no error.

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided April 5, 1990.

Jones, Cork & Miller, Hubert C. Lovein, Jr., for appellants.

Donald W. Huskins, for appellee.


author: Banke, Presiding Judge.

text:
    A90A0334.
    WORSHAM v. PICKERAL.
    (393 SE2d 488)
   Banke, Presiding Judge.

The appellant, Glorious Worsham, brought this action against the appellee to recover for personal injuries she had sustained in an automobile accident. A jury awarded her damages in the amount of $10,043.20; but in entering judgment on the verdict the trial court deducted $5,000 from the award pursuant to OCGA § 33-34-9 (b), which, provides that “[a]ny person eligible for economic loss [i.é., no-fault] benefits described in paragraph (2) of subsection (a) of Code Section 33-34-4 is precluded from pleading or recovering in an action for damages against a tort-feasor those damages for which compensation is available for economic loss under said Code Section 33-34-4. . . .” The appellant contends on appeal that the trial court erred in reducing the jury’s award in this manner because she had applied for no-fault coverage and, based on representations made to her by her insurance agent, believed in good faith that such coverage had been secured for her, although due to fraud on the part of the agent no policy was ever obtained. The appellant does not dispute that she incurred at least $5,000 in medical expenses and lost wages as a result of the accident. Held:

The Georgia Supreme Court has interpreted the language, “any person eligible for [no-fault] economic loss benefits,” as used in OCGA § 33-34-9 (b), to include “any person who is required under [OCGA § 33-34-4] to secure minimum coverage as outlined in said section.” Davidson v. Bradford, 245 Ga. 8, 11 (262 SE2d 780) (1980). There being no question that the appellant, as the owner-operator of the vehicle she was driving at the time of the accident, was required to secure no-fault coverage, it follows that she was precluded from recovering from the appellee her first $5,000 in economic losses resulting from the accident. While we sympathize with the appellant’s complaint that she made a diligent effort to obtain coverage and believed in good faith that she was covered, we note that a certain degree of injustice would also result from shifting the risk of her failure in this regard to the appellee herein, who had no control whatever in the matter.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Decided April 5, 1990.

Repasky, Minin & Bates, Alexander J. Repasky, Fred R. White, for appellant.

Bovis, Kyle & Burch, Steven J. Kyle, B. Dean Grindle, Terry L. Yewell, David R. Smith, for appellee.


text:
    A90A0488.
    UNITED CONTROLS, INC. v. ALPHA SYSTEMS, INC.
    (393 SE2d 694)
   Deen, Presiding Judge.

The appellee, Alpha Systems, Inc., commenced this action against the appellant, United Controls, Inc., to recover employee recruitment fees due under an express oral contract. The appellee sought a $9,600 fee, representing 30 percent of an estimated $32,000 salary to be paid the recruited employee, but the jury awarded only $4,800. The appellant does not attack the amount of the verdict, but rather its viability, contending that the jury could have reached a verdict only by applying quantum meruit as a theory of recovery.

The appellant correctly notes that while a party may proceed in both contract and quantum meruit in a two-count petition, “[t]here can be no recovery on quantum meruit when the action is based on an express contract.” Stowers v. Hall, 159 Ga. App. 501 (283 SE2d 714) (1981). That, however, is not the case here. The appellee proceeded purely on the alleged contract, and the trial court charged the jury only on contract. Contrary to the appellant’s contention, the testimony of the appellee’s president and sole owner generally describing the efforts he took to earn his fee, and the testimony of another witness concerning the average fees charged by employee recruiters, did not constitute evidence of a quantum meruit claim. Further, the fact that the jury awarded the appellee less than what it could have recovered under the contract provides the appellant with no basis to complain. Campbell v. Alford, 155 Ga. App. 689 (2) (272 SE2d 553) (1980).

Because it does not appear that there was any valid reason for the appellant to anticipate reversal of the trial court’s judgment, we conclude that the appeal was brought only for purposes of delay. Accordingly, we grant the appellee’s motion for ten percent damages for frivolous appeal, pursuant to OCGA § 5-6-6. Karsman v. Portman, 173 Ga. App. 108 (325 SE2d 608) (1984).

Judgment affirmed.

Pope and Beasley, JJ., concur.

Decided April 5, 1990.

Murray, Temple & Dinges, William D. Strickland, for appellant.

Smith & Polstra, Charles L. Dunn, Cynthia L. Weese, for appellee.


text:
    A90A0011.
    FOREMAN v. EASTERN FOODS, INC.
    (393 SE2d 695)
   Birdsong, Judge.

Eastern Foods was granted summary judgment on Foreman’s breach of employment contract claims that he was wrongfully terminated and that he was entitled to one year’s salary, a bonus, and a stock option. The case went to trial only on Foreman’s claim that he was entitled to be reimbursed by Eastern Foods for part of the loss he suffered in selling a home.

At the conclusion of Foreman’s evidence, the trial court, sua sponte, stated its intention to grant a directed verdict to Eastern Foods. Thereafter, Eastern Foods made such a motion contending that Foreman had made an insufficient showing of the assent of the parties and specific subject matter of the agreement. The motion was granted and Foreman appeals, asserting that the trial court erred by granting the motion for summary judgment and the motion for a directed verdict. Held:

1. Foreman’s claims are based on an agreement he reached with the president of Eastern Foods, Brooks, about his employment. He relied on his testimony about the agreement and letters between them as evidence of the agreement.

Brooks’ first letter expressing his satisfaction that Foreman was going to work for Eastern Foods stated: “I assume now that the best thing to do would be to try and get together on some definite agreement, either in writing or by phone, and start making arrangements toward that end.” Foreman’s first letter listed nine specific items of agreement. Item number 6 stated: “Effective Monday, October 27, 1986, we have put our house in Oklahoma City on the market. Due to weak market conditions and property devaluations you have agreed to pay at least one-half of the loss we would realize as a result of selling the house.”

Brooks’ response specifically addressed each item in Foreman’s letter. Item number 6 stated: “Yes I have agreed to pay one-half of a market evaluation on your house, up to $15,000.”

The last correspondence from Brooks to Foreman, dated some five months after Foreman started working for Eastern Foods stated: “[A]s per my discussion today, our agreement is going to be void as written in that we will not pay to move you or pay you the monies difference that you may lose on your home, up to $15,000.” (Notwithstanding this statement, Eastern Foods paid Foreman’s moving expenses.)

At trial Foreman testified that he had explained to Brooks he could not come to work for Eastern Foods unless Eastern Foods agreed to share in the $30,000-40,000 loss he expected to suffer on the sale of his house, and that Brooks’ oral agreement to do so was the basis for their correspondence. Foreman also testified he purchased the home for $125,000 in 1982, sold it for $105,000 in 1987, and because of improvements, commissions, and fees, he lost over $31,000 on the sale. Further, Foreman testified that he kept Brooks aware of the progress of the sale of his house, and that he contracted to sell the house before Brooks gave him the memorandum stating that Eastern Foods would not reimburse him for the loss he incurred.

The record shows that prior to the close of Foreman’s evidence, out of the presence of the jury, and before examining the correspondence between the parties, the trial judge stated that he did not believe Foreman had established that he would be entitled to judgment. The trial court felt there was not enough evidence to prove the evaluation of the property and there was no definiteness in the agreement “as to what the value is for.” Further, the trial court went on to state his understanding of how a contract of this nature should be expressed.

A directed verdict is authorized when “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .” OCGA § 9-11-50 (a). Further, the evidence must be construed most favorably to the party opposing the motion. McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 184 (129 SE2d 408). “ ‘The standard of appellate review of the trial court’s denial of a motion for directed verdict is the “any evidence” standard.’ ” F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (354 SE2d 6).

As the party asserting the existence of the contract, Foreman had the burden of proving its existence and terms. Jackson v. Easters, 190 Ga. App. 713, 714 (379 SE2d 610). As Brooks’ correspondence acknowledges that there was an agreement between the parties, the question is whether there was sufficient evidence of an agreement requiring Eastern Foods to reimburse Foreman for a portion of the loss. See Farmer v. Argenta, 174 Ga. App. 682, 683 (331 SE2d 60). We conclude that there was.

Foreman’s testimony and the letters were sufficient to show that Eastern Foods agreed to pay Foreman for one-half of his loss on the sale of his house, up to $15,000. Further, Foreman’s testimony was sufficient to show that he had suffered a loss on his house. His testimony stated the buying and selling price of the home and the costs of the improvements and expenses he incurred. Thus, no question was raised about his qualifications to state an opinion about the value of his home. There is no requirement that the agreement specify the exact loss that Foreman would incur for it to be enforceable.

Since this particular agreement was capable of being performed within one year and was part of an agreement terminable at will, there is no requirement that it be in writing. See OCGA § 13-5-30; Vitner v. Funk, 182 Ga. App. 39, 43 (354 SE2d 666); Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 841 (315 SE2d 51). Eastern Food’s arguments that the writings were insufficient to prove the agreement is misplaced because there is no requirement that the agreement be in writing.

Accordingly, as there was evidence to establish a valid contract under Georgia law, the trial court erred by directing the verdict for Eastern Foods. If any question is raised about ambiguities in the agreement, these can be resolved through the usual rules for construction of contracts. OCGA § 13-2-1 et seq.

2. The trial court, however, did not err by granting summary judgment to Eastern Foods on Foreman’s claims that he was wrongfully terminated, that he was entitled to one year’s salary, that he was entitled to participate in the profit sharing plan, or that he was entitled to purchase stock in the company. The record is clear that Foreman had no contract for a stated period. Presto v. Scientific-Atlanta, 193 Ga. App. 606-607 (388 SE2d 719). His employment was indefinite and could be terminated at will. Taylor v. AMISUB, 186 Ga. App. 834, 835 (368 SE2d 791). Further, the mere reference to the position’s annual salary is not sufficient to invoke the OCGA § 34-7-1 presumption. Fortenberry v. Haverty Furniture Cos., 176 Ga. App. 360, 361 (335 SE2d 460).

Therefore, Foreman was not entitled to recover a guaranteed salary or to receive benefits to which he would only have been entitled if he had worked for a full year. As his entitlement to purchase stock was contingent upon one year’s agreed-upon performance and as he did not so perform, he was not entitled to purchase the stock. Further, even if he were entitled to purchase the stock, under the agreement he would have been required to sell the stock back for the same price, and thus he suffered no loss. Also, as participation in the profit sharing plan required employment for one year, and Foreman was not so employed, he was not entitled to receive these benefits. Presto v. Scientific-Atlanta, supra. Foreman could only receive those benefits to which he was entitled. See Gale v. Hayes Microcomputer Prods., 192 Ga. App. 30, 32 (383 SE2d 590). Although Foreman correctly notes that Eastern Food’s motion for summary judgment specifically encompassed only Eastern Food’s right to terminate Foreman’s employment at will, these other claims were dependent upon Foreman’s continued employment, and there was no error in granting summary judgment on them also. Sims T. V. v. Fireman’s Fund Ins. Co., 108 Ga. App. 41, 43 (131 SE2d 790).

Decided April 9, 1990.

Ford & Haley, David C. Cole, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Nicholas C. Moraitakis, Mary M. House, for appellee.

3. The grant of summary judgment on the bonus claim, however, was not authorized. Foreman’s complaint claims bonuses earned before his termination, and not some future entitlement. Therefore, although Foreman’s employment could be terminated at will, he is entitled to recover bonuses earned while he was employed. Atlanta Dairies Co-op v. Grindle, 182 Ga. App. 409, 410-411 (356 SE2d 42); Trade City G. M. C. v. May, 154 Ga. App. 371, 372 (268 SE2d 421).

As the only evidence of record on the bonus, when summary judgment was granted, was Foreman’s deposition testimony that he had orally agreed to be paid a bonus based on a certain formula and that he had earned a bonus, there was a genuine issue of material fact on this issue. Compare Christensen v. Roberds of Atlanta, 189 Ga. App. 289, 291 (375 SE2d 267). Accordingly, the trial court erred by granting summary judgment to Eastern Foods on this claim and to that extent, the grant of summary judgment must be reversed.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Cooper, J., concur.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A0163.
    ALLSTATE INSURANCE COMPANY v. JARVIS et al.
    (393 SE2d 489)
   Deen, Presiding Judge.

Gene L. Jarvis entered a guilty plea to sexually molesting the minor son of one of the parishioners of the church where he served as Minister of Music and received a ten-year probated sentence. The child, through his guardian ad litem, brought an action against Jarvis for past and future physical and mental pain and suffering. Jarvis tendered the complaint to Allstate, his homeowner’s insurance carrier, along with a demand that it assume his defense and pay any judgment arising from the lawsuit. Allstate filed a petition for a declaratory judgment and a motion for summary judgment, contending that it had no obligation to defend or provide coverage because the policy excluded coverage for “bodily injury . . . which may reasonably be expected to result from the intentional or criminal acts of an insured person or which are in fact intended by the insured person.” The trial court denied the motion, holding that intent to commit bodily injury is a jury question because, while Jarvis admitted intending to commit the acts, his psychologist stated that he was a pedophile and incapable of forming the intent to inflict injury upon the child. Held:

In Roe v. State Farm Fire &c. Co., 188 Ga. App. 368, 369 (373 SE2d 23) (1988), this court noted that Georgia’s statutes “prohibiting child molestation (OCGA § 16-6-4) and enticement of children for indecent purposes (OCGA § 16-6-5) were promulgated by the Legislature as part of a general statutory scheme to protect children under the age of 14 from physical and psychological damage resulting from sexual exploitation. [Cit.] In adopting this legislation, the Legislature made the common-sense recognition that inherent in every act is the element of harm.” In affirming at 259 Ga. 42 (376 SE2d 876) (1989), the Supreme Court found that the offense of child molestation carries with it a presumption of intent to inflict injury which is not rebutted by an insured’s own self-serving testimony.

In the instant case, we are presented with the issue of whether a psychologist’s testimony may rebut the presumption of intent to harm. This is an issue of first impression in Georgia.

In California, where this issue has been raised several times on appeal, the 9th Circuit Court of Appeals, in State Farm Fire &c. Co. v. Estate of Jenner, 856 F2d 1359, 1365 (1988), took the position that acts of child molestation “are willful as a matter of law unless the insured presents credible evidence that he did not intend to harm his victim.” The court, however, reversed its position after granting a petition for rehearing and vacated its decision after Fire Ins. Exchange v. Abbott, 251 Cal. Rptr. 620 (1988), was decided while the rehearing petition was pending. In Abbott at 628, the court examined the applicable case law from other jurisdictions and found that most jurisdictions favor the insurer. The Abbott court noted that most courts infer a specific intent to injure as a matter of law, and that some opinions, such as Allstate Ins. Co. v. Kim W., 206 Cal. Rptr. 609 (1984), “bolster this mandatory inference by surmising that the Legislature penalized sexual misconduct with minors [because of] its inherent harmfulness. [Cit.],” and that “[s]ome of these opinions disregard not only the insured’s denial of an intent to injure, but [also] psychiatric evidence to the same effect.” The court then found that the psychiatric testimony as to subjective intent to injure the victim was irrelevant because “[virtually none of the testimony was concerned with disproving that [the] insured intended to perform the acts constituting criminal sexual misconduct or that Abbott lacked the specific intent required by [the] Penal Code.” Id. at 630. In State Farm Fire &c. Co. v. Abraio, 874 F2d 619, 623 (9th Cir. 1989), the court found that under Abbott the presumption of intent to harm is irrebuttable.

In Florida, the intermediate appellate courts were divided on the application of the subjective standard. In Landis v. Allstate Ins. Co., 546 S2d 1051 (Fla. 1989) the issue was resolved when the court held that proof of subjective intent is not necessary to invoke an intentional acts policy exclusion. “To state that a child molester intends anything but harm and long-term emotional anguish to the child defies logic.” Id. 1053. In other words, child molestation is one of those acts which is “so extreme that public policy does not permit them to be insured.” State Farm Fire &c. Co. v. Huie, 666 FSupp. 1402, 1405 (N.D. Cal. 1987).

An analysis of the relevant case law from other jurisdictions when it is applied to the public policy of Georgia, as stated in Roe v. State Farm Fire &c. Co., supra, convinces us that the rules set forth in California and Florida also apply in sexual molestation cases in Georgia and that coverage is not afforded under Jarvis’ homeowner’s insurance policy. Appellees’ argument ardently articulated advancing the idea that since having admitted committing the acts he nevertheless was incapable of forming criminal intent because of his status as an acknowledged pedophile has been previously rejected by this court. In the case of In the Interest of C. M., 172 Ga. App. 757 (324 SE2d 581) (1984) the father desired to continue an incestuous relationship because he thought it healthy and beneficial. He wanted to marry the daughter and for her to have his baby. We affirmed the trial court’s termination of parental rights. Compare Grant v. State, 178 Ga. App. 398, 399 (343 SE2d 422) (1986) where defendant had remarked: “ ‘[I]f the father didn’t break the daughter in the stepfather should.’ ” His conviction was affirmed. In Burger v. State, 118 Ga. App. 328 (163 SE2d 333) (1968), eight judges on this court held that “A plea of chronic alcoholism is not available as a defense to a charge of drunkenness.” It was further observed at 332: “And why not accept a plea of pyromania by an arsonist, or kleptomania by a thief, or nymphomania by a prostitute, or a similar plea of impulse and non-volitional action by the child molester? . . . This Pandora’s box had best be left alone for now.” Our previous court positions are in accord with our holding in the instant case under consideration. Accordingly, the trial court erred in denying Allstate’s motion for summary judgment.

Judgment reversed.

Pope, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The homeowner’s policy in Roe v. State Farm Fire & Cas. Co., 188 Ga. App. 368 (373 SE2d 23) (1988), aff’d 259 Ga. 42 (376 SE2d 876) (1989) excluded coverage for bodily injury “expected or intended by the insured.” This related only to the actual expectation or the actual intention of the particular insured whose act caused injury to one who sought to hold the insured personally liable for the damages. The Supreme Court recognized a distinction between intent to commit the act and intent to inflict bodily injury. It created a rebuttable, not a conclusive, presumption that the presence of the first carried with it the presence of the second. The sole evidence of intent in that case was “the insured’s own self-serving testimony.” Although subjectivity was at issue because of the wording of the policy, this evidence was held insufficient as a matter of law to overcome the presumption and the insurer was relieved of coverage.

Decided April 9, 1990.

Kent & Barrow, R. Stephen Sims, for appellant.

The policy provision in the instant case is not identical. It does not focus alone on the insured’s intent in fact to bodily injure another. It excludes coverage more broadly. Cf. State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988). Criminal intent itself thus is sufficient to exclude coverage under this policy.

The policy additionally provides that even where the insured did not have, in fact (that is to say, no actual), intent to injure, acts are excluded from coverage if they may “reasonably be expected to result . . . .” The more universal objective test rather than the subjective intent of the insured pertains to this branch of the exclusion. The psychologist’s testimony, if it provides evidence of the sort contemplated by the Supreme Court in Roe when it made the presumption rebuttable, does not create an issue of fact as to what may reasonably be expected.

Nor does it address criminal intent which, because of the language of the policy, is relevant in this civil proceeding inasmuch as acts are excluded from coverage in yet a third category: if they are criminal. In this case, the presence of the specific criminal intent required by OCGA § 16-6-4 (a) is admitted by the insured’s plea of guilty to the charges of child molestation.

For these reasons, I concur in the judgment.

Penny J. Haas, Charles R. Ashman, Jeffrey W. Lasky, for appellees.

       “Subjective” intent or expectation is meant because the policy states: “expected or intended by the insured.” In this sense, “subjective” means “of, relating to, or being whatever in experience or knowledge is conditioned by merely personal characteristics of mind or by particular states of mind as opposed to what is determined only by the universal conditions of human experience and knowledge; peculiar to a particular individual modified by individual bias and limitations.” Webster’s Third New Intl. Dictionary, Unabridged, pp. 2275-2276.

       “Objective” in this sense is defined as “publicly or intersubjectively observable or verifiable especially by scientific methods; independent of what is personal or private in our apprehension and feelings; of such nature that rational minds agree in holding it real or true or valid.” Webster’s Third New Intl. Dictionary, Unabridged, pp. 1555-1556.


text:
    A90A0618.
    AARON v. THE STATE.
    (393 SE2d 698)
   Birdsong, Judge.

Aaron appeals his conviction of armed robbery and simple battery. He contends the trial court erred by denying his motion for a mistrial after the State introduced evidence of other crimes. Held:

1. “[W]hether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508).” Buxton v. State, 253 Ga. 137, 139 (317 SE2d 538). Not only did appellant fail to demonstrate that the trial court abused its discretion, but the evidence of similar crimes of which he complains was clearly admissible.

The victim testified that appellant suddenly ran up to his car and beat him about the head with a gun and his fists without saying anything. When the victim regained consciousness, he was in a hospital and his car and wallet were missing. Some hours later, appellant was stopped driving the victim’s car. After he was stopped, appellant told the police that he had the victim’s car because the victim offered him a ride and he took the car after they had a fight because the victim made homosexual advances. Appellant denied having a weapon or taking the victim’s wallet.

The evidence of the similar robberies was the testimony of two witnesses that appellant suddenly and violently attacked them and stole their property, and copies of the indictment showing appellant pled guilty to both offenses. In both robberies, no oral demands or threats were made.

“Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” (Emphasis deleted.) Oller v. State, 187 Ga. App. 818, 819 (371 SE2d 455). “[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.” Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515).

We find that the evidence of the other crimes met all the conditions of admissibility. Appellant earlier pled guilty to the other crimes and the similarities between the other robberies and the offense charged were remarkable. Further, the evidence of the other crimes showed appellant’s plan, scheme, bent of mind and course of conduct so as to discredit appellant’s version of the events. In these circumstances, the relevance of the evidence and its probative value clearly outweighed any prejudicial impact. Moreover, a proper limiting instruction was given.

Decided April 9, 1990.

J. Douglas Willix, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Sylvia A. Martin, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Additionally, appellant’s argument that the two-year interval between the crimes was sufficient to exclude the evidence of the other robberies is without merit. Mere lapse of time between the earlier robberies and the offense for which appellant was on trial does not render the evidence automatically inadmissible. See Rich v. State, 254 Ga. 11, 14 (325 SE2d 761). Instead, lapse of time is a factor to consider when balancing the probative value of the evidence against its potentially prejudicial effect. Oller v. State, supra at 820. Accordingly, the evidence of the similar crimes was admissible, and there was no error in refusing to grant a mistrial because it was admitted.

2. Reviewing the evidence in the light most favorable to the verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that the appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.