text:
    A91A1982.
    TARLETON v. GRIFFIN FEDERAL SAVINGS BANK.
    (415 SE2d 4)
   Birdsong, Presiding Judge.

Appellant Dianne Tarleton appeals the order of the superior court confirming the sale of real property by appellee Griffin Federal Savings Bank. Appellant entered into a promissory note with appellee; the note was secured by certain real estate of appellant. A deed to secure the debt evidencing appellee’s security interest in the indebtedness was duly recorded. Appellee bank foreclosed and bid in the property for $200,400. Appellee filed a confirmation petition, and the court entered an order confirming the sale. Held:

1. To confirm a foreclosure sale of real estate, without legal process, “[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” OCGA § 44-14-161 (b).

Appellee’s appraiser, using Fannie Mae’s guidelines for residential appraisals, appraised the property at $200,000; appellant’s appraiser appraised it at $237,000. Appellant asserts the trial court abused its discretion in finding the property brought its true market value at the foreclosure sale because appellant’s appraisal was clearly more accurate and reliable, particularly as her expert had considered comparable sales occurring immediately preceding the confirmation hearing. On appellate review, the test is not whether this court would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale. Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga. App. 646 (340 SE2d 216); Oates v. Sea Island Bank, 172 Ga. App. 178 (1) (322 SE2d 291). Although the evidence was in conflict as to the market value of the property, the findings of the trial court are supported by the evidence and are not clearly erroneous. See Shingler v. Coastal Plain &c. Credit Assn., 180 Ga. App. 539, 542 (2e, 4) (349 SE2d 785).

2. Appellant asserts the confirmation sale should not have been confirmed as the advertisement of sale (OCGA §§ 9-13-140; 9-13-141; 44-14-162) was legally defective, could have caused confusion among potential buyers and appellee presented no evidence that there were other people present at the sale. The two deficiencies asserted are that: (a) the advertisement referred incorrectly to the security deed as having been recorded at page 3 of the deed book rather than on page 2 thereof, and (b) the phrase reciting the location of the property as “being Lot 10, Block D, Unit 1, Eagles Landing” was erroneously repeated in the legal advertisement.

(a) Appellant asserts in her brief that her appraiser did not find the property by use of the legal advertisement; this claim is unsupported by evidence of record. Likewise, unsupported is appellee’s factual assertion that when the deed book is open, page 3 thereof is on the right and page 2 is on the left in plain view. We will not consider on appellate review any assertions of fact unsupported by the trial record. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223).

(b) “Not every irregularity or deficiency in the advertisement will void the sale. The issue to be decided by the trial court is whether the error contributed to chilling the price on the sale of the property or voiding the advertisement.” (Citations and punctuation omitted.) Concept Mgmt., Ltd. v. Carpenter, 199 Ga. App. 503, 504 (2) (405 SE2d 119); Oates v. Sea Island Bank, supra at 179 (2 a). Thus, the crucial point of an inquiry on confirmation is to insure that the sale was not chilled and the price bid was in fact market value. Stripling v. Farmers &c. Bank, 175 Ga. App. 75, 76 (2) (332 SE2d 373).

Appellant in her brief has advocated the potential for confusion caused by these deficiencies and has asserted that this alleged confusion may have caused potential buyers not to investigate further after turning to page 3 of the deed book and seeing only the “boiler plate contents” of the security deed, and that the alleged confusion as to the legal description of the property in the advertisement would cause bidders to be unwilling to bid on the property.

We find that merely repeating an accurate description twice in the advertisement would not confuse the bidding intentions of any potential bidder of sufficient mental capacity to enter a binding contract for the purchase of the real property, let alone chill the sale so that a fair market value bid was not obtained. Such an obvious printing or drafting error is harmless.

Appellant also has failed to show by the record how the citation to page 3 rather than page 2 of the deed book would chill the sale and cause the property to be bid at less than its fair market value; in this regard, we note appellant’s judicial admission in her brief that “when a party was researching this matter, and he opened the book to page 3 ... he would have seen just the boiler plate contents [of the document in question] as a security deed.” This is not even a case where the page number causes a potential bidder to be referred to a document not pertaining to the property in question; and we fail to see how a potential purchaser would be mislead to the extent asserted by appellant merely by being cited to a page other than the first page of the same recorded legal document. An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. Baker v. Baker, 194 Ga. App. 477, 480 (390 SE2d 892); Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). Appellant has failed to make this requisite showing. Appellant’s other assertions also are without merit.

Decided January 7, 1992.

Newton & Howell, Griffin E. Howell III, for appellant.

Beck, Owen & Murray, Richard M. Hunter, James R. Fortune, Jr., for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A91A2052.
    DUNCAN v. THE STATE.
    (415 SE2d 7)
   Beasley, Judge.

Appellant was convicted of reckless driving in violation of OCGA § 40-6-390 (a), which provides: “Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” He challenges the sufficiency of the evidence.

The facts, as stipulated by the parties, are as follows: Three Glynn County police officers were conducting a roadblock on Georgia Highway 25, a two-lane highway, stopping traffic in both directions. Three marked police cars with the police lights activated were in position. Each officer was in uniform and wearing an orange safety vest. The area was lighted by a generator.

At approximately 12:15 a.m., appellant approached the roadblock driving in a northerly direction in a Ford van with the headlights flashing. There were automobiles stopped in the northbound lane. Appellant moved into the southbound lane and did not stop or slow down for the roadblock, although the officers were yelling at him and motioning him to stop. At least one officer shined a flashlight at him. As appellant passed the roadblock, one officer observed two red lights flashing in the rear window of his van. Another officer testified that appellant scared him, as he approached “at a high rate of speed,” and he had to get out of appellant’s way to avoid being hit. The third officer got into his patrol car and pursued appellant, who stopped and said he was a volunteer fireman en route to a fire. The officer allowed appellant to continue on his way but instructed appellant to contact him later either at the roadblock or the police station. Appellant stopped at the roadblock after the fire was extinguished. He was cited for “reckless driving” and “unauthorized red flashing lights.” A jury convicted him of the former offense and acquitted him of the latter.

Appellant testified that he neither reduced his speed nor accelerated when he approached the roadblock, and he was not exceeding the speed limit. An officer testified that appellant was exceeding the speed limit when he approached the roadblock.

Decided January 7, 1992.

Alan D. Tucker, for appellant.

Richard H. Taylor, Solicitor, for appellee.

As authority in support of his position, appellant cites Jackson v. Moore, 190 Ga. App. 329 (378 SE2d 726) (1989) and Worley v. State, 87 Ga. App. 195 (73 SE2d 229) (1952). In Worley, two law enforcement officers who were out of uniform and driving an unmarked car set up a roadblock. Without identifying themselves as officers, they began walking toward the defendant’s car after he stopped for the roadblock. The defendant proceeded onward. In order to pass the sheriff’s unmarked car, he had to go partly in a ditch, and he scraped the sheriff’s car as he was going by it. The evidence was held insufficient to support a conviction of reckless driving.

In Jackson, an unlicensed minor driving an automobile struck a child riding a bicycle on a two-lane road. It was undisputed that the minor swerved to avoid striking the child, who was weaving from one side of the lane to the other on his bicycle, and “there was no evidence that the [minor] was driving at an excessive speed or otherwise endangering others on the road.” Jackson, supra at 331.

In contrast, there is evidence that appellant was driving at an excessive speed and endangering others on the road. He has made no showing that he was legally authorized to operate his car at an excessive speed in disregard of a police roadblock. When viewed in a light most favorable to the verdict, the evidence was sufficient to authorize a rational trier of fact in finding appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Sognier, Chief Judge.

text:
    A92A0179.
    HOGAN v. THE STATE.
    (414 SE2d 748)
   Sognier, Chief Judge.

Although appellant was directed by order of this court to file an enumeration of errors and brief in this case but has failed to do so, we have nevertheless reviewed the record and the transcripts of the proceedings, including the hearing on appellant’s motion to suppress, and find that no reversible error was committed by the trial court. Accordingly, we affirm appellant’s conviction of possession of cocaine.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

Decided January 7, 1992.

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, Samuel W. Lengen, Assistant District Attorney, for appellee.


text:
    A91A1477.
    BARTEL v. THE STATE.
    (414 SE2d 689)
   Beasley, Judge.

While appellant was employed as the manager of a health club facility, he enrolled several new members and received their initial membership payments in the form of cash or a check payable to the facility. Three separate checks totalling $520, as well as one cash payment of $85, were introduced into evidence. When it became apparent that those individuals never received membership cards as their written contracts required, they produced cancelled checks reflecting that the membership fees had never been deposited into the company account but instead had been deposited into appellant’s personal checking account. Each check contained a handwritten endorsement specifying, “For deposit only,” followed by appellant’s checking account number. Appellant’s supervisor testified that the account number endorsed on each of the three checks was in appellant’s handwriting. He further testified that appellant was responsible for collecting and accounting for all monies received at that facility and for submitting all such payments to the home office.

1. The first question is whether there was a fatal variance between the allegations of the indictment and the proof at trial.

The indictment charged appellant “with the offense of theft by taking [in violation of] OCGA § 16-8-2,” in that he was “in lawful possession of United States Currency, the property of Rome Sports Connection, Inc., with a value of more than $500.00, [and did] unlawfully appropriate said property with the intent of depriving said owner of said property. ...” Appellant contends that the State failed to prove those averments because the evidence at trial showed that although he had possession of checks belonging to his employer, with the exception of the cash payment of $85, there was no showing that he had appropriated currency as alleged in the indictment.

“Under DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), and Dobbs v. State, 235 Ga. 800 (3) (221 SE2d 576) (1976), ‘(n)ot every variance in proof from that alleged in the indictment is fatal.’ [Cit.] The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. DePalma, supra. Unless the variance subjects defendant to one of these dangers it is not fatal.” Glass v. State, 199 Ga. App. 530, 531 (1) (405 SE2d 522) (1991).

In Brandt v. State, 71 Ga. App. 221 (2) (30 SE2d 652) (1944), this court rejected an argument that the allegata and probata do not agree where the indictment alleged a conversion of $4,000 in money, and the evidence showed the conversion of a check which had been cashed and the proceeds retained by the defendant. Likewise, in this case, there is no failure of proof where the evidence shows that a conversion as alleged in the indictment took place when appellant deposited the checks into his own account for withdrawal as cash or otherwise at his demand and for his own use. See also McCrory v. State, 11 Ga. App. 787 (76 SE 163) (1912). Compare Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978), where the indictment charged theft by taking by unlawfully taking property of another, and the trial proof showed that defendant committed the alternative offense of theft by taking in that he was in lawful possession of the property and thereafter unlawfully appropriated it.

In the case in issue, the material allegations and the proof correspond, i.e., that appellant was in lawful possession of the property of another and thereafter unlawfully appropriated it. OCGA § 16-8-4 (a).

2. The checks were properly admitted in evidence as probative of the offense charged and not as evidence of similar transactions. Compliance with Uniform Superior Court Rule 31 was not required. It was not error to permit the prosecuting attorney to refer to the checks in his opening statement and in closing argument as evidence of the offense. Nor was it error to restrict appellant’s counsel from arguing the contrary.

3. The court properly instructed the jury on the offense of theft by conversion. Although appellant also contends that the court erred in failing to give certain requested jury charges, this is not shown in the record. “ ‘[W]here there has been no written request to charge, failure to give the charge is not error. (Cits.)’ [Cits.]” Lamb v. State, 196 Ga. App. 665, 667 (3) (396 SE2d 497) (1990).

4. During the State’s case-in-chief, the court held a bench conference at which it ascertained that the State was actually proceeding on the offense of theft by conversion. At the conclusion of the evidence, the court charged the elements of the offense of theft by conversion and that the jury was authorized to convict appellant only if it found guilt beyond a reasonable doubt of that offense as described in the indictment and jury charge. The jury returned a guilty verdict without specifying the offense.

The sentence and judgment denominate the conviction as theft by taking which is inconsistent with the only offense charged and therefore the only conviction that the jury was authorized by law to return, i.e., theft by conversion. Since theft by taking encompasses theft by conversion, Byrd v. State, 186 Ga. App. 446 (1) (367 SE2d 300) (1988), and OCGA § 16-8-12 (a) (1) authorizes the imposition of like punishment upon conviction for either offense, misdesignation constitutes only a clerical error.

Decided January 8, 1992.

Barkley & Garner, Richard E. Barnes, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Leigh E. Patterson, Asssistant District Attorneys, for appellee.

Although appellant asserted no objection to the sentence and judgment either in the trial court or in this court, clerical mistakes in judgments may be corrected by the court at any time on its own initiative. See Whittle v. Jones, 198 Ga. 538 (5) (32 SE2d 94) (1944); Bryant v. State, 172 Ga. App. 200 (1) (322 SE2d 524) (1984); cf. OCGA § 17-1-3. “The trial court is instructed, , . . upon return of the remittitur, to correct the clerical error and forward same to the penal authorities in order that all concerned will be aware of the offense for which this defendant will be serving a sentence, [i.e., theft by conversion], . . .” Bryant, supra at 201.

5. The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offense of theft by conversion. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). By the same token, appellant was not entitled to a directed verdict pursuant to OCGA § 17-9-1 (a).

Judgment affirmed with direction.

Carley, P. J., and Judge Arnold Shulman concur.


author: Carley, Presiding Judge.

text:
    A91A1491.
    BATES v. THE STATE.
    (414 SE2d 691)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of obstruction of an officer and he appeals from the judgment of conviction and sentence entered on the jury’s guilty verdict.

1. Appellant was indicted on August 1, 1990 and arraigned on August 21, 1990. On September 13, 1990, appellant first attempted to employ counsel to represent him. On September 17, 1990, appellant’s counsel moved for a continuance on the ground that his “involvement in the case [had begun no earlier than] Thursday^ September 13, 1990]. . . .” The motion was denied and appellant was tried on September 18, 1990. The denial of the motion for a continuance is enumerated as error.

Decided January 8, 1992.

Cornwell, Church & Healy, Timothy P. Healy, for appellant.

“A motion for a continuance predicated on the basis that counsel has not had sufficient time to prepare for trial addresses itself to the sound discretion of the trial judge, and a ruling denying such a motion will not be interfered with unless the judge has abused his discretion in denying the motion. [Cit.] ‘The conduct of the party is obviously relevant and is a proper consideration for the judge in the exercise of his discretion. (Cit.) The reason for this is to prevent a party from using . . . employment of counsel as a dilatory tactic.’ [Cit.] In the instant case we find no abuse of the trial court’s discretion in denying the motion for continuance.” Cantrell v. State, 154 Ga. App. 725-726 (2) (270 SE2d 12) (1980). “ ‘The (appellant), not the [S]tate, is chargeable with the delay in such a situation, absent a showing of why the late employment of counsel occurred.’ [Cit.]” Cantrell v. State, supra at 726 (2). Thus, “[i]t cannot be said as a matter of law that the trial court abused its discretion in overruling the motion [on this ground]. [Cits.]” Barber v. State, 120 Ga. App. 666-667 (1) (171 SE2d 747) (1969). See also McLendon v. State, 123 Ga. App. 290 (2a) (180 SE2d 567) (1971).

2. Appellant’s counsel also moved for a continuance on the ground “that the State on Friday[, September 14, 1990,] had given [him] notification [of] four new witnesses. . . .” The denial of the motion for a continuance on this ground is enumerated as error.

The record contains no demand made by appellant pursuant to OCGA § 17-7-110. Coleman v. State, 124 Ga. App. 313-314 (1) (183 SE2d 608) (1971). However, even assuming, that a demand had been made, “[t]here is no merit to appellant’s contention that the trial court should have granted a continuance after the [S]tate gave him a supplemental list of [four] witnesses. [According to appellant,] [o]nly [two] of these witnesses testified and did so [four] days after [receipt of the supplemental list]. [Cit.]” Jones v. State, 247 Ga. 268, 271 (3) (275 SE2d 67) (1981). Appellant’s counsel did not ask for additional time to interview the witnesses, “ ‘did not claim to be unfairly surprised by [the supplemental list] and did not allege prejudice of any kind from the fact that the notification was [four days prior to trial]. Under these circumstances any defect in the failure of the prosecution to [provide a timely] written list of witnesses is harmless. (Cit.)’ [Cits.]” Griffin v. State, 183 Ga. App. 386, 388 (3) (358 SE2d 917) (1987).

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.

Michael H. Crawford, District Attorney, George N. Guest, Assistant District Attorney, for appellee.


text:
    A91A1555.
    HOWE v. THE STATE.
    Decided January 8, 1992.

      Kimel & Bloodworth, George L. Kimel, for appellant.

      Gerald N. Blaney, Jr., Solicitor, Jessica R. Towne, Assistant Solicitor, for appellee.
    (414 SE2d 748)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of simple battery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict, and enumerates as error only the general grounds.

OCGA § 16-5-23 (a) (1), provides, in relevant part, as follows: “A person commits the offense of simple battery when he . . . [¡Intentionally makes physical contact of an insulting or provoking nature with the person of another. ...” Contrary to appellant’s contention, there is nothing in this statutory language which requires that the physical contact with the victim be made by the body of the defendant. “ ‘[E]ven under the former law . . . , which defined “battery” rather restrictively as “the unlawful beating of another,” battery was held to committable without direct physical contact between the parties. . . (Emphasis in original.) Lyman v. State, 188 Ga. App. 790, 791 (1) (374 SE2d 563) (1988). See also J. A. T. v. State of Ga., 133 Ga. App. 922 (1) (212 SE2d 879) (1975). The record shows that, in the instant case, the State proved the occurrence of a physical contact with the victim such as would be proscribed by OCGA § 16-5-23 (a) (1). Therefore, the trial court did not err in denying appellant’s motions for directed verdict and for new trial on the general grounds. See Fitzgerald v. State, 201 Ga. App. 361 (1) (411 SE2d 102) (1991).

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A1589.
    GARRETT v. THE STATE.
    Decided January 8, 1992.

      Joseph W. Jones, Jr., for appellant.

      William G. Hamrick, Jr., District Attorney, Peter J.

      Skandalakis, Assistant District Attorney, for appellee.

      (414 SE2d 693)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of three counts of burglary. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

After the close of the State’s evidence, appellant informed the trial court of the absence of a witness who had been subpoenaed to appear for the defense. According to appellant, this witness had attended the first day of trial, but was absent on the second day when he was to be called to take the stand. Appellant requested and received a postponement, during which he was unsuccessful in locating the witness. Appellant then moved for a continuance “until [such time as the witness could] be found.” According to appellant, the absent witness would “corroborate [appellant’s] statement as to alibi.” In response to the trial court’s inquiry, however, appellant was unable to offer any reasonable assurance as to exactly when this witness would be available. The denial of this motion for continuance is enumerated as error.

In all cases wherein a continuance is sought upon the ground of the absence of a witness, the movant “ ‘must make a showing of the requirements set forth in OCGA § 17-8-25 (cit.), i.e., the witness is absent, he has been subpoenaed, he does not reside more than 100 miles from the place of trial, his testimony is material, the absence is not with permission of the applicant, his testimony can be procured by the next term of court, the facts expected to be proved, and that application is not made for the purpose of delay.’ [Cit.]” Ledford v. State, 173 Ga. App. 474, 476 (3) (326 SE2d 834) (1985). Each of the requirements set forth in OCGA § 17-8-25 must be met before an appellate court may review the exercise of the trial court’s discretion in denying a motion for continuance based upon the absence of a witness. Eze v. State, 195 Ga. App. 503 (2) (393 SE2d 758) (1990). Here, appellant was unable to show that the presence of the absent witness could be procured so as to authorize a continuance of the case. “On these facts, there is no basis for holding the denial of the motion was an abuse of the trial court’s discretion. [Cits.]” Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250) (1986). See also Thompkins v. State, 257 Ga. 113, 114 (2) (356 SE2d 207)'(1987).

Judgments affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Judge Arnold Shulman.

text:
    A91A1586.
    CORBIN v. THE STATE.
    (415 SE2d 14)
   Judge Arnold Shulman.

The appellant pled guilty to an indictment charging her with theft by taking based on allegations that she had stolen funds in excess of $500 from her former employer. Under a plea agreement negotiated with the state, she was to repay the employer $14,000 of the $24,000 she had taken from him, the employer having been compensated by insurance for the remaining $10,000, and the appellant having already contracted to repay those funds to the insurer. However, the trial court expressed concern that this arrangement would give the appellant the benefit of the use of the $14,000 interest-free during the period her employer had been deprived of it. Stating that she had “had the money for years already” and that “if she borrowed $14,000 for two years at 10 percent” she would owe $2,800 interest, the trial court accordingly required her to pay an additional $3,000 in restitution to the victim as a condition of her probation. The appellant voiced no objection to this condition, and sentence was imposed accordingly. However, she now contends on appeal that this additional charge was unauthorized because it was not based upon any specified interest rate and because no provision was made for a reduction of it in the event she finished making her restitution payments ahead of schedule.

“The judge of any court of competent jurisdiction may order that an adult offender make restitution as a condition of any relief ordered by the court.” OCGA § 17-14-3. “ ‘The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.’ [OCGA § 17-14-9]. However, as it is used in the statutory provisions relating to restitution, ‘ “(d)amages” means all damages which a victim could recover against an offender in a civil action. . . .’ OCGA § 17-14-2 (2).” Patrick v. State, 184 Ga. App. 260, 261 (1) (361 SE2d 251) (1987). This includes interest. Id.

Because the additional restitution ordered by the court was intended at least in part to compensate the victim for the period the appellant had already had the use of his funds, the fact that no provision was made for reducing it in the event she finished paying the principal portion of her restitution obligation ahead of schedule would not necessarily render it excessive. In any event, “ ‘[p]ursuant to [OCGA § 42-8-35 (7)], a defendant who does not agree to the amount of restitution ordered by the trial court is normally required to contest the issue at the time the condition is imposed.’ [Cit.]” Pat- rick v. State, supra, 184 Ga. App. at 261 (2). Because the appellant voiced no objection to the interest charge in the trial court, we hold that she may not now complain of it on appeal. See generally Boat-right v. State, 192 Ga. App. 112 (5), 116 (385 SE2d 298) (1989); Pressley v. State, 197 Ga. App. 270 (4) (398 SE2d 268) (1990).

Decided January 9, 1992.

Walter J. Clarke, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A2021.
    GENTRY v. THE STATE.
    (414 SE2d 696)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of theft by deception in violation of OCGA § 16-8-3. More specifically, the indictment charged that “on or about [the] 18th day of July, 1986,” defendant “did unlawfully . . . obtain United States currency in the amount of $30,010.00, the property of the Peoples Bank of Bartow County, with the intent to deprive the owner of said currency by deceitful means and artful practice, to wit: the accused did intentionally create and confirm the impression to Ronnie Austin, an authorized loan officer for said currency owner, that the accused was the present and only existing owner of a 1983 model Caterpillar crawler and loader, which the accused knew to be a false fact, and by said false representation to said loan officer, was able to obtain the aforestated currency from said owner by means of a commercial loan, using the Caterpillar crawler and loader as collateral for and in order to obtain said loan and currency. ...”

Following a trial upon the indictment, the jury found the defendant to be “guilty.” Defendant’s motion for new trial was denied and he appeals.

Evidence was adduced at trial demonstrating that defendant owned and operated a motorcycle dealership in Bartow County; that upon purchasing the business, defendant established a banking relationship with the Peoples Bank of Bartow County; and that over a period of several months, defendant borrowed money from the bank four times:

First, on May 28, 1986, defendant borrowed $30,010. That loan was secured by three certificates of deposit totalling $30,000. Defendant borrowed an additional $25,000 the same day. That loan was unsecured.

On July 18, 1986, defendant again borrowed $30,010. That loan was secured by a forklift, a gooseneck trailer, a tractor, a wheel balancer and other equipment at defendant’s place of business. Finally, defendant borrowed another $25,010 on August 22, 1986. That loan was secured by a Caterpillar crawler and loader.

In sum, the evidence demonstrated unequivocally that defendant did not put up the Caterpillar crawler/loader as collateral in connection with the first three loans. It was only in connection with the last $25,010 loan made on August 22, 1986, that defendant pledged the Caterpillar crawler and loader as security.

In view of the discrepancy between the indictment and the proof, defendant claims a fatal variance between the allegata and probata. We find this claim to be meritorious.

“The general test for determining whether a variance between the allegations and the proof is fatal is as follows: ‘ “The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” (Cits, omitted.) Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314).’ DePalma v. State, 225 Ga. 465, 469-70 (169 SE2d 801) (1969). Even under this test, however, it has been held that ‘ “no averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed.” ’ Walker v. State, 146 Ga. App. 237 (1), 242 (246 SE2d 206) (1978).” Harrison v. State, 192 Ga. App. 690 (1), 691 (385 SE2d 774).

We have no hesitation in concluding that the variance between the indictment and the proof was fatal. The first prong of the general test outlined in DePalma is wanting. In no way can it be said that the indictment “definitely informed” defendant of the charges against him. (Was defendant to have prepared a defense regarding the August 22, 1986, loan for $25,010 in which the Caterpillar crawler and loader was pledged, or the July 18, 1986, loan for $30,010 described in the indictment?)

The second prong of the general test outlined in DePalma fails too. The indictment mistakenly combined the elements (date, amount and collateral) of several different loan transactions. Simply put, it is too much of a mishmash to permit anyone to ascertain the basis of defendant’s conviction. (Was defendant convicted of theft by deception with regard to the August 22, 1986, loan for $25,010 in which the Caterpillar crawler and loader was pledged, or the July 18, 1986 loan for $30,010 described in the indictment?)

Decided January 9, 1992.

Awtrey & Parker, J. Lynn Rainey, for appellant.

Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

We would rule differently, perhaps, if the indictment only mistakenly described the date of the transaction. See Melton v. State, 174 Ga. App. 461, 462 (330 SE2d 398); Mathis v. State, 155 Ga. App. 655, 657 (3) (272 SE2d 520). The indictment went further, however, and described the transaction by a dollar amount. The amount described, $30,010, does not pertain to the transaction involving the Caterpillar crawler and loader. On the contrary, it accurately pertains to the transaction which took place on July 18, 1986, the date alleged in the indictment. (It also pertains, confusingly enough, to the first loan transaction.)

“It is apparent without dispute . . . [that the evidence presented at trial did not comport with the allegations in the indictment], and the state has suggested no reason why this error could not have been corrected prior to trial. Being aware of no decision from any state or federal appellate court in the nation upholding a conviction of a crime of [theft by deception] under such circumstances, we hold that the variance was fatal and that the trial court consequently erred in denying the [defendant’s] motion for new trial.” Harrison v. State, 192 Ga. App. 690 (1), 692, supra.

Judgment reversed.

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


author: Cooper, Judge.

text:
    A91A0978.
    FLOWERS v. ARMSTRONG et al.
    (414 SE2d 672)
   Cooper, Judge.

This appeal arises out of a medical malpractice action brought by appellant against appellees, Ned B. Armstrong, M.D. (“Dr. Armstrong”) and his professional corporation. Appellant alleged in her action that surgery performed on her on May 4, 1988 by Dr. Armstrong was unnecessarily and negligently performed and she appeals from the trial court’s grant of summary judgment to appellees.

Appellant’s sole enumeration of error is that the trial court erred in granting summary judgment to Dr. Armstrong because genuine issues of material fact existed. The record reflects that appellant suffered an on-the-job injury in October 1987 and began a conservative course of treatment with Dr. Hal Tobias. When appellant’s condition, did not improve, Dr. Tobias referred appellant to Dr. Armstrong in April 1988 for possible surgical intervention. Dr. Armstrong treated appellant for approximately three weeks and then recommended surgery which he performed on May 4. 1988. Following the surgery, appellant developed urological problems which she alleges were the direct and proximate result of Dr. Armstrong’s negligence in performing the surgery. Appellees filed a motion for summary judgment and attached the affidavit of Dr. Armstrong which set forth his course of treatment for appellant prior to his recommendation of surgery, including appellant’s failure to respond to conservative methods of treatment. Dr. Armstrong’s affidavit also detailed the specific findings which indicated the need for surgery and described the surgery performed and the findings during surgery which confirmed his preoperative diagnosis. In addition, Dr. Armstrong stated in his affidavit that in his care and treatment of appellant, he at all times exercised the appropriate standard of care and that her problems following surgery were recognized complications of the surgery which can occur in the absence of negligence. In opposition to appellees’ motion for summary judgment, appellant submitted the affidavit of Dr. Edwin Season (“Dr. Season”) who stated that he reviewed the hospital records from appellant’s hospital stay between May 4, 1988 and May 14, 1988, the office records of Dr. Tobias, and the office records of three other physicians who examined appellant at different times following her surgery. Dr. Season stated in his affidavit that in his opinion the standard of care in the community generally required that surgery not be performed without documentation that appellant was suffering from a condition which could be cured by surgical intervention and that, based upon earlier orthopedic evaluations performed on October 30, 1987 and December 2, 1987, there was no indication of any condition that could have been adequately treated by surgical intervention. Dr. Season also stated that the standard generally exercised by the medical profession required that Dr. Armstrong perform a more conventional type of surgery than in fact performed, therefore, Dr. Armstrong did not comply with the standard in the medical community generally because the surgery performed unnecessarily exposed appellant to additional tissue trauma. The trial court found that Dr. Season’s affidavit lacked the requisite factual basis in that it failed to reflect that Dr. Season reviewed the office records of Dr. Armstrong, the affidavit of Dr. Armstrong, or the deposition testimony of Dr. Armstrong.

“There are two steps in evaluating the legal sufficiency of an expert counter-affidavit. [Cit.] First, the counter-affidavit must establish ‘the parameters of acceptable professional conduct.’ [Cit.] Secondly, it must set forth specific facts as the basis for reaching the conclusion that treatment did not meet the standard of care. [Cits.] This two-step process assures that counter-affidavits contain the particulars of negligence, instead of conclusory language. [Cit.]” Kirk v. Ashley, 199 Ga. App. 805, 807 (3) (406 SE2d 82) (1991). While the standard of care set forth by Dr. Season is somewhat inartfully stated in his affidavit, we are bound on summary judgment to resolve all inferences, ambiguities and doubts in favor of the party opposing the motion, in this case appellant. Kirk v Ashley, supra. Construing Dr. Season’s affidavit in the light most favorable to appellant, Dr. Season has alleged that the standard of care was not met because, based upon his review of certain medical records, there was no objective medical evidence which indicated that surgery was necessary, and in any event, even if the pre and post operative diagnoses were supported by documentation, the surgery should have been of a more conservative nature. “That the [affidavit was] not based on the complete records of [appellant], or even on all of the salient records, does not render the [affidavit] fatally deficient. ... It would merely make the opinion subject to impeachment on cross-examination at trial, thus affecting the weight of the opinion rather than its admissibility.” Connell v. Lane, 183 Ga. App. 871, 873 (360 SE2d 433) (1987). The trial court relied on Bushey v. Atlanta Emergency Group, 179 Ga. App. 827, 829 (348 SE2d 98) (1986). In that case, the two defendant physicians submitted affidavits describing in detail their course of treatment of the plaintiff. Plaintiff’s experts submitted affidavits stating that based on their review of certain medical records, the defendant physician’s actions fell below the applicable standard of care. We held that the opinions of the plaintiff’s experts were “merely ‘explicit conclusory pronouncements’ ” and that in a medical malpractice case, “when a motion for summary judgment is made and supported by affidavit which sets forth specific facts about the doctor’s performance of the involved medical activity, the plaintiff must offer similar factual evidence in opposition in order to avoid grant of the motion. [Cit.]” Id. at 829. We cannot conclude that Dr. Season’s affidavit is a mere “conclusory pronouncement.” “ ‘ “Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.” (Emphasis supplied.)’ ” Jackson v. Gershon, 251 Ga. 577, 580 (308 SE2d 164) (1983). Dr. Season’s affidavit was sufficient to create a question of fact as to whether the surgery performed by Dr. Armstrong was necessary or negligent. Accordingly, the trial court erred in granting summary judgment to Dr. Armstrong.

Decided December 19, 1991

Reconsideration denied January 10, 1992

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.

Blank & Associates, A. Russell Blank, for appellant.

Love & Willingham, John A. Gilleland, Michael J. Hannan III, for appellees.


text:
    A91A1642.
    JOHNSON v. RICHARDSON.
    (414 SE2d 698)
   Carley, Presiding Judge.

While installing cable television wire on appellee-defendant’s property, appellant-plaintiff made contact with a live electrical wire. Appellant brought suit to recover for his injuries and, after discovery, appellee moved for summary judgment. The trial court granted appellee’s motion, and appellant appeals.

1. Where, as here, work is to be done within eight feet of a high-voltage line, OCGA § 46-3-33 (a) requires that the “person or persons responsible for the work to be done” give prompt notification to the owner or operator of the lines and provides that such person or persons will bear responsibility for the completion of the safety measures mandated by OCGA § 46-3-32. See also OCGA § 46-3-31. Appellant urges that a genuine issue of material fact remains as to appellee’s negligence per se in failing to fulfill these requirements.

OCGA § 46-3-30 (2) provides, in relevant part, that the “ ‘[p]erson responsible for the work to be done’ means a person, or his agent, who physically operates, erects, handles, stores, or transports any tools, machinery, equipment, supplies, materials, or apparatus . . . under, over, by, or near high-voltage lines. This term also means a person, or his agent, who employs and carries on his payroll any person who physically operates, erects, handles, stores, or transports any tools, machinery, equipment, supplies, materials, or apparatus . . . under, over, by, or near high-voltage lines. . . .” (Emphasis supplied.) Appellee did not come within this definition, as he neither physically installed any cable television wire himself, nor did he carry appellant on his payroll. “It seems clear that the persons and activities toward which [OCGA § 46-3-30 et seq.] is directed are those businesses, whether giant corporations or one-man concerns, whose usual activities would foreseeably bring their employees within close proximity to high voltage lines.” (Emphasis supplied.) Savannah Elec. & Power Co. v. Holton, 127 Ga. App. 447, 451 (3) (193 SE2d 866) (1972).

Accordingly, the trial court did not err in finding that appellee was not a “person responsible for the work to be done” and was not, therefore, liable to appellant pursuant to OCGA § 46-3-30 et seq.

2. Appellant urges that a genuine issue of material fact remains as to appellee’s breach of the duty owed as a landowner.

“ ‘There is no liability from ownership alone, (cits.), or from joint ownership, (cit.), or from cotenancy, (cit.). It must appear that the injury resulted from a breach of some duty owed by the defendant to the injured party.’ [Cit.]” Daniel v. Ga. Power Co., 146 Ga. App. 596, 600 (5) (247 SE2d 139) (1978). In the instant case, there was no breach of the duty to keep the premises safe for invitees because there is no assertion of the existence of any defects or conditions which were in the nature of hidden dangers, traps, and the like, such that they would not be known to appellant and would not be observed by him in the exercise of ordinary care. See Anderson v. Saffold, 134 Ga. App. 31, 34 (213 SE2d 127) (1975). Appellant was injured by contact with the high-voltage line or the transformer and there is no contention that either the high-voltage line or the transformer was negligently positioned or maintained. To the contrary, “ ‘[b]ut for’ appellant’s ‘[cable television] work’ activity [near] the [live wire], contact with [it] would never have been made.” Butler v. Ga. Power Co., 183 Ga. App. 144, 146 (358 SE2d 266) (1987). Moreover, appellant had previous experience installing cable television and had occasion to attach cable to power poles beneath the electrical wires and transformers. Thus, appellee met his burden on summary judgment of showing that he “ ‘had no superior knowledge of any defect of which he should have warned, or was under the duty to warn, [appellant] as a part of [appellee’s] ordinary diligence.’ ” (Emphasis in original.) Anderson v. Saffold, supra at 34.

Decided January 10, 1992.

Johnson & Ward, William C. Lanham, Clark H. McGehee, for appellant.

Boling, Rice & Bettis, Larry H. Boling, for appellee.

3. In light of our holding as to appellant’s first two enumerations of error, we need not address his final enumeration which alleges that the trial court erred in concluding that appellant assumed the risk as a matter of law.

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A2114.
    BATTLE et al. v. KOVALSKI.
    (414 SE2d 700)
   McMurray, Presiding Judge.

This is a wrongful death action. The minor son of plaintiffs Battle and Griffin was visiting at the home of defendant Kovalski when he attempted to pick up a log. The decedent fell and the log caused fatal injuries. Plaintiffs’ complaint alleged that defendant was negligent in providing their minor son with alcohol and allowing him to move heavy logs. Plaintiffs appeal from a jury verdict and judgment in favor of defendant. Held:

1. Plaintiffs contend that the trial court erred in charging the jury on the theory of accident. Following the decision of this court in Chadwick v. Miller, 169 Ga. App. 338, 339 (1) (312 SE2d 835), “[t]he defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error. [Cits.]” Id. at 344. In the case sub judice, the evidence shows that the decedent was heavily intoxicated at the time of the incident with a blood alcohol level of .27 grams percent as well as the presence of marijuana. There is evidence that when decedent attempted to lift the log, he was struggling with the heavy weight. There is no evidence which suggests that decedent’s injury was proximately caused by any unforeseen or unexplained cause. It follows that the incident occurred due to the negligence of the defendant or the contributory negligence of the decedent, or a combination of both. Under these circumstances, it was error to submit the issue of accident to the jury. Martini v. Nixon, 185 Ga. App. 328 (2) (364 SE2d 49); Meacham v. Barber, 183 Ga. App. 533, 537 (4) (359 SE2d 424); Concrete Constr. Co. v. City of Atlanta, 176 Ga. App. 873, 875 (4) (339 SE2d 266).

2. Plaintiffs’ fourth enumeration of error contends the trial court erred in refusing to admit evidence which would have shown that, prior to his death, decedent would come over drinking to defendant’s home and drink with him an average of six times a month. Generally, evidence of similar acts or omissions is not admissible. However, certain exceptions are recognized where proof of a similar method of acting tends to prove some fact of the case on trial. Gunthorpe v. Daniels, 150 Ga. App. 113 (1) (257 SE2d 199). One exception concerns evidence of a party’s habitual negligence in performing particular acts. Stripling v. Godfrey, 143 Ga. App. 742, 743 (2) (240 SE2d 145). Plaintiffs contend that the excluded evidence would show that the defendant habitually provided a haven for their son to drink alcoholic beverages. However, a habit is a fixed and uniform pattern of conduct such that a witness with no independent recollection of the details of a fact occurring in the course of the routine of his business may testify that he knows what he did was in accordance with the habit. Feinberg v. Durga, 189 Ga. App. 733 (377 SE2d 33). The evidence at issue, while perhaps showing that defendant frequently engaged in such conduct, does not provide any indication as to whether such conduct was fixed and uniform so as to be habitual. Unlike habitual conduct, evidence of a party’s character for negligently performing certain acts is not admissible. Carswell v. State, 171 Ga. App. 455, 460 (4) (320 SE2d 249). Thus, the exception to the general rule of exclusion of similar transaction evidence relied upon by plaintiffs is not applicable and the trial court did not err in excluding the proffered evidence.

Decided January 10, 1992.

Hawk, Hawk & Lyons, Jacque D. Hawk, for appellants.

Larry I. Smith, for appellee.

3. The remaining enumerations of error relating to defense counsel’s argument to the jury, being unlikely to recur upon retrial of the case sub judice, need not be addressed.

Judgment reversed.

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


text:
    A91A1537, A91A2013.
    STEVENS v. THE STATE (two cases).
    (414 SE2d 702)
   Carley, Presiding Judge.

Appellant pled guilty to one count of possession of cocaine with the intent to distribute. In Case No. A91A1537, he appeals directly from the judgment of conviction and sentence entered by the trial court on the guilty plea. See generally Lewis v. State, 191 Ga. App. 509 (1) (382 SE2d 207) (1989). In Case No. A91A2013, he also appeals from the trial court’s denial of a subsequent motion to withdraw the guilty plea. See generally State v. Germany, 246 Ga. 455, 456 (271 SE2d 851) (1980). The two appeals are hereby consolidated for disposition in this single appellate decision.

1. Appellant was represented by retained counsel at the hearing wherein the guilty plea was entered. The transcript of that hearing demonstrates that, after a thorough examination in open court, appellant was determined to be entering the guilty plea voluntarily and intelligently. See Purvis v. Connell, 227 Ga. 764 (182 SE2d 892) (1971). Appellant nevertheless urges that it was error for the trial court to accept his plea without first informing him of his right to appeal or of the right of an indigent to appointed appellate counsel.

Appellant made no claim of indigency in the trial court and there is no indication that appellant was ever without legal representation. No authority is cited for the proposition that it is incumbent upon the trial court to apprise a defendant with retained counsel of the appellate rights of an indigent defendant. Moreover, such error, if any, would clearly be harmless, since appellant did file a timely appeal with the assistance of counsel. Kilgo v. State, 198 Ga. App. 762, 764 (3) (403 SE2d 216) (1991).

Decided January 13, 1992.

King & King, David H. Jones, for appellant.

Robert E. Wilson, District Attorney, Gregory J. Lohmeier, Assistant District Attorney, for appellee.

2. The trial court did not advise appellant of the effect, if any, that the entry of a guilty plea might have on the right to appeal the denial of a motion to suppress. The trial court’s failure to do so was not error. “While it. is unquestioned that a guilty plea or a nolo contendere plea must be knowingly and voluntarily made after proper advice and with a full understanding of the consequences, the trial court is not required to inform a defendant of all the possible collateral consequences of his plea. . . .” Davis v. State, 151 Ga. App. 736, 737 (261 SE2d 468) (1979).

3. The trial court did not err in refusing to allow appellant to withdraw his guilty plea after sentence had been pronounced. OCGA § 17-7-93 (b) provides, in relevant part, that, “[a]t any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty’[.]” (Emphasis supplied.) “[A] defendant does not have an absolute statutory right, under said Code section, to withdraw a guilty plea, after the trial court’s oral announcement of the [sentence]. [Cit.]” State v. Germany, supra at 455 (1).

4. Appellant attacks the validity of his guilty plea on the ground of the ineffectiveness of trial counsel.

In connection with appellant’s motion to withdraw his guilty plea, the trial court held a hearing and determined that appellant had not met his burden of proving the ineffectiveness of his trial counsel. “ ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. (Cit.) . . .’ [Cit.]” Harris v. State, 198 Ga. App. 503 (1) (402 SE2d 62) (1991), rev’d on other grounds, 261 Ga. 386 (405 SE2d 482) (1991). “In reviewing the record of the guilty plea and the . . . hearing [on the motion to withdraw that plea], we cannot [say that a finding was demanded] that the legal assistance provided [appellant] was ineffective.” Carroll v. Holt, 251 Ga. 144, 145 (304 SE2d 60) (1983). Accordingly, the trial court’s denial of appellant’s motion to withdraw his guilty plea on this ground must be affirmed.

Judgments affirmed.

Beasley, J., and Judge Arnold Shulman concur:


text:
    A91A1665.
    FIELDS v. KROGER COMPANY.
    (414 SE2d 703)
   Sognier, Chief Judge.

Cynthia Fields brought suit against the Kroger Company seeking damages for false imprisonment. The trial court granted Kroger’s motion for summary judgment and Fields appeals.

The record reveals that appellant, accompanied by her 13-year-old daughter, had just left appellee’s store in Savannah with her purchases when she was approached on the sidewalk by the store’s security guard, Gregory Mitchell. Appellant testified by deposition that Mitchell, an off-duty Savannah police officer who was still in uniform, told her it “[sjeems like you have a few more items than what you did when you came through the checkout line” and requested to search her handbag. The parties agree that upon hearing the request, appellant immediately became angry, unzipped the handbag and turned its contents out on the sidewalk, and Mitchell then turned and left, reentering the store.

In an affidavit proffered in support of the motion for summary judgment, Mitchell averred that while inside the store he had observed appellant repeatedly walking up and down the same aisle, with her handbag alternately zipped and unzipped. He made a “visual count” of the items in appellant’s shopping cart and noticed that on each of appellant’s successive trips up or down the aisle there were fewer items in her cart. Finding appellant’s actions “unusual and suspicious,” he followed her as she went through the checkout line and left the store. Mitchell deposed that after he informed appellant of his identity he asked appellant if he could inspect her handbag but also informed her that she was free to refuse; that appellant immediately became very irate and dumped the contents of her bag, cursed him, and threatened legal action; and that when he realized he could not calm her, he left without examining the contents of the bag. It is uncontroverted that Mitchell did not touch appellant, tell her she was under arrest, or accuse her directly of shoplifting. The entire incident lasted seconds.

The essential elements of the cause of action for false imprisonment are a detention of the person of another for any length of time, and the unlawfulness of that detention. OCGA § 51-7-20. A detention need not consist of physical restraint, but may arise out of “ ‘ “words, acts, gestures, of the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.” [Cit.]’ [Cits.]” Seligman & Latz of Atlanta v. Grant, 116 Ga. App. 539, 540 (2) (158 SE2d 483) (1967). In addition, OCGA § 51-7-60 precludes a recovery for false imprisonment when it is shown that the owner or operator of a store reasonably believed the person detained was engaged in shoplifting. OCGA § 51-7-60 thus implicitly recognizes the right of a shop owner to protect himself from shoplifting by detaining a customer who has acted in a suspicious manner. Where a detention occurs its reasonableness is a jury question. However, “there is no issue for the jury where there is no detention.” Lord v. K-Mart Corp., 177 Ga. App. 651, 653 (340 SE2d 225) (1986).

Decided January 13, 1992.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, for appellant.

Brannen, Searcy & Smith, Daniel C. Cohen, Wayne L. Durden, for appellee.

Appellant contends the trial court erred by granting summary judgment to appellee because appellant deposed that when Mitchell stopped her she believed she was not free to leave until Mitchell had inspected her handbag, thus creating a genuine issue of material fact whether that belief was reasonable. Appellant concedes, however, she was not touched or physically detained but was merely asked a question, and her response to that question provoked no further action on appellee’s part. In Abner v. W. T. Grant Co., 110 Ga. App. 592, 594-595 (2) (139 SE2d 408) (1964) and Lord, supra at 651-654 (1), the mere asking of similar questions without further action was held not to constitute false imprisonment as a matter of law. We do not agree with appellant that the facts sub judice are distinguished from those in Lord in any material respect. Moreover, although it is possible that a detention might have resulted if appellant had given a negative verbal answer to Mitchell’s question and Mitchell had then insisted that appellant remain while her handbag was searched, appellant’s precipitate reaction to Mitchell’s question foreclosed that possibility. Accordingly, we find that no detention occurred under these circumstances.

Any fact question regarding the reasonableness of Mitchell’s belief that appellant had engaged in shoplifting is therefore immaterial, Lord, supra at 653, and appellee’s motion for summary judgment was properly granted. Id. at 654 (1).

Judgment affirmed.

Cooper and Andrews, JJ., concur. McMurray, P. J., disqualified.


text:
    A91A1868.
    MOORE v. THE STATE.
    (414 SE2d 705)
   Beasley, Judge.

Following the denial of his amended motion for new trial, Chad Lee Moore appeals his conviction for burglary, OCGA § 16-7-1 (a), of a restaurant.

1. In enumerations of error one and three, Moore challenges the sufficiency of the evidence by contending that the trial court erred in denying him a new trial on the general grounds and by denying him a directed verdict of acquittal. The argument is that, as in Williams v. State, 126 Ga. App. 350 (190 SE2d 785) (1972), the State in this circumstantial evidence case failed to prove Moore’s recent possession of the stolen goods, in that it did not eliminate the hypothesis of possession by a third party.

We consider these two enumerations to the extent they raise reviewable questions. See Lewis v. State, 186 Ga. App. 92 (1) (366 SE2d 305) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988); Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988).

While on the midnight shift, a sheriff’s deputy received a radio call to go to a local restaurant to check on a report from a security guard at a business located behind the restaurant. The guard related that he had seen three or four men running from the restaurant carrying boxes and other items. The deputy arrived about one minute after receiving the call. As he approached the restaurant, the deputy did not see anyone in the road or at the building, but as he neared a trailer park down the road he spied Moore “stooped down” in a ditch, located about 30-40 yards from the back of the restaurant. Moore was wearing brown gloves and appeared to be either holding something or placing something down which could have been black in color. He then crouched down and “started acting like he was tying his shoe.” As the deputy drove towards him, Moore stood up and walked towards the deputy. They met about ten feet from where Moore had been crouched. Ten seconds elapsed from the time the deputy first saw Moore until Moore approached the car.

The deputy talked to Moore, patted him down, put him in the patrol car, and took him to the witness’ location at the nearby flea market for a possible showup identification. The witness was unable to positively identify Moore as he could not discern any characteristics other than the gender of the fleeing individuals. The deputy headed back to the restaurant, during which time he obtained more identification information from Moore. He was able to keep the restaurant in sight.

He released Moore nearby at a spot where he could view Moore and continue on to the restaurant. Moore stood there, smoked a cigarette, and walked ten or fifteen yards towards the nearby trailer park at which Moore said he resided. The deputy went to the spot where he first saw Moore and found the VCR taken from the restaurant. There was no other object on the ground in that area. The deputy returned to Moore and placed him in the back of the patrol car.

The deputy and another officer found a window had been broken out of the restaurant, which had been ransacked. The restaurant’s owner itemized as missing the VCR, cash, two cases of beer from a cooler, and two packages of cigarettes. Scratch marks were found on the safe, as if someone had attempted to pry it open.

About two years before this incident, Moore had worked for about two-and-one-half months in the restaurant’s kitchen. He was familiar with the building and had access to areas including the coolers and the office containing the safe. During Moore’s employment, the owner had witnessed Moore buying and smoking the two brands of cigarettes missing after the burglary.

Moore had not been fired but, along with his brother, a co-employee, failed to report for work the morning after a burglary at the restaurant. The men’s bicycle was discovered still at the restaurant. The owner had suspected Moore as the perpetrator of this earlier burglary, in which was taken cash and the same brands of cigarettes and beer as were stolen in the present burglary and as were known to be used by Moore.

There were more fingers pointing at Moore than the suspicious behavior and close proximity to the crime scene and stolen goods in the Williams case. In addition, Moore’s familiarity with the non-public areas of the burglarized restaurant, especially the locations of the safe and the other stolen goods, plus his personal preference for precisely the brands of goods stolen, inferred his involvement. Another finger was the short time, considering the circumstances, from the time of the burglary to when Moore was seen with a dark object and the discovery in the same spot of a stolen VCR, a dark object. The evidence, albeit largely circumstantial, was sufficient to exclude any reasonable hypothesis save guilt. Consequently, the jury was authorized to find Moore guilty of the charged burglary beyond a reasonable doubt, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and Moore was not entitled to a directed verdict or a new trial by virtue of the general grounds.

2. Enumeration of error two contends that the court erred in allowing into evidence convictions for burglaries occurring two-and-one-third years earlier and four years earlier, in violation of OCGA § 24-2-2 (see also OCGA § 24-9-20) and the USCR. His challenge is that there was insufficient notice of the State’s intention to present the evidence as well as insufficient proof, in substance and presentation, that he perpetrated the other crimes. He admits the similarity of the prior transactions to the one on trial.

The State introduced certified copies of prior indictments, guilty pleas, and sentences at the conclusion of its case-in-chief. Compare Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991). As to the 1985 crime, Moore objected only to those documents being read to the jury, on the ground that it would physically have them during deliberations.

The trial court deemed the documents relating to the earlier crime to be admitted without objection. This is supported by Hunter v. State, 202 Ga. App. 195 (3) (413 SE2d 526) (1991), discussing waiver of evidentiary objections to introduction of similar transactions. See also Glisson v. State, 165 Ga. App. 342, 343 (5) (301 SE2d 62) (1983), for the general principle of the necessity of objecting to evidence at the time it is offered. Assuming that Moore’s earlier protests to admission in toto of the prior transaction evidence sufficiently preserved his present objections to both earlier crimes, Moore’s complaints do not prevail.

(a) Notice. The State filed its notice to present evidence of the two transactions in open court just prior to the start of trial, stating that it had shown the documents to counsel seven days earlier. Although USCR 31.1 provides that such notice is to be filed at least ten days before trial, it also expressly authorizes the trial court to shorten or lengthen the time period in its discretion. By allowing the notice on the day of trial and proceeding, the court in effect shortened the rule period. We cannot say this was error as a matter of law. Nor, as urged by Moore, do the rules require that an alteration of the time frame be by written order. Durham v. State, 181 Ga. App. 155, 156 (2) (351 SE2d 683) (1986), does not require a formal order.

(b) Perpetrator Identity. The documentary evidence admitted and provided to the jury all bore the name “Chad Lee Moore.” “The concordance of name alone in the absence of proof to the contrary, i.e., that [Moore] was not the perpetrator of the prior offenses, was some evidence of [Moore’s] identity as the perpetrator of the independent crimes. [Cit.]” Banks v. State, 201 Ga. App. 266, 269 (1) (410 SE2d 818) (1991), and the cases cited therein. Moreover, the signatures on the guilty pleas and Moore’s signature on the present indictment are similar.

Moore concedes similarity of crime, which is another condition of admissibility, Chastain v. State, 260 Ga. 789, 790 (3) (400 SE2d 329) (1991), so analysis in this regard is not required. It is noted, however, that this case differs from Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). Unlike Stephens, the admitted certified copies of indictments, guilty pleas, and sentences contained sufficient information from which the jury could assess any similarity to the crime on trial. The documents showed that the prior acts were burglaries, were committed in the same county as the crime on trial, were close in time to it (discounting periods of incarceration), and were likewise committed on commercial property. See Banks, supra at Division 1.

3. Enumeration of error five challenges the failure of the trial court to charge the jury that the prior convictions were admitted for a limited purpose and to describe that purpose.

The record contains no written requests to charge. Following discussion between the court and counsel, out of the presence of the jury, regarding the' admissibility of the prior crimes and the court’s indication it would admit the evidence for specified limited purposes, defense counsel sought assurance that the court would instruct the jury regarding the evidentiary limitations. The court stated that “of course” it would do so. When the evidence was admitted, no limiting instruction was given. The court’s concluding charge to the jury did not mention the evidentiary purpose of the prior convictions either. Defense counsel made a general reservation of exceptions to the charge.

“It is well recognized that when evidence is admitted for one purpose, ... it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. [Cits.]” Harrell v. State, 241 Ga. 181, 186 (2) (243 SE2d 890) (1978). It must be a “proper written” request. Daniels v. State, 184 Ga. App. 689, 690 (1) (362 SE2d 775) (1987). OCGA § 5-5-24 (b). See also Young v. State, 149 Ga. App. 533, 536 (7) (254 SE2d 749) (1979); Jackson v. State, 204 Ga. 47, 56 (3) (48 SE2d 864) (1948). The situation at bar falls outside the general rule.

First, Moore had no opportunity to submit a written request because he had no notice until the morning of trial, apparently after he arrived at court, that the State intended to introduce this generally inadmissible evidence. The State did not give that notice ten days in advance, as USCR 31.1 provides. The purpose of advance notice is to allow Moore to prepare for it, and this includes the fashioning of appropriate requests to charge. Obviously OCGA § 5-5-24 (b) does not contemplate the rejection of oral requests which are prompted by a legitimately unexpected trial development. The statute intends the court, as well as the parties, to have sufficient time to consider the jury charge so that it will be legally correct. But in this instance the court shortened to nearly zero the time for the Rule-required notice, relinquishing the accommodation which the statute affords. Moreover, the court expressly accepted the oral request, unequivocally assuring Moore that a limiting instruction would be given.

Second, “[w]hen evidence admitted for one purpose is potentially unfairly prejudicial to a party, that party is entitled to have the court instruct the jury to limit its consideration to the one purpose for which the evidence is admissible. [Cits.]” Davis v. State, 260 Ga. 338, 339 (393 SE2d 260) (1990). See also Terry v. State, 259 Ga. 165, 169 (1) (377 SE2d 837) (1989); Davis v. State, 202 Ga. 13, 21 (3) (41 SE2d 414) (1947); Walker v. State, 176 Ga. App. 783, 784 (338 SE2d 36) (1985). As in Davis, “the probative value of [the two prior burglary convictions] is potentially outweighed by the danger of unfair prejudice to [Moore] — in the absence of a limiting instruction.” Davis, supra 260 Ga. 339.

Third, the Supreme Court has recently reaffirmed the importance of establishment of the circumscribed purpose for which the independent transaction evidence is to be introduced.

As a threshold requirement for admissibility, the State must affirmatively show that it seeks to introduce the independent offense or act for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility rather than to raise an improper inference as to the accused’s character. It must be relevant to an issue in the case. After a USCR 31.3 (B) hearing and before any introduction of the independent transaction evidence, the trial court must make the determination that the State has satisfactorily made each of the three showings as to each independent act or offense, i.e., permissible purpose and relevancy, perpetrator identity, and similarity of act. Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991).

The State argued, in a foreshortened Rule 31.3 (B) hearing, that it was “permitted to introduce evidence of prior convictions to show intent, bent of mind, identity, course of conduct.” The trial court ruled the documentary evidence of the convictions admissible “to show motive, modus operandi, bent of mind, scheme and other good indications that the man has the tendencies. . . .”

Even if this fairly comprehensive list were a sufficiently limiting purpose for the evidence, it was not shared with the jury. The jury was not prevented in any manner from considering the independent burglaries as substantive and direct evidence of Moore’s guilt of the burglary on trial.

The possibility of undue prejudice to Moore, which is raised by what the trial court failed- to tell the jury, is exacerbated by what it did instruct. As part of its general charge on the nature and role of evidence, the court stated: “Direct evidence is the testimony given by a witness who has seen or heard the facts to which he testifies. It also includes exhibits admitted into evidence during the trial. It is evidence which points immediately to the question at issue.”

Such instruction is a correct statement of the general law, and a charge on direct evidence was warranted. But the only exhibits admitted into evidence were the documents evidencing Moore’s prior convictions. Thus, the absence of any limiting instruction left the jury with the express charge that, as direct evidence, the convictions “[point] immediately to the question at issue,” i.e., Moore’s guilt of tbe crime charged.

The absence of an appropriate charge was “a substantial error . . . which was harmful as a matter of law,” just as the presence of a substantial error in the charge which is similarly harmful is considered by the law to be so significant that it is reviewed even in the absence of objection. OCGA § 5-5-24 (c).

Decided January 13, 1992.

O. L. Collins, for appellant.

Michael C. Eubanks, District Attorney, for appellee.

These circumstances require that Moore’s conviction be reversed and that he be granted a new trial.

4. Enumeration of error four complains of the court’s direct evidence charge in light of the failure to give the limiting charge. This has been addressed and resolved in Division 3, supra.

Judgment reversed.

Carley, P. J., and Judge Arnold Shulman concur.


author: Pope, Judge.

text:
    A91A1497.
    SAFEWAY INSURANCE COMPANY v. JONES et al.
    (415 SE2d 19)
   Pope, Judge.

On January 1, 1988, appellant/plaintiff Safeway Insurance Company (“Safeway”) issued a six month automobile policy to Mr. John M. Braun to cover a 1980 Oldsmobile Cutlass. The record reveals that while the Cutlass was owned by John Braun it was primarily used by his daughter, Laurie Braun. Mr. Braun had instructed his daughter not to let anybody drive the car. On March 18, 1988, Ms. Braun, however, allowed her then 16-year-old unlicensed boyfriend, appellee/defendant Gregory Thomas Jones, Jr., to drive the car. While Jones was driving the car, he collided with an automobile driven and owned by appellee/defendant Mary Elizabeth Hunnicutt.

As a result of the collision, Ms. Hunnicutt and her husband filed suit in State Court of Cobb County alleging personal injuries to Ms. Hunnicutt and loss of consortium on the part of Mr. Hunnicutt. Safeway then filed this case seeking declaratory relief concerning its obligation to defend and/or pay any judgment rendered against Jones. Safeway filed a motion for summary judgment on this issue. That motion was denied by the trial court. We granted Safeway’s motion for interlocutory appeal from the trial court’s denial of Safeway’s motion for summary judgment.

The insurance policy issued by Safeway to Mr. Braun provided coverage for “damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.” Covered person is defined in part as including “[y]ou or any family member” and “[a]ny person using your covered auto with your express or implied permission.” The policy also contains certain exclusions from coverage. Safeway contends that Jones’ use of the insured vehicle is excluded from coverage by the exclusion that denies liability coverage “[f]or any person using a vehicle without a reasonable belief that the person is entitled to do so.” We agree.

Decided January 14, 1992.

Crim & Bassler, Harry W. Bassler, Joseph M. Murphey, for appellant.

John J. Capo, Jones, Fagan & Kanner, Gregory T. Jones, All-man & Peters, James P. Peters, for appellees.

As we noted in Georgia Farm &c. Ins. Co. v. Fire & Cas. Ins. Co. of Conn., 180 Ga. App. 777, 779 (350 SE2d 325) (1986), the pertinent exclusion focuses on the state of mind of the person using the vehicle. As an unlicensed driver, Jones could not have “reasonably” believed that he was entitled to drive the insured vehicle or any other vehicle, regardless of whether he had his girl friend’s permission to do so. Accordingly, the trial court should have granted Safeway’s motion for summary judgment.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1780.
    BUSSEY v. THE STATE.
    (414 SE2d 710)
   Pope, Judge.

Appellant/defendant Donnie Clyde Bussey appeals from his conviction for armed robbery. Construing the evidence in the light most favorable to support the verdict, the evidence shows that around midnight on October 27, 1988 a blonde male, who had a shirt tied around his head and weighed approximately 150 pounds, entered the Blue Beacon Truck Wash and robbed employee Michael Stewart at gunpoint. Based on information received from an informant, Detective Jeffrey Cato of the DeKalb County Police Department obtained a warrant for the defendant’s arrest. After he was arrested defendant made a full confession to Detective Cato. Defendant was later tried and convicted of armed robbery.

1. Relying upon OCGA § 24-3-50, defendant enumerates as error the admission of his confession into evidence. Defendant contends that Detective Cato’s statement to defendant that “it would be better for him to cooperate,” induced the defendant to make a statement in hope of lighter punishment, rendering the confession inadmissible. Defendant testified that Detective Cato promised him that if he cooperated, he would probably only be incarcerated for three months.

After conducting a Jackson v. Denno hearing, the trial court determined that defendant’s statement that he was promised he would only be incarcerated for three months to be incredible given the crime involved. The trial court also rejected the defendant’s contentions that the reason he gave a confession to Detective Cato was because he was under the influence of drugs at the time and he wanted to protect his friends. The court found that the statement inculpated rather than protected two of his friends and that the only evidence that defendant was under the influence of drugs at the time was his own self-serving statement. “ ‘Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.’ Gates v. State, 244 Ga. 587, 590-91 (261 SE2d 349) (1979).” State v. Barber, 197 Ga. App. 353, 354 (398 SE2d 419) (1990). The record supports the trial court’s findings.

Detective Cato admitted that he told defendant it would be better for him if he cooperated and stated that he might have told defendant that he would bring his cooperation to the attention of the court, but denies that he promised defendant a lighter sentence in exchange for his cooperation. OCGA § 24-3-50 provides that in order “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury. This court has repeatedly held that encouraging cooperation by a defendant and promising to bring his cooperation to the attention of the prosecutor or the trial judge does not constitute the “hope of benefit” contemplated by OCGA § 24-3-50. Butler v. State, 194 Ga. App. 208 (1) (390 SE2d 278) (1990); Moore v. State, 179 Ga. App. 488 (2) (347 SE2d 318) (1986). We find this enumeration of error to be without merit.

2. While the jury was deliberating they sent out the following question: “Your Honor, if a person believes the confession of the defendant to be legal . . . and acceptable evidence, is this one fact enough to convict the defendant?” The note to the court also contained the statement that “[o]ne of our group does not believe one piece of evidence is enough to weigh a decision.” The court responded to the jury in this manner: “I’m going to read the question, then I’m going to tell you, as I understand the question, what. . . my response to it [is]. The question is: ‘If a person believes the confession of the defendant to be legal and acceptable evidence, is this one fact enough to convict the defendant?’ The answer is no. It’s not. However, I should tell you that there’s . . . evidence in this case beyond the evidence of the confession. There is the evidence of the victim in this case, the alleged victim in this case who testified. There is the testimony of the officer, that testified about the circumstances surrounding . . . the making of the statement. This . . . was offered by the State in the form of corroboration.” (Punctuation and indentions omitted.) The court then defined “evidence,” “corroborative evidence” and reminded the jurors that “[y]ou as jurors are the judge of whether or not evidence sufficiently corroborates the defendant’s statement, so as to justify conviction. If you find that there was a statement made by the defendant, and corroborated by other evidence, the degree of proof necessary to convict is that you be satisfied of the guilt of the accused beyond a reasonable doubt.”

Decided January 14, 1992.

Franklin H. Thornton, for appellant.

Robert E. Wilson, District Attorney, Gregory A. Adams, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Defendant contends that this charge violates OCGA § 17-8-57. “ ‘[Section] 17-8-57 is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. (Cits.)’ [Cits.]” Turner v. State, 259 Ga. 873 (388 SE2d 857) (1990). In this case, the trial judge simply explained to the jury that the testimony of the alleged victim and the detective should be considered as evidence. He did not intimate to them what he believed their testimony had shown, nor did he state that it corroborated the confession, only that it was offered by the State in the form of corroboration. This charge does not violate OCGA § 17-8-57.

3. After the jury’s verdict was published, defense counsel requested that all jurors be polled. The judge then asked each juror the following questions: (1) You heard the verdict that I read in open court? (2) Was that your verdict in the jury room? and (3) Is that your verdict now? Each juror responded affirmatively to each question individually. It is well-established that these questions meet the minimum requirements of the defendant’s right to a poll of the jurors. Burnett v. State, 240 Ga. 681 (11) (242 SE2d 79) (1978); Whisman v. State, 221 Ga. 460, 464 (145 SE2d 499) (1965) cert. denied 385 U. S. 893 (87 SC 27, 17 LE2d 127) (1966). This enumeration of error is also without merit.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge. Pope, Judge,

text:
    A91A1993.
    WILLIAMS v. THE STATE.
    (414 SE2d 712)
   Birdsong, Presiding Judge.

George Daniel Williams appeals his conviction for possession of cocaine. Deputies Smith and Watkins were patrolling an area known for a high incidence of drug sales. Deputy Watkins testified that Deputy Smith called his attention to appellant by saying “watch that subject ... he just threw something.” Deputy Smith testified he saw appellant lean in a stopped vehicle and then walk away; as the patrol car pulled up, Deputy Smith saw appellant throw something into the back of a pickup truck.'The officers asked appellant to put his hands up on the truck, and Deputy Smith saw suspected crack cocaine in the back of the truck. Held:

1. The trial court did not err in allowing Deputy Watkins to testify that Deputy Smith told him he saw appellant “throw something”; the evidence was not inadmissible hearsay. The testimony was given by Deputy Watkins to explain his and Deputy Smith’s stop and their arrest of appellant, and not to prove the truth of whether appellant “threw something.” It therefore was original evidence under OCGA § 24-3-2. Harrell v. State, 241 Ga. 181, 183-186 (243 SE2d 890); see Davis v. State, 242 Ga. 901, 905-906 (252 SE2d 443). Both deputies were available for cross-examination; Watkins was cross-examined at length on the point and readily testified he himself did not see appellant “throw something”; the jury could not have inferred Deputy Watkins was attempting to prove appellant did so.

2. Appellant contends the trial court erred in admitting irrelevant testimony by which the State sought to impeach a defense witness, causing appellant irreparable harm. Appellant argues generally that irrelevant evidence is inadmissible, and points out a page and lines in the transcript where appellant asserts such evidence exists, but he makes no mention in his brief as to what the offending evidence was or why it caused him prejudice. It is the duty of appellant to show error by the record and mere assertions of error in the brief do not suffice. Harrell v. Louis Smith Mem. Hosp., 197 Ga. App. 189, 190 (397 SE2d 746). Enumerations of error not supported by argument are deemed abandoned (Whatley v. State, 197 Ga. App. 489 (398 SE2d 807)), and to the extent that appellant makes no explanation as to why any particular evidence was irrelevant, he has failed to argue his allegation of error, and has not borne his burden to prove error on appeal.

3. Appellant contends the trial court erred in failing to give a requested charge “that a verdict for the state is never demanded when the defendant denies his guilt to the jury.” This is a misleading statement of law, and the trial court did not err in refusing to give such a charge. The case cited by appellant concerned a prejudicial error which required a mistrial despite the prosecution’s contention that the evidence “demanded” a conviction, and the statement appellant sought to be charged to the jury applied to the appellate court’s assessment of “harm” in the error, rather than the jury’s assessment of guilt. Hooks v. State, 101 Ga. App. 351 (114 SE2d 48).

In its regular assessment of the evidence, the jury might conclude that the evidence “demanded” a verdict of guilty even though a defendant denies his guilt. It therefore would have been confusing and misleading, and prejudicial to the State, to charge that where a defendant denies his guilt a conviction is not “demanded.” The jury verdict of guilty in this case is sustainable under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided January 14, 1992.

M. Byron Morgan, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Judgment affirmed.

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

Pope, Judge,

concurring specially.

I concur specially with Division 2 of this opinion. I disagree with the majority’s conclusion that appellant did not sufficiently present this enumeration of error to the court. The error alleged by appellant concerning the trial court’s admittance of certain irrelevant evidence, however, does not rise to the level of harmful error and does not require reversal of defendant’s conviction. Kilgo v. State, 198 Ga. App. 762, 764 (403 SE2d 216) (1991).


text:
    A90A0719.
    YORK RITE BODIES OF FREEMASONRY OF SAVANNAH et al. v. BOARD OF EQUALIZATION.
    (414 SE2d 749)
   Cooper, Judge.

This court having entered on November 27, 1990, a judgment in the above-styled case (198 Ga. App. 147 (401 SE2d 30) (1990)), affirming the judgment of the trial court; and the judgment of this court having been reversed as to Division 2 by the Supreme Court in York Rite Bodies of Freemasonry of Savannah v. Bd. of Equalization, 261 Ga. 558 (408 SE2d 699) (1991), the judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court. Insofar as Divisions 1, 3 and 4 of the judgment rendered by this court were unaffected by the Supreme Court’s decision, we reaffirm those holdings.

Judgment reversed and case remanded.

Birdsong, P. J., Beasley, J., Judge Daniel M. Coursey, Jr., Judge Dawson Jackson, Judge Robert G. Walther, Judge Thomas D. Wilcox, Jr., Judge Arnold Shulman, and Judge William J. Smith, concur.

Decided January 15, 1992.

J. Walter Cowart, Gordon B. Smith, for appellants.

Brennan, Harris & Rominger, Richard J. Harris, M. Carol Branham, for appellee.


text:
    A91A1464.
    CHILDS v. THE STATE.
    (414 SE2d 714)
   Cooper, Judge.

Appellant appeals from his conviction of burglary by a jury and the resulting sentence.

On October 3, 1990, the front door, window and interior jewelry case of a jewelry store in Moultrie, Georgia were shattered by a concrete block and a brick. The owner and an employee of the store both testified at trial that several gold chains were missing from the shattered jewelry case. On October 8, 1990, a police officer recovered gold chains from two persons, Kenneth Weaver (“Weaver”) and Ricardo Morales (“Morales”), who both testified at trial. Weaver stated that he saw appellant shortly after midnight on October 3, 1990, at an apartment building where appellant was peddling gold chains in a crowd of people. Weaver testified that appellant had several gold chains and Weaver stated that he took one of the chains when appellant was not looking. Weaver identified a chain admitted into evidence as being very similar to the one he took from appellant. Weaver also stated that he had told a police officer prior to trial that appellant looked as if he had busted something with his hand. Morales testified that he, too, was in the crowd at the apartments when appellant was selling gold chains and that he purchased chains from appellant at that time. He identified other gold chains admitted into evidence as the chains that he obtained from appellant. Morales could not recall the exact date on which he saw appellant with the chains, nor could he recall if appellant had any injury to his hand. Both Weaver and Morales testified that the other one was present in the crowd around appellant. The owner and the employee of the jewelry store testified that the chains recovered from Weaver and Morales and admitted into evidence were chains taken from the jewelry store, yet on cross-examination they admitted that there were no identifying numbers or markings on the chains and that other jewelry stores could carry identical chains.

1. Appellant first enumerates as error the trial court’s decision to admit evidence of a prior crime of appellant. At trial, the state introduced evidence of a guilty plea of appellant to the crime of criminal damage to property which occurred in May 1987. Witnesses testified that this crime involved damage to the front glass window of another jewelry store in Moultrie which is located in the vicinity of the store involved in the instant case. In the previous incident, a concrete block was thrown against the front window of the store. The window, being made of a special material, did not break, and no entry to the store was obtained. Before evidence of similar 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.” [Cit.]’ [Cit.]” Carter v. State, 192 Ga. App. 726, 729 (8) (386 SE2d 389) (1989). Further, “‘[e]vidence 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.’ ” Id. Both conditions are satisfied in the instant case. Appellant admitted that he was the perpetrator of the independent crime, and the circumstances of the two crimes are sufficiently similar such that the relevance of the independent crime to show plan, scheme, bent of mind and course of conduct outweighs any prejudice that may have resulted from its admission. Appellant argues that the prejudicial impact of the evidence outweighed its relevancy because of the three-year time lapse between the two crimes and because of the weak nature of the state’s case. “ ‘Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. [Cit.] Rather, lapse of time is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.’ [Cit.]” Roney v. State, 192 Ga. App. 760, 763 (2) (386 SE2d 412) (1989). As stated above, we find the probative value and the relevancy of the evidence to be paramount. The trial court gave detailed limiting instructions at the time the evidence was admitted and at the close of the case that evidence of any other crimes of appellant should be considered only as it may illustrate the mental state, identity or intent of appellant and for no other purpose. We conclude that no error occurred. Id.

2. Appellant also contends that the trial court erred in denying appellant’s motion for a mistrial based on the arresting officer’s testimony that he recognized appellant when he saw him because he had known appellant for a long time. Appellant argues that this statement placed appellant’s character in issue because it raised the inference that the officer had been familiar with appellant in his duty as a police officer. This same argument was rejected in James v. State, 223 Ga. 677 (11) (157 SE2d 471) (1967). We have also held that an officer’s testimony that he knew where the defendant lived did not place the defendant’s character in issue. Chaney v. State, 169 Ga. App. 616 (2) (314 SE2d 457) (1984). This enumeration is without merit.

Decided January 15, 1992.

Short, Fowler & Castellow, Lester M. Castellow, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

3. Lastly, appellant contends that the trial court erred in overruling his motions for a directed verdict and judgment notwithstanding the verdict, asserting the insufficiency of the evidence. Viewing the evidence in a light most favorable to the verdict, we conclude that the evidence was sufficient to allow a rational trier of fact to find appellant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The court did not err in denying appellant’s motions.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A1528.
    GETTY v. THE STATE.
    (414 SE2d 29)
   Cooper, Judge.

Appellant was convicted by a jury of armed robbery and appeals the denial of his motion for new trial on the ground that the verdict was against the weight of the evidence.

1. The evidence, viewed in a light favorable to the verdict, demonstrates that a man demanded money from a cashier in a convenience store, and when the cashier refused, the man partially pulled out a knife. The cashier then gave the man the money, and he left the store, passing a woman who was entering the store. The cashier told the woman that she had been robbed by the man who just left the store. When the police arrived, the cashier described the robber as 5 6 or 5 7 , with a beard and “kind of long hair” and wearing blue jeans and a purple and black checkered, shirt. The woman, who passed by the robber, described him as 6 tall, with dark hair and some facial hair and wearing a light plaid shirt and jeans. Both women selected appellant’s mug shot from a book provided by the police, and during the trial, both women also identified appellant as the robber. A video camera in the store filmed the robbery. The videotape was ruled inadmissible by the trial court for technical reasons; however, a picture of the robber taken from the tape, which ran in the local newspaper, was admitted into evidence. The cashier testified that the robber’s appearance on the night of the robbery was similar to the man in the picture. The cashier also described the knife used by the robber as a “carpenter’s knife.” At trial, she testified that the knife seized by police from appellant’s property and introduced into evidence was similar to the weapon used in the commission of the robbery. The arresting officer testified that after advising appellant of his rights, appellant admitted committing the robbery.

Decided January 15, 1992

Sonya J. Calhoun, for appellant.

Edward D. Lukemire, District Attorney, Shelley S. Howard, Assistant District Attorney, for appellee.

In our view, the evidence adduced at trial was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in denying appellant’s motion for new trial.

2. By supplemental brief filed September 19, 1991, appellant asserted an additional enumeration of error. The case was docketed on May 28, 1991, and appellant was required to file enumerations of error 20 days thereafter. Although we granted leave until July 22, 1991, for appellant to file a supplemental brief, such permission did not authorize the filing of an additional enumeration of error. “ ‘An enumeration of error may not be amended after the original filing time has expired.’ [Cits.]” Brown v. State, 198 Ga. App. 590, 591 (4) (402 SE2d 341) (1991). Therefore, appellant’s supplemental enumeration of error will not be considered.

Judgment affirmed.

Birdsong, P.- J., and Pope, J., concur.