text:
    77308.
    BRANNEN v. BOYCE.
    (378 SE2d 743)
   Sognier, Judge.

Larry Brannen appeals from the order of the Superior Court of Pierce County appointing Dorothy Boyce as the Administratrix de bonis non of the Estate of Clara Murray.

This case involves the application of OCGA § 53-6-24, which provides, in pertinent part: “In the granting of letters of administration of any kind, the following rules shall be observed, the applicant being required in all cases to be of sound mind and to be laboring under no disability: ... (2) The next of kin, at the time of the death, according to the law declaring relationship and distribution, shall be next entitled; ... (3) If there are several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, who are capable of expressing a choice, shall be appointed; (4) If no such preference is expressed, the judge of the probate court may exercise his discretion in selecting the one best qualified for the office.”

The facts, as stipulated by the parties, show that when Clara Murray died intestate in 1986, she was survived by four children: appellee, Alcene Reeves, Claudine Brewster, and Jerry Murray. Reeves was appointed administratrix of Murray’s estate but subsequently died, survived by two children, appellant and his brother, Charles Brannen. Appellee petitioned the probate court to be appointed as the substitute administratrix. Pursuant to OCGA § 53-6-24 (3), appellee submitted with her petition a document reflecting that the selection of herself as substitute administratrix was requested by a majority of the three surviving children of Clara Murray, namely, appellee and her sister, Brewster. Appellant filed a caveat to appellee’s petition, requesting that he be appointed substitute administrator based on his selection by a majority of those interested as distributees of the estate, namely, appellant, appellant’s brother (as the surviving children of the intestate’s daughter, Reeves), and Jerry Murray, the third surviving child of the intestate. The probate court, holding that the “next of kin” under OCGA § 53-6-24 (2) were equally divided in the selection of an administrator of the estate, determined it was necessary under OCGA § 53-6-24 (4) to exercise its discretion to appoint the administrator and appointed appellant. The decision was appealed to the superior court which, upon cross motions for summary judgment, reversed the probate court and appointed appellee as the substitute administratrix.

Appellant contends the trial court erred by granting appellee’s motion for summary judgment and denying his own motion. Appellant argues that the probate court properly determined that there was an even division among the “majority of those interested as distributees of the estate,” OCGA § 53-6-24 (3), in that appellant and his brother, although not next of kin, were entitled to cast the one vote their mother, a next of kin, would have had, had she been alive. Appellant thus argues that the per stirpes vote cast by his brother and him, when added to Jerry Murray’s vote, equalled the votes cast by appellee and Brewster. Appellant asserts an “equal preference” among the next of kin for the selection of the administrator is the same as “no preference” and thus, under OCGA § 53-6-24 (4), the probate court was authorized to exercise its discretion, which it did by selecting appellant.

In Murdock v. Hunt, 68 Ga. 164 (1881), in a contest for letters of administration where the intestate was survived by one daughter, the Supreme Court rejected the claim made by the daughter’s son (the caveator) and the grandson of a deceased son (the applicant) on the basis that the Code, the language of which is virtually identical to OCGA § 53-6-24, “contemplates not only relatives, but relatives entitled to distribution .... The [caveator] is a distributee of no estate, for his mother is living, and nemo est haeres viventis; the [applicant] is not a distributee of this estate, but of that of his ancestor upon whom the inheritance fell at the death of the intestate.” Murdock, supra at 165. The Supreme Court determined that only the intestate’s daughter was entitled to select the administrator and upheld her choice, that of her son the caveator. In Sullens v. Pierce, 45 Ga. App. 207 (a) (164 SE 93) (1932), the contest was between a stranger selected by five of the eight surviving children and the three remaining children’s selection of one of themselves. This court held that “[i]t is immaterial how the children of the two deceased children of the intestate ‘voted’ in the matter, since the person selected in writing by a majority of the living children of the intestate . . . was entitled to letters of administration,” citing Dawson v. Shave, 162 Ga. 126 (132 SE 912) (1926). Langford v. Spain, 89 Ga. App. 416 (79 SE2d 582) (1953), the most recent decision of this court in this particular area, follows this language in Sullens.

Both Langford and Dawson, the Supreme Court opinion cited in Sullens, involve situations in which the intestate left only one surviving next of kin and upheld that one survivor’s right to select the administrator over the interests of the children of deceased next of kin, under the predecessor to OCGA § 53-6-24 (2). Dawson cites Murdock and discusses both Megahee v. Megahee, 143 Ga. 738 (85 SE 877) (1915), which it stressed was a full bench judgment, and Mattox v. Embry, 131 Ga. 283 (62 SE 202) (1908). Dawson construed Megahee; which denied the right to nominate an administrator to “the heir of the heir of the deceased,” id. at 740, as “giving to the next of kin . . . a right of administration regardless of the wishes of distributees not so nearly related.” Dawson, supra at 128. The Supreme Court then quoted at length from Mattox, a case in which the majority of the next of kin (the children of the intestate) had selected Embry, an in-law, but the opposing side argued that because one deceased child, Mrs. Webb, had left seven children, each of the seven was entitled to a vote. In Mattox, the Supreme Court státed in dicta that “[t]he Webb children, under the statute of distribution, were not in fact related to the deceased equally near in degree with the other persons who selected Embry. The interest in the estate which they acquired was by inheritance from their mother'.. She was entitled only to one vote, and at most the Webb children ".as a class could not have a greater voting power then their mother would have had if she had survived.” Id. at 287. Although as authority the Supreme Court cited Halliday v. DuBose, 59 Ga. 269 (1877) (misspelled “Holliday” in Mattox at 287), in that case the two surviving sisters were not disputing each other’s right to select. Rather, Halliday involved' one sister, who neither tendered herself as an applicant nor suggested another applicant, challenging the person selected by the other sister (DuBose) on the ground that DuBose was not next of kin nor a creditor of the decedent’s estate. The fact that the children of a deceased brother also requested DuBose be appointed was not crucial in a case decided on the ground that a next of kin need not appoint another next of kin or a creditor of the estate if the applicant is otherwise qualified, see OCGA § 53-6-24 (6), and that the one sister dóuld not defeat the appointment of DuBose by interposing her veto “without more.” Halliday, supra at 270.

Appellee cites this court to Rowe v. Walker, 40 Ga. App. 1 (148 SE 762) (1929), where, in a contest between the two surviving siblings, Walker and Farrow, this court reversed the superior court’s appointment of Walker, who had selected herself, and found in favor of the third party selected by Farrow (the husba.nd of a niece), because Farrow’s selection had been seconded by the votes cast by offspring of two deceased siblings. This court held that “[i]n such a case distributees other than the next of kin are entitled to a voice in the matter . . . .” Id. at 2 (6). Although the opinion contains a long.list of citations, including that of Murdock, primary emphasis seems to have been placed on Mattox. The dicta in Mattox was likewise cited as authority in Pierce v. Smith, 25 Ga. App. 101 (102 SE 648) (1920), factually the most similar case to the case at bar. In Pierce, the intestate left three surviving siblings, two of whom selected Pierce, a stranger, while the remaining sister, Smith, voted for herself, a selection supported by the children of two predeceased brothers of the intestate. This court affirmed the appointment of Smith, noting that “the children of a deceased brother would together have one vote in the selection of the administrator.” Id.

Regardless of whether the case at bar is analyzed under that line of cases stemming from Murdock or the cases referencing Mattox, we find the appointment of appellee to be correct and affirm the superior court. Under Murdock, this case was decided correctly in that two of the three next of kin who are distributees of the intestate’s estate and who are most nearly related to the intestate selected appellee to act as the administratrix of Clara Murray’s estate, and the vote by appellant and his brother in the place of their mother was immaterial. See also Sullens and Langford, supra. We read Mattox in light of its interpretation in Dawson, the most recent Supreme Court opinion on the subject. After discussing Megahee and Mattox, the Supreme Court concluded that “the trend of these previous decisions with relation to inheritance compels the conclusion that in the award of letters of administration the preference should generally be given to the heir or heirs most nearly related to the intestate, if the applicant or the person selected to act by her is qualified to discharge the trust.” Dawson, supra at 130. See also Jackson v. Jackson, 101 Ga. 132 (1) (28 SE 608) (1897) (the two contestants being each next of kin to the intestate, “neither had any advantage of the other by reason of the nearness of his relationship by blood to the decedent.”) Dawson recognized that when the letters of administration are awarded, a common thread running throughout the seemingly conflicting opinions is the preference for the person “mostly nearly related” to the intestate. Id. at 130. Thus, as in Pierce, supra, the selection of appellee, the intestate’s daughter, was proper because she was nearer to the intestate by blood than the intestate’s grandson, appellant. Although this preference was not followed in Rowe, supra, cited by appellant, since that case involved an even conflict (a “tie”) between the next of kin, we find it inapposite to the case sub judice.

Therefore, we hold that appellee was properly appointed administratrix of the decedent’s estate and affirm the superior court’s judgment.

Decided February 21, 1989.

John R. Thigpen, Sr., for appellant.

W. Vincent Settle III, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    77444.
    HARBOR LIGHT MARINA v. ELLIS.
    (378 SE2d 746)
   Pope, Judge.

Appellee took a default judgment against appellant in the amount of $12,500 in damages, and $2,500 in attorney fees. Appellant sought to have the default opened within the same term of court, but the trial court denied the motion. In the underlying complaint, appellee alleged that appellant was negligent in repairing a boat he owned, resulting in its sinking. The trial court considered evidence regarding damages before entering judgment.

1. Appellee’s motion to dismiss the appeal for failure to file an application for review pursuant to OCGA § 5-6-35 (a) (8) is denied. Appellant does not rely on the provisions of OCGA § 9-11-60, but rather upon the inherent power of a trial court to modify or set aside its judgment within the same term of court. Appeal from this “discretionary” power of the trial court is direct. Allstate Ins. Co. v. Clark, 186 Ga. App. 58 (1) (366 SE2d 394) (1988).

2. The record shows that Kenneth Ingram, President of Marikai Enterprises, Inc. d/b/a Harbor Light Marina, was personally served with the complaint, requests for admissions and interrogatories. Ingram averred that he did not respond to the complaint because he believed that suit had to be brought in the company’s corporate name (Marikai Enterprises), not its trade name (Harbor Light Marina), as was the case here. Ingram also averred that he believed he had sixty days in which to respond to the complaint and that he did not notice the different time stated in the summons attached to the appellee’s interrogatories. The trial court found no reason to set aside its default judgment. We find no abuse of discretion by the trial court in this decision. Simon v. McGee Plumbing &c. Co., 164 Ga. App. 667 (1) (299 SE2d 388) (1982).

3. The trial court did not err in granting attorney fees, after hearing evidence regarding the amount and reasonableness of the fees, even though appellee’s complaint sought only “damages, in an amount to be determined from evidence . . . and such other and further relief the Court deems Just and Proper.” Appellant argues that the award of attorney fees, when not specifically prayed for in the complaint is improper, relying on Orkin Exterminating Co. v. Townsend, 136 Ga. App. 50 (2) (220 SE2d 14) (1975). Orkin stands for the proposition that a party may decide to default based on the amount and type of damages sought and that it would then be unfair to “up the ante.” However, in this case the prayer for damages was open-ended; the award of attorney fees did not change the amount of damages sought. An award of attorney fees in a default judgment is not improper. Hartford Ins. Co. v. Mobley, 164 Ga. App. 363 (297 SE2d 312) (1982).

Decided February 21, 1989.

Johnson & Vandiver, S. Ernest Vandiver III, for appellant.

Jerry N. Neal, for appellee.

4. Appellee’s motion for damages pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Birdsong, Judge.

text:
    77349.
    MAYS v. THE STATE.
    (378 SE2d 145)
   Birdsong, Judge.

Jack R. Mays brings this appeal from his convictions for the offenses of driving under the influence (DUI) and habitual violator. In a bench trial, Mays entered a plea of guilty to the DUI offense and not guilty of the habitual violator offense. Evidence introduced at the trial showed Mays had been convicted of three prior traffic offenses within the period August 3, 1979 and May 5, 1984. On August 16, 1984, the Georgia Department of Public Safety (Department) notified .Mays that his “license and privilege to operate a motor vehicle in this State is revoked for a period of (5) five years from 08-16-84 . . . .” (Emphasis supplied.)

It was stipulated that at approximately 11:35 p.m. on the evening of March 9, 1987, a police officer observed appellant driving west on State Highway 317 in his car and he crossed the centerline for approximately 50 feet. The officer stopped the car and when appellant stepped from his car, he was staggering and had a strong odor of alcohol about his person. The officer asked for his driver’s license and appellant said he did not have one. It was further stipulated that “[a]t no time did the Defendant apply for or have a Georgia driver’s license or a driver’s license from any other state.” Prior to appellant being declared a habitual violator, the Department had assigned him the number “980259189” and the notification to appellant of his status as habitual violator designated his “Lie. No. 980259189” and advised him that his “license and privilege to operate a motor vehicle in this State is revoked for a period of (5) five years from 08-16-84.” The attached Departmental records showed the traffic history of “Mays Jack Rudolf,” “License No: 980259189,” “License: Unlicensed.” Other portions of the Department’s records showed the same “License No. 980259189” but listed Mays’ license status as “expired.” The trial court found appellant guilty of both offenses. Mays filed this appeal. Held:

According to counsel and our research, this is an issue of first impression. Appellant presented a technical argument to the trial court, and to this court on appeal, i.e., that punishment for. the offense of “habitual violator” may be imposed only “after such person has received notice that his driver’s license has been revoked” (emphasis supplied) (OCGA § 40-5-58 (c)), and because Mays has never had a driver’s license, he cannot be convicted of this offense. However, we view the issue presented as whether punishment for a felony under OCGA § 40-5-58 (c) may lawfully be imposed upon a traffic offender who has been convicted of three prior traffic offenses during a five-year period, but who does not now, and has never had, a driver’s license. We discern a distinction between the actual issue and the issue phrased by appellant.

The “habitual violator” statute, OCGA § 40-5-58, sets forth a statutory scheme as follows: (a) A “habitual violator” is “any person who has been arrested and convicted within the United States . . . [t]hree or more times within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained . . . .” (b) When the Department’s records disclose that a person “is a habitual violator as defined in subsection (a) . . . the department shall forthwith notify such person that upon the date of notification such person has been declared by the department to be a habitual violator, and that henceforth it shall be unlawful for such habitual violator to operate a motor vehicle in this state unless otherwise provided in this Code section .... In the event that at the time of determination the habitual violator had been issued a driver’s license, such license shall be revoked by such notice. . . .” (c) “Except as provided in subsection (e) of this Code section [not in issue in the instant case], it shall be unlawful for any person to operate any motor vehicle in this state after such person has received notice that his driver’s license has been revoked as provided in subsection (b) of this Code section. ...”

From a review of the statute as a whole, it is evident that it is not necessary for a traffic offender to possess a driver’s license to be classified as “habitual offender.” The statutory definition requires only that the offender be “convicted within the United States . . . [t]hree or more times within a five-year period. . . .” OCGA § 40-5-58 (a). Secondly, subsection (b) notification to such “habitual violator as defined in subsection (a)” will include notice “that henceforth it shall be unlawful for such habitual violator to operate a motor vehicle in this state unless otherwise provided in this Code section.” Thus, it is not necessary that a traffic offender have a driver’s license to be classified a “habitual violator,” and when such habitual violator is notified of his- classification, what is suspended is his right “to operate a motor vehicle in this state.” Moreover, the legislature also envisioned that a “habitual violator” might not have a license, for it mandated: “In the event . . . the habitual violator had been issued a driver’s license, such license shall be revoked by such notice. . . .” OCGA § 40-5-58 (b). “It is a well-established principle that a statute must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part.” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (219 SE2d 115). Accordingly, OCGA § 40-5-58 (c) could be interpreted as follows: “Any person declared to be a habitual violator and whose [permission to drive] has been revoked under this Code section and who is thereafter convicted of operating a motor vehicle [before the Department . . . has issued such person a driver’s license or before the expiration of five years from such revocation, whichever occurs first] shall be punished” as authorized. Reading the statute as a whole (Hargrove v. State, 253 Ga. 450, 452 (321 SE2d 104)), giving meaning to each part, and harmonizing the different parts (Houston, supra), and giving effect to the obvious intent of the legislature (Sirmans v. Sirmans, 222 Ga. 202, 204 (149 SE2d 101)), we cannot envision the legislature intending to exclude a recidivist from inclusion in the category of “habitual violator” status, or from punishment as a “habitual violator” because the offender fails or refuses to apply for a driver’s license.

Decided January 24, 1989.

Pruitt & Britt, Walter M. Britt, for appellant.

Thomas C. Lawler III, District Attorney, Allyson F. Baillus, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    77549.
    77550.
    CHRISTOPHER v. THE STATE. ADAMS v. THE STATE.
    (379 SE2d 205)
   Pope, Judge.

Defendants in these two related cases were indicted for trafficking in cocaine and possession of marijuana with intent to distribute after a search of defendant Ethel Christopher’s house and the automobiles parked in the garage, conducted. pursuant to a search warrant, yielded contraband and other evidence. Defendants were tried separately and defendant Willie Frank Adams was convicted of both offenses and defendant Ethel Christopher was convicted of trafficking in cocaine.

Case No. 77549

1. Defendant Ethel Christopher argues the court erred in denying her motion to suppress evidence seized in the search of her house because the search warrant was issued without sufficient probable cause and because the search exceeded the scope of the warrant.

The transcript of the hearing on defendant’s motion to suppress shows that the officer affiant presented the magistrate with the following evidence: The informant was not anonymous but met with the affiant on more than one occasion. The informant was a relative of defendant Adams. The informant gave information against his own penal interests by admitting that he had purchased cocaine and marijuana from defendant Adams at defendant Christopher’s house within the month preceding the issuance of the warrant and that on a previous occasion he had traveled with Adams to Florida to transport cocaine back to Georgia. The day before the warrant was issued, the informant was told by another relative of defendant Adams that Adams had left for Florida to pick up a load of marijuana. After-wards, the informant had seen a motor home parked at Christopher’s house and had seen garbage bags being unloaded from the vehicle similar to the bags from which Adams had sold the informant cocaine. The affiant himself had observed a motor home parked at Christopher’s house. He was able to corroborate from his personal knowledge other information given by the informant.

The United States Supreme Court has held that probable cause to issue a warrant is to be determined in light of the totality of the circumstances made known to the issuing magistrate. See Massachusetts v. Upton, 466 U. S. 727 (104 SC 2085, 80 LE2d 721) (1984); Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). “Utilizing this standard of review ... we find that the information, viewed as a whole, provided a substantial basis for the magistrate’s finding of probable cause to believe that contraband was located on the premises.” Borders v. State, 173 Ga. App. 110, 112 (325 SE2d 626) (1984).

Defendant’s reliance upon State v. Brown, 186 Ga. App. 155 (2) (366 SE2d 816) (1988), is misplaced. In that case, the magistrate was given nothing other than the affiant’s conclusory statement that the anonymous tipster was a “concerned citizen.” Here, the tipster was not anonymous and specific examples were given whereby the affiant had corroborated information given to him by the informant.

We also reject defendant’s argument that the searching officers exceeded the scope of the warrant by seizing firearms, money, food stamps, scales and jewelry. The affidavit presented to the magistrate showed that the informant stated that numerous automatic or semiautomatic weapons were kept on the premises to be searched. The search warrant recited that the affiant had shown reason to believe that cocaine and marijuana were located on the premises; it did not restrict the search to these particular items. The additional items seized in the search were reasonably related to the search and were, in fact, admitted at trial as circumstantial evidence.

2. Defendant also argues her conviction should be reversed because the trial court erred by instructing the jury that she could be convicted upon a finding of actual or constructive possession of contraband. Pursuant to the statute which was in effect at the time defendant was charged, the offense of trafficking in cocaine required actual possession. See OCGA § 16-13-31 (a) (1) (prior to amendment effective March 28, 1988). Thus, in Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), the Georgia Supreme Court held it was erronous to charge in a cocaine trafficking case that the defendant could be convicted upon a finding that the defendant had actual or constructive possession. The legislature acted swiftly to amend OCGA § 16-13-31 (a) by deleting the word “actual” before the word “possession,” but that amendment, effective March 28, 1988, is an ex post facto law insofar as our consideration of this appeal is concerned. In the case now before us, defendant was charged with both trafficking in cocaine and possession of marijuana. Moreover, defendant had requested a charge on the lesser included offense of possession of cocaine. Because it was necessary for the court to charge different types of possession for the two different counts, it was not improper for the court to define the distinction between the two types of possession so long as the court charged that the statute governing the cocaine count specified actual possession. Partridge v. State, 187 Ga. App. 325 (5) (370 SE2d 173) (1988).

In the case now before us, the court recited to the jury the pertinent portion of the statute setting forth the offense of trafficking in cocaine, including the language stating that the defendant must be “knowingly in actual possession.” After giving the definitions of actual and constructive possession, the court stated near the end of the instruction: “You, the jury, would be authorized to convict only if you find, beyond a reasonable doubt, that the defendant knowingly had either actual or constructive possession, that is either alone or jointly with others, of the contraband in question.” Here, two different types of contraband were in question in two different counts requiring two different types of possession for conviction. We find a substantial likelihood that the instruction could have been interpreted by the jury as authorizing a conviction for trafficking in cocaine on a finding of mere constructive possession. Therefore, we must reverse defendant’s conviction.

Case No. 77550

1. Defendant Willie Frank Adams first argues the evidence was insufficient to support a conviction. The evidence revealed that cocaine, marijuana, cash, jewelry and drug-related paraphernalia such as scales were found in various rooms of a house belonging to Ethel Christopher. Defendant Adams was inside the house when the authorities arrived to conduct the search. At the time defendant was charged, conviction of trafficking in cocaine required proof of actual possession by the defendant. OCGA § 16-13-31 (a) (1) (prior to amendment effective March 28, 1988); Lockwood v. State, 257 Ga. 796, supra. Defendant argues his mere presence at the house is insufficient to establish that he had actual possession of the contraband found in it.

However, far more than mere presence at the scene of the crime was shown by the evidence presented at trial. When first seen by one of the agents conducting the search, defendant was holding a clear plastic bag in his hand containing a white substance. When defendant saw the agent at the front door, he fled to the back of the house. When arrested at the residence, the appellant had in his wallet $2,143.00 in cash. Precisely the same amount of cash was found in a dresser drawer in the master bedroom. At the time defendant was arrested, a piece of paper was found in his wallet bearing notations which appeared to relate to a drug transaction. Defendant’s driver’s license showed his address to be that of the residence where the contraband was found. When interviewed after his arrest, defendant stated he lived at the residence half of the time and gave the phone number of that residence as his own. The garage at the residence had a specially designated parking place for defendant’s automobile. Defendant’s clothing was found in the dresser drawer in the master bedroom and defendant’s boots were found in the closet next to a safe containing numerous pieces of jewelry and over $10,000 in cash. The owner of the residence, Ethel Christopher, was the mother of defendant’s child. Defendant kept hogs on the property. Defendant was previously convicted in New Jersey on a guilty plea for possession of cocaine and possession of cocaine with intent to distribute. A small quantity of marijuana was found in an automobile driven by defendant. Thus, sufficient evidence was presented whereby the jury could conclude that defendant either had actual physical possession of the contraband or else that defendant aided and abetted in the crimes charged. See Barrett v. State, 183 Ga. App. 729 (2) (360 SE2d 400) (1987); Latimer v. State, 134 Ga. App. 372 (2) (214 SE2d 390) (1975). We find the evidence was sufficient to authorize a reasonable juror to find defendant guilty beyond a reasonable doubt.

2. Defendant argues the trial court erred in admitting evidence of his prior convictions in New Jersey of possession of cocaine and possession of cocaine with intent to distribute. “Before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Baxter v. State, 160 Ga. App. 181, 184 (286 SE2d 460) (1981). The exemplified New Jersey sentence was against “Willie Kendrick, defendant a/k/a Willie Frank Adams.” The State’s witness established that the previous conviction was discovered when a copy of defendant’s fingerprints was sent to the FBI for analysis. Thus, we reject defendant’s argument that the State failed to establish that the defendant in this case was the individual convicted of the previous offense. We also find a sufficient similarity between the independent crime and the offense charged for it to be admissible to show bent of mind or course of conduct. See Hicks v. State, 232 Ga. 393, 396-97 (207 SE2d 30) (1974); Gunter v. State, 223 Ga. 290 (4) (154 SE2d 608) (1967).

3. The State presented evidence that after his arrest defendant gave as his home phone number the number of the residence where he was arrested. Defendant argues this testimony should have been excluded pursuant to OCGA § 17-7-210 (c) because defendant’s statement concerning his phone number was not supplied to counsel pursuant to defendant’s timely request. However, it appears defendant’s counsel was informed that defendant had stated he lived at the residence in question half the time and that statement was properly admitted into evidence. Thus, defendant’s statement concerning his home telephone number was merely cumulative of other statements concerning defendant’s residence address. When determining whether testimony concerning defendant’s inculpatory in-custody statement was improperly admitted, the appellate court must consider the statement in the context of the entire record. See Wallin v. State, 248 Ga. 29 (5) (279 SE2d 687) (1981). Because other statements by defendant concerning his residence address were already properly admitted in evidence, we find the admission of the statement concerning defendant’s telephone number was harmless error.

4. A sheriff’s deputy testified that he knew defendant resided at the residence in question because “On numerous occasions from having passed there, I’ve seen [defendant’s automobiles], from talking with people on the street as far as having people tell where, you know, he lived, and other officers being aware.” Defendant argues the court erred in overruling his objection to. the deputy’s testimony on the ground it contained hearsay. First, we note that the objectionable statement was made to establish the foundation for the witness’ belief that defendant resided at the house in question. Thus, the fact that the witness had been told that defendant lived there would relate to the weight to be given by the jury to defendant’s opinion. Even if the testimony concerning what the witness had been told should have been excluded as hearsay, we find it to be harmless error since the witness testified that his opinion was based not only on what others had told him but also on his own observations.

5. Finally, defendant argues the court erred in allowing the State to present character evidence. In fact, the record shows the court prohibited the State from introducing character evidence to impeach defendant’s assertion that he did not use drugs. Evidence of defendant’s prior conviction was not admitted as character evidence but was properly admitted as evidence showing bent of mind or course of conduct.

6. Defendant Adams did not raise as error the court’s charge on the element of possession. However, a review of the record reveals that a similar error in the charge was made at the trial of defendant Adams as was made at the trial of defendant Christopher. (See Division 2 of Case No. 77549). As in Christopher, the court recited to the jury the pertinent portion of the statute setting forth the offense of trafficking in cocaine, including the language stating that the defendant must be “knowingly in actual possession.” After giving the definitions of actual and constructive possession, the court stated: “You, the jury, would be authorized to convict only if you should find beyond a reasonable doubt that the defendant knowingly had actual or constructive possession either alone or jointly with others.” Because we find the instruction was substantially in error and was harmful as a matter of law, we are required by OCGA § 5-5-24 (c) to consider the error even though an objection was not made by the defendant. For the same reasons set forth in Division 2 of the Christopher case, above, the instruction constitutes reversible error as to the conviction for trafficking in cocaine. This error does not require the reversal of the conviction for possession of marijuana with intent to distribute since possession sufficient to sustain a conviction pursuant to OCGA § 16-13-30 (b) may be either actual or constructive. Hadden v. State, 181 Ga. App. 628 (1) (353 SE2d 532) (1987).

Decided February 21, 1989.

Richard E. Thomas, for appellant (case no. 77549).

Wright & Wright, G. Russell Wright, for appellant (case no. 77550).

John C. Pridgen, District Attorney, for appellee.

Judgment reversed in Case No. 77549; judgment reversed in part and affirmed in part in Case No. 77550.

McMurray, P. J., and Benham, J., concur.

       We do not interpret the holding in Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), however, to preclude conviction for trafficking in cocaine upon either OCGA § 16-2-20 (party to a crime) or a theory of conspiracy. See Chews v. State, 187 Ga. App. 600, 606 (371 SE2d 124) (1988) (Pope, J., concurring specially).


text:
    77646.
    MALLARINO v. THE STATE.
    (379 SE2d 210)
   Birdsong, Judge.

Guillermo Mallarino appeals his conviction and sentencing for trafficking in cocaine in that he did actually possess and bring into the State of Georgia an amount of cocaine greater than 28 grams.

Appellant and a male passenger were stopped when appellant was observed driving 65 mph on Interstate 75. The speed limit was 55 mph. The stop and subsequent search of appellant’s car was videotaped. Following the stop, Trooper Ralston initiated a driver’s license check of the appellant and an “EPIC check” of files pertaining to immigration on both men. A warning was issued for the speeding violation. Based on responses that he obtained from the two men, coupled with certain other factors, Trooper Ralston became suspicious that the men were involved in some other activity besides speeding. Trooper Ralston then requested the appellant to consent to a search of his car after allowing the appellant to read and repeating to him the information contained in a consent to search form. The appellant was from Columbia and spoke English well. Appellant had five years of college in Columbia and stated that he understood English and did not need to use the Spanish version of the consent to search form. The appellant signed the consent to search form, gave his consent to the search, and did not thereafter object to either the scope or duration of the search. Upon opening the car trunk, Trooper Ralston discovered a secret compartment behind the rear seat.. Packages of cocaine were found in this compartment. The appellant and his companion were placed under arrest and turned over to the local sheriff’s department for further investigation. From the time of the stop to the search over 30 minutes elapsed, and approximately one and one-half hours elapsed from the time of the stop to appellant’s release to the custody of the sheriff’s department. Held:

1. Appellant asserts that the trial court erred in sentencing him to 25 years confinement and a fine of $500,000, pursuant to OCGA § 16-13-31 (a) (1) (C), since the indictment averred only that appellant possessed and brought into the state cocaine in an amount “greater than 28 grams” and the jury found him guilty in accordance with the indictment. We agree.

The trial record clearly shows that the trial judge believed he was required to impose, as a minimum mandatory sentence, the minimum mandatory sentence of 25 years imprisonment and a fine of $500,000. This is the minimum mandatory sentence to be imposed where the offender has been convicted of trafficking in cocaine and the quantity of cocaine or the cocaine mixture involved and of which the offender has been duly convicted is 400 grams or more. OCGA § 16-13-31 (a)' (1) (C). However, when the offender is convicted of trafficking in cocaine and the quantity of cocaine or the cocaine mixture involved and of which he has been convicted of possessing is only 28 grams or more, but less than 200 grams, the mandatory minimum sentence is a term of 10 years imprisonment and a fine of $100,000. OCGA § 16-13-31 (a) (1) (A). In such cases, it is that quantity of drugs averred in the indictment of which the offender has been convicted, rather than the amount of drugs which the evidence establishes that the offender possessed in excess of the amount averred in the indictment, that controls in determining which mandatory minimum sentence is operative under OCGA § 16-13-31 (a).

This statutory interpretation is consistent with the general rule that “an accused cannot receive a sentence greater than that prescribed by law for the crime for which he was indicted and convicted.” Riggins v. Stynchcombe, 231 Ga. 589, 592 (203 SE2d 208). Moreover, the legislative history of OCGA § 16-13-31 reflects that in 1985 the statute was amended in part “so as to provide for mandatory minimum penalties upon conviction for certain violations. ...” (Emphasis supplied.) Ga. L. 1985, p. 552.

In this case, the indictment averment of which the appellant was convicted was for trafficking in cocaine by actually possessing and bringing into the state an amount of cocaine “greater than 28 grams.” It is impossible to determine from the announced verdict the maximum amount of cocaine which the jury found the appellant guilty of possessing, although the minimum amount of which the accused was both indicted and convicted of possessing was more than 28 grams. We will not speculate as to what was in the minds of the jury when they announced their verdict. Due process considerations dictate that the minimum permissible sentence for this offense is controlled by OCGA § 16-13-31 (a) (1) (A). Cf. Riggins, supra at 592.

This error, although prejudicial, can be cured by a sentencing rehearing. In such proceedings, the trial judge shall consider as operative the mandatory minimum sentence requirements of OCGA § 16-13-31 (a) (1) (A), and the maximum sentence as that authorized by OCGA § 16-13-31 (f). See generally Recoba v. State, 179 Ga. App. 31 (4) (345 SE2d 81).

2. Appellant’s second and third enumerations of error are that the trial court erred in overruling, his motion to suppress and in holding that appellant voluntarily consented to the search of his vehicle, respectively.

In ruling on appellant’s suppression motion, the trial court found inter alia that Trooper Ralston stopped appellant’s vehicle for speeding; that Trooper Ralston subsequently gave appellant a warning ticket and asked for consent to search the car; that appellant did not initially understand the trooper’s request, but he did eventually comprehend what the trooper wanted and consented for him to search the car; that a hidden compartment was discovered as soon as the vehicle trunk was opened; and, that the trooper upon examination was able to detect packages in the trunk similar to packages of cocaine which he had found in other cases of this nature. The trial court’s decision on questions of fact and credibility of witnesses at a suppression hearing must be accepted unless found to be clearly erroneous. Spencer v. State, 186 Ga. App. 54, 55 (366 SE2d 390); Lockwood v. State, 184 Ga. App. 262 (1) (361 SE2d 195); see Borda v. State, 187 Ga. App. 49, 50 (369 SE2d 327). There exists no basis in this record to reverse any of the findings of fact or credibility determinations of the trial court.

Appellant’s car was lawfully stopped for speeding. As Trooper Ralston observed appellant violating the traffic laws by speeding, he had probable cause to stop the vehicle and investigate the incident. Beguiristain v. State, 187 Ga. App. 164, 165 (369 SE2d 774); Steward v. State, 182 Ga. App. 659 (1) (356 SE2d 890), cert. den.

Appellant asserts that the circumstances of this case establish that the stop for a traffic violation was in fact a pretextual stop for a drug investigation and thus an unreasonable seizure of appellant. We disagree. Merely that Trooper Ralston had received substantial training in interdicting drug couriers and was vigilant for their use of the state’s highways, “would not alter his authority to make a routine traffic stop.” Coop v. State, 186 Ga. App. 578 (1) (a) (367 SE2d 836). The trial record does not support appellant’s claims of subterfuge; Trooper Ralston testified that he stopped appellant’s vehicle because it was speeding. Compare United States v. Hardy, 855 F2d 753 (11th Cir. 1988). The trial court perforce of its rulings found this testimony credible and we will not reverse the trial court’s determinations of credibility unless they clearly are erroneous. Spencer, supra at 55.

Appellant maintains that after the stop of his car he was subjected to illegal detention while Trooper Ralston conducted an investigation based on an unarticulable hunch. Even in the absence of probable cause, a police officer “may stop an automobile and conduct a limited investigative inquiry of its occupants . . . if he has reasonable grounds for such action—a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” State v. Misuraca, 157 Ga. App. 361, 364 (276 SE2d 679), U. S. cert. den. During this detention, the police, for example, may attempt to determine the person’s identity, Misuraca, supra at 365, and ask for a display of driver’s license and vehicle registration. Coop, supra at 579. Trooper Ralston’s initial questioning of appellant and appellant’s passenger and his examination of appellant’s driver’s license and vehicle registration caused him to form a reasonable and articulable suspicion that appellant and the passenger may have been involved in other criminal activity, including possible immigration violations. Under these circumstances, Trooper Ralston could continue to detain temporarily appellant and his passenger “to maintain the status quo momentarily while obtaining more information.” Eisenberger v. State, 177 Ga. App. 673, 675 (340 SE2d 232); Misuraca, supra at 365. Considering the circumstances, we find that Trooper Ralston acted reasonably in his detention of the appellant. In this regard, as soon as Trooper Ralston had completed his inquiry into the status of appellant’s driver’s license and vehicle registration, he issued a warning ticket for speeding and requested permission to search the vehicle.

The United States Supreme Court has adopted a dual inquiry for evaluating the reasonableness of an investigative stop, to-wit: “ ‘whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.’ ” United States v. Sharpe, 470 U. S. 675, 682 (105 SC 1568, 84 LE2d 605). The second part of this inquiry includes a consideration of the requirement for brevity. Id. at 683. In assessing the effect of the length of the detention, it must be determined whether the police diligently pursued their investigation. Id. at 685. No “bright line” or rigid time limitation is imposed, and “the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes” is to be emphasized. Id. In assessing the reasonableness of the length of detention, it is appropriate to examine “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Id. at 686. A key consideration is whether the policé “are acting in a swiftly developing situation, and in such, cases the court should not indulge in unrealistic ■ second-guessing,” Id. At the. onset we note that Trooper Ralston’s ■ stop of appellant was based on probable cause, as he observed appellant committing a traffic violation and initially stopped and detained him for this reason. The fact that this was a probable cause stop is a significant factor that weighs heavily in the police’s favor. Thereafter, Trooper Ralston was confronted with a swiftly developing situation. He was confronted with the passenger’s initial admission that he was in the country illegally, and apparent discrepancies in the stories being told by the two men in the car. Further, Trooper Ralston was faced unexpectedly with problems in the state police’s computer system and had to go through the Tennessee highway patrol to obtain information “pertaining to the registration and the driver’s license” of appellant. He also was awaiting response to an EPIC check of the “files pertaining to immigration” on both men. After receiving consent to search the vehicle, Trooper Ralston had to await the arrival of a back-up officer and ultimately'was compelled to force access to a secret compartment in the trunk where the cocaine was found. Applying the Sharpe brevity test to the facts of this case, we find that Trooper Ralston’s detention of appellant for the critical period of approximately 33 minutes from time of stop to time of signing of the consent to search and fo.r. a total period of approximately one and one-half hours from time of stop until appellant was turned over to local police authorities was not unreasonable within the meaning of the Fourth Amendment. Compare United States v. Hardy, supra at 761 (investigative stop of approximately 50 minutes duration).

Appellant next contends that the consent to search was not voluntary and was the product of duress and coercion. It is well-settled that the prosecution ha§ the “burden of proving that the consent was, in fact, freely and voluntarily given.” Schneckloth v. Bustamonte, 412 U. S. 218, 222 (93 SC 2041, 36 LE2d 854); Borda, supra at 50. In determining whether the consent was voluntary, we will look to “the totality of all the surrounding circumstances.” Schneckloth, supra at 226; Borda, supra at 50. These factors include the fluency of the consenting person regarding the language being used by the police, the age, education and intelligence of the consenting person, the length of and basis for the duration of detention until the consent was obtained, whether the accused was advised of his relevant constitutional rights including his right to refuse to consent, the prolonged nature and intensity of any questioning, the use of threats or physical punishment, and the psychological impact of all these factors on the consenting person. See Spencer, supra at 45-55. No single factor is controlling. Applying this test to the attendant circumstances and in light of the prosecution’s burden of proof, we find no error in the trial court’s conclusion that appellant’s consent was voluntary and that he understood the significance thereof. Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. Borda, supra at 50; Beguiristain, supra at 165. Consent was not thereafter withdrawn in this case.

Decided February 21, 1989.

Glenn Zell, for appellant.

Jack O. Partain III, District Attorney, Lee R. Taylor, Todd L. Ray, Assistant District Attorneys, for appellee.

Appellant’s other assertions and his second and third enumerations of error are without merit.

3. As there has been no argument or citation of authority by appellant regarding his fourth enumeration of error, that the trial court erred in denying his motion for new trial, this ground.is deemed abandoned. Melton v. Gilleland & Sons, 176 Ga. App. 390 (1) (336 SE2d 315); Court of Appeals Rule 15 (c) (2).

Judgment of conviction affirmed; sentence reversed and case remanded for rehearing on sentence.

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


author: Beasley, Judge.

text:
    77751.
    HUNT v. LEE.
    (379 SE2d 215)
   Beasley, Judge.

Plaintiff Hunt appeals an order dismissing notices of appeal in this suit against his former wife, Lee.

Hunt filed suit alleging, inter alia, that pursuant to the divorce settlement, he had an interest in certain assets, including real property titled in Lee. Lee moved for summary judgment, which the court granted in part, concluding that Hunt had no interest in the subject real property and dismissing with prejudice that portion of the complaint.

Hunt filed a “Motion for New Trial or in the alternative Motion for Amendment of Finding of Fact and Conclusion of Law” on June 9. The motion was denied on July 1. On July 15, Hunt filed a notice of appeal from the grant of partial summary judgment. On this same day, he filed a “Motion to Schedule Hearing to Expand Record,” allegedly to “create an accurate record” inasmuch as no transcript was made of two hearings in the case. He also filed a “Motion for Hearing” asking for an accounting of assets which he contended were held by Lee in an implied trust.

Lee moved to dismiss Hunt’s appeal as untimely on July 31. On August 17, Hunt filed a “Renewed Motion for a New Trial and Motion for Amendment of Finding of Fact and Conclusion of Law.” Lee moved for summary judgment on the balance of the complaint on September 3.

The court, on September 21, denied Hunt’s three motions and, pursuant to OCGA § 9-11-54 (b), directed entry of final judgment on the issues ruled on in the May 27 order, finding no just reason for delaying such. The court further noted that it had given Hunt every opportunity to litigate his claims and had extended deadlines and made other procedural concessions because Hunt was representing himself. It observed that the situation was rapidly becoming unfair to Lee, and having been warned, Hunt was to be held to the requirements of the law.

Hunt appealed the September 21 order on October 5. On December 2, the trial court dismissed the July 15 notice of appeal as too late. The next day, the court denied Lee’s second motion for summary judgment and for a protective order and appointed an auditor to investigate and report.

On February 19, 1988, Lee moved to dismiss the October 5, 1987 appeal because of the delay in filing the transcript, relying on OCGA § 5-6-42.

On May 2, the court reiterated the dismissal of the July 15 appeal as untimely. It also dismissed the October 5 appeal. The court cited the language in the later notice which stated: “Transcript of evidence and proceeding will be filed for inclusion in the record on appeal.” The court concluded that the promised transcript was not filed within thirty days as required by OCGA § 5-6-42 nor was an extension obtained pursuant to OCGA § 5-6-39, that apparently there was no transcript to be obtained, and that through Hunt’s representation that a transcript would be filed, the appeal was unreasonably and inexcusably delayed.

In his brief on appeal, Hunt enumerates five errors which all involve the propriety of dismissal of the October 5 notice. He has not filed a separate enumeration of errors. See Court of Appeals Rule 27. Neither by argument nor by-citation of authority does he address that portion of the order repeating dismissal of the July 15 appeal, so we do not address it either. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland & Sons, 176 Ga. App. 390 (1) (336 SE2d 315) (1985).

The gravamen of appellant’s argument is that his efforts were ongoing to establish a transcript for appeal and that the trial court erred in denying him the opportunity to expand the record and in ultimately finding that he unreasonably and inexcusably delayed the appeal because of the unfulfilled notice that a transcript would be filed for inclusion.

Decided February 21, 1989.

Hugh Hunt, pro se.

Harris, Phillips & Harris, R. Britt Harris, Jr., for appellee.

The court did not err in denying appellant an attempt to schedule a hearing to expand the record under the provisions of OCGA § 5-6-41 (f). Apparently the hearings for which Hunt desired to expand the record were those on the motion for summary judgment. As the court observed in its order of denial, there was no necessity to reconstruct a record of these hearings because the issues to be decided are matters of law. OCGA § 9-11-56. See Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (2) (307 SE2d 134) (1983) discussing the purpose of summary judgment. In addition, the order states that Hunt was not denied the opportunity to have a court reporter present but chose not to exercise that right. Finally, it relates that the record reflected all evidence which was properly before the court for consideration of the motion for summary judgment. Consequently, no evidence supplementing the record would be permissible. OCGA § 5-6-41 (f).

OCGA § 5-6-48 (c) requires an exercise of discretion by the trial court. Strother v. C & S Nat. Bank, 147 Ga. App. 140, 141 (248 SE2d 204) (1978). The determination of unreasonable and inexcusable delay by the appealing party is a fact issue for the court. Johnson v. Clements, 135 Ga. App. 495, 496 (1) (218 SE2d 109) (1975). Its “ ‘decision on this issue will be reversed only for an abuse of discretion. [Cit.]’ [Cit.]” Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 428 (II) (A) (274 SE2d 786) (1980).

Even though the trial court denied expansion of the record on September 21, appellant declared in the October 5 notice of appeal that a transcript would be forthcoming. Assuming that the transcript referred to is that which was the subject of the motion to expand the record, for there is no indication in the record of any other possible transcript, the appellant delayed transmittal of the record for something which could not be produced.

The trial court did not abuse its discretion in dismissing the October 5 appeal. OCGA § 5-6-48 (c).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    77806.
    SALOMON v. EARP.
    (379 SE2d 217)
   Beasley, Judge.

Salomon pled guilty to two counts of homicide by vehicle in the first degree, OCGA § 40-6-393 (a), and one count of driving with ability impaired by alcohol, OCGA § 40-6-391. An order of nolle prosequi was entered on a second count of driving with ability impaired by alcohol. Salomon was sentenced as a first offender, OCGA § 42-8-60 et seq., to five years probation on the felony counts and twelve months probation on the misdemeanor count, all to be served concurrently. She was ordered to pay a $1,500 fine and given the additional condition of probation that for two years she could drive only a two-wheel vehicle and would not be permitted to drive any vehicle capable of carrying passengers.

The Department of Public Safety was notified of the sentences. It issued notices of suspension of Salomon’s driver’s license for one year for the misdemeanor and for three years for the felonies to begin from the date the department received the license. Salomon was granted a hearing by the department and the hearing officer issued an administrative declaratory decision affirming the license suspension.

Pursuant to OCGA § 40-5-66, Salomon appealed the administrative decision to the superior court. Following a hearing, the court concluded that the Department of Public Safety properly suspended Salomon’s driver’s license and the court denied her application for a stay of the suspension.

Application for discretionary appeal from the lower court’s decision, see OCGA § 5-6-35 (a) (1), was granted to address Salomon’s basic contention that the department may not use sentences under the First Offender Act as a basis for drivers’ licenses suspensions. See OCGA § 40-5-1 (11). Although she also contends that such sentences may not be used for driver’s license revocation, see OCGA § 40-5-1 (10), revocation is not at issue in this case.

Salomon argues that the lower court erred in sanctioning notification to the department of the first offender disposition because it was not final, and in sanctioning treatment of her first offender sentence as a conviction for the purpose of license suspension.

Under OCGA § 40-5-54 (a) (l) and OCGA § 40-5-63 (f), the department must suspend under OCGA § 40-5-63 the license of any driver upon receiving a record of such driver’s conviction of homicide by vehicle, as defined in OCGA § 40-6-393.

Under Chapter 5 of Title 40 dealing with drivers’ licenses, a “ ‘[c]onviction’ means a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court, the payment of a fine, a plea of guilty, or a finding of guilt on a traffic violation charge, regardless of whether the sentence is suspended, probated, or rebated.” OCGA § 40-5-1 (4). The statutory definition does not carve out an exception for entries of pleas of guilty or the payment of a fine in a first offender situation. Nor does it require an adjudication of guilt. Salomon’s pleas of guilty and ordered payment of a fine were properly treated as a conviction for purposes of the statute.

Contrary to appellant’s contention, this reading of OCGA § 40-5-1 (4) does not conflict with the provisions of the First Offender Act, OCGA § 42-8-60 et seq., specifically OCGA § 42-8-62, which provides in pertinent part: “Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction . . . .”

Such first offender provision allows a defendant’s slate to be wiped clean for the purposes of recordation of a criminal conviction and its effect on civil rights or liberties after a defendant successfully fulfills the first offender terms. It does not prohibit restrictions on a defendant’s civil rights or liberties imposed during service of the first offender term. In fact, under the First Offender Act, the court may not only place a defendant on probation, which would include limitations on the defendant’s behavior and activities, but the court alternatively may sentence a defendant to a term of confinement. OCGA § 42-8-60 (a) (1) and (2). Even successful service under the Act does not protect a defendant from all consequences of his criminal acts. For example, the record of a first offender sentence may be used to impeach a witness in a criminal or civil case. See Hightower v. Gen. Motors Corp., 175 Ga. App. 112, 113 (1) (332 SE2d 336) (1985), aff’d 255 Ga. 349 (338 SE2d 426) (1986); Moon v. State, 154 Ga. App. 312 (1) (268 SE2d 366) (1980); Favors v. State, 234 Ga. 80, 86 (3) (214 SE2d 645) (1975).

Furthermore, suspension of a license imposed for violation of the point system, see OCGA §§ 40-5-57 (c) and 40-5-57.1, has been held incapable of classification as criminal punishment resulting from a criminal prosecution because it is accomplished administratively by a designated public officer with a complete absence of any judicial action and no attribute of a criminal case. Cofer v. Gurley, 146 Ga. App. 420, 421 (1) (246 SE2d 436) (1978), overruled in part on other grounds, Williams v. Cofer, 246 Ga. 344, 345 (3) (271 SE2d 486) (1980).

Were Salomon’s “convictions” under OCGA § 40-5-1 (4) properly reportable to the Department of Public Safety in the first place?

OCGA § 40-13-3 provides that the judge or clerk of each court before whom a person accused of a traffic offense is brought shall promptly report the final disposition of the case to the department. Appellant argues that inasmuch as there is no adjudication of guilt under the First Offender Act, there is no “final disposition” for reporting purposes under the statute.

Decided February 21, 1989.

Simmons, Warren & Szczecko, Joseph Szczecko, for appellant.

Michael J. Bowers, Attorney General, Cathy A. Cox, Assistant Attorney General, for appellee.

Appellant’s construction of “final disposition” would render the definition of “conviction” in Chapter 5 of Title 40, OCGA § 40-5-1 (4) meaningless. Moreover, such interpretation contemplating the absolute ending of a case would by analogy also require that no reporting to the department be made at the time of conviction in any case in which there is a term to be served in confinement and/or on probation. This would defeat the apparent purpose of license suspension which is, in the best interests of the citizens of Georgia, to immediately remove from the highways of this state those individuals whom the state considers dangerous, negligent, and incompetent drivers who are a direct and immediate threat to the welfare and safety of the general public. OCGA § 40-5-57 (a).

Salomon’s pleas of guilty under the First Offender Act were properly considered to be a final disposition under OCGA § 40-13-3 requiring reporting to the Department of Public Safety. To hold otherwise would permit the dangerous driver who is punished less stringently because it is a first offense to circumvent legislatively-mandated administrative action to protect the public safety by removing the driver from the roads for a period of time. The status as to criminal punishment imposed, which focuses on the offender and his past deed, does not preclude administrative action, which focuses on the public’s future welfare.

The lower court did not err in denying appellant’s application for stay of her license suspension and in upholding the administrative decision of the Department of Public Safety.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.

       At the time of Salomon’s sentencing the provision was found in OCGA § 40-5-54 (1).


text:
    77819.
    LOFTON v. THE STATE.
    (379 SE2d 13)
   Pope, Judge.

Defendant was found guilty of the offense of escape. OCGA § 16-10-52. Although defendant stipulated to the facts which formed the basis of the charge against him, at trial he moved for a directed verdiet of acquittal based on the State’s alleged violation of the provisions of OCGA § 17-8-50. That section provides as follows: “The trial of inmates escaping from a state or county correctional institution shall take place in the superior court of the county in which the escape occurs, and inmates so escaping shall remain in the correctional institution after their apprehension and shall be treated as are other inmates until the trial takes place. At the trial, the copies of the records transmitted to the superintendent or warden of the state or county correctional institution, relative to the former trials of such inmates, shall be produced and filed of record in the superior court; . . .” Based on these provisions, defendant contends that he was entitled to a directed verdict of acquittal because, prior to the trial on the escape charge, he was sentenced to serve fourteen days in confinement by the prison disciplinary committee, and then transferred from the facility from which he escaped to another correctional institution. Likewise, defendant contends the State failed to produce the records of his former conviction at trial as required by OCGA § 17-8-50.

Decided February 21, 1989.

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

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

Pretermitting whether that section in fact entitles defendant to the rights claimed on appeal, see Mullins v. State, 167 Ga. App. 670 (4) (307 SE2d 61) (1983), and if so, whether defendant was harmed by a violation of those rights, a directed verdict of acquittal was not the proper means to procure enforcement of the mandates of OCGA § 17-8-50. Rather, we find that in order to procure the State’s compliance with that section, defendant should have filed a petition for a writ of habeas corpus (see OCGA § 9-14-1 et seq.) or a petition for a writ of mandamus (see OCGA § 9-6-20 et seq.). Defendant having failed to take either of these actions, and the issue of the State’s compliance with that section now being moot by virtue of defendant’s subsequent conviction on the escape charge, we find no basis for reversal.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

       For example, we fail to see how defendant was harmed by the State’s failure to produce records relating to defendant’s former trial when the defendant stipulated to the facts relative to the escape charge.


text:
    77859.
    MORGAN SOUTHERN, INC. v. LEE.
    (379 SE2d 219)
   Pope, Judge.

Appellee Daris H. Lee brought a claim in the magistrate court to recover an amount deducted from his paycheck by his employer, appellant Morgan Southern, Inc., to cover the cost of workers’ compensation insurance. An award in favor of the employee was affirmed by the state court and the employer filed an application for discretionary review. On appeal the employer argues the deduction was taken by an agreement between the parties and is enforceable because it is not in violation of law.

The record on appeal consists merely of the pleadings filed by the parties and the judgment entered in the case. The record contains no evidence to indicate the employee agreed to the deduction. Even if the employee agreed to the deduction, the agreement would be contrary to law and to the public policy of this state and would, therefore, be unenforceable pursuant to OCGA § 13-8-2.

Pursuant to OCGA § 34-9-121 (a): “Unless otherwise ordered or permitted by the board, every employer subject to the provisions of this chapter relative to the payment of compensation shall secure and maintain full insurance against his liability for payment of compensation under this article . . . .” The employer argues said statute merely requires it to obtain insurance but does not require it to pay for the premiums out of its own funds. The employer argues the Workers’ Compensation Act does not prevent an employer from passing on the cost of workers’ compensation insurance to the employee by deduction from the employee’s wages. The issue raised on appeal is, essentially, what is meant by the phrase “secure and maintain full insurance.”

Prior to the recodification of the Workers’ Compensation Act at the time the 1982 Code was enacted, the employer was statutorily required to “fully insure and keep fully insured . . . his liability [under the Act] . . . .” Ga. L. 1963, p. 141, § 13, amended by Ga. L. 1972, p. 929, § 4. Clearly, the statute, prior to recodification, required employers to “insure themselves.” (See uncodified preamble to Ga. L. 1962, p. 528.) We do not interpret the change in wording from “fully insure and keep insured” to “secure and maintain full insurance” to release the employer from the obligation to pay for its own insurance. The fundamental basis of the workers’ compensation laws is that the economic loss caused by industrial accidents should be borne by the industry in which the accident occurred. Globe Indem. Co. v. Lankford, 35 Ga. App. 599, 603 (134 SE 357) (1926). To interpret the statute as the employer urges would be contrary to the entire scheme of the Workers’ Compensation Act whereby, in exchange for assuming limited statutory liability for personal injury, the employer is granted immunity from liability in tort. The cost of statutory liability may not be passed on to the employee himself. That the employer is required to bear the cost of workers’ compensation insurance is further supported by OCGA § 34-9-14 (a), which prohibits those employers who offer a board-approved substitute system of compensation from requiring a contribution from employees unless the substitute system confers benefits in addition to those minimally required by the Act. Those cases in which an employer provided workers’ compensation insurance to the employees of its subcontractor by deducting the premiums from the production payments due its subcontractor are not analagous to the case at hand, in which the employer deducted an amount to pay insurance premiums directly from its employee’s wages. See International Indem. Co. v. White, 174 Ga. App. 773 (331 SE2d 37) (1985): Hampton v. McCord, 141 Ga. App. 97 (232 SE2d 582) (1977). The state court did not err in upholding the judgment in favor of the employee for reimbursement of the cost of workers’ compensation insurance deducted from his wages.

Decided February 21, 1989.

Swift, Currie, McGhee & Hiers, Joseph A. Munger, for appellant.

Frank Bradford, Richard Paul Parker, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77921.
    PITTMAN v. THE STATE.
    (379 SE2d 423)
   Pope, Judge.

This is the second time this case has appeared before us on appeal. In Pittman v. State, 183 Ga. App. 12 (357 SE2d 855) (1987), we affirmed defendant’s conviction of possession of cocaine, finding sufficient evidence in the record to sustain the conviction. Id. at (1). We also affirmed the trial court’s denial of defendant’s motion for new trial based on newly discovered evidence. Id. at (2). The motion was supported by an affidavit from defendant’s brother, Rocky B. Pittman, that the cocaine found in defendant’s bedroom belonged to him and not to defendant. Nevertheless, this court found the allegedly newly-discovered evidence did not satisfy the standards required for the granting of a new trial because the record showed defendant did not exercise “due diligence” in acquiring knowledge of the evidence. We declined to consider the court’s alleged error in failing to rule on what we characterized as an extraordinary motion for new trial filed after the initial motion had been denied. After our earlier opinion was rendered, the trial court denied defendant’s extraordinary motion for new trial and defendant appeals.

Decided February 21, 1989.

Sell & Melton, O. Hale Almand, Jr., Lori L. C. Obenauf, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Sharon T. Ratley, Assistant District Attorneys, for appellee.

Defendant’s extraordinary motion for new trial based on allegedly newly-discovered evidence was supported by a second sworn statement from defendant’s brother, a sworn statement from Tamara Little, who stated she was the brother’s girlfriend, and the affidavit of defendant’s attorney. While the statements of the brother and his girlfriend provide additional details concerning how the brother purchased the cocaine and the circumstances under which he used and stored the cocaine in defendant’s bedroom, the material facts within these statements are identical to the earlier affidavit attached to the original motion for new trial, i.e., that the cocaine found in defendant’s bedroom belonged to defendant’s brother. The affidavit of defendant’s attorney merely states that he was never told that the cocaine belonged to defendant’s brother. It further states that the attorney suspected that the cocaine may have belonged to defendant’s brother. The attorney states he spoke to the brother by telephone the night before the trial but the brother did not tell him the cocaine belonged to him.

No material evidence was presented by the extraordinary motion for new trial that was not already presented in the original motion. If anything, the additional evidence provides additional support for the conclusion that defendant failed to use due diligence to acquire the allegedly newly-discovered evidence since it shows defendant’s attorney suspected the defendant’s brother and spoke to him prior to trial but failed to show the attorney investigated his suspicions. We have already ruled that the original motion was properly denied. For the same reasons set forth in Division 2 of our earlier opinion, the trial court did not err in denying defendant’s extraordinary motion for new trial.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A0013.
    McNAIR v. THE STATE.
    (379 SE2d 424)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of burglary. Held: 1. In his first enumeration of error defendant contends the trial court should have granted his motion for directed verdict of acquittal since the State failed to prove that defendant entered the building with intent to commit a theft. The State’s evidence shows that the building in which two businesses were operated was a former gas station. Defendant had gained entrance to the building via a door opening into a rest room by kicking or prying open a door. Inside the rest room defendant had attempted to break through a concrete block or brick wall which would permit access to the remainder of the building. Located on the opposite side of the interior wall defendant unsuccessfully attempted to penetrate was sporting goods equipment belonging to one of the businesses operated in the building. “ ‘(T)he presence of valuables inside the premises can support an inference of intent to steal (cit.), particularly when no other motive is apparent. (Cit.) The evidence supported the verdict.’ Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174) (1977).” Green v. State, 158 Ga. App. 321 (1) (279 SE2d 763). See also Fennell v. State, 159 Ga. App. 194, 195 (283 SE2d 72); Loury v. State, 147 Ga. App. 152 (1) (248 SE2d 291); and Ealey v. State, 139 Ga. App. 604, 605 (2), 607 (229 SE2d 86).

2. After a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) hearing was held outside the presence of the jury, the trial court allowed into evidence an in-custody statement made by defendant to police. Defendant contends that, despite the lack of objection at trial, the statement is inadmissible because the trial court failed to make a clear finding that the statement was made voluntarily before the jury heard the statement. See Fain v. State, 165 Ga. App. 188, 189 (6) (300 SE2d 197). This issue has been decided adversely to defendant. “‘“Where the voluntariness of a confession is questioned on the trial of a criminal case it is necessary under the decision in Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908, 1 ALR3d 1205), to have a separate hearing as to the voluntariness before it is finally presented to the jury for consideration as to its voluntariness.” (Cit.) In the absence of a proper objection, however, there is no requirement for such a hearing. (Cits.)’ Watson v. State, 227 Ga. 698, 699 (182 SE2d 446) (1971). Accord Royals v. State, 155 Ga. App. 378 (1) (270 SE2d 906) (1980). Due process ‘does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.’ (Emphasis supplied.) Wainwright v. Sykes, 433 U. S. 72, 86 (97 SC 2497, 53 LE2d 594) (1977). See Dent v. State, 243 Ga. 854 (2) (257 SE2d 241) (1979).” Elder v. State, 162 Ga. App. 425, 426 (291 SE2d 565). See also Hunt v. State, 166 Ga. App. 524, 526 (4) (304 SE2d 526).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.

Decided February 21, 1989.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, Eleni Ann Pryles, Thomas S. Clegg, Assistant District Attorneys, for appellee.


author: Banke, Presiding Judge.

text:
    A89A0093.
    GORDON v. THE STATE.
    (379 SE2d 221)
   Banke, Presiding Judge.

The appellant entered a guilty plea to a charge of forgery in the first degree and was thereupon sentenced to ten years imprisonment, which is the maximum penalty for the offense. See OCGA § 16-9-1 (b). She contends on appeal that the sentence was disproportionate to the offense and that the trial court erred in refusing to allow her to withdraw her guilty plea after its oral pronouncement. Held:

1. This court is not empowered to modify a sentence which is within the statutory limits for the offense. See Doby v. State, 173 Ga. App. 348 (7) (326 SE2d 506) (1985); Thomas v. State, 139 Ga. App. 364 (228 SE2d 386) (1976). “ ‘Any question as to the excessiveness of a sentence, which in this case was within the legal limits, should be addressed to the appropriate sentence review panel.’ [Cits.]” Robinson v. State, 150 Ga. App. 642 (7) (258 SE2d 294) (1979).

2. In State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980), the Supreme Court held that oral pronouncement of a sentence by the trial court following the entry of a guilty plea ends the right of the defendant to withdraw the plea pursuant to OCGA § 17-7-93 (b), provided the following protections were afforded the defendant prior to the pronouncement of sentence: “[A]t the time a plea is offered, the trial court shall, on the record, require the disclosure of any plea agreement which has been reached by the state and the defendant. Further, if the trial court intends to reject said plea agreement, the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement, (2) the trial court intends to reject the plea agreement presently before it, (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement, and (4) that the defendant may then withdraw his or her guilty plea as a matter of right.” Id. at 456.

A review of the sentencing transcript in the present case reveals that the trial court failed to follow the foregoing-requirements prior to announcing its sentence. Consequently, we hold that the trial court erred in refusing to allow the appellant to withdraw her plea.

Judgment reversed.

Sognier and Pope, JJ., concur.

Decided February 21, 1989.

Fleming, Blanchard & Bonner, Bradley J. Patten, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


text:
    A89A0200.
    GUNN v. THE STATE.
    (379 SE2d 222)
    Decided February 21, 1989.

      William T. Hankins III, for appellant.

      Robert E. Wilson, District Attorney, Thomas S. Clegg, Robert M.

      Coker, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant Gunn appeals his conviction of the offense of armed robbery. Held:

1. Defendant contends that the trial court erred in failing to instruct the jury that it could consider robbery by intimidation as a lesser included offense of the indicted charge of armed robbery. The evidence was that the victim, the manager of a motel, was robbed by two men armed with a handgun with which they struck the victim across the head. The perpetrators held the gun to the victim’s head threatening to shoot in order to elicit from the victim the location of the motel’s money. The defendant relied on a mistaken identity defense.

“In the case sub judice, all the evidence proved the greater offense of armed robbery. Consequently, the trial court did not err in failing to charge on the lesser included offense of robbery by intimidation. See Clempson v. State, 144 Ga. App. 625, 626-627 (3) (241 SE2d 495); Jordan v. State, 239 Ga. 526, 527 (2) (238 SE2d 69). There is no merit in this complaint.” Mallory v. State, 166 Ga. App. 812, 814 (2) (305 SE2d 656). See Hernandez v. State, 182 Ga. App. 797, 801 (3) (357 SE2d 131).

2. Defendant contends the trial court erred in failing to instruct the jury as requested, that eyewitness testimony is not conclusive and is a matter of opinion. However, the charge as given adequately covered the principles articulated in defendant’s requests to charge. There was no error in failing to charge in the language requested by defendant. Jefferson v. State, 256 Ga. 821, 825 (5) (353 SE2d 468); Hood v. State, 179 Ga. App. 387, 391 (4) (346 SE2d 867); Riley v. State, 175 Ga. App. 710, 712 (5) (334 SE2d 38).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    77465.
    JONES v. THE STATE.
    (379 SE2d 189)
   Beasley, Judge.

Defendant appeals his conviction for rape, OCGA § 16-6-1. Defendant contends the trial court erred: in ruling that Georgia’s Rape Shield Statute, OCGA § 24-2-3, precluded him from impeaching the victim’s statement because the “door was opened” by other evidence; by permitting the introduction of a knife into evidence which was not properly identified; in not granting a new trial because of poor courtroom acoustics; in denying the motion for new trial.

1. Under OCGA § 24-2-3 evidence of the past sexual behavior of the complaining witness is admissible where, during an in camera hearing, the trial court finds the accused could have reasonably believed that the victim consented to the conduct of which complaint was made.

The victim, a fourteen-year-old female at the time, visited defendant’s hotel room at around 6:00 a.m. on January 14, 1988. Defendant had told the victim that he would help her run away from home. Shortly after her arrival, according to the victim, defendant by means of a sharp instrument, either a knife or a fingernail file, forced her despite her resistance to submit to sexual intercourse. Defendant, although he at first denied any contact with the victim, contended that she willingly came to him and that the intercourse was consensual.

In developing his consent defense, defendant sought a hearing under the Rape Shield Statute and offered to show that the victim was not a virgin as she indicated to the examining physician and that she had engaged in sexual intercourse with three young men. After a hearing, the trial court forbade the introduction of evidence as outlined but permitted evidence of conversation between defendant and the victim concerning tattoos on his body and anything involving possible sexual participation between the two.

OCGA § 24-2-3 “is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.” Harris v. State, 257 Ga. 666, 667 (1) (362 SE2d 211) (1987), quoting from Parks v. State, 147 Ga. App. 617 (249 SE2d 672) (1978).

Because there was no evidence concerning sexual behavior by the victim which directly involved participation of defendant, the only basis for permitting evidence of past sexual conduct was that it supported the inference that the accused could have reasonably believed that the conduct of the complaining witness was consensual. OCGA § 24-2-3; Lamar v. State, 243 Ga. 401, 402 (2) (254 SE2d 353) (1979). Defendant had no knowledge of the alleged conduct between the victim and three young men. See Roberts v. State, 158 Ga. App. 309, 311 (2) (279 SE2d 753) (1981).

Defendant argues that he should be able to attack her credibility because of her alleged statements to an examining physician concerning her lack of sexual experience. However, she offered no such testimony, nor was her purported statement to the doctor to that effect ever brought to the jury’s attention. The doctor did not testify and defendant was not deprived of the right of cross-examination, confrontation and impeachment. Harris, supra. Had the victim in fact represented at trial that she was a virgin prior to her encounter with defendant, evidence of her prior sexual activity would have been admissible for impeachment. See Villafranco v. State, 252 Ga. 188 (2) (313 SE2d 469) (1984).

An issue regarding consent does not per se nullify the victim’s right to protection from harassing questions as furnished by the act. The two exceptions contained in the code section are exclusive. Lamar, supra at 402. See Fuller v. State, 169 Ga. App. 488, 489 (1) (313 SE2d 505 (1984).

2. Defendant contends error in the admission of a knife into evidence which was admittedly merely similar to one found in possession of defendant when he was arrested.

As recognized in Paxton v. State, 160 Ga. App. 19, 23 (6) (285 SE2d 741) (1981): “Georgia’s case law is replete with holdings that articles which are similar to ones used in a crime but are not identical are nevertheless admissible.” See, e.g., Evans v. State, 228 Ga. 867, 870 (4) (188 SE2d 861) (1972); Davis v. State, 230 Ga. 902 (5) (199 SE2d 779) (1973); Jung v. State, 237 Ga. 73, 74 (1) (226 SE2d 599) (1976); Duvall v. State, 238 Ga. 325, 326 (232 SE2d 918) (1977); Gunn v. State, 245 Ga. 359, 362 (4) (264 SE2d 862) (1980). However, that case then held that the weapon in question must be one in possession of or belonging to the accused and that the State could not introduce a gun which merely resembled the description given by the victim. There the victim testified that the gun was similar to the one which the accused held on her. See Cunningham v. State, 248 Ga. 835, 837 (4) (286 SE2d 427) (1982). Compare Fields v. State, 167 Ga. App. 816, 817 (2) (307 SE2d 712) (1983).

The knife in this case was not in any way connected with defendant but according to the arresting officer’s testimony was similar to the one he found in defendant’s possession at the time of arrest. As to the reason for the absence of the actual knife, the officer explained he gave it to another individual present at the scene who thereafter lost it. Under Paxton, supra, the knife was inadmissible. But the question remains whether its admission was so harmful as to require a new trial. “[H]arm, as well as error, must be shown for reversal.” Wood v. State, 243 Ga. 273, 274 (253 SE2d 751) (1979).

Decided February 10, 1989

Rehearing denied February 22, 1989.

Mikele S. Carter, for appellant.

Michael H. Crawford, District Attorney, E. J. McCollum, Assistant District Attorney, for appellee.

Defendant admitted possession of a pocketknife, described it and pointed out the ways in which it was dissimilar from the one offered in evidence. Under these circumstances, there was no harmful error. Robinson v. State, 229 Ga. 14, 16 (1) (189 SE2d 53) (1972); Lynn v. State, 181 Ga. App. 461, 464 (2) (352 SE2d 602) (1987). See Green v. State, 177 Ga. App. 179, 180 (1) (338 SE2d 761) (1985); Gunn, supra.

3. Any issue as to unacceptable acoustics in the courtroom was not raised as such at the trial. When the defendant’s difficulty with hearing was complained of midway through the trial and the request was made for witnesses to speak louder, the court acceded and asked counsel to advise if it again became a problem. This curative action apparently resolved the matter at trial, and no further complaint about defendant’s hearing was made until the motion for new trial. If it had persisted, defendant should have made this fact known either to his attorney or to the court at the time. “Where appellant asserts error and no objection is made at the trial it cannot be made the basis of appellate review, either as a ground of a motion for new trial, or as a ground of enumerated error on direct appeal.” Pulliam v. State, 236 Ga. 460, 465 (224 SE2d 8) (1976). “[A] party cannot during the trial ignore what he thinks is an injustice, take his chance on a favorable verdict, and complain later.” Timberlake v. State, 246 Ga. 488, 497 (4) (271 SE2d 792) (1980); Joyner v. State, 208 Ga. 435 (2) (67 SE2d 221) (1951).

In any event, this ground of the motion for new trial has never been substantiated by affidavit or otherwise.

4. The remaining enumerations of error are basically repetitions of the above grounds and are without merit.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    77852.
    MEALER v. GENERAL CINEMA BEVERAGES OF GEORGIA, INC. et al.
    (379 SE2d 192)
   Beasley, Judge.

Plaintiff Mealer appeals the grant of summary, judgment against her. She brought an action against General Cinema Beverages of Georgia, Inc., and Golden Pantry Food Services, Inc., for injuries she sustained in Golden Pantry’s store. According to the allegations of her complaint she picked up a six-pack of one liter Pepsis, removed four bottles and replaced them with a one liter bottle of Mountain Dew. As she was carrying the carton to the check-out counter, the drinks dropped out of the bottom of the carton and burst on the floor, causing her to fall. She sustained a cut foot and injured back. The damages were alleged to have been caused by the negligent maintenance of the cartons by defendants.

Defendants moved for summary judgment based upon the affidavits and depositions of record obtained through the discovery process.

In her deposition plaintiff recounted that after arranging the bottles in the carton she turned and started up the aisle, “the next thing I know, they all just hit the floor, and I hit the floor with em.” When asked if she knew what caused the drinks to fall, she replied: “The bottom had to come out of the carton. There’s no other way out of it.” By affidavit, she had related that she knew the drinks fell out of the carton’s bottom because she was not tilting the carton or carrying it in such a manner as would allow them to fall out the top. She admitted that she did not see it, but explained when the drinks hit the floor the carton was still in her hand. She responded to questions regarding whether she was guessing as to what happened by stating that the bottles falling down through the bottom had to be the “only way.” While she had no actual knowledge, she disputed that the carton did not rip or tear and that the drinks would have had to fall for some other reason.

A former assistant manager of the store, who was a witness to the incident but did not see how plaintiff was holding the carton, related by affidavit that she examined the carton immediately after plaintiff fell and it was intact without irregularities or defects; there were no holes, rips, punctures, or tears. This employee’s deposition testimony was essentially the same. She stated she examined the carton before discarding it and testified: “it was just wet. It was not tore or anything.” She affirmed that one bottle was broken on its upper half.

The court applied the rule: “In passing upon a motion for summary judgment, a finding of fact which may be inferred, but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” Brewer v. Southeastern Fid. Ins. Co., 147 Ga. App. 562, 564 (249 SE2d 668) (1978).

Decided February 10, 1989

Rehearings denied February 22, 1989

Willie J. Woodruff, Jr., for appellant.

McClure, Ramsay & Dickerson, John A. Dickerson, Joe B. Sartain, Jr., Phillip B. Sartain, for appellees.

This principle is subject to an important qualification as expounded in McCurry v. Bailey, 224 Ga. 318, 319 (162 SE2d 9) (1968), that the positive and uncontradicted evidence comes from an unimpeached witness whose testimony is “perfectly consistent with the circumstantial evidence” relied upon. Where there is an utter irreconcilable conflict between the positive direct testimony and the indisputable physical facts, then a jury alone can decide. The test is whether the circumstantial evidence is “perfectly consistent” or “inconsistent” with the direct evidence. Fletcher Emerson &c. Co. v. Davis, 134 Ga. App. 699, 702 (4) (215 SE2d 725) (1975); Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 781 (257 SE2d 186) (1979). Further, “the facts shown must not only reasonably support [the projected] conclusion, but also render less probable all inconsistent conclusions.” Cohen v. Hartlage, 179 Ga. App. 847, 850 (348 SE2d 331) (1986), and cases cited.

A reasonable inference or conclusion from plaintiff’s direct testimony is that the bottles fell from the bottom of the carton. From her testimony all other conclusions are less probable. This constitutes circumstantial evidence of that theory sufficient to support a verdict. Allen Kane’s Major Dodge, supra at 780. The witness testified that her examination of the carton revealed no holes, rips, punctures or tears in the carton. Construing the proof offered on summary judgment in favor of the party opposing the motion, here the plaintiff, the plaintiff’s circumstantial evidence of the condition of the carton is inconsistent with the direct evidence by the witness, that the carton was intact.

“[W]hen circumstances from which a jury may infer a certain fact conflicts with direct evidence that such fact was untrue, a jury question is presented and summary judgment is not proper.” Lane Co. v. Taylor, 174 Ga. App. 356, 361 (4) (330 SE2d 112) (1985). Accord Mixon v. Phoenix Landscaping, 136 Ga. App. 344, 345 (221 SE2d 225) (1975).

Judgment reversed.

Banke, P. J., and Birdsong, J., concur.