author: Beasley, Judge.

text:
    76825.
    SHIRLEY v. THE STATE.
    (373 SE2d 257)
   Beasley, Judge.

Defendant appeals his convictions of rape, OCGA § 16-6-1, and kidnapping, OCGA § 16-5-40. His enumerations of error raise the single question of the sufficiency of the evidence to sustain the verdict. See Lewis v. State, 186 Ga. App. 92 (1) (366 SE2d 305) (1988).

1. Even without a motion to dismiss the appeal, it is the duty of the reviewing court to entertain the threshold question of its jurisdiction where there may be any doubt. Thurmond v. State, 59 Ga. App. 333 (2) (200 SE 807) (1939); Jackson v. State, 203 Ga. 570 (47 SE2d 588) (1948). There is a motion by the State to dismiss on the ground that the notice of appeal was premature because a motion for new trial was still pending below.

Formerly, an appeal from a judgment on a verdict brought while the case was pending on motion for new trial was premature and of no validity. Kurtz v. State, 115 Ga. App. 665 (1) (155 SE2d 735) (1967); Strauss v. Peachtree Assoc., 156 Ga. App. 536 (275 SE2d 90) (1980). This is no longer true for two reasons. First, the decision relied upon by the State, Boothe v. State, 178 Ga. App. 22 (342 SE2d 9) (1986), has been overruled by Eller v. State, 183 Ga. App. 724 (360 SE2d 53) (1987). See Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975). Thus, premature filing is not a ground of dismissal in criminal cases, at least insofar as a criminal defendant is concerned. Compare State v. Rimes, 177 Ga. App. 872 (341 SE2d 710) (1986).

Second, when confronted with a situation where one party timely filed a motion for new trial and the other party filed a notice of appeal within the statutory period in Housing Auth. v. Geter, 252 Ga. 196, 197 (312 SE2d 309) (1984), our Supreme Court recognized that a notice of appeal may divest the trial court of jurisdiction, but the divestiture is delayed until the motion for new trial is ruled upon and either a notice of appeal to that ruling is taken or the time for appeal has expired. The court also noted that the trial court may, on its own motion, grant a new trial within the statutory period even though a notice of appeal has been filed. OCGA § 5-5-40 (h). The opinion held that the proper means of placing the issue before the appellate court was to file a motion for stay of the direct appeal.

Atkinson v. State, 170 Ga. App. 260 (1) (316 SE2d 592) (1984), involved a defendant who filed both a timely notice of appeal and motion for new trial. This court interpreted Geter and determined that we had jurisdiction of the notice of appeal in the absence of a motion to stay. Accord Rich v. Ga. Farm Bureau Mut. Ins. Co., 176 Ga. App. 663 (1) (337 SE2d 370) (1985). Defendant has not filed an application for a stay of the appeal. Nevertheless, because we are confronted with a timely motion for new trial and what is designated an out-of-time notice of appeal, the source of our judisdiction remains questionable and requires inquiry into the posture of this case.

Verdict was rendered on December 8, 1987, and defendant was sentenced that same day. Defendant discharged his retained counsel and the trial court appointed the Fulton County Public Defender on December 10 to represent defendant at a hearing to determine whether he was indigent. Apparently there was no hearing but on January 4, 1988, still within thirty days of judgment, the Public Defender was appointed as defendant’s appeal counsel. The following day, defendant, who was by then at the Georgia Diagnostic Center at Jackson, mailed to the Fulton Superior Court Clerk a motion for new trial on the general grounds, a motion for appointment of counsel, a motion for leave to proceed in forma pauperis and an affidavit of poverty. These documents were received and filed on January 6, again within 30 days of the final judgment. See OCGA § 5-5-40 (a). Defendant’s subsequent request for a transcript was filed on January 11. On January 15 an inter-office memorandum from the clerk to the trial court recited that defendant’s motion for new trial, filed on January 6, was pending and that no notice of appeal had been filed. On January 25, “[g]ood and sufficient reason having been shown,” the trial court allowed defendant to file an out-of-time appeal, and notice of appeal was filed on January 27 by defendant’s appointed counsel. A February 24 inter-office memorandum between clerk and trial court noted the pendency of the notice of appeal but recited that no motion for new trial was filed.

To apply the proper principles we must first ascertain the validity of the motion and the notice of appeal. Historically in Georgia, an out-of-time appeal was granted because to refuse to do so would deprive defendant of his constitutional rights. Among the initial cases recognizing the right to an out-of-time appeal was Roberts v. Caldwell, 230 Ga. 223 (196 SE2d 444) (1973), where on review of a habeas corpus action the Supreme Court found defendant was denied appellate counsel on his first appeal, relying upon Swenson v. Bosler, 386 U. S. 258 (87 SC 996, 18 LE2d 33) (1967), and Douglas v. California, 372 U. S. 353 (83 SC 814, 9 LE2d 811) (1963). See Wilson v. Downie, 228 Ga. 656 (187 SE2d 293) (1972) [which determined that defendant waived his right to appeal]. Another landmark case, McAuliffe v. Rutedge, 231 Ga. 1 (200 SE2d 100) (1973) and 231 Ga. 745 (204 SE2d 141) (1974), involved the grant of an out-of-time appeal via habeas corpus because defendant was deprived of his first appeal by ineffective assistance of counsel who failed to obtain a timely extension of time for filing the transcript.

Deprivation of constitutional rights with respect to the appeal procedure continued to be the source of out-of-time appeal grants in subsequent cases. See Thornton v. Ault, 233 Ga. 172 (210 SE2d 683) (1975); Hopkins v. Hopper, 234 Ga. 236 (215 SE2d 241) (1975); Kreps v. Gray, 234 Ga. 745 (218 SE2d 1) (1975); Bell v. Hopper, 237 Ga. 810 (229 SE2d 658) (1976); Brown v. State, 239 Ga. 435 (238 SE2d 21) (1977); Lay v. State, 242 Ga. 225 (248 SE2d 611) (1978); Williams v. Hopper, 243 Ga. 475 (254 SE2d 854) (1979); Deyton v. Davenport, 245 Ga. 672 (266 SE2d 488) (1980); Gregory v. Green, 249 Ga. 102 (288 SE2d 197) (1982); Webb v. State, 254 Ga. 130 (327 SE2d 224) (1985). Implicit in those cases was the proposition that the statutory requirements, although described as jurisdictional, perforce had to yield to constitutional mandate. Cf. Hester v. State, 242 Ga. 173 (249 SE2d 547) (1978). As a consequence and by way of parallel development, a deprivation of the right to appeal because of some constitutional infirmity, which would be grounds for habeas relief, was used to allow an out-of-time appeal directly without requiring the procedurally correct habeas corpus route.

An early example demonstrating this expedited process is Cunningham v. State, 232 Ga. 416 (207 SE2d 48) (1974), which, on certiorari from our dismissal of an appeal, required that the procedurally defective appeal be considered by this court because the abortive attempt to appeal by retained counsel denied defendant due process and equal protection of the law. For other examples, see Gaylor v. State, 247 Ga. 759 (279 SE2d 207) (1981); Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984); Curry v. State, 148 Ga. App. 59 (251 SE2d 86) (1978); Mobley v. State, 162 Ga. App. 23 (1) (288 SE2d 702) (1982); Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) (1985); Moore v. State, 176 Ga. App. 882 (339 SE2d 271) (1985); Conway v. State, 183 Ga. App. 573 (359 SE2d 438) (1987).

Nevertheless, whether by way of habeas corpus or a more direct approach, the basis for permitting an out-of-time appeal must have rested upon an issue of constitutional dimension concerning the appeal itself, such as ineffective assistance of counsel resulting from failure to file a timely appeal or counsel’s abandoning an appeal desired by defendant, or failure to advise defendant of his right to appeal. Contra, see Mitchell v. State, 157 Ga. App. 181 (1) (276 SE2d 864) (1981) [resting upon the principle of judicial economy]; Johnson v. State, 182 Ga. App. 477 (1) (356 SE2d 101) (1987) [stating that a constitutional issue was unnecessary but finding defendant was deprived of right to appeal through ineffective assistance of counsel].

An out-of-time appeal is unauthorized if the loss of the right to appeal was attributable to defendant sleeping on or waiving his rights. Henry v. Hopper, 235 Ga. 196 (219 SE2d 119) (1975). Accord Westberry v. State, 257 Ga. 617 (361 SE2d 826) (1987); State v. Denson, 236 Ga. 239 (223 SE2d 640) (1976); Wilson v. Downie, supra. Cannon v. State, supra, 743, decreed that the trial court’s order “reveal a specific determination as to whether the right to appeal was lost as the result of ineffective assistance of counsel or of appellant’s own conduct.”

Because an appeal may be filed within 30 days of an order disposing of a motion for new trial, OCGA § 5-6-38 (a), the necessity for an out-of-time appeal based upon constitutional deprivation existed in this case only if the motion for new trial was procedurally defective or had been abandoned. From the record, no request was filed and thus no basis articulated for the grant of the out-of-time appeal. What exactly constituted the “good and sufficient cause” found by the trial court does not appear. Upon consideration of the appeal as initially presented, the record was also silent as to how defendant’s counsel and the court viewed the motion for new trial, whether as valid or not. Thus, it was not clear that defendant had lost the right to appeal at the time of the out-of-time appeal grant, because the efficacy of that determination hinged upon the status of the motion for new trial.

Decided September 9, 1988.

Harry J. Bowden, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Joyce M. Averils, Assistant District Attorneys, for appellee.

Prior to our publication of a decision in this appeal, the trial court entered an order on July 28, 1988, denying the motion for new trial which was duly forwarded to our clerk on August 18. Neither counsel informed this court of this postural change so vital to the issue of jurisdiction.

The disposition of the motion for new trial obviated all need for an out-of-time appeal since defendant had 30 days after entry of that judgment in which to file an ordinary appeal. Nevertheless, while the denial of the new trial motion was the demise of the notice as an out-of-time appeal, it served to vitalize it as a timely appeal. As a premature notice of appeal it became effective upon entry of a final judgment. Hendrick v. State, 257 Ga. 514 (fn. 1) (361 SE2d 169) (1987); Stewart v. State, 257 Ga. 211 (fn. 1) (356 SE2d 515) (1987); Gillen v. Bostick, supra; Eller v. State, supra.

The motion to dismiss is denied and we consider the case on its merits.

2. Since 1978 (Ga. L. 1978, p. 3), corroboration of the victim’s testimony is no longer a requirement to authorize a conviction for rape. Perry v. State, 154 Ga. App. 385 (268 SE2d 747) (1980). The victim described acts which constituted the essential elements of both charged crimes. She testified that defendant struck her down on the street and forced her to accompany him in a red pick-up truck by poking a sharp object in her back. After driving her around for a long time, defendant took the victim to his apartment where, against her will, he had sexual intercourse with her several times. When she complained or struggled, he struck her. The victim finally escaped and notified her family who in turn reported the offenses to the police. According to witnesses and a contemporary photograph, the victim had facial bruises. A doctor’s examination revealed injury around and trauma to her eye, and the presence of sperm in her vagina. Thus, the evidence, taking that version favorable to the verdict, was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt.

Judgment affirmed.

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


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    76849.
    KELLY v. THE STATE.
    (373 SE2d 63)
   Sognier, Judge.

Eric Kelly appeals from his conviction of armed robbery and aggravated assault.

Appellant was indicted with a co-defendant, Ulysses Grant, for the offenses of murder, armed robbery, aggravated assault, and possession of a firearm or knife during the commission of a crime. A motion to sever parties was granted the day of trial, and appellant was tried alone. He was acquitted of the murder and firearm charges, and found guilty of armed robbery and aggravated assault.

1. Appellant contends the evidence was insufficient to support his conviction for armed robbery. The evidence, construed so as to support the verdict, showed that on the date in issue the victims, Richard Thrower and James Ballard, had been bar-hopping since about 4:00 p.m. About midnight, they arrived at Sam Bower’s Lounge in Chatham County. After drinking there for approximately two hours, they left the lounge and proceeded to cross the street to get into their parked truck. They were on opposite sides of the truck when Thrower was shot and Ballard was hit on the head and knocked out. Thrower subsequently died as a result of his wound. Ballard testified that he had his billfold, containing approximately twenty dollars, when he approached the truck, but that when he came to his senses after being hit, his billfold was gone.

Nathaniel Wilson, a patron at the lounge, testified that when he stepped outside to get some air he heard a shot and saw appellant, whom he knew, “tussling” with a man who was bleeding, and called an ambulance. When he then observed appellant fleeing the scene, he telephoned the police. Teresa Cope, who had been standing outside the lounge, testified that appellant was with Ulysses Grant, that she had spoken with appellant moments before the incident, and that he said he was “going to get into something.” Shortly thereafter she heard the gunshot, and it appeared to her that Ulysses Grant had shot Thrower. She saw appellant “tussle” with a man and strike him with what appeared to her to be a stick.

Although appellant denies he ever crossed the street outside the lounge, we find the above evidence sufficient to authorize the jury to convict appellant of armed robbery under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant claims a fatal variance between the allegata and the probata as to the charge of armed robbery because the indictment charged that appellant “did, with the intent to commit theft, take a wallet and money of Richard Thrower and James Ballard from their person and immediate presence by use of offensive weapons, to wit: a pistol and a stick object, contrary to the laws of the State of Georgia, the good order, peace and dignity thereof,” but no proof was introduced of any taking from Richard Thrower. Appellant argues that because the indictment was drawn in this manner, to avoid a fatal variance, the State must have proved that Thrower was robbed as well, and since it did not, appellant should have been granted a directed verdict of acquittal as to the entire charge as drawn. We do not agree.

Appellant was indicted jointly with Ulysses Grant, and the indictment as to armed robbery charged that appellant and Grant committed the crime of armed robbery against both Thrower and Ballard. However, the State conceded at the charge conference that no evidence had been adduced as to robbery of Thrower, and the trial court granted appellant’s motion for a directed verdict of acquittal as to the armed robbery of Thrower. The jury was subsequently charged that they could consider the armed robbery charge only as to Ballard.

“We find no fatal variance between the allegations and proof under the criteria adopted in DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801) [(1969)]. The accused was definitely informed as to the charges against him .... Additionally, we find that [appellant] stands protected against further prosecution for the involved offenses. [Cits.]” Bland v. State, 182 Ga. App. 626, 627 (356 SE2d 704) (1987). “ Tn criminal law an unnecessarily minute description of a necessary fact must be -proved as charged; but an unnecessary description of an unnecessary fact need not be proved.’ [Cit.]” Bell v. State, 227 Ga. 800, 802 (1) (183 SE2d 357) (1971). The recitation of the fact of the robbery of Thrower in the indictment was not necessary to the charge of committing armed robbery with respect to Ballard, but was mere surplusage, and thus the failure to prove those facts is not a fatal variance requiring reversal of appellant’s conviction for the armed robbery of Ballard. Id. at 801-802 (1).

3. Appellant maintains the conviction for aggravated assault should be vacated pursuant to the doctrine of merger. “Offenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other. [Cits.] The only aggravated assault [committed by appellant] shown by the evidence in this case was that by which the commission of the armed robbery was effectuated. There having been no additional, gratuitous violence employed against the victim, it follows that the evidentiary basis for the aggravated assault conviction was ‘used up’ in proving the armed robbery. [Cit.] The entry of separate convictions for both offenses is thus barred by OCGA § 16-1-7 (a), which prohibits multiple convictions for the same conduct. [Cits.] The aggravated assault conviction is accordingly vacated.” Young v. State, 177 Ga. App. 756, 757 (2) (341 SE2d 286) (1986). See also Chitwood v. State, 170 Ga. App. 599, 600-601 (4) (317 SE2d 589) (1984). 4. Our decision in Division 3 renders moot appellant’s remaining enumeration of error.

Decided September 9, 1988.

Kenneth D. Kondritzer, for appellant.

Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., Assistant District Attorney, for appellee.

Judgment affirmed as to armed robbery. Judgment vacated as to aggravated assault.

Deen, P. J., and Carley, J., concur.


author: McMurray, Presiding Judge.

text:
    77051.
    In the Interest of S. B.
    (373 SE2d 46)
   McMurray, Presiding Judge.

The father of S. B. appeals from a juvenile court order terminating his parental rights in the child.

The juvenile court found the following facts to be established by clear and convincing evidence: The child’s mother and father were not married. Several months prior to the child’s birth the father pled guilty to a felony charge of theft by taking and was sentenced to five years in prison. The child was born on April 17,1984. In November of 1984 the mother voluntarily surrendered her parental rights to the child to the Thomas County Department of Family and Children Services for the purpose of placing the child for adoption. The child remained in the custody of the Thomas County Department of Family and Children Services continuously through the date of the hearing in the case sub judice (November 19, 1987). The father did not see the child during the period the child was in the custody of said department. (There is evidence that the child might have visited his father in prison prior to the mother’s surrender of her parental rights.) In July of 1985 a. caseworker from the Thomas County Department of Family and Children Services visited the father in prison for the purpose of asking the father if he wanted to surrender his parental rights or, if not, then what plans were going to be made for the child’s care. The caseworker suggested that the father take action to legitimate the child. The father also gave the caseworker the names of two of his relatives that he would want to be investigated as possible placements for the child. The father did contact “Legal Aid out of Valdosta” regarding the legitimation. There is some indication that the process was begun, but never completed. The father testified that after receiving a letter from an attorney stating that the case had been “continued,” he had not heard anymore about it and had done nothing else regarding the legitimation. The Thomas County Department of Family and Children Services investigated the two possible placements suggested by the father and found neither to be satisfactory.

From July of 1985 to October of 1986 the father did not make any attempt to contact the Thomas County Department of Family and Children Services regarding the child, did not attempt to communicate with the child in any way, and did not attempt to provide any support for the child. These circumstances continued after the father was paroled from prison in October of 1986 and returned to Thomas-ville, Georgia.

On December 18, 1986, the father did appear in the juvenile court at a hearing regarding temporary custody. The father was instructed to contact Jackson, a caseworker, regarding making plans for the child. This meeting never took place.

In November of 1986, less than 30 days after his release from prison, the father was arrested and charged with a theft offense. The father made bond and was released, but on January 1, 1987, was arrested again and charged with another theft offense. As a result of these two offenses the father’s parole was revoked and he was returned to prison with a scheduled release of April 7, 1988.

The father has a lengthy criminal record, and has spent most of the past 11 years in prison. From the time of the child’s birth until the termination hearing the father has been in prison the entire time, except November and December of 1986.

At the termination hearing the father stated that he wanted to provide for the child after his release from prison, but admitted that he could not do so on his own, that he would have to rely on relatives to help him care for the child. The father acknowledged that he had not seen the child in over three years, and that he would not recognize the child if he were brought into the room.

The father has six other children from three different mothers. The father has never married any of these women and the six other children are all receiving welfare benefits. The father admitted that he had never been able to support any of the children.

The juvenile court also received evidence from a licensed child psychologist that the child is reaching the age where he needs to know that he belongs to a family. The psychologist stated that the child needs a permanent home as soon as possible in order to avoid identity problems which can cause serious physical, mental or emotional harm to the child.

Based on its findings of fact, the juvenile court made a determination of parental misconduct based on its findings under each of the subsections of OCGA § 15-11-81 (b) (4) (A). After its determination of parental misconduct or inability, the juvenile court concluded that termination of the parental rights of the father is in the best interest of the child. The juvenile court also concluded that the parental rights of the father should be terminated pursuant to OCGA § 15-11-83 (d) (5) (C) since the father’s conduct was not sufficient to establish a familial bond with the child.

Decided September 9, 1988.

Stephen H. Andrews, for appellant.

Daniel M. Mitchell, Jr., Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

The father appeals the juvenile court order terminating his parental rights in the child. The sole enumeration of error raises the sufficiency of the evidence to support the termination of parental rights. Held:

“When the court below has made a determination to terminate parental rights, the appropriate standard of appellate review is ‘ “whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence, that the natural parents’ rights to custody have been lost.” ’ Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821); In re K. H., 179 Ga. App. 4, 9 (345 SE2d 108).” In the Interest of S. G. & T. G., 182 Ga. App. 95, 100, 101 (354 SE2d 640). After reviewing the record in the case sub judice, according to the standard stated, we find that the judgment in the case sub judice is sustained by clear and convincing evidence that this father’s parental rights in his child, S. B., have been lost. In the Interest of S. G. & T. G., 182 Ga. App. 95, supra; In re G. M. N. & D. M. N., 183 Ga. App. 458 (359 SE2d 217); In the Interest of J. L. Y., 184 Ga. App. 254, 255 (2), 257 (361 SE2d 246).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    77101.
    SNIPES v. THE STATE.
    (373 SE2d 48)
   Sognier, Judge.

John Snipes was convicted of two counts of armed robbery and one count of aggravated assault and he appeals.

1. Appellant first enumerates the general grounds. The record reveals that in the early morning hours of September 1, 1986, two men wearing stocking masks entered the Western Sizzlin Restaurant in Columbus, Georgia and robbed the assistant manager and a waitress at gunpoint. In addition, the assistant manager was kicked and beaten, as well as assaulted with the gun. Although the assistant manager testified that he was in such fear for his life that he could tell only that the robbers were black males, the waitress identified appellant and Willie James McKay as the robbers. Charles Thomas, who worked at the restaurant as a dishwasher, testified that as he was leaving work, he observed John Hicks, the restaurant’s cook, loitering about the outside of the restaurant, and that Hicks was looking for someone. As he walked to his car Thomas noticed two men wearing stocking caps on their heads, but not over their faces, crouched in the bushes alongside the restaurant. He later identified these two men as appellant and McKay. Thomas testified that at work the next day Hicks threatened him, saying that he (Thomas) had “a ticket to heaven” because he had seen the two men outside the restaurant. Both Hicks and McKay testified to their complicity in the robbery and both implicated appellant as the man with the gun. Although appellant denied at trial that he had been at the restaurant that night, two Columbus detectives testified that he had confessed to the crimes after voluntarily signing a waiver of rights form. We find this evidence sufficient to authorize the jury to convict appellant of the crimes charged under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends that his confession was improperly admitted because the trial court erroneously determined that appellant had voluntarily waived his right to an attorney. We do not agree. Before admitting testimony regarding appellant’s confession, the trial judge held a lengthy Jackson-Denno hearing. Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). It is undisputed that appellant had been interrogated by a different team of detectives on the day before the interrogation during which he confessed, and this first session was properly halted because appellant requested the assistance of counsel. However, appellant, a 34-year-old man with two years of college education, admitted being read his rights and signing a waiver of those rights, including the right to counsel, the day after he requested an attorney. In Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981), the Supreme Court held that once an accused expresses the desire to deal with the police only through counsel, subsequent advice of rights and acquiescence by the accused to police-initiated interrogation does not establish a valid waiver. “[OJnce a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him. [Cit.] ” Solem v. Stumes, 465 U. S. 638, 641 (104 SC 1338, 79 LE2d 579) (1984). “But even if a conversation taking place after the accused has ‘expressed his desire to deal with the police only through counsel,’ is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” Oregon v. Bradshaw, 462 U. S. 1039, 1044 (103 SC 2830, 77 LE2d 405) (1983).

Decided September 9, 1988.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, Bradford R. Pierce, Assistant District Attorney, for appellee.

In the case sub judice, the testimony at the Jackson-Denno hearing was in direct conflict as to whether appellant initiated the interview at which the confession was obtained, as the two detectives testified, or whether it was initiated by the police, as appellant alleged. The issue was thus one of credibility. “ ‘ “The standard for determining the admissibility of confessions is the preponderance of the evidence. [Cits.] To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. [Cits.] . . . Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. [Cits.]” ’ [Cit.]” Bassett v. State, 159 Ga. App. 829-830 (1) (285 SE2d 260) (1981). We find that the trial court’s determination was not clearly erroneous and that there was no error in the admission of the confession.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


author: Banke, Presiding Judge. Beasley, Judge, Beasley, Judge,

text:
    76401.
    ROE et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    (373 SE2d 23)
   Banke, Presiding Judge.

This is an appeal from a summary judgment entered in favor of the appellee, State Farm Fire & Casualty Company, in a declaratory judgment action brought to determine its obligation to defend an- insured in an action arising out of the insured’s sexual molestation of the appellants’ minor daughter. The trial court determined as a matter of law that the policy language excluded coverage for the child’s injuries.

It is undisputed that the child was repeatedly molested by the insured while she was between seven and ten years of age. At times she was enticed to submit to his will by offers of candy or threats that nude photographs taken of her would be shown to her friends. The insured ultimately pled guilty to the offenses of child molestation and enticing a child for indecent purposes, following which the appellants presented a “Memorandum of Claim” to the appellee, seeking to recover damages for the insured’s conduct. Thereafter, the appellee brought the present declaratory judgment action seeking a determination that it had no obligation in the matter, due to a policy exclusion pertaining to bodily injury “expected or intended by the insured.”

In deposition testimony, the insured asserted that he had not intended to injure the girl; and it is on the basis of this testimony that the appellants contend that the policy exclusion does not apply. The insurer, on the other hand, argues that the insured, by the very nature of his acts, must be presumed to have acted with the knowledge and expectation that his conduct would result in injury to the child, regardless of his actual, subjective state of mind. Held:

“The general rule which appears to have developed through judicial interpretation and application of exclusionary provisions such as the one in the instant case is that they are inapplicable if and only if the insured acts without the intent or expectation of causing any injury, however slight. Conversely, such an exclusion is applicable if the insured acts with the intent or expectation that bodily injury occur, even if the actual, resulting injury is different either in kind or magnitude from that intended or expected.” Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333, 335 (291 SE2d 410) (1982).

The statutes prohibiting child molestation (OCGA § 16-6-4) and enticement of children for indecent purposes (OCGA § 16-6-5) were promulgated by the Legislature as part of a general statutory scheme to protect children under the age of 14 from physical and psychological damage resulting from sexual exploitation. See Barnes v. State, 244 Ga. 302, 304-305 (260 SE2d 40) (1979). In adopting this legislation, the Legislature made the common-sense recognition that inherent in every such act is the element of harm. Based on the undisputed facts disclosed by the record in this case, it is clear that if the insured did not actively intend harm to the appellants’ daughter, he was at the very least consciously indifferent to the consequences of his conduct upon her. We conclude that he must be presumed under such circumstances to have intended those injuries which naturally and unavoidably flowed from his criminal misconduct, with the result that his assertion that he did not subjectively intend to cause injury to the girl “does not demonstrate any unintended consequences of an intentional act so as to avoid application of the policy exclusion.” Antill v. State Farm Fire &c. Co., 178 Ga. App. 659 (344 SE2d 480) (1986). To conclude otherwise would be to allow any insured to defeat such a policy exclusion, no matter how heinous his mistreatment of the injured person, simply by stating that he had no subjective intention of causing the injury but desired merely to satisfy an inner urge. Accordingly, we hold that the exclusion in the subject policy is applicable and that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

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

Beasley, Judge,

dissenting.

In order for insurer’s summary judgment to stand avoiding liability by the exclusion, the record must show that the evidence, including all reasonable inferences and construed in favor of the non-moving claimants, is such that, as a matter of law, the molester expected or intended bodily harm to come to the child as a result of his acts. OCGA § 9-11-56 (c); Hallford v. Kelley, 184 Ga. App. 90, 92 (360 SE2d 644) (1987).

There is evidence supporting the insured’s denial of intention to harm, that the insured was so consumed with his desire that his total intention was to satisfy himself, and that he gave no thought whatsoever to the effect on the child. There is a distinction between intentional acts and intentional consequences or results. It is the latter which is the focus of the exclusion. Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333 (291 SE2d 410) (1982). At this stage, therefore, a fact resolution remains. As said in State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377, 378 (364 SE2d 62) (1987), “the concern is whether intent is or was present in fact, in order to determine the applicability of a policy exclusion . . . the burden is on the carrier to prove and persuade that the injuries were within the scope of the exclusion.” Thus at trial the burden will be on the insurer to prove that the insured expected or intended bodily injury to the child when he acted. Similar then to the situation in State Farm, supra at 379, “[t]he question of whether the [actor’s condition] was such as to preclude the formation of intent or expectation [is] a question for the jury, . . . .” The Supreme Court of Georgia agreed. State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988).

Thus I do agree that the issue with respect to coverage is whether bodily injury was expected or intended by the insured, but I find no authority for the broadening construction of that term by the majority which adds “consciously indifferent to the consequences” to the oft-adjudicated words of the policy. Indifference, even conscious indifference, is not the same mental attitude as intention. Insurance policy exclusions are to be strictly construed, “against the insurer and in favor of providing the indemnity sought.” Mutual Life Ins. Co. v. Bishop, 132 Ga. App. 816 (209 SE2d 223) (1974); State Farm, supra at 379. The newly imported term means “lack of feeling for or against anything; unconcernedness; apathy.” Webster’s New Inti. Dictionary, 2d ed. Particularly with the principle of strict construction in mind, conscious indifference does not equate with intention so as to be part of the latter’s definition.

Furthermore, the exclusion relates to bodily injury, and the injuries for which coverage is sought here and of which there is some evidence are solely psychological injuries or, as claimants term it, “mental damages.”

On these bases, I respectfully dissent.

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this dissent.

On Motion for Rehearing.

On motion for rehearing, the appellants cite the Georgia Supreme Court’s recent decision in State Farm Fire &c. Co. v. Morgan, 258 Ga. 276 (368 SE2d 509) (1988), aff'g 185 Ga. App. 377 (364 SE2d 62) (1987), as authority for their contention that a material factual dispute exists in this case with respect to whether the insured had any intention to injure the victim. In that case, the Supreme Court held that although voluntary intoxication may not relieve a person of criminal liability for the consequences of his actions, it may render him incapable of forming an intent or expectation of injuring another, so as to place his actions outside an intentional misconduct exclusion in a homeowner’s insurance policy. There is no evidence and no allegation in the case before us that the insured was debilitated by intoxication at any time during the three years in which he carried out his repeated acts of sexual molestation, nor is there any allegation that he suffered from any mental disorder which might have affected his capacity to intend the results of his misconduct. Consequently, State Farm Fire &c. Co. v. Morgan has no bearing on the present case.

Beasley, Judge,

dissenting to addendum.

I do not join in the addendum because, as recognized in the original dissent, the underlying principles in State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377 (364 SE2d 62) (1987), obtain here. The subsequent review of that case by the Supreme Court confirms the validity of claimants’ position.

Decided June 1, 1988

Rehearing denied September 12, 1988

Hamilton Lokey, R. Daniel McGinnis, for appellants.

Stephen L. Cotter, Kent K. Carter, for appellee.

       In tort law, as a basis for punitive damages, the expression relates to “an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447) (1975).


author: Birdsong, Chief Judge.

text:
    76755.
    WARD v. THE STATE.
    (373 SE2d 65)
   Birdsong, Chief Judge.

Appellant Elwin J. Ward brings this appeal from his conviction in the Clayton County State Court of two traffic offenses. He insists that he is appearing “in Propria Persona, NOT pro se,” and filed his appeal with the Georgia Supreme Court, which promptly forwarded it to this court for consideration of the enumerated errors. Held:

Appellant’s enumerations of error, in essence, raise three principal claims of error, with 15 subsections: (1) Lack of jurisdiction of “Persons and Subject Matter,” (2) Denial, by the trial court, of his “Demand for Bill of Particulars,” and (3) The lack of a transcript being prepared by the trial court.

1. Appellant claims the status of “Citizen de jure . . . therefore subject to the protections and object of the national and State constitutions and laws.” We have no basis in the record for or against such a claim, but assuming without deciding appellant is a citizen, we care not whether his claim is de jure, de facto, de gratia or de aequitate, as any “citizen” is entitled to all the rights and privileges enjoyed by any person under our federal and state constitutions and laws. On the basis of his citizenship claim, he asserts the State has no jurisdiction over his person “absent a breach of the peace or safety of the community or a deprivation of the life, liberty or property of another individual.” This appears to be a challenge to the police power of the state.

“Police power” is a general term used to express the inherent right of every sovereign to legislate for the protection of lives, health, and property of its citizenry, and for the preservation of good order and public morals, and is not subject to any definite limitations, but is coextensive with necessities of the particular situation and safeguard of the public interest. Hayes v. Howell, 251 Ga. 580, 585 (308 SE2d 170); accord Pope v. City of Atlanta, 242 Ga. 331, 333-334 (249 SE2d 16). Under its police power the State may control generally the operation of motor vehicles upon a public highway, and any constitutional attack upon the exercise of such police power as being unconstitutional is without merit. Lebrun v. State, 255 Ga. 406 (1) (339 SE2d 227); Andrew v. State, 238 Ga. 433, 434 (233 SE2d 209). Hence, the right to operate a motor vehicle upon the public highways of this State is a qualified right which can be exercised only by obtaining a driver’s license from the State. Johnston v. State, 236 Ga. 370, 371 (223 SE2d 808); accord Keenan v. Hardison, 245 Ga. 599, 602 (266 SE2d 205); OCGA § 40-5-20 (a). See Lebrun v. State, supra, as to no infringement upon the claim of a “common law freeman” to drive without a license.

Appellant was tried in the Clayton County State Court on two Uniform Traffic Citations — one alleging a “red light violation,” and the other — “no license on person.” Our statutes authorize trial in a state court of offenses in violation of our traffic code. OCGA § 17-7-71 (b). A state court is one which is vested with judicial power of this state. Art. VI, Sec. I, Par. I, Ga. Const, of 1983. An indictment is not required (OCGA § 15-7-46) and an accused may be tried upon the Uniform Traffic Citation. OCGA § 17-7-71 (b). The charges of the red light violation and driving without a license on the person are misdemeanor offenses. OCGA §§ 40-5-20; 40-5-29; 40-5-121 (a); 40-6-1; 40-6-20. Thus, the State has the power to determine these were traffic violations, these offenses were properly triable in the state court, and the police officer who issued the citations was performing the duties of his office. Carr v. State, 176 Ga. App. 113, 114-115 (335 SE2d 622). There was jurisdiction of the subject matter and the person. See Hopkins v. Hopkins, 237 Ga. 845 (1) (229 SE2d 751).

We have examined the remaining bases argued as error and find them to be without merit.

2. Appellant alleges error in the denial of his “Demand for Bill of Particulars.” A “bill of particulars” is not a recognized pleading in the state of Georgia. Brooks v. State, 141 Ga. App. 725, 730 (3) (234 SE2d 541); Smith v. State, 139 Ga. App. 515, 519 (4) (228 SE2d 705). Further the purpose of a “bill of particulars” is to inform a defendant of the charges against him in sufficient detail to minimize surprise at trial. United States v. Hawkins, 661 F2d 436 (5th Cir. 1981). The grant of a motion for a bill of particulars lies within the sound discretion of the trial court and an appellate court will reverse only for abuse of that discretion. United States v. Colson, 662 F2d 1389 (11th Cir. 1981). When an indictment or accusation adequately informs an accused of the charges against him and his request for a bill of particulars seeks information beyond that necessary to enable him to prepare for trial and avoid surprise, denial of his motion is neither prejudicial nor an abuse of discretion. United States v. Sheriff, 546 F2d 604 (5th Cir. 1977).

Appellant’s demand for a bill of particulars addressed such issues as: (1) Upon “whose sworn complaint” were these charges based? (2) “Is this Court acting as an administrative tribunal?” (3) “Does this Court possess the ability and lawful authority to determine legal issues in the instant matter?” (4) “Does this Court possess the ability and lawful authority to determine statutory law in the instant matter?” (5) “Are the accusations in the instant matter brought pursuant to, or through: (a) Law of Nations? (b) Martial Law? (c) Administrative Law? [;] or by implied consent of Defendant, to any one or more of (a), (b), or (c), supra?” (6) “What or who is the corpus delecti?” (7) “Have the citations in the instant matter ever been filed with the Grand Jury of this County?” Clearly, the foregoing examples taken from the so-called bill of particulars are not germane to a determination of any issue properly before the trial court, nor are they of the genus common to bills of particulars. Although some of the myriad questions may have some relevance to an issue to make more definite and certain, we have thoroughly examined all requests made, and disregarding the nomenclature of the pleading (McDonald v. State, 222 Ga. 596, 597 (151 SE2d 121)) and addressing only the substance of the request, we find no abuse of discretion of the trial court and no merit to this enumeration.

Decided September 12, 1988.

Elwin Ward, pro se.

3. It is argued that the trial court erred in not having a transcript made of the trial proceedings. This was a trial of two misdemeanors. OCGA §§ 40-5-20; 40-5-29; 40-5-121 (a); 40-6-1; 40-6-20. In misdemeanor cases, it is discretionary with the trial court as to whether the proceedings are transcribed. OCGA § 5-6-41 (b). Our legislature has decreed that the Uniform Traffic Citation shall serve as the “record of the disposition of the matter by the court before which the accused is brought. . . .” OCGA § 40-13-1. Thus, absent a demand for a transcript, prepared at the request of the demanding party, the reporting of such case is not required as a matter of law. Sheriff v. State, 184 Ga. App. 180 (361 SE2d 53).

We will note that the appellant has a right to have a record constructed under OCGA § 5-6-41 (g), but has not attempted to avail himself of this right. Anderson v. Anderson, 235 Ga. 115 (1) (218 SE2d 846); Williams v. State, 140 Ga. App. 87, 89 (230 SE2d 94). Appellant has the burden of showing error which has harmed him, and such error must be shown by the record (Hancock v. Oates, 244 Ga. 175, 176 (259 SE2d 437)) and this cannot be done by the brief. Lowery v. Horn, 147 Ga. App. 880 (251 SE2d 840). We find no error on the record before us.

Judgment affirmed.

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

John C. Carbo III, Solicitor, for appellee.


author:
Birdsong, Chief Judge.
      Judgment affirmed.

text:
    76845.
    FARMER v. THE STATE.
    (373 SE2d 68)
   Birdsong, Chief Judge.

Appellant, Alex D. Farmer, appeals his conviction of one count of possession of cocaine and one count of possession of marijuana. From the evidence introduced, the jury was authorized to believe that during the early morning hours of December 4, 1986, approximately 2:55 a.m., members of the Albany Police Department executed a search warrant of a house it had under surveillance for the previous three days. Appellant Farmer had been “in and out” of and was known “to frequent that area.” The officers entered the house from the front and rear at the same time. Farmer was found lying on a mattress in the front room. George Chaney was standing by the front door and Leonard Chaney was lying close to the mattress where Farmer was found. The officers executing the warrant found three small packets of marijuana, one marijuana cigarette, and three small and one large packet of cocaine near the mattress. Also found under the mattress where Farmer was lying was $359.22 in bills and change. The Chaneys and Farmer were placed under arrest and taken to a police car. The officers were unable to turn off a kerosene heater in the searched apartment and asked the Chaneys and Farmer if they knew how the heater could be turned off. Leonard Chaney and Farmer advised the officers they “lived there” and all three volunteered to turn off the heater. The cocaine and marijuana were packaged in small packets usually associated with dealers who possessed drugs for sale. Held:

Appellant contends the trial court erred “in failing to grant [his] motion for a directed verdict. . . .” The basis for such argument is that the evidence did not show he “was in possession of any contraband” and a lack of any evidence showing any connection between him and the contraband. “Possession may be joint or exclusive, and actual or constructive.” Garvey v. State, 176 Ga. App. 268, 274 (335 SE2d 640). “ ‘A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.’ . . . Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Shirley v. State, 166 Ga. App. 456, 457 (304 SE2d 468). “ ‘ “Merely finding contraband on premises occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” ’ ” Anderson v. State, 166 Ga. App. 459, 460 (304 SE2d 550).

Decided September 12, 1988.

John F. Salter, for appellant.

Hobart M. Hind, District Attorney, Melodie B. Swartzbaugh, Assistant District Attorney, for appellee.

“The difference between actual and constructive possession is one of degree and ‘often so shade into one another that it is difficult to say where one ends and the other begins.’ [Cit.] Where drugs are found in the ‘immediate presence’ of the defendant, the jury is authorized to find they are ‘in the constructive possession’ of the accused. Wisdom v. State, 234 Ga. 650, 654 (217 SE2d 244).” Garvey, supra at 274. The drugs here were found in the “immediate presence” of the appellant. The jury would be authorized to convict if they should find beyond a reasonable doubt that the appellant “ ‘had actual or constructive possession either alone or jointly with others.’ ” State v. Lewis, 249 Ga. 565, 567 (292 SE2d 667). “If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.” Castillo v. State, 166 Ga. App. 817, 819 (305 SE2d 629).

Here, the evidence established that appellant had been seen “in and out” of the house and area, he knew how to turn off the kerosene heater in the searched apartment, he was spending the night in the house, admitted he lived there, and marijuana and cocaine were found adjacent to the mattress he was sleeping on, and money was found under the mattress. The totality of the evidence was sufficient to connect the appellant to possession of the drugs, even though the evidence would have authorized a finding that others had equal access to the same drugs. Ramsay v. State, 175 Ga. App. 97, 100 (332 SE2d 390); Pamplin v. State, 164 Ga. App. 610, 611 (298 SE2d 622); Teems v. State, 161 Ga. App. 339, 340 (287 SE2d 774).

When viewed in the light favorable to the verdict, as an appellate court is required to do on appeal, the evidence was sufficient to enable any rational trier of fact to find the existence of guilt of the appellant for the offenses charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hence, based upon the evidence cited above, the trial court did not err in refusing to direct a verdict of acquittal. Lee v. State, 247 Ga. 411 (6) (276 SE2d 590); Maddox v. State, 170 Ga. App. 498 (1) (317 SE2d 617).

Judgment affirmed.

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


text:
    76772.
    MEADOWS v. PHILLIPS.
    (373 SE2d 27)
   Sognier, Judge.

Zack Phillips brought suit against his son-in-law, Robert Meadows, alleging that Meadows owed him $4,000 and that he had been stubborn and litigious in failing to repay it. Meadows denied owing the money. The trial court granted Phillips’ motion for summary judgment and Meadows appeals.

The record reveals that on several occasions beginning approximately in 1980 appellee brought various sums of money either to appellant or to appellant’s wife, who was appellee’s daughter, for safekeeping, explaining that he just did not want the money “in his name.” It is uncontroverted that the bulk of this money — about $45,000 by appellee’s reckoning; about $90,000 according to appellant — was repaid as appellee called for various sums from time to time. Apparently the only record kept of these continuing transactions was a running tally appellee made out of the presence of appellant and kept at his home.

To support the allegation in his complaint that the money was owed, appellee relied primarily on a memorandum or receipt, written on appellee’s business letterhead, which stated “Zack Phillips gave to Mr. Meadows $4,000.00 to buy shares in Sears and Roebuck Stock. These shares was [sic] to be matured sometime during the month of June, 1984,” followed by appellant’s signature, address and phone number, and the notation, in appellant’s handwriting, “$4,000 + Interest on Sears shares.” In support of his motion for summary judgment, appellee relied on that receipt, as well as on his own affidavit, in which he swore he gave appellant $4,000 on or about August 7, 1981, with the express understanding that he was to hold it until it was asked for; that appellee had agreed with appellant’s suggestion that the money be invested in a Sears stock savings plan; that appellant signed the receipt; and that repeated demands had been made upon appellant to return the money. In addition, appellee relied on appellant’s deposition testimony that some of the money left with him by appellee had been spent, and that he had not returned the $4,000 referred to in the receipt, as being “tacit admissions” that the money was owed.

In opposition to the motion for summary judgment, appellant submitted his own affidavit, in which he swore that at the time he signed the document referred to in the motion, he received no money, but had signed the document at appellee’s request so that appellee could show it to one of his creditors to convince the creditor that appellee was owed $4,000. Appellant further stated that he was “not indebted to Zack Phillips in any amount whatsoever.” Further, in his deposition testimony appellant stated that he believed he had returned all of appellee’s funds.

Decided September 6, 1988

Rehearing denied September 13, 1988.

Allen F. Townsend, for appellant.

Gordon G. Greenhut, for appellee.

“Receipts for money are always only prima-facie evidence of payment and may be denied or explained by parol.” OCGA § 24-6-9. It is well established that if an explanation is given, the existence of the receipt may be disregarded by the trier of fact. Atlantic Coast Line R. Co. v. Thomas, 14 Ga. App. 619 (82 SE 299) (1914). Thus the existence of the receipt, if explained, does not preclude the existence of a genuine issue of material fact here as to whether appellant received the $4,000 referred to in the receipt.

The evidence of record reveals a conflict exists, thus creating genuine issues of material fact as to the circumstances under which the receipt was signed, and as to whether appellant owes appellee any money. “ ‘(T)he party opposing a motion for summary judgment is to be given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence [cit.] . . .’ [Cit.] Applying the foregoing rule to the evidence in this case, we find the grant of summary judgment erroneous.” Webster v. Vulcan Materials Co., 184 Ga. App. 749 (362 SE2d 420) (1987).

Judgment reversed.

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


text:
    75605.
    DAWSON v. THE STATE.
    (373 SE2d 857)
   Beasley, Judge.

On certiorari, the Supreme Court reviewed our decision in Dawson v. State, 186 Ga. App. 718 (368 SE2d 367) (1988) and remanded the case with instructions that we remand to the trial court for a hearing as to effectiveness of counsel. Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). Accordingly, in conformity with the mandate of that opinion, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. We affirm and remand the case to the trial court for a hearing and appropriate findings concerning only the issue of ineffectiveness of counsel. If, after that hearing, any further review of this issue is sought, the appropriate appellate procedure must be followed. See Martin v. State, 185 Ga. App. 145, 147 (363 SE2d 765) (1987).

Judgment affirmed and case remanded with direction.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Pope, and Benham, JJ., concur.

Decided September 13, 1988.

Wayne W. Gammon, for appellant.

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


author: Pope, Judge.

text:
    76433.
    EVANS v. THE STATE.
    (373 SE2d 70)
   Pope, Judge.

Appellant Sylvester Evans was tried and found guilty of three counts of armed robbery. Count I alleged the robbery at knife point of $166 from the clerk of the Jett Oil Company in Cobb County on April 4, 1985. Count II alleged the theft of cash and jewelry with the use of a pistol from a resident in his home in Cobb County on April 6, 1985. Count III alleged a robbery with a pistol of $360 from a clerk of a Majik Market in Cobb County on April 7,1985. He appeals his convictions on all counts.

1. Appellant contends the trial court erred in refusing to grant his motion to sever all three counts for trial. He argues that the evidence relating to one offense would not be admissible in the trial of any of the others, as the crimes charged did not arise out of the same conduct, did not involve the same victims or witnesses, did not occur on the same day, and the unrelated robberies of the two commercial establishments were separated by the unrelated robbery/burglary of a private residence. We do not agree.

Contrary to appellant’s assertions, the record shows that the three armed robberies were related in time, manner, general location and circumstance of arrest. Appellant was identified as the perpetrator of each armed robbery, as was his car, which was used in the commission of all three crimes. The crimes occurred over a four-day period. Two armed robberies took place at night in convenience store-type gas stations, where appellant entered the store and another person waited in his car. The knife used in the Jett Oil robbery was recovered during appellant’s flight from the Majik Market robbery. The daytime robbery of the residence was perpetrated the day before and on the same street as the Majik Market offense, during both of which appellant threatened to kill the victims and was assisted by a black male. The victim of the residence robbery was threatened with his own gun, which appellant then also used in the Majik Market robbery. Appellant’s identity as the perpetrator of the first two armed robberies resulted from his capture and arrest following the third crime.

“Offenses may be joined which are based on the same conduct, on a series of connected acts, or on a series of acts constituting parts of a single scheme or plan. ‘If offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary “to achieve a fair determination of the defendant’s guilt or innocence of each offense.” (Cits.)’ Isbell v. State, 179 Ga. App. 363, 366 (346 SE2d 857) (1986).” Floyd v. State, 186 Ga. App. 777, 777-778 (368 SE2d 541) (1988). “[Tjhere was more than sufficient evidence showing that the crimes charged in the indictments were a series of acts connected together. Consequently, the trial court did not abuse its discretion in denying [appellant’s] motion to sever.” Denton v. State, 186 Ga. App. 864, 865 (368 SE2d 811) (1988). Accord Watkins v. State, 187 Ga. App. 108 (2) (369 SE2d 356) (1988).

2. Appellant complains that the trial court erroneously allowed the State on cross-examination to “delve into” the employment history of a defense witness who had worked for the Cobb County Sheriff’s Department. The trial transcript reveals that defense counsel’s objection to the State’s question concerning why this witness was terminated was sustained and that appellant asked for no further relief. “[T]hus he is left with nothing ‘to complain about on appeal . . . .’ [Cit.]” White v. State, 255 Ga. 210, 214 (336 SE2d 777) (1985).

Appellant further argues that the trial court improperly allowed the State to present rebuttal testimony to impeach this defense witness because the testimony concerned specific acts which would put the witness’ character in issue, contrary to OCGA § 24-9-84. The rebuttal witness, a Cobb County deputy sheriff, testified that the defense witness’ “general character” was not good, and that he had been fired from the sheriff’s department for “making untruthful statements.” However, no objections were made during the State’s examination of the rebuttal witness, either as to the form of the questions or the answers elicited; the witness was also subject to cross-examination by defense counsel. Thus “[t]his argument has been waived because it was not presented to the trial court. [Cits.]” Aguilar v. State, 240 Ga. 830, 834 (242 SE2d 620) (1978). Accord Allen v. State, 186 Ga. App. 778 (3) (369 SE2d 357) (1988); Phinazee v. State, 182 Ga. App. 45 (3) (354 SE2d 671) (1987).

3. Appellant asserts that two pretrial photographic lineups were impermissibly suggestive and hence the trial court erred in denying his motion to suppress this evidence. The basis for appellant’s complaint is that he was wearing a noticably different hairstyle from the other men in the photographs; and that while the first display contained six photographs, the second lineup consisted of only four pictures which appellant contends were not enough to ensure a fair display. The six-person photographic display does not appear in the record, and we do not discern any remarkable distinctions in the hairstyles of the persons comprising the four-picture lineup. The first victim was unable to make either a pretrial or in-court identification of appellant as the perpetrator, but an eyewitness to the first crime and the victims of the second and third crimes clearly observed him during the commission of those oifenses and were able to positively identify appellant both from photographs and at trial.

Decided September 13, 1988.

George R. Asinc, Roy D. Petersen, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

We do not find any reason to conclude that the pretrial identification in evidence at trial violated appellant’s constitutional due process rights under Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972), in that the procedures were impermissibly suggestive or that as a result thereof there was a substantial likelihood of irreparable misidentification. Any conflicts in the evidence concerning appellant’s identity were resolved against him by the jury. Lee v. State, 186 Ga. App. 332 (1) (367 SE2d 115) (1988). Moreover, “[e]ven if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. [Cit.]” Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548) (1988). Appellant has presented no grounds for reversal.

Judgment affirmed.

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


author: Benham, Judge.

text:
    76436.
    In the Interest of F. E. B.
    (373 SE2d 72)
   Benham, Judge.

The trial court found appellant, a 15-year-old boy, to be delinquent for possessing less than one ounce of marijuana. He appeals to this court claiming that the admissible evidence against him was insufficient to support the judgment of delinquency. We agree and reverse.

The evidence showed that a confidential informant told police officers that they would find appellant in possession of marijuana at a certain address. The investigating officers obtained a search warrant for that address, which proved to be the home of appellant, his 17-year-old brother, and their parents. When the officers executed the search warrant, only appellant and his brother were home. The officers’ search of the home produced no admissible evidence of marijuana possession. The officers also searched a white Grand Am automobile that was parked in the yard of the house. The automobile had been identified by the confidential informant as the one that appellant drove. The officers found four marijuana “roaches” in the console ashtray of the vehicle, which was registered in appellant’s mother’s name. They also found a pair of hemostats in the door and a stone marijuana smoking pipe in the glove compartment. According to the officer who testified, when the officer asked appellant who drove the car, he said that he drove it and that his brother did not. When appellant took the stand in his own behalf, he said that he was 15 years old and had a learner’s license to drive; and that he could not and did not drive his mother’s Grand Am by himself, but had his mother in the car with him whenever he drove it. He further testified that his brother drove the Grand Am, and no one had use of it besides his brother; and that as far as he knew, the contents of the car belonged to his brother, and not to him. He also said that the Grand Am was a stick shift and that the first time that he had driven a stick shift was “last Sunday” when his father gave him some driving lessons in a stick shift vehicle.

The rule of law in Fears v. State, 169 Ga. App. 172 (1) (312 SE2d 174) (1983), applies to this case. In the absence of any circumstances to the contrary, a presumption arises from proof of ownership and control of premises, an automobile, or other property that the owner is in control and possession of contraband found therein. [Cits.] This rule is equally applicable to an automobile in which the accused is only the driver or in possession of the vehicle. [Cits.] As to automobiles, the rule does not apply where there is evidence in the case that the defendant has not been in possession of the vehicle for a period of time prior to the discovery of the contraband or that others have had access to it.” [Cits.] ... [In other words,] “merely finding contraband in a car occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” [Cits.] . . . “If the only evidence of possession of contraband found in an automobile is that the defendant is the owner, the driver, or is in possession of the vehicle, and there is evidence of prior use of the vehicle by other parties in the recent past, or equal access to the accessible portions of the vehicle by other parties, then [the] prior possession or equal access rule would demand an acquittal. However, if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the vehicle, then an issue is made for the [factfinder]. . . Id. at 173.

Decided September 13, 1988.

Jesse W. Walters, for appellant.

Robert H. Revell, Jr., for appellee.

In the case before us, appellant was not the owner of the automobile, nor was he in control or possession of it at the time the contraband was found. He denied ownership of the contraband and there was no additional admissible evidence, direct or circumstantial, of possession of contraband by appellant. It is clear from the testimony that the other members of his family had equal access to the vehicle, and there was no testimony offered to show that appellant was the last person to have used the vehicle prior to the discovery of the contraband. Under these circumstances, the equal access rule demanded an acquittal, there being no issue for the finder of fact. Compare Benson v. State, 172 Ga. App. 135 (322 SE2d 339) (1984).

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


text:
    76599.
    In re BRYANT et al.
    (373 SE2d 74)
   Benham, Judge.

Bryant and King, attorneys, appeal the contempt citation issued to them by Judge Lott, before whom appellants were trying a criminal case. The allegedly contumacious conduct occurred during voir dire of a prospective juror. As a result of the verbal exchange between appellants and the trial court, at the conclusion of the trial the attorneys were cited for contempt, required to pay $100 each, and reprimanded by the court. Appellants contend that the trial court erred in holding them in contempt of court without a due process hearing before another judge, and that the trial court erred in its holding that the conduct of either of the attorneys was contumacious. After reviewing the proceedings, we concluded that reversal of the judgment is required.

1. To resolve the first issue, whether appellants’ due process rights were protected by the trial court proceedings, we rely on Dowdy v. Palmour, 251 Ga. 135 (2) (304 SE2d 52) (1983). Dowdy states that “[d]uring trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing. The carrying out of the punishment announced during trial may be postponed until after trial. . . Where the announcement of punishment is delayed, and where the contumacious conduct was directed toward the judge or where the judge reacted to the contumacious conduct in such manner as to become involved in the controversy, the judge may give the attorney notice of specific charges, but the hearing, including the attorney’s opportunity to be heard, must be conducted by another judge.” Id. at 141. In appellants’ case, the trial judge told appellants at the time he observed it that their conduct was contemptuous, and told them that he was holding them in contempt. However, he did not announce the punishment at that time, but said, “I am going to hold you in contempt because I have told you that you do not argue with the Court — when I make a ruling, that is it. . .1 am going to hold you in contempt now when this thing is over with, for these questions.” At the end of the trial, the same judge held a new contempt hearing, and imposed the money sanction and reprimand.

Applying the due process requirements stated in Dowdy to the facts as shown in the record before us, we find that the trial judge delayed the announcement of punishment until the conclusion of trial; that the allegedly contumacious conduct of the attorneys was directed toward the judge; and that, thereafter, the judge reacted to the conduct in such a manner as to become involved in the controversy. Therefore, under the applicable portion of the test set out above, due process required that appellants’ contempt hearing should have been conducted by another judge. Id. at 142.

2. The other enumeration raised addresses the sufficiency of the evidence of appellants’ allegedly contumacious conduct. “At the outset we note that the evidence in any criminal contempt case must show that the defendant is guilty beyond a reasonable doubt. [Cits.]” Garland v. State, 253 Ga. 789 (1) (325 SE2d 131) (1985). The appropriate standard of appellate review for a criminal contempt conviction is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cits.]’ ” In re Irvin, 254 Ga. 251, 256 (328 SE2d 215) (1985). The essential elements of criminal contempt of court have been “variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court, but ‘it also includes the interruption of the proceedings. . . .’ [Cit.]” In re Bergin, 178 Ga. App. 454, 455 (343 SE2d 743) (1986). Cases of contempt in facie curiae are distinguished from those involving out-of-court statements. A court’s power to impose punishment for out-of-court statements is limited to those cases in which there is a “clear and present danger to the administration of justice,” while the power to punish for in-court actions involves the inherent power of courts “ ‘to maintain order in their courtrooms and to assure litigants a fair trial. . .’ [Cit.]” Crudup v. State of Ga., 106 Ga. App. 833, 837 (129 SE2d 183) (1962). Since the occurrence we are reviewing took place in court, the maintenance of order standard applied. Compare Garland, supra, Division 2.

The record shows that during voir dire of individual prospective jurors, attorney King, representing the defendant in a criminal case, questioned one of the jurors about his impression of media accounts regarding the defendant’s alleged criminal activity. King asked the question, “Based on everything that you know about this case, and bringing us right up into the present, do you presently believe that [the defendant] did something wrong?” The court responded that that was not a proper question, because it questioned what the jury would have to decide. The prosecuting attorney then stated that he had “objected several times” because King was really asking how the juror would vote. The trial court reiterated that the question was improper. When King said, “We take the position —” the court interrupted, saying, “I don’t care what your position is. I am telling you the law is. You cannot ask one whether he thinks a guy is guilty, and that is the law.” King responded, “Well, your honor —” and the court interrupted him again, saying, “I don’t want to hear any more. I have ruled and I have told you.” King tried three more times to have the court clarify its position as to what King would be allowed to ask or not ask, but the trial court would not allow him to finish making his inquiries. After the third incomplete attempt, the court had the juror removed from the courtroom and said, “Mr. King, both of you I have warned repeatedly, last week, too. You do not argue with the Court. Now, do you understand that?” Appellant Bryant, King’s co-counsel, apparently speaking for the first time on the portion of the record before us, responded, “We understand that we are not to argue with the Court.” The trial court then said, “I am going to hold you in contempt, because I have told you that you do not argue with the Court — When I make a ruling, that is it.” King requested and the court granted him an opportunity to explain for the record that counsel did nothing intentionally to disrespect the honor of the court, and that counsel was attempting to elicit from the venireman “whether he had a bias insofar as viewing my client as having done something wrong, versus whether he is guilty. They are two separate issues.” King went on to explain that he was not asking the questions to be argumentative, but was doing so in the zealous representation of his client’s interests and rights under the Constitution. The court responded that it had “explained to the attorneys repeatedly . . . [that] no attorney shall ever attempt to argue or to explain a case on pain of being considered in contempt.” King and Bryant went on to discuss with the trial court their ability to pursue their line of questioning, and the court took the position that the answers the venireman had given were sufficient responses to the questions that King had posed, and that the question that King sought to ask was not permissible, in the form in which it was asked. When King appeared to disagree, the court said, “I heard the answer. You are arguing with the Court again. I heard the answer. Now, do you understand what is going on here now? I am going to hold you in contempt now ... for these questions. I am going to do it every time that you do it, too . . . When I say that I have ruled on a case I don’t want to hear any argument about it.”

Decided September 13, 1988.

C. B. King, for appellants.

Hobart M. Hind, District Attorney, Earl Jones, Assistant District Attorney, for appellee.

We find that the evidence was not sufficient to hold appellants in contempt of court. The trial court was apparently relying on Rule 23 of the former Rules of the Superior Court, which stated that “ ‘[n]o attorney shall ever attempt to argue or explain a case, after having been fully heard, and the opinion of the court has been pronounced, on pain of being considered in contempt.’ ” (Emphasis supplied.) Farmer v. Holton, 146 Ga. App. 102 (4) (245 SE2d 457) (1978), overruled on other grounds, In re Crane, 253 Ga. 667 (2) (324 SE2d 443) (1985). The rule upon which the trial court relied was expressly repealed with the passage of the Uniform Superior Court Rules, Rule 1.3 (253 Ga. 809) (1985). Even if the rule had not been repealed, it is clear from the record that the trial court held appellants in contempt before it gave them a chance to explain their position, and so they had not been “fully heard” at the point of the court’s pronouncement. Moreover, the only thing that appellant Bryant said before being held in contempt for his allegedly argumentative conduct was that “we understand that we are not to argue with the Court.” For these reasons, the evidence was not sufficient for any rational trier of fact to find beyond a reasonable doubt that appellants were guilty of contempt.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.


text:
    76613.
    SMITH v. THE STATE.
    (373 SE2d 77)
   Pope, Judge.

Defendant was convicted of selling cocaine to an undercover officer and possession of cocaine with intent to distribute. He appeals the trial court’s denial of his motion for new trial on the general grounds.

Decided September 13, 1988.

G. Scott Sampson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, Assistant District Attorneys, for appellee.

At trial, an undercover agent identified defendant as the individual who made a sale of cocaine to him earlier in the day on the date of defendant’s arrest. The arresting officers testified that, after struggling to resist arrest, defendant tossed out of his pocket a package containing twenty-three bags of cocaine. A search of defendant’s rented room uncovered cocaine-related paraphernalia, approximately one-half pound of marijuana and over eight grams of cocaine. Also recovered was the money paid to defendant by the undercover agent earlier in the day, which was identified by pre-recorded serial numbers. Officers also found a number of rent receipts from the landlord made out to a different name. One officer testified an investigation revealed the room was, in fact, rented only to defendant but the landlord had been asked to prepare the rent receipts under a different name. Defendant’s sole defense was mistaken identity. Defendant denied he had made the sale of cocaine to the undercover agent and offered an alibi for his whereabouts at the time the sale took place. However, defendant presented no other witnesses in support of his alibi. Defendant claimed the contraband was either planted by the arresting officers or was left in the rented room by its previous occupant. Defendant was impeached by evidence showing he had earlier been convicted of a felony after pleading guilty to burglary.

“[A] review of the record in this case in the light most favorable to the prosecution shows that a rational factfinder could have found beyond a reasonable doubt that . . . [defendant] was guilty of the crime .... Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Thurman v. State, 255 Ga. 286, 288 (336 SE2d 746) (1985). Thus, the trial court properly denied defendant’s motion for new trial.

Judgment affirmed.

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


text:
    76643.
    McINTOSH v. THE STATE.
    (373 SE2d 858)
   Benham, Judge.

Appellant was convicted of eleven counts of forgery in the first degree and filed a notice of appeal from the judgment entered on the jury verdicts. Although appellant’s notice of appeal was filed prior to the entry of the trial court’s order denying his motion for new trial, we will not dismiss the appeal for lack of jurisdiction. Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975); Strickland v. State, 184 Ga. App. 185 (fn. 1) (361 SE2d 207) (1987). Appellant failed to file a brief and enumeration of errors, and was ordered by this court to file a brief by April 7, 1988. While failure to comply with an order of this court directing appellant to file a brief may be cause for dismissal of the appeal (see Rule 14 (a) of the Rules of the Court of Appeals), we have, out of an abundance of caution brought about by the United States Supreme Court’s decision in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), reviewed the transcript of appellant’s trial and conclude that there was sufficient evidence presented by the State to authorize the jury to find appellant guilty beyond a reasonable doubt of the eleven charges of forgery in the first degree. OCGA § 16-9-1 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 13, 1988.

A. B. Jones III, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    76757.
    HARRISON v. THE STATE.
    (373 SE2d 78)
   Pope, Judge.

The defendant appeals, pro se, his conviction of the offense of being an habitual violator.

l.(a) Defendant first argues the indictment was insufficient because it did not allege a date, time or place. The record shows, however, that defendant, who was represented by counsel of his own choosing at trial, waived indictment and the State proceeded on an accusation as to which defendant entered a plea of guilty. The record also shows that the accusation plainly stated the nature of the offense charged, including the county where it occurred and the date of occurrence. “ ‘A plea of guilty is a conviction of the highest order and waives all defenses other than that the indictment charges no crime.’ Hilliard v. State, 87 Ga. App. 769, 773 (75 SE2d 173) (1953).” Williams v. State, 174 Ga. App. 506, 507 (330 SE2d 435) (1985). This the defendant does not contend. We find no error.

(b) Defendant also urges that we overturn his conviction because the evidence was insufficient to show he was operating a motor vehiele. A plea of guilty, however, admits all averments of fact set forth in the accusation or indictment. E.g., Williams, supra; Hilliard v. State, 87 Ga. App. 769, 773 (75 SE2d 173) (1953). In the case at bar the accusation provided, in pertinent part, that defendant “did unlawfully operate a motor vehicle upon a public road, street and highway. ...” Consequently, this argument is also without merit. Accord Carroll v. Holt, 251 Ga. 144 (304 SE2d 60) (1983).

2. In his next two enumerations of error defendant complains of testimony by his parole officer concerning statements made by the defendant to the parole officer about the incident. Defendant also contends that these statements were improperly used against him. Again the record does not support defendant’s contentions, but shows instead that the parole officer testified at defendant’s request after defendant had entered his guilty plea and that defendant offered the testimony in hopes of persuading the trial court to show leniency in sentencing him. Moreover, no objection was entered at the time the testimony was offered. Accordingly, defendant cannot now be heard to complain.

3. (a) Defendant argues that he was improperly enticed to plead guilty by his attorney, who, defendant contends, “insinuated” that he “had spoken or made a deal with the judge” concerning defendant’s sentence. The record, however, is devoid of evidence that the trial court engaged in any negotiations with defendant or his attorney concerning the entry of defendant’s plea. As to any agreements concerning defendant’s sentence, the record shows only that the State and the defendant had been unable to agree on a recommended sentence prior to the entry of defendant’s plea, and that defendant was informed prior to the entry of his plea that the trial court could impose the maximum sentence for his offense. The defendant also testified that no promises had been made in order to entice him to plead guilty. “ ‘A defendant’s subjective hopes and unfulfilled desires, not induced by the court or state, are not good grounds for attacking [a guilty] plea and sentence. (Cits.)’ [Cit.]” Smith v. State, 174 Ga. App. 238, 241 (329 SE2d 507) (1985). Cf. Skomer v. State, 183 Ga. App. 308 (358 SE2d 886) (1987).

(b) Defendant also alleges the trial court erred in refusing to allow him to withdraw his guilty plea once he realized the court intended to impose the maximum sentence. Although the record shows that defendant tried to persuade the court to reconsider the sentence, the record contains no evidence that defendant attempted to withdraw his plea. This argument is without merit.

4. Similarly, defendant complains of ineffective assistance of counsel because his attorney did not inform him that he would be unable to withdraw his plea; thus, defendant argues his plea was not knowingly given. “‘[W]hen a person indicates a desire to enter a guilty plea, the duty of counsel is limited to ascertaining whether the decision to plead is voluntarily and knowingly made. Walker v. Hopper, 234 Ga. 123 (214 SE2d 553) (1975).’ Wharton v. Jones, 248 Ga. 265, 266 (282 SE2d 310) [(1981)]. In the case sub judice, [defendant] presented no competent evidence showing that his retained counsel [failed to inform defendant of the consequences of his plea or otherwise] breached this duty.” Scott v. State, 185 Ga. App. 568, 570 (365 SE2d 127) (1988). On the contrary, the record here clearly demonstrates that defendant’s plea was entered after proper advice and with a full understanding of the consequences. We find no error.

Decided September 13, 1988.

Billy Harrison, pro se.

Frank C. Winn, District Attorney, for appellee.

5. Lastly, defendant is mistaken in his contention that revocation of his parole for a previous habitual violator offense constituted double jeopardy.

Judgment affirmed.

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


text:
    76816.
    WILLIS v. ALLEN et al.
    (373 SE2d 79)
   Beasley, Judge.

Plaintiff Willis appeals the grant of summary judgment to defendants Virginia Boring and Paul Boring in her personal injury action.

Willis was injured when her car was struck by a car driven by Gregory White, who allegedly ran a stop sign. White was the adult brother of Virginia Boring, the car owner, and brother-in-law of Paul Boring, whose insurance policy covered the car.

White had lived with the Borings for a period after their marriage, but for about a year prior to the accident he lived with his parents and his other brother and sister-in-law. Because the parents were away on vacation, Virginia Boring borrowed their van. She left her car parked at her parents’ house with the keys in it, as a matter of habit and because it might have to be moved.

White’s driver’s license had been suspended about six months before the collision, which the Borings knew, and his car was not in working condition. Although the Borings had allowed White to borrow their cars when he lived with them, there was no evidence that they had done so since his move.

On the day of the collision, White took the car without the knowledge or express permission of either Boring. When asked in deposition how he got the car, he stated: “I just got in it and drove it. The keys was [sic] in it. ... I knew I shouldn’t be driving it. That’s why I didn’t ask.”

Virginia Boring deposed that her brother had asked to borrow her car on one occasion while his license was suspended and she refused.

Plaintiff’s legal theory against the Borings was that, knowing of defendant White’s bad driving record (he had traffic convictions for running a red light, driving with an expired license, two DUPs, and driving an unsafe vehicle), they had negligently entrusted him with their car. The family purpose doctrine is inapplicable. OCGA § 51-2-2; see Vaughn v. Butler, 103 Ga. App. 884, 886 (1) (121 SE2d 72) (1961).

The court granted the Borings’ motion for summary judgment, finding “there is simply no evidence whatsoever of any conscious approval of allowance by defendants . . . Boring permitting defendant White to operate the vehicle.”

Defendant offered no affidavits in opposition to the motion, relying on defendants’ depositions and her theory that White had the “implied consent” of the Borings to drive the car, since they had not specifically denied him its use. In their affidavits, the Borings stated that they had an understanding with White that he would not drive the car while his license was suspended.

Willis’ position is that there is evidentiary support for “implied consent” and that a jury should be allowed to decide the credibility of the Borings and White.

In order “[t]o prevail on a motion for summary judgment [OCGA § 9-11-56], a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. [Cits.]” Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981); Duenas v. Bence, 174 Ga. App. 80, 82 (329 SE2d 260) (1985).

“ ‘Under the theory of negligent entrustment, “liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness. [Cits.]” Saunders v. Vikers, 116 Ga. App. 733, 735 (158 SE2d 324).’ [Cit.]” Wallace v. ARA Svcs., 185 Ga. App. 639, 641 (2) (365 SE2d 461) (1988).

Plaintiff, in the face of the affidavits and depositions of the Borings and the deposition of White that White did not have permission to drive the automobile, contends that she may imply consent from the fact that the car was left at their parents’ house with the keys in it. However, “there is no liability arising from the fact of keys being left in a car.” Robinson v. Pollard, 131 Ga. App. 105, 107 (1) (205 SE2d 86) (1974); Dunham v. Wade, 172 Ga. App. 391, 393 (2) (323 SE2d 223) (1984); Chester v. Evans, 115 Ga. App. 46 (153 SE2d 583) (1967).

Decided September 13, 1988.

Lawrence O. Guillory, for appellant.

Cubbedge Snow, Jr., Paul M. Knott, John C. Daniel III, for appellees.

The leaving of the keys in the car was thus insufficient to raise an inference of implied consent in and of itself. Negativing the possibility of such an inference is Mrs. Boring’s statement that since White’s license had been suspended she had denied him use of her car on a specific occasion and that he “understood” he was not to use it, as well as White’s statement that he knew he was not to take the car, and Mr. Boring’s denial that White had permission.

Despite plaintiff’s argument that there are inconsistencies in the affidavits of the Borings when compared with their depositions, there are none material. See Gentile v. Miller, Stevenson, &c., 257 Ga. 583 (361 SE2d 383) (1987); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986). Thus, their testimony pierces the allegations of the pleadings, and plaintiff did not refute this testimony or impeach the witnesses so as to make a jury issue. The argument that the nature of the witnesses’ testimony and their relationship to each other in this case itself creates an issue of fact as to its credibility is not legally sound. An issue of credibility is not raised where there is no conflicting or contradictory evidence on a material matter or impeachment, or inherent discredit. Raven v. Dodd’s Auto Sales & Svc., 117 Ga. App. 416, 421 (3) through (5) (160 SE2d 633) (1968); see Wallace, supra at 641 (3). Defendants were entitled to summary judgment. Wallace, supra; Pague v. Pendley, 177 Ga. App. 573 (340 SE2d 190) (1986); Bunch v. Stanton, 174 Ga. App. 233, 235 (2) (329 SE2d 538) (1985).

Judgment affirmed.

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


text:
    76854.
    BUSENER v. THE STATE.
    (373 SE2d 81)
   Birdsong, Chief Judge.

The appellant, Janet Busener, appeals from a jury verdict of guilty of one count of solicitation of sodomy and one count of solicitation of sexual intercourse for money. Police officer C. B. Houston, while not on duty during the evening of February 8,1987, was using a phone in a lounge at a hotel at Gwinnett Place Mall, and observed a female handing out “business cards” to males waiting to use the phone. Officer Houston was given one of the cards which stated: “Janet and Associates” and gave two telephone numbers. He asked her what type of business she was in and she used her finger to spell out: “S E X,” and he said: “Oh, sex, and she said, Yes . . . then she said it’s a lot cheaper than the agencies you would go to.” Officer Houston gave the card to his supervisor who assigned the investigation to Officer S. H. Ledford. Ledford checked out the phone numbers listed. One was a home phone and one was a beeper. He called the beeper number and gave the number of an “undercover phone” at the police station which would not come through the police switchboard. About ten minutes after he called the beeper, a female called and said: “Hello, I’m Janet,” and asked his name. He told her “Dave” and that he had met her the previous evening at the lounge. He heard her “beeper” go off and she told him she had to “call her agency” and would call him back. She called back in about ten minutes and he asked her the cost of her service. She said $100 per call. The officer wanted to know what he would get for his hundred dollars. She said that she would model lingerie, do a strip dance, give a massage and “engage in the other.” They agreed to a meeting at a restaurant next to a motel.

When the officer arrived at the restaurant, he saw two females at a booth and asked: “Janet?” She said, “Dave,” and they walked to the motel. The officer again asked what he would get for his hundred dollars: “She stated . . . she hadn’t received any complaints or anything and I asked her, I said, Well, for this hundred dollars do I get half and half? Well, half and half is street logo for prostitution is half oral sex and half sexual intercourse. She stated that I would get that.” As the officer inserted the key in the motel door, he asked defendant how long would he have and she replied, “an hour and a half.” He told her it would probably be a little longer and placed her under arrest and read her Miranda rights to her from a card he carried. After she had been arrested and Mirandized, her pocketbook was searched and found to contain a box of condoms and a “pocket credit card” machine along with blank charge sheets. After being placed in the police car, appellant stated “she was a prostitute and that she had been a prostitute for approximately five years.” She requested the police to take custody of her car. Her car was impounded and found to contain “intimate lingerie ...” and a box of business cards stating “Janet and Associates.” While enroute to jail, appellant’s beeper was called “eight times.” Appellant brings this appeal from a jury verdict of guilty as to both counts. Held:

Decided September 13, 1988.

Appellant enumerates as error only the trial court’s refusal to give two requested charges on the defense of “entrapment.” “Entrapment” occurs when the criminal design originates not with an accused, but within the mind of a government agent, and the accused is, by persuasion, deceitful misrepresentation, or inducement, lured into the commission of a criminal act he or she is not otherwise predisposed to commit. Sorrells v. United States, 287 U. S. 435, 445 (53 SC 210, 77 LE 413); OCGA § 16-3-25. However, artifice and stratagem may be employed to catch those engaged in criminal enterprises and it is not entrapment merely to furnish an opportunity to commit an offense if the individual is predisposed to undertake such commission. Pennyman v. State, 175 Ga. App. 405, 407 (333 SE2d 659). “Even repeated requests and offers of money do not make out an entrapment situation as a matter of law.” Paras v. State, 247 Ga. 75, 77 (2) (274 SE2d 451). Hence, the entrapment defense is composed of three distinct elements: “(1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime.” Keaton v. State, 253 Ga. 70, 72 (316 SE2d 452). “Predisposition” to commit the offense is the key element of this defense. Johnson v. State, 147 Ga. App. 92, 93 (248 SE2d 168).

In the instant appeal, appellant’s solicitation of the police officer precluded a claim that the crime originated with the police. The evidence shows no undue persuasion or incitment to commit the offense, but merely an offer to enter into an agreement to commit the offenses of sodomy and sexual intercourse. Appellant admitted she was a prostitute, and had been engaged in that profession for the past five years and her predisposition to commit these offenses was clearly demonstrated by her business card, her solicitation of the general public, possession of a box of condoms and portable apparatus and blank charge sheets for acceptance of credit card payment for her services. Appellants “conceded predisposition rendered this defense unavailable to [her].” Hampton v. United States, 425 U. S. 484, 490 (96 SC 1646, 48 LE2d 113).

It was not error for the trial court to refuse to charge on entrapment, when there is no evidence establishing such defense. Conner v. State, 251 Ga. 113, 115 (2) (a) (303 SE2d 266). These enumerations are without merit.

Judgment affirmed.

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

G. Hughel Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, for appellee.