author: Johnson, Judge.

text:
    A93A1019.
    MOODY v. THE STATE.
    (436 SE2d 545)
   Johnson, Judge.

Joseph Moody appeals from his conviction of child molestation and the denial of his motion for a new trial.

1. Moody contends that the trial court erred in denying his motion for a continuance because the State failed to provide him with a written scientific report at least ten days before trial. OCGA § 17-7-211 (b) provides, “In all criminal trials, felony and misdemeanor, the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant. ... If the scientific report is in the possession of or available to the prosecuting attorney, he must comply with this Code section at least ten days prior to the trial of the case.” (Emphasis supplied.) Here, Moody timely filed his request for scientific reports more than a year before trial. The State, however, failed to provide Moody with a copy of a report as to the probability of a deoxyribonucleic acid (DNA) match between a blood sample taken from Moody and semen found at the crime scene until seven days before trial.

The only explanation offered by the State for failing to comply with the mandatory statutory provision that it give Moody a copy of the report at least ten days before trial is that it did not actually receive the report from the Federal Bureau of Investigation (FBI) until seven days before trial. “To come within the ambit of the statute, a scientific report need not be in the possession of the district attorney. The report is discoverable if it is available to the district attorney. It can not be urged that an existing scientific report in the possession of the state crime lab, as was the report in the instant case, is not available to a district attorney.” (Citation and punctuation omitted.) Alexander v. State, 203 Ga. App. 375, 376 (2) (416 SE2d 762) (1992). Similarly, it cannot be urged that a scientific report in the possession of the FBI laboratory is not available to the district attorney who requested the report. As there is no evidence in the record to the contrary, we must presume that the report was available to the State at least ten days before trial.

“When a written scientific report is furnished late, the appropriate remedy is for the trial court to grant a continuance or recess upon timely request by the defendant.” Shannon v. State, 205 Ga. App. 831, 832 (1) (424 SE2d 51) (1992). “This matter, as well as the length of time granted, rests with the trial judge in the exercise of his discretion.” (Citation omitted.) Wilburn v. State, 199 Ga. App. 667, 669-670 (3) (405 SE2d 889) (1991). Under the particular facts of the instant case, it was an abuse of discretion to deny Moody’s motion for a continuance, because of the complexity of DNA analysis, its recent acceptance as an evidentiary tool in criminal investigations, the lack of national standards governing DNA tests and the fact that the FBI expert who testified in this case was not identified until the day before trial. Under these circumstances, Moody did not have an adequate opportunity to prepare his defense to the DNA report and his cross-examination of the expert witness. See Caldwell v. State, 260 Ga. 278 (1) (393 SE2d 436) (1990). Because the error in excusing the State from strictly complying with the mandatory language of OCGA § 17-7-211 was not harmless, Moody’s conviction must be reversed and a new trial granted. See Luck v. State, 163 Ga. App. 657, 658-659 (2) (295 SE2d 584) (1982).

Decided October 5, 1993.

Robert W. Lavender, Michelle C. Feinberg, for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., As sistant District Attorney, for appellee.

2. Moody’s contention that the trial court erred in denying his motion for a continuance because the scientific report he received did not explain the testing procedures used by the FBI is without merit as the State is not required to include such information in a report furnished under OCGA § 17-7-211. Roberts v. State, 196 Ga. App. 450 (396 SE2d 81) (1990); Sears v. State, 161 Ga. App. 515 (288 SE2d 757) (1982).

3. Moody’s claim that the court erred in allowing the expert’s testimony concerning the DNA report because the expert did not participate in the testing procedures is without merit. “If the laboratory report at issue contains the opinions or conclusions of a third party not before the court, those portions of the report are inadmissible hearsay until a proper foundation has been laid, ‘i.e., the person who entered such opinions or conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.’ [Cits.]” Dept. of Human Resources v. Corbin, 202 Ga. App. 10 (413 SE2d 484) (1991). In the instant case, there is no evidence that the report at issue contains the opinions or conclusions of someone other than the expert who testified. While the expert did testify that a laboratory technician performed the tests which developed the x-ray film of the DNA which was then analyzed, the expert himself supervised the technician and conducted the interpretation, statistical analysis and measurements which generated the report. The court did not err in ruling that the State called the appropriate witness to testify about the DNA report.

4. Moody’s complaint that the court erred in allowing hearsay testimony from three witnesses is specious as the testimony was admissible under OCGA § 24-3-16, “The Child Hearsay Statute.” Braddy v. State, 205 Ga. App. 424, 425 (2) (422 SE2d 260) (1992).

5. Because of our decision in Division 1 of this opinion, we need not address Moody’s remaining enumeration of error.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A1088.
    KILGORE et al. v. SOUTHERN GENERAL INSURANCE COMPANY. KILGORE v. INTERNATIONAL INDEMNITY COMPANY.
    A93A1089.
    (436 SE2d 547)
   Blackburn, Judge.

On May 31, 1990, a 1972 International tractor owned by Ray West was involved in a motor vehicle collision. Attached to the tractor was a trailer owned by Edward Rix, who was driving the tractor-trailer rig hauling a load of pulpwood at the time.

Southern General Insurance Company had issued a commercial automobile insurance policy to West providing liability coverage for his 1972 tractor. International Indemnity Company had issued a business automobile insurance policy to Rix providing coverage for a 1977 GMC tractor owned by Rix. When West and Rix were sued by individuals who were injured in the collision, they sought coverage and a defense under their respective insurance policies. Both insurers sought declaratory judgment that the insurance policies provided no coverage for the collision. These appeals follow from the grant of summary judgment in favor of both insurers.

Case No. A93A1088

1. It was undisputed that at the time of the collision, West had hired Rix to haul the load of pulpwood. Rix owned both a tractor and a trailer, but because his tractor was out of service, Rix used West’s tractor to tow his trailer loaded with the pulpwood. Rix did not charge West for the use of his trailer.

Southern General obtained declaratory judgment on the grounds that the policy issued to West excluded coverage “while the automobile is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in this company.” Tbe appellants contend that the exclusion was inapplicable in this case, because the trailer was borrowed, and not “owned or hired.”

In a case involving similar facts and two insurance policies containing the same exclusion in question here, this court found that the policies unambiguously excluded “coverage for non-owned trailers attached to an insured tractor and exclude coverage of the tractor unless it is attached to a trailer owned or hired by the named insured and like-insured. That is, both policies exclude coverage for the entire vehicle if the covered tractor was used to tow a trailer not owned or hired by the tractor’s insured, and not covered by like insurance in the company.” Southern Gen. Ins. Co. v. Buck, 202 Ga. App. 103, 106 (413 SE2d 481) (1991). It was “of no import” whether the owner of the tractor had hired the trailer, because coverage for the entire tractor-trailer rig was excluded “unless both component parts are covered by ‘like’ insurance, i.e., by the same insured.” Id.

Similarly, the appellants’ attempt to avoid application of the exclusion in this case by distinguishing between “owned or hired” and “borrowed” is unavailing. It was uncontroverted that at the time of the motor vehicle collision, West had not obtained insurance on the trailer that was towed by his tractor. Under these circumstances, the unambiguous terms of the insurance policy excluded coverage, and the trial court properly granted summary judgment for Southern General on that basis.

2. The appellants also contend that the Mount Vernon Insurance Agency, which procured the insurance through Southern General, acted as dual agent for both Southern General and West. They further contend that West had requested coverage for non-owned trailers and that the agency advised him that such coverage would be provided. For those reasons, they assert that Southern General may be liable for the agency’s failure to procure the requested coverage.

“It is generally recognized that where an agent represents two adverse parties in a transaction with the knowledge and consent of both, neither principal is liable to the other for the tortious acts of the agent so situated where the opposite principal is not in complicity with the agent or in no way participates in the tortious act. . . . [E]ach of the principals is under an equal duty to exercise ordinary care in selecting and supervising the agent to protect his own interests.” Hodges v. Mayes, 240 Ga. 643, 644 (242 SE2d 160) (1978). Nevertheless, “although the principal may be relieved of liability in tort, equity will not allow him to be relieved of responsibility for misrepresentations of the dual agent upon which the other principal relied to his detriment when the action is in contract.” Home Materials v. Auto Owners Ins. Co., 250 Ga. 599, 603 (300 SE2d 139) (1983).

In the instant case, however, the record contains no evidence that Mount Vernon Insurance Agency acted as the agent of Southern General, or that the agency either had authority to bind Southern General or represented that it had such. In fact, as noted by the trial court, the policy issued by Southern General actually designated Mount Vernon Insurance Agency as the insured’s agent. The appellants’ contention thus fails for lack of any factual basis.

Moreover, we note that the application of estoppel as sought by the appellants would have the effect of expanding the coverage provided by the policy. “ ‘(T)he doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer . . . , are not available to bring within the coverage of a policy risks expressly excluded by its terms. (Cit.)’ [Cit.]” Savannah Laundry &c. Co. v. Home Ins. Co., 189 Ga. App. 420, 423 (376 SE2d 373) (1988).

3. The appellants next contend that the exclusion contained in Southern General’s policy was void as against this state’s public policy regarding compulsory liability insurance coverage. As noted by the Supreme Court in Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987), “the advent of compulsory motor vehicle liability insurance in Georgia established a public policy of providing that innocent persons who are injured should have an adequate recourse for the recovery of their damages.”

However, that Court noted further that in establishing the minimum coverages for motor vehicles, the legislature contemplated insurance policies which limit coverage to vehicles listed in the policy. Id. at 694. Similarly, we find no public policy violation where coverage for an otherwise insured vehicle is excluded when that vehicle is used to tow a trailer which is not like-insured.

“In theory, each car has an owner and thus each car involved in an accident has the minimum coverages required by the Georgia Code. The legislature could have designed the scheme to protect accident victims by requiring that no owner or other person operate a vehicle unless the owner or other person has insurance on the vehicle. Instead, the onus to procure insurance is put on the owner and others are prohibited from operating the vehicle until that is done.” Id. at 693-694. The owner’s failure to meet that burden in the instant case does not justify finding a violation of public policy in order to protect an injured party against such a failure.

Case No. A93A1089

4. International Indemnity Company obtained summary judgment on the grounds that its business automobile policy issued to Rix limited coverage to vehicles listed in the policy and for which a premium was paid. It is undisputed that the policy in question specifically limited its coverage to the tractor owned and listed by Rix, i.e., the 1977 GMC model that was inoperable at the time of the collision. Inasmuch as the policy issued to Rix provided no coverage for the 1972 International tractor owned by West which Rix was driving at the time of the collision, the trial court properly granted summary judgment for International Indemnity Company. See Chastain v. U. S. Fidelity &c. Co., 199 Ga. App. 86 (403 SE2d 889) (1991).

The appellant contends that some ambiguity over the coverage is created by the policy’s truckers endorsement, which provides that “[t]he owner or anyone else from whom you hire or borrow a covered auto which is not a trailer is an insured while the covered auto: a. is being used exclusively in your business as a trucker, and b. is being used pursuant to operating rights granted to you by a public authority.” (Emphasis supplied.) However, because log trucks were specifically exempted from regulation by the Georgia Public Service Commission under OCGA § 46-1-1 (7) (C) (x), that standard provision in the truckers endorsement has no application in this case, and thus supplies no ambiguity to the coverage provided under the insurance policy.

Decided October 5, 1993.

W. McMillan Walker, Richard P. Schultz, Sarah M. Tipton-Downie, Steven H. Ballard, Jones, Hilburn, Claxton & Sanders, James V. Hilburn, Jacquelyn M. Sanders, for appellant.

Newton, Smith, Durden, Kaufold & Rice, Jiles M. Barfield, for appellee (case no. A93A1088).

Caswell & Taylor, Stephen J. Caswell, for appellee (case no. A93A1089).

Judgments affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Smith, Judge.

text:
    A93A1129.
    WILLIAMS v. THE STATE.
    (436 SE2d 550)
   Smith, Judge.

Sean Williams was convicted of possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). His motion for leave to file this out-of-time appeal was granted.

At trial, Williams testified that he was walking to his girl friend’s house at about 9:30 p.m. when he saw Torrence Stewart drive by, and asked him for a ride. Stewart agreed, but told him he had to make a stop on the way. Stewart drove to a local motel and went inside, leaving Williams in his car in the parking lot. Just as Stewart was returning, DeKalb County police arrived at the parking lot, having received information regarding drug activity at the motel. Stewart entered his car, backed up at high speed, narrowly missing two police officers trying to stop him, jumped a curb, and drove onto Interstate 285. The police followed. A high speed chase ensued which ended only when Stewart lost control of the car in Hapeville and crashed. The police took Stewart and Williams into custody.

Detective Steve Turek, who testified that he was behind Stewart’s car while it was backing up, and Detective Fred Becker, who was in front of Stewart’s car illuminating it with his own car’s high beam headlights, both testified that as Stewart’s car was backing up, they saw the passenger extend his arm out the passenger side window and toss an object out of the car. Turek testified that he recovered the object, a vial containing small ziplock bags containing off-white chunky material, and at the end of the pursuit, turned it over to Becker.

An inventory search of the car at the time of the arrests revealed 14 additional ziplock bags containing off-white chunks on the right front floorboard. The chunks field-tested positive for cocaine. A check of the car’s vehicle identification and tag numbers showed that it had been stolen. Becker testified he placed the vial he received from Turek in an evidence locker at the DeKalb police station, and the police property custodian testified he turned it over to the GBI crime laboratory. A GBI forensic chemist testified that the vial contained 48 individual packets with a gross weight of 6.1 grams, their contents testing positive for cocaine. Williams testified that he had no knowledge of the cocaine in Stewart’s car; that he did not know Stewart very well; and that he had asked Stewart to let him out of the car, but Stewart refused.

1. Contrary to Williams’ contention, the evidence was sufficient to support his conviction. The jury was authorized to believe the two officers who testified they saw Williams throw the vial, later shown to have contained cocaine, out the window of the car. This evidence was sufficient to authorize the jury to convict him of possession of cocaine with intent to distribute under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Williams contends the trial court erred in failing to give his requested charge on the rebuttable presumption that all items found in an automobile belong to the owner and/or driver. Relying on Walden v. State, 196 Ga. App. 844, 845 (1) (397 SE2d 182) (1990), he argues that his requested charge was required because his sole defense was that he was a mere passenger who had entered the car very shortly before the incident, and was in neither actual nor constructive possession of the contraband. We disagree.

First, Walden is distinguishable on its facts. Walden was asleep in the back seat of a car when the car was stopped by police. Cocaine was found on the person and in the luggage of another passenger, and no evidence rebutted Walden’s testimony that he did not know about the cocaine. In this case, Williams’ testimony denying knowledge of the cocaine was rebutted by two witnesses, who testified that they saw Williams throw a vial containing 48 pieces of rock cocaine from the car. This testimony showed actual possession of the contraband.

Second, the general rule that control of an automobile gives rise to a presumption that the driver is in possession of contraband found therein does not apply when there is evidence that others had equal access to the vehicle, and no reverse presumption arises with regard to a passenger’s presence in an automobile in which contraband is found. Bell v. State, 198 Ga. App. 874, 875 (1) (403 SE2d 864) (1991). The trial court instructed the jury on mere presence and equal access, fairly instructing the jury regarding Williams’ sole defense. We find no error.

Decided October 5, 1993.

Antje R. Kingma, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Gregory A. Adams, Robert M. Coker, Assistant District Attorneys, for appellee.

3. After a defense witness testified that she had interviewed Detective Becker prior to trial and that he had indicated to her that he had not actually seen the car’s passenger throw the vial out the window, the State recalled Becker. Over objection, he was allowed to testify that he had testified before the grand jury to seeing the passenger throw the vial.

Williams contends it was error to permit Becker to bolster his own credibility by testifying to his prior consistent statement made to the grand jury. He supports his contention with citations to a number of cases decided prior to 1982. In 1982, the Supreme Court decided, in Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982), that prior inconsistent statements may be used as substantive evidence as well as for impeachment. In Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985), the Supreme Court extended the Gibbons rule, holding that if the concerns of the rule against hearsay are satisfied, prior consistent out-of-court statements are admissible as well, when the veracity of the witness’s in-court testimony is placed in issue. See also Edwards v. State, 255 Ga. 149, 150-151 (2) (335 SE2d 869) (1985); Gregg v. State, 201 Ga. App. 238, 239 (1) (411 SE2d 65) (1991). Contrary to Williams’ argument, we find no significance in the fact that in this case, testimony regarding the prior consistent statement was given by the witness himself. The statement was admissible.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1142.
    PHILLIPS v. ADAMS et al.
    (436 SE2d 567)
   Johnson, Judge.

Rubin Lamar Phillips filed an action in 1992 to recover personal property allegedly stolen from him by Bentley Adams and Lamar Taylor in September 1984. The trial court dismissed the action as barred by the four-year statute of limitation on actions for recovery of personal property. See OCGA § 9-3-32. Phillips appeals, arguing that the four-year statute of limitation was tolled because he has been imprisoned since 1984, he is suffering from a medical disability and he did not learn of the theft until 1992.

Decided October 5, 1993.

Rubin L. Phillips, pro se.

Bentley C. Adams III, pro se.

Alderman, Green & Hamby, Brady D. Green, for appellees.

1. Prior to July 1, 1984, OCGA § 9-3-90 tolled the running of statutes of limitation for “persons imprisoned.” The legislature, however, amended the statute, effective July 1, 1984, by deleting prisoners from the groups of people protected by the tolling provision. Since Phillips’ alleged cause of action accrued after the statute was amended, he is not protected by the tolling provision.

2. OCGA § 9-3-90 (a) tolls the running of statutes of limitation for “persons who are legally incompetent because of mental retardation or mental illness.” Although Phillips has a physical disability, there is no evidence in the record that he is either mentally retarded or ill. “OCGA §§ 9-3-90 and 9-3-91 allow only mental, and not physical, disability to toll the time limitation.” Chapman v. Burks, 183 Ga. App. 103, 107 (2) (357 SE2d 832) (1987).

3. Phillips’ further argument that he did not discover the theft until 1992 also is without merit since “the tolling of a period of limitation by the discovery rule is confined to cases involving bodily harm. [Cit.]” Fort Oglethorpe Assoc. II, Ltd. v. Hails Constr. Co. of Ga., 196 Ga. App. 663, 665 (3) (396 SE2d 585) (1990). Because the statute of limitation was not tolled and Phillips filed his action almost four years after the limitation had expired, the trial court did not err in dismissing his complaint.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The Eleventh Circuit Court of Appeals addressed this same issue, holding that “[OCGA § 9-3-90] was amended to exclude prisoners from the list of persons benefitting from the tolling provision.” Giles v. Garwood, 853 F2d 876, 878 (1) (11th Cir. 1988).


author: Beasley, Presiding Judge.

text:
    A93A1378.
    KIRK v. THE STATE.
    (436 SE2d 553)
   Beasley, Presiding Judge.

Kirk was indicted for armed robbery, OCGA § 16-8-41 (a), by means of a handgun or something having the appearance of a gun. A jury convicted him of the lesser offense of robbery by intimidation, OCGA § 16-8-40 (a) (2). Following the denial of a new trial, Kirk challenges his conviction on two bases: The State was erroneously permitted to place his character in issue by the irrelevant testimony of its police witness; the jury was erroneously instructed that before it could consider the lesser offense of theft by taking, it had to reject a finding of guilt of armed robbery and robbery by intimidation.

The evidence construed in favor of the verdict showed the following. At about 2:45 a.m. on September 14, 1991, Wright was performing his job of cleaning a grocery store parking lot when he noticed a car come into the lot, “flying around” the back of the store. Wright kept on working and as he was putting the blower back on his truck, the car pulled in behind him and driver Kirk asked Wright if the grocery store was open. After Wright responded that he thought it was open 24 hours a day, Kirk backed his car away from Wright’s truck. Wright got in his truck and started the engine. As Wright was looking out the open driver’s door on his truck, Kirk exited his car, told Wright he had a dead battery, and asked if Wright had jumper cables. Wright was not really paying any attention to Kirk, and Kirk got in the passenger side of Wright’s truck. The truck door had been locked but the .window had been down.

Kirk “got real close” to Wright and Wright felt Kirk stick what he thought was a metal object in his side. Kirk told Wright it was a gun and to give him all his money. Wright responded that he had no money, only a gasoline credit card. Kirk asked for other credit cards and said he wanted to go to Wright’s house. Kirk looked through Wright’s wallet and instructed Wright to drive around to the back of the parking lot. On the way, they saw a police officer in his vehicle. Kirk told Wright to “keep [his] mouth shut” or he “would blow [him] away.” The officer was used to seeing Wright’s truck at the shopping center and was familiar with Wright. Not thinking anything suspicious was afoot, the officer waved.

Kirk instructed Wright to return him to his car, which Wright did. Wright parked the truck, remembered that he had two $5 bills, and gave them to Kirk. Kirk exited and took the truck keys with him. As Kirk walked around the front of the truck, “he stuck something down his pants.” He hopped in his car and left, saying he was going to throw Wright’s keys in the grass somewhere. Wright went into the grocery store and called the police.

Having observed Kirk during the five to ten-minute encounter in the brightly lit parking lot, Wright was able to give a detailed description of his assailant to the police as well as the make of Kirk’s car and a partial license tag number. A short time later and not far from the crime scene, an officer spotted a vehicle fitting the description given by Wright parked by the side of a gasoline station. The officer called for back-up. He positioned his vehicle so that as Kirk got in his car and exited the lot Kirk did not see him.

The officer and a back-up fell in behind Kirk’s car and followed for a short distance. The officer turned on the patrol car’s blue light and Kirk drove into another gasoline station lot. The officer pulled up beside Kirk’s car and the back-up pulled directly in front. The officers drew their weapons and ordered Kirk out of the vehicle, telling him to place his hands on the steering wheel where they could see them. Kirk placed his hands on the steering wheel for “approximately a second” and then reached back under the seat. The officers believed Kirk was behaving that way and not wanting to exit his car because he had a weapon. A four or five-minute stand-off ensued with Kirk continuing to put his hands under the front seat of the car. More officers arrived and extracted Kirk from his vehicle. A short time later, Wright was able to positively identify Kirk as the robber.

When the officers removed Kirk from his car, they noticed that his right hand was cut. In searching under the front seat of Kirk’s car, an officer found a bloody crushed glass tube, four or five inches long, with one end stuffed with a scouring pad. No gun was ever found.

At trial, after denial of defendant’s motion in limine and over defendant’s continuing objection, the officer testified about finding the glass tube. He testified further that based on his experience as a narcotics detective, it was his opinion that the glass tube was one used to smoke crack cocaine and was called a “straight-shooter.”

Kirk did not claim misidentification or alibi. He admitted the encounter with Wright but denied that he robbed him, maintaining instead that Wright had become angry because he had dumped trash from his car in the lot and that in retaliation he (Kirk) had obtained Wright’s truck keys and thrown them into the grass. Kirk also denied knowing anything about the glass tube and claimed that he had cut his hand on a broken arm rest in his car.

1. Kirk contends that the officer’s testimony about the tube was irrelevant, lacked probative value, and impermissibly placed his character in issue. He argues that the mere mention of “crack pipe” eroded the presumption of innocence by implying to the jury that he was guilty of other crimes such as cocaine possession and that his situation is analogous to that in Racquemore v. State, 204 Ga. App. 88 (418 SE2d 448) (1992).

Kirk filed a pretrial motion in limine seeking to exclude testimony about the tube, for the reasons now advanced, and others. The State responded, as it does now, that evidence of the object was admissible as a circumstance of the arrest. The motion was addressed as a threshold matter just prior to the start of trial, and after considering the arguments of counsel and a transcript of the preliminary hearing, the court ruled it would allow evidence that Kirk was breaking up the glass pipe, and that if a proper foundation were laid, opinion evidence regarding its use would be allowed.

In Racquemore, the objected-to testimony, i.e., a State’s witness testifying that defendant had related that he was on probation and living at a half-way house, served no legitimate purpose in the presentation of the case. It was not, as the State contended, material or admissible on the issue of motive, intent or course of conduct, nor was defendant’s statement properly considered as part of the res gestae of the crime. Moreover, the “limiting” instruction given by the court was not appropriate. Racquemore at 89 (2). It was necessary to reverse Racquemore’s conviction because his general character had been called into issue and a proper cautionary instruction had not been given. This case differs.

“ ‘(A)rticles found in the control of the defendant at the time or near the time of arrest. . . are admissible as circumstances connected with the arrest of the defendant.’ [Cits.]” Byers v. State, 204 Ga. App. 552, 554 (2) (420 SE2d 23) (1992). “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principle fact, and their admissibility is within the discretion of the trial court. [Cit.] . . . [A]ll circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. [Cits.]” Fuqua v. State, 183 Ga. App. 414, 419 (359 SE2d 165) (1987). Defendant’s arrest occurred within 45 minutes of the crime, while he was in the same car, and he was immediately identified by the victim.

The relation of the bloody and broken tube to the State’s case made the testimony relevant. Kirk’s delay in coming out of his car and his actions in the car and the blood on his hand were explained by the presence of the bloody, broken glass tube. It was reasonably inferable that he broke it up so that police would not see what it was, because they would know it was the type of article used for smoking crack. The testimony that it was defendant’s activity with the glass tube which delayed his coming out of his vehicle and necessitated his extraction from it was relevant as a circumstance of the arrest. The opinion of the officers that the glass tube was used to smoke crack and was called a “straight-shooter” was relevant as establishing a motive for the robbery, i.e., a need for money to buy crack. That this incidentally put defendant’s character in evidence does not render it inadmissible. Millis v. State, 196 Ga. App. 799 (1) (397 SE2d 71) (1990).

Appellant’s argument that the testimony also constituted inadmissible evidence of other crimes, citing USCR 31, lacks merit. This was not evidence of a “similar transaction” so as to fall within the notice requirements of USCR 31.3.

2. Error is enumerated in the instruction to the jury that before it could consider the lesser offense of theft by taking, it had to reject the other charges of armed robbery and robbery by intimidation. Relying on Edge v. State, 261 Ga. 865 (2) (414 SE2d 463) (1992) and Taylor v. State, 262 Ga. 584 (422 SE2d 430) (1992), which applied Edge, appellant argues that such a “sequential” charge was prohibited. He urges appellate review pursuant to OCGA § 5-5-24 (c), because he did not object to the charge at trial nor reserve later objection. In fact, at the charge conference, he implied agreement with this approach. Application of the rule enunciated in Edge “depend[s] on the preservation of the issue for appellate review. ...” Taylor, supra at 586 (3). See also Wilson v. State, 262 Ga. 588, 590 (2) (b) (422 SE2d 536) (1992). Thus, the requirement of objection to the charge or reservation thereof is not avoided by the coverage of OCGA § 5-5-24 (c).

Decided October 5, 1993.

Mitchell D. Durham, for appellant.

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

Moreover, the sequential charge disapproved in Edge is specific to the context of felony murder and voluntary manslaughter. The charge was rejected in order to accommodate the principle that “if there is but one assault and that assault could form the basis of either felony murder or voluntary manslaughter, a verdict of felony murder may not be returned if the jury finds that the assault is mitigated by provocation and passion.” Edge at 866. Under such circumstance, the sequential charge is not appropriate, for it “eliminates the jury’s full consideration of voluntary manslaughter because, if it concludes a felony murder occurred, it would not then go on to consider evidence of provocation or passion which might authorize a verdict for voluntary manslaughter.” Id. at 867. The rationale has not been applied to the relation between theft by taking and the crime of armed robbery or robbery by intimidation, and we perceive no reason to do so. Unlike felony murder and voluntary manslaughter, the jury’s consideration of armed robbery or robbery by intimidation would not eliminate evidence which might authorize instead a verdict for theft by taking.

Judgment affirmed.

Cooper and Smith, JJ., concur.


author: Cooper, Judge.

text:
    A93A1519.
    SOUTHEASTERN UNDERWRITERS, INC. v. AFLAC, INC. et al.
    (436 SE2d 556)
   Cooper, Judge.

This appeal arises from a breach of contract action brought by Southeastern Underwriters, Inc. (Southeastern) against AFLAC, Inc. Southeastern appeals from the trial court’s grant of summary judgment to AFLAC.

AFLAC, a company based in Columbus, Georgia, was established in 1955 by John Amos (Amos) for the purpose of selling various lines of insurance. In 1978, AFLAC entered into an agreement with Underwriters South, Inc., a company owned by Mr. and Mrs. Donald Land, the son-in-law and daughter of Amos. Pursuant to the agreement, AFLAC appointed Underwriters South as AFLAC’s state sales coordinator for its business in the State of Florida. The agreement with Underwriters South was in effect until 1987, when AFLAC entered into an agreement with Southeastern, a corporation wholly owned by Donald Land (Land). The 1987 agreement appointed Southeastern as AFLAC’s state sales coordinator for the State of Florida and provided for Southeastern to be paid commissions based on the premiums collected from insurance policies sold by AFLAC affiliates under the supervision of Southeastern. The agreement also contained an acceleration clause which provided, in relevant part, as follows:

“In the event said compensation and commissions due by [AFLAC] to [Southeastern] are not paid as provided herein, or in the event this agreement is terminated, [Southeastern] may demand the following procedure at any time after termination:

“(a) All such compensation and commissions due [Southeastern] for future new and renewal premiums, on the assumption that the contract would remain in effect until [Southeastern’s] voluntary termination, shall be ACCELERATED and shall immediately be due and payable to [Southeastern] by [AFLAC] after determination of the proper amount due on projected renewals, less proper discount for prepayment.

“(b) In the event the parties hereto can agree on such proper amount, the same shall immediately be paid by [AFLAC] to [Southeastern].”

The agreement also gave both parties the right to terminate the agreement, with or without cause, upon 30 days written notice. Land testified in his deposition that the acceleration clause was included in the agreement at the request of Amos to discourage a hostile takeover. Land explained that although the state sales coordinators had corporate identities, those corporations were merely conduits for family members of Amos and that Amos was concerned that a hostile takeover could result in his family members, who were in key positions, losing their jobs. Land also testified that he and Amos agreed that under the acceleration clause, AFLAC would continue paying the commissions until Land retired. Land stated that he planned to retire when he reached the age of 65 in the year 2020. On April 23, 1990, AFLAC gave Southeastern 30 days written notice of its intention to terminate the agreement and assign all of its affiliates in Florida to a new state sales coordinator. The termination was effective May 23, 1990, and in September 1990, Southeastern filed a lawsuit against AFLAC, contending that pursuant to the acceleration clause, it was entitled to recover commissions on all premiums for new and renewal policies collected by AFLAC between April 23, 1990 and the year 2020. The trial court granted summary judgment to AFLAC and denied Southeastern’s motion for partial summary judgment, and Southeastern appeals.

1. In two enumerations of error, Southeastern contends that the trial court erred in concluding that the acceleration clause in the agreement was unenforceable. AFLAC contends that the acceleration clause is unenforceable because it is only an agreement to agree on commissions due at a later date and that the clause provides no basis for calculating the commissions. “ ‘ “Unless all the terms and conditions are agreed on, and nothing is left to further negotiations, a contract to enter into a contract in the future is of no effect.” (Cit.) “An agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.” (Cit.)’ [Cits.]” Jackson v. Easters, 190 Ga. App. 713, 715 (1) (379 SE2d 610) (1989). Subparagraph (b) of the agreement clearly contemplates that there must be a subsequent agreement as to the amount of commissions due. In addition, Donald Land testified in his deposition that he understood that future negotiations would be necessary to determine the amount of commissions due Southeastern. We conclude that the acceleration clause is merely an agreement to negotiate in the future about the amount of commissions due and payable upon termination of Southeastern, and as such it is unenforceable. See Bridges v. Reliance Trust Co., 205 Ga. App. 400 (2) (422 SE2d 277) (1992).

The acceleration clause also lacks “such definite terms and certainty that [no] court may determine what has been agreed upon. . . .” Cann v. MARTA, 196 Ga. App. 495, 496 (1) (396 SE2d 515) (1990). While it is not necessary for a contract to state all the details of the agreement, it is axiomatic that for a contract to be enforceable, the material terms of that contract cannot be left to future negotiation. See Knoxville Med. Investors, Ltd. v. Nat. Healthcorp, L.P., 192 Ga. App. 460, 462 (3) (385 SE2d 110) (1989). “If the parties do not create a complete binding agreement, the courts are powerless to do it for them, or afford a remedy for a breach. [Cit.]” Sierra Assoc., Ltd. v. Continental Illinois Nat. Bank &c. of Chicago, 169 Ga. App. 784, 791 (3b) (315 SE2d 250) (1984). We conclude that the acceleration provision is unenforceable because it lacks sufficient definiteness and certainty regarding the amount of commissions due or the manner in which those commissions are to be calculated.

2. Southeastern also contends that the trial court erred in failing to consider parol evidence to establish the duration of AFLAC’s obligation to pay commissions and the anti-takeover purpose of the acceleration provision. Southeastern argues that this extrinsic evidence is necessary to arrive at a proper interpretation of the agreement. “ ‘There are instances when certain deficiencies or ambiguities may be explained by facts aliunde the instrument itself. However, information of such extrinsic nature may not be utilized to supply that which is essential to constitute a valid contract. (Cit.)’ [Cit.]” Demer v. Capital City Cable, 190 Ga. App. 40, 43 (2) (378 SE2d 162) (1989); Wiley v. Tom Howell & Assoc., 154 Ga. App. 235 (267 SE2d 816) (1980).

Decided October 5, 1993.

Denney, Pease, Allison, Kirk & Lomax, John W. Denney, Allen C. Levi, for appellant.

Champion & Champion, Forrest L. Champion, Jr., for appellees.

Moreover, the agreement contains a merger clause which provides: “This agreement shall constitute the entire agreement between the parties covering all insurance sales and is intended to replace all contracts and amendments to contracts dated prior hereto, and any previous verbal promises or statements by whomsoever made; and no supplement hereto shall be binding upon [AFLAC]. ...”

“ ‘Evidence as to an alleged understanding which is antagonistic to and inconsistent with the terms of the instrument is inadmissible to vary such terms. . . . (Cits.)’ [Cit.]” Leventhal v. Seiter, 208 Ga. App. 158, 162 (4) (430 SE2d 378) (1993). Southeastern’s contention that parol evidence should have been considered to establish the duration of AFLAC’s obligation to pay commissions is in direct contradiction to the merger clause in the agreement as well as the provision found in paragraph 4 allowing either party to terminate the agreement upon 30 days written notice. Therefore, Southeastern’s argument that the trial court should have considered extrinsic evidence is without merit.

For the foregoing reasons, we conclude that the trial court did not err in granting summary judgment to AFLAC.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1541.
    ALLEN v. THE STATE.
    (436 SE2d 559)
   Blackburn, Judge.

The appellant, Eric Allen, was convicted of child molestation of his 11-year-old niece, and sentenced to 15 years’ imprisonment. This appeal follows the denial of his motion for new trial.

At the trial, the victim testified about an incident in which Allen told her to go to the bedroom in his trailer, where he pushed her onto the bed, took off her clothes, and engaged in anal and vaginal intercourse with her. Evidence of a similar transaction involving an eight-year-old niece of the appellant was also admitted. Allen testified and acknowledged pleading guilty to molesting his other niece, for which he already was in prison, but he denied molesting the victim in this case.

1. Prior to the trial, the trial court granted the State’s motion in limine to exclude any evidence regarding sexual promiscuity of the victim involving any other person, pursuant to OCGA § 24-2-3. On cross-examination of the victim during the trial, defense counsel asked if she had accused her stepfather of molesting her about six months earlier, and the State objected on the grounds that it was prohibited by the trial court’s ruling on the motion in limine. Defense counsel argued that such evidence was admissible to show the victim’s “state of mind and that she has a penchant for making charges of this type,” but the trial court disallowed the inquiry.

In Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989), the Supreme Court held that the rape-shield law does not prohibit evidence of prior false allegations of sexual misconduct made by the victim against men other than the defendant. However, before such evidence may be admitted, the trial court must make a threshold determination outside the presence of the jury that a reasonable probability of falsity exists.

In the instant case, in arguing for the admission of the evidence, defense counsel made no claim that any allegations against the victim’s stepfather were false. Further, defense counsel asked the victim the question without first requesting the trial court to determine the admissibility of the line of inquiry outside the jury’s presence. Under these circumstances, the trial court properly disallowed the inquiry.

2. Allen contends that the trial court erred in denying his motion for mistrial, on the grounds that he appeared before the jury “bound and shackled and accompanied by a deputy sheriff into the courthouse.” However, the record actually shows that Allen was brought back from lunch recess wearing handcuffs, which were removed before he entered the courtroom. He did pass by the jury room, but only one juror was back from lunch and, according to the jury bailiff, that juror could not have seen the removal of the handcuffs from where she sat. “Absent justifying circumstances, the defendant normally should not be seen by the jury handcuffed in the courtroom or courthouse. However, where one or more jurors by chance see the defendant in handcuffs outside the courtroom, it is not error to deny a motion for mistrial.” Gates v. State, 244 Ga. 587, 593 (261 SE2d 349) (1979).

3. Allen called as a witness his nephew, Richard Virgil, who testified that originally he gave a statement concerning the allegations in this case because he had been mad at Allen for having molested his other cousin, but that he had subsequently recanted the statement. On cross-examination, Virgil recalled his original statement, detailing how on three occasions Allen had forced him to have sexual intercourse with the victim. Allen enumerates several related errors associated with Virgil’s testimony.

Initially, he contends that the trial court erred in allowing the state to intimidate the witness by advising him of the Miranda warnings and of his Fifth Amendment right not to incriminate himself. However, OCGA § 24-9-27 (a) provides in part that no witness shall be required to testify as to any matter that may criminate himself or bring infamy, disgrace, or public contempt upon himself or a family member. Virgil was 14 years old at the time of the molestation of the victim, and 18 years old at the time of the trial. Because of the contents of his earlier statement, there was a possibility that Virgil may be charged with felony offenses himself. Under these circumstances, it was entirely appropriate to advise Virgil of his rights before he testified.

Allen further contends that the prosecutor intimidated Virgil before the trial by threatening that he could receive up to twenty years in jail on each of three offenses if he did not testify as to what was reported in his original statement, and during the trial by reminding him of his failure to take a polygraph test that had been proposed by the State and initially agreed upon by Virgil. The record contradicts that contention regarding the pretrial confrontation, as on cross-examination Virgil conceded that the prosecutor had never told him to say anything other than the truth. Concerning the polygraph, the inquiry about the State having proposed such a test to resolve Virgil’s conflicting statements was an appropriate impeachment of Virgil’s initial claim during trial that the prosecutor had instructed him to testify a certain way. OCGA § 24-9-82, generally; Miller v. State, 260 Ga. 133 (3) (390 SE2d 50) (1990).

The trial court properly denied Allen’s motion for mistrial based upon this reference to a polygraph test having been proposed by the State, agreed upon by Virgil, and then never taken. In Georgia, the results of polygraphs are admissible upon express stipulation by the parties, but all other evidence concerning polygraphs is nonprobative and inadmissible. However, not every reference to a polygraph requires reversal. Brown v. State, 175 Ga. App. 246 (333 SE2d 124) (1985). The instant case involves merely a reference to the proposed polygraph, which was necessary to impeach Virgil’s trial testimony regarding the State’s alleged efforts to intimidate him.

We also reject Allen’s contention that the trial court erred in allowing the State to ask Virgil about the contents of his original statement implicating Allen, on the grounds that such introduced evidence of the victim’s sexual promiscuity in violation of the State’s own motion in limine. In the first place, the statement detailed the sexual abuse of the victim at Allen’s instigation, and not evidence of sexual promiscuity excluded pursuant to the State’s motion. Secondly, the trial court properly admitted the evidence as a prior inconsistent statement by Virgil. Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982).

Decided October 5, 1993.

Dunaway & Wallace, Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, Robert G. Dunn III, Assistant District Attorney, for appellee.

4. During closing argument, defense counsel asserted that the procedural rules in the criminal prosecution made it difficult for him to present a defense. In response to that suggestion that the rules were slanted in favor of the prosecution, the State reminded the jury that the defendant had twice as many jury strikes as did the State. Defense counsel then objected on the grounds of relevance, and moved for mistrial.

The proper range of comment by counsel during closing argument is within the discretion of the trial court. Mathis v. State, 171 Ga. App. 620 (320 SE2d 861) (1984). Counsel is usually given a wide latitude in closing argument. See Hicks v. State, 256 Ga. 715 (23) (352 SE2d 762) (1987). In the instant case, the trial court denied the motion for mistrial after noting that it had previously advised the jury about the juror selection process, and that the State’s reminder thus was merely repetitive. We find no abuse of discretion in the denial of the motion for mistrial.

5. Lastly, Allen contends that the cumulative effect of the alleged errors enumerated about resulted in a denial of his right to a fair trial. However, “[t]his state does not follow a cumulative error rule of prejudice. Any error of record must stand or fall upon its own merits and is not aided or aggravated by the accumulative effect of other claims of error.” (Citations and punctuation omitted.) Thompson v. State, 201 Ga. App. 646, 649 (411 SE2d 886) (1991).

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1739.
    SMITH v. THE STATE.
    (436 SE2d 562)
   Birdsong, Presiding Judge.

Donald L. Smith appeals his judgment of conviction and the sentence of simple possession of marijuana and driving while his license was suspended. He enumerates four errors. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant posed a hearsay objection to the arresting officer’s testimony that: “I pulled the vehicle over that [the complainants] had instructed me was trying to run them off the road.” The trial court overruled the objection, admitted the testimony, and immediately gave the jury a limiting instruction; the limiting instruction repeatedly instructed the jury that the testimony was not being admitted for the truth of the contents thereof but only to explain the officer’s actions as a result of receiving such communication. Appellant took no exception to the limiting instruction, nor requested additional limiting or curative instructions be given. Further, appellant did not move for a mistrial either before or after the limiting instruction. “When an appellant could have tendered a timely motion for mistrial or requested [additional limiting or curative] instruction but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial.” Harris v. State, 202 Ga. App. 618, 620 (3a) (414 SE2d 919); accord Kennedy v. State, 207 Ga. App. 798, 799 (2b) (429 SE2d 167), citing Lyon v. State, 262 Ga. 247, 248 (3) (416 SE2d 523); compare Sanford v. State, 261 Ga. 556 (2c) (408 SE2d 110). Appellant cannot complain of the trial court’s procedure in merely giving a limiting instruction when, as here, his own trial tactics procured or aided in causing such disposition. See Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309).

Additionally, assuming without deciding that this testimony was not admissible under OCGA § 24-3-2 to explain the conduct of the officer in making a traffic stop of appellant’s vehicle, we find that in view of the limiting instruction given and applying the “high probability test” of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869), any such error was harmless. Compare Teague v. State, 252 Ga. 534 (314 SE2d 910) with Sanders v. State, 204 Ga. App. 545, 549 (5) (419 SE2d 759). Appellant’s first enumeration of error is without merit.

3. To qualify an expert witness, nothing more is generally required than a showing that the witness has been educated in a particular trade or profession; such special knowledge may be derived from experience as well as study. Robinson v. State, 203 Ga. App. 759, 761 (5) (417 SE2d 404). It lies in the trial court’s sound discretion to decide “ ‘ “[w]hether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert” ’ ”; the exercise of this discretion will not be disturbed unless manifestly abused. McDonald v. Glynn-Brunswick Memorial Hosp., 204 Ga. App. 7 (418 SE2d 393); see Hall v. State, 204 Ga. App. 469, 472 (3) (419 SE2d 503). Formal education in the particular subject is not a prerequisite for expert status. Taylor v. State, 261 Ga. 287, 290 (404 SE2d 255). An expert is one whose habits and profession endow him or her with a particular skill in forming an opinion on the subject matter in inquiry. Sales v. State, 199 Ga. App. 791 (1) (406 SE2d 131). The witness had been certified as a police officer for about two-and-one-half years; he had several police training courses, including successful completion of a forty-hour course in drug identification of which sixteen hours were devoted to teaching the students how to use the Duquenois-Levine test, the fast blue B reagent test, and the microscope test for drugs. He obtained a co-diploma for the 16-hour sub-course after having tested various marijuana samples and false samples with 100 percent accuracy. He has used those tests about 30 times; sending samples to the crime lab in 22 of those cases. In each instance, the crime lab concluded the samples were “positive.” The witness previously has testified as an expert on about five prior occasions in municipal court. As there exists evidence to support the trial court’s qualification of the witness as an expert in drug (marijuana) identification, we find no manifest abuse of discretion. Compare Millwood v. State, 166 Ga. App. 292, 293 (3) (304 SE2d 103) and Cooksey v. State, 149 Ga. App. 572, 573 (3) (254 SE2d 892). Appellant’s second enumeration of error is without merit.

4. Appellant contends the trial court erred in charging actual and joint possession, as no evidence was presented that would support any such charge.

Marijuana was found in appellant’s vehicle; appellant was alone in the car at the time. Appellant testified as to other persons who had access to his vehicle prior to the seizure of the vehicle. He also asserted that the jacket containing marijuana, which was found on the passenger side, front seat of his car, belonged to his girl friend; there was women’s jewelry in one of the jacket pockets. A drink caddy and the burgundy box containing marijuana roaches were found on the transmission hump in the console area between the driver’s and front passenger’s seat. This marijuana was within appellant’s immediate access. The jacket was found on the front seat of the car.

Decided October 5, 1993.

D. Todd Wooten, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.

(a) Appellant’s contention that because he was alone at the time of his arrest this would tend to preclude any conclusion that possession could have been joint with others, is without merit. “ ‘ “If two or more persons shared actual or constructive possession of a thing, possession is joint.” ’ ” McLeod v. State, 170 Ga. App. 415, 417 (3) (317 SE2d 253). “ ‘Possession can be proven by circumstantial as well as direct evidence.’ [Cit.] All of the competent evidence adduced at trial, which was admissible against appellant, may be considered to show his constructive or joint possession.” Barnett v. State, 204 Ga. App. 491, 495 (2a) (420 SE2d 43). Although denying knowledge of the marijuana, appellant testified that the jacket found in his car (which contained drugs and women’s jewelry) had been in his car three or four days and had been worn by his girl friend just the day before. But appellant previously testified that his girl friend had been in possession of a coat earlier that evening; it had been in her car.

Appellant also testified that, although no one had driven the car that day, he had been in possession of it. He had probably been in the car about 15 minutes that day to drop off a friend.

We conclude that circumstantial evidence of record existed raising a jury issue whether appellant and his girl friend shared in the possession of the contraband; the existence of this evidence supported the court’s charge on joint possession.

(b) Appellant contends that a charge on actual possession gave rise to reversible error, because at most his possession of the marijuana could have been constructive only. We disagree. A jury issue existed as to whether possession was actual or constructive. Alvarado v. State, 194 Ga. App. 781 (391 SE2d 668), aff’d 260 Ga. 563 (397 SE2d 550); compare Sanders v. State, 199 Ga. App. 671, 672 (2) (405 SE2d 727) with Farmer v. State, 188 Ga. App. 375 (373 SE2d 68).

Additionally, as appellant does not argue or cite authority to establish that possession could not have been constructive in this case, this particular issue is abandoned on appeal. Court of Appeals Rule 15 (c) (2).

Appellant’s third enumeration of error is without merit.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1955.
    JAMES v. THE STATE. DALE v. THE STATE.
    A93A1956.
    (436 SE2d 565)
   Birdsong, Presiding Judge.

Terrance Ellis James appeals his judgment of conviction and sentence of armed robbery and aggravated assault; Travis Lamar Dale appeals his judgment of conviction and sentence of armed robbery, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellants no longer enjoy a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that each appellant was guilty of the offenses of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Both appellants’ contention that the trial court erred in failing to give a requested charge to the lesser included offense of misdemeanor theft by taking is without merit.

(a) As a general rule, a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. Poole v. State, 205 Ga. App. 652 (4) (423 SE2d 52). However, the record reveals that both appellants requested the trial court to charge the following “pattern charge” pertaining to theft by taking, “Part 4G 1 et seq. (specifically 4G 5 (b) — value less than $500).” These requests are ambiguous as to whether only paragraph 4G 5 (b) is being requested, or whether all theft by taking charges from Part 4G 1 on, specifically including 4G 5 (b), are being requested. Part 4G 5 (b) standing alone would constitute an incomplete charge as it does not adequately apprise the jury of the elements of theft by taking, and accordingly could mislead the jury regarding such offense. Likewise, charging on all theft by taking pattern charges from “Part 4G 1 et seq.” could confuse the jury as such a charge would include a definition of financial institutions and other matters not in issue. Compare Harris v. State, 202 Ga. App. 618, 621 (4c) (414 SE2d 919). “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised ... by the evidence, denial of the charge request is proper.” Id. Appellants’ enumerations of charging error, as crafted, are without merit. In the absence of a proper request to charge, there is no requirement to charge on a lesser included offense. Bonds v. State, 203 Ga. App. 51, 53 (6) (416 SE2d 329).

(b) Additionally, the potential lesser included offense of misdemeanor theft by taking was not reasonably raised by the evidence. Appellant Dale testified for the defense, and, although asserting that the store clerk had solicited him to join a criminal conspiracy to steal money from the store, denied “absolutely” that he or co-defendant James took any money out of the store and in effect denied that either he or co-defendant James had entered a criminal conspiracy with the clerk to steal store money. Neither did the evidence introduced by the State in any manner reasonably raise such a lesser included offense.

Decided October 5, 1993.

Whitehurst, Cohen & Blackburn, Steven B. Kelley, for appellant (case no. A93A1955).

Loftiss, Van Heiningen & Ward, Walter E. Van Heiningen, for appellant (case no. A93A1956).

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

Malone v. State, 142 Ga. App. 47 (234 SE2d 844) is distinguishable factually and not controlling. In Malone, defendant made certain admissions in evidence that he had robbed the victim and had taken the money, but denied that he had used any force. In this case, there exists no evidence that either appellant perpetrated or was a principal or a conspirator merely to a theft by taking. Under the posture of the evidence in this case, appellants either were guilty of armed robbery or were not guilty of any other offense involving the taking of the averred property. Where the evidence shows either the completed offense, as averred, or no offense, such evidence will not support a verdict for one of the lesser grades of the offense. Scott v. State, 208 Ga. App. 561, 562 (2) (430 SE2d 879); accord Jones v. State, 204 Ga. App. 279 (419 SE2d 542). Consequently, the trial court did not err in refusing to give appellants’ written request to charge on theft by taking. Id. Compare Belcher v. State, 201 Ga. App. 139, 141 (4) (410 SE2d 344).

Judgments affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0887.
    ROSS v. THE STATE.
    (436 SE2d 496)
   Birdsong, Presiding Judge.

Onslow Ross appeals his conviction for possession of a controlled substance with intent to distribute, and his sentence imposed under OCGA § 17-10-7.

While appellant was an inmate at Bibb County Law Enforcement Center (LEC) on trusty status, he was twice taken to the dentist for teeth extractions. The first time, the dentist gave appellant a prescription for twelve 100 mg. Demerol tablets; on the second visit, he was given a prescription for twelve 50 mg. Demerol, to be taken every four hours. According to the LEC nurse, each pill was dispensed to appellant at the time it was to be taken. The nurse testified she did not give appellant any pills to be taken later and did not know whether appellant “palmed” the pills. An officer testified that on July 30, 1991, another inmate who was a confidential informant told him appellant was selling 50 mg. Demerol pills to inmates. A “buy” was set up in which the informant would buy Demerol. Appellant and the informant met and when the informant gave the “take-down” signal, the officers stopped appellant. The arrest was planned to take place before an actual exchange to prevent destruction of evidence. Appellant was carrying in his hand a pouch containing a writing pad. Two Demerol tablets in tissue paper had been pushed up into the spine of the pad so they would not fall out. The officer testified the arrest occurred at 5:30 p.m. Officers then searched appellant’s locker but found no more controlled substance.

Appellant denied trying to sell any pills and testified the nurse had given him two pills to take at 4:00 p.m. and 8:00 p.m.; that when he dropped the pills in the pouch he did not take time to see where they fell; and that the arrest occurred at 3:50, so he had not had a chance to take the first pill at 4:00.

Another inmate testified that prior to this event appellant had sold him some 100 mg. Demerol pills. Held:

1. Appellant urges error on the admission of the officer’s testimony that a confidential informant, who never testified, had told him appellant was selling drugs in the jail, and that the informant set up a “buy.” This was not error in the facts of this case.

Such evidence is inadmissible hearsay when used to prove the truth of the matter asserted therein (see Momon v. State, 249 Ga. 865 (294 SE2d 482); Anderson v. State, 247 Ga. 397 (276 SE2d 603); Osborne v. State, 193 Ga. App. 276 (387 SE2d 383)); but in rare instances, conduct of an investigating officer needs to be explained. See Teague v. State, 252 Ga. 534, 535 (314 SE2d 910). Otherwise a jury may be unable to assess the evidence fairly and may find police behavior so inexplicable, highhanded, or even illegal, as to cast unwarranted doubt on the prosecution. See Hart v. State, 174 Ga. App. 134, 136 (329 SE2d 178). This is such a case. Without the officer’s explanation as to information he received from an informant, it could not be easily understood why the officers stopped and arrested appellant and why they did not wait until the sale was consummated but stopped him before he had taken any pills out of his note pad. Moreover, the contraband was a controlled substance for which he was given a prescription, and he may have explained his possession of it but for the fact that the officers found the pills pushed into the spine of his note pad; this discovery was made possible only by the arrest of appellant before he removed the pills to sell them. As there was no warrant or other witness to this incident, the officers’ actions in stopping appellant before the exchange occurred could not be explained without reference to information received by the informant. We have admitted such essential evidence in other cases. See Evans v. State, 201 Ga. App. 20, 26 (410 SE2d 146); Goldsby v. State, 186 Ga. App. 180 (367 SE2d 84); Hart, supra.

2. In his second enumeration, appellant contends the trial court erred in “permitting] testimony asserting prior acts with which appellant was never charged.” Appellant is referring to the testimony of another inmate that appellant had sold him 100 mg. Demerol pills. Trial counsel objected to this evidence on grounds that appellant had not been charged with that offense. The trial court expressed concern that appellant was not charged with this offense, but admitted the evidence to show his intent to sell Demerol.

This evidence was not objectionable on grounds that appellant was not charged with a crime for that act. See Randolph v. State, 198 Ga. App. 291, 292 (2) (401 SE2d 310). It was evidence of a “similar transaction.” The State was required to give notice of its intent to introduce it. Jackson v. State, 198 Ga. App. 447 (402 SE2d 279). The trial court was required to hold a hearing pursuant to USCR 31.3 (B) at which the State was required to show affirmatively three things: that it did not seek to introduce evidence of the independent act so as to raise an improper inference as to the accused’s character; that there is sufficient evidence to establish that the accused committed the other act; and that there is a sufficient connection or similarity between the other act and the crime charged so that proof of the former tends to prove the latter. The trial court was required to find affirmatively that these showings were satisfactorily made by the State. Williams v. State, 261 Ga. 640, 642 (409 SE2d 649).

At trial appellant objected only that he had not been charged with a crime for selling 100 mg. Demerol tablets. He did not object at trial that the State did not give him notice of intent to introduce the evidence, or that a hearing under USCR 31.3 (B) was not held, or that the trial court did not make the required findings before admitting the evidence. See Williams, supra. Neither did appellant raise these points in this appeal.

We recently have held that an appellant’s “failure to object to the admission of similar transaction evidence on the basis that a Rule 31.3 (B) hearing was not conducted does not constitute a waiver of the procedure dictated by Rule 31.3 (B) and does not preclude our consideration of this issue on appeal.” Riddle v. State, 208 Ga. App. 8, 11 (430 SE2d 153). Where admission of the evidence was harmful, the failure to hold a Rule 31.3 (B) hearing requires a reversal of the conviction. Id. Compare Cavender v. State, 208 Ga. App. 61, 63 (429 SE2d 711), finding the error harmless.

In Riddle and Cavender, these issues were raised on appeal by enumeration and argument. In this case, appellant’s complete failure to object at trial and his complete failure to raise these issues on appeal preclude us from addressing the issues on appeal. Moore v. State, 207 Ga. App. 897, 898-899 (429 SE2d 340). “[A]ny procedural defects in proof or presentation of the [similar transaction] evidence have been waived not only by defendant’s failure to object at trial . . . but by his failure to raise any such issue on appeal.” Hansen v. State, 205 Ga. App. 604, 607 (423 SE2d 273). Further, the evidence that appellant had sold 100 mg. Demerol pills, which he had gotten by prescription, to another prison inmate was admissible on its merits as a “similar transaction,” for it tends to prove appellant’s intent to sell 50 mg. Demerol pills to a prison inmate, as charged; since it was admissible on its merits we will not reverse the conviction. Moore, supra. Finally, any error could not have been harmful for having deprived appellant of a fair trial before the jury, because the evidence was admissible on its merits. See Cavender, supra.

3. The evidence in the case is sufficient to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

4. Appellant contends he was improperly sentenced. We agree, but not for the reasons he advances. Appellant contends he had previously pled guilty to four single-count indictments on the same day and received concurrent sentences on the four indictments, and that these convictions constituted one conviction for purposes of sentencing under the felony recidivist statute, OCGA § 17-10-7. However, he contends the trial court counted each sentence separately. OCGA § 17-10-7 (c) provides that for purposes of recidivist sentencing under that statute, conviction of two or more crimes charged in two or more indictments or accusations “consolidated for trial” shall be deemed to be only one conviction. As these pleas were entered on the same day, we shall assume they were entered at the same time, for it does not appear otherwise.

The sentence is defective because the State did not give notice of intent to use these prior offenses in aggravation of punishment for this offense, as required by OCGA § 17-10-2 (a). Although it is not essential that the indictment set forth the prior offenses, if the indictment does not set forth prior offenses it is necessary that the record contain an “affirmative notice to defendant that his prior felony offenses would be used against him for recidivist purposes during sentencing.” State v. Freeman, 198 Ga. App. 553, 556-557 (402 SE2d 529); see Favors v. State, 182 Ga. App. 179 (1) (355 SE2d 109). Although the State in argument commented that “defendant was served with notice of his habitual offender status,” no such “affirmative notice” appears in the record. Moreover, the prosecutor’s statement does not necessarily mean the State gave notice of intent to use those prior offenses in aggravation of punishment for this offense. The absence of proof of affirmative notice of the State’s intent to use those convictions for punishment is a defect fatal to maximum felony sentencing. Freeman, supra; see OCGA § 17-10-2. The sentence is vacated and the case remanded for proceedings not inconsistent with OCGA §§ 17-10-7 (c) and 17-10-2 (a).

Decided August 20, 1993

Reconsideration denied October 6, 1993

Sinnreich & Francisco, Elizabeth R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

Judgment affirmed and sentence vacated; case remanded.

Pope, C. J., and Andrews, J., concur.


text:
    A93A0892.
    BROWN v. PIGGLY WIGGLY SOUTHERN, INC.
    (436 SE2d 513)
   Johnson, Judge.

Carolyn Brown brought an action against Piggly Wiggly Southern, Inc. seeking damages for injuries she allegedly sustained when she slipped and fell at a Piggly Wiggly supermarket. Piggly Wiggly denied the material allegations in the complaint and filed a motion for summary judgment. The trial court granted Piggly Wiggly’s motion for summary judgment and this appeal follows.

While a proprietor is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show that the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980). In this case, it is uncontroverted that the proprietor had no actual knowledge of the presence of the foreign substance upon which Brown slipped. “There are two different classes of premises liability casés which may be based on constructive knowledge. The first is that type where liability of the defendant is based on the fact that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard. The second type of case is that based on the duty of the defendant to exercise reasonable care in inspecting and keeping the premises in safe condition. To sustain plaintiff’s cause of action in the latter case it is necessary that he prove a period of time the dangerous condition has been allowed to exist. Without such proof it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.” (Citations and punctuation omitted.) Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 429 (1) (408 SE2d 443) (1991). Brown contends that her fall was caused by the presence of melted butter on the floor. She asserts that the trial court erred in granting summary judgment because a genuine issue of material fact exists regarding the time necessary for butter to melt while on the floor, and therefore whether constructive knowledge of the hazard presented by the butter could be imputed to Piggly Wiggly, presumably because the butter must have been on the floor for some time to have melted.

Joanne Griffin was working behind the bakery-delicatessen counter bagging bread when Brown fell and was the first person to come to her assistance. She stated in her deposition that she noticed a place on the floor that looked “like a hunk of butter. It wasn’t melted.” Kenneth Williams, another store employee was stocking frozen pies at the opposite end of the aisle when Brown fell. He testified that when they were looking for the substance which might have caused the fall, he found skid marks from solid butter. Brown testified that she did not know what she had slipped on, other than it was “a greasy formula on the floor” but testified that the store manager told her when he came to her assistance that it was melted butter. It is this statement which forms the theory of Brown’s case.

We are bound to construe the evidence most favorably to the party opposing the motion for summary judgment and to give the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. Ga. Farm Bureau Mut. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593, 594 (379 SE2d 619) (1989); Applying this well entrenched rule, the statement made by John Clayton, acting within the scope of his authority as the store manager, which is admissible either under OCGA § 24-3-33 as an admission against interest by an employee-agent or under the res gestae exception, OCGA § 24-3-3, is sufficient to raise an issue of fact regarding the length of time the substance had remained on the floor. Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245) (1990).

This court recognizes recent developments in food science which have made it possible to market butter and butter substitutes in various forms. In light of the existence of squeeze butter which is always liquid, soft butter and whipped butter, which are somewhere between liquid and solid, the inquiry at trial regarding how long the substance upon which Brown slipped had been on the floor, may be no more than speculation. Nonetheless, Brown has established a question of fact which may be material to the case and the trial court erred in granting summary judgment to Piggly Wiggly. See Mitchell v. Rainey, 187 Ga. App. 510 (370 SE2d 673) (1988).

Decided September 23, 1993

Reconsideration denied October 6, 1993

Sell & Melton, Mitchel P. House, Jr., Robert D. McCullers, for appellant.

Jones, Cork & Miller, Timothy Harden III, Carr G. Dodson, for appellee.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


author:
Birdsong, Presiding Judge.
      . Pope, Chief Judge,

text:
    A93A0903.
    DWORKIN v. THE STATE.
    (436 SE2d 665)
   Birdsong, Presiding Judge.

Ronald Dworkin appeals his judgment of misdemeanor conviction and sentence of fleeing the scene of an accident; his sole enumeration of error is insufficiency of evidence. At trial without a jury it was stipulated by the prosecution and defense, that appellant was, in fact, the driver of the vehicle that struck the victim. The so-called “knowledge element . . . the scienter element of the crime” was contested.

The victim and his son were walking along the shoulder of the road facing on-coming traffic; appellant’s car approached and edged over without any erratic movement; the victim was struck with the right, outside mirror of the vehicle breaking his arm and dislocating his wrist. The incident occurred between 9:20 and 9:30 p.m.; it was dark. The son was wearing an electric blue ROTC shirt with yellow plastic lettering; it was easily seen at night. The victim was wearing a solid blue shirt, tan slacks, and no reflective clothing. The victim was knocked down and did not see the car thereafter.

The victim’s son testified: As he and his father were walking single file with one foot on the asphalt, an approaching car came close; he heard a thump and saw his father had been hit. When his father was struck, a thud occurred — “it was kind of like the pang of metal”; it had (demonstrated by knocking on side of witness box) “a ring to it.” In the son’s opinion, the noise would not be difficult to hear in a closed-in area. The car flew past him; he saw “the car slow down at the top of the hill, and the brake lights came on . . . then the car proceeded on.” The car’s brake lights came on “almost underneath [a street] light.” The son recalled no red light, stop sign, or intersection where the car slowed down. Appellant confirmed no such road conditions exist there. Appellant’s car was about two football fields away when its brake lights came on.

A passing motorist heard the victim scream, followed the car that was leaving the scene, and obtained its license plate number. The witness opined, without objection, that it appeared the driver did not know he had hit anyone; however, he also testified that, although he is not really sure, the car appeared to speed up after the man screamed.

Appellant testified that at the time of the incident he was returning from shopping; it was very dark outside; the air conditioner was on full power; the car radio was on; he did not see anything unusual or any pedestrians on the road; he did not hear anything suspicious; he was not aware his car had been involved with a pedestrian until four or five days later when contacted by law enforcement authorities. After talking with the police, he inspected his car and saw the bent mirror. Appellant has over 35 years of driving experience and said he would have stopped if he knew he hit anyone. Held:

OCGA § 40-6-270 (a) provides, inter alia: “The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident.” Subsections (b) and (c) (1) of this statute pertinently proscribe as criminal conduct, “knowingly failing to stop and comply with the requirements of [the Code section].” Compare Jackson v. State, 49 Ga. App. 345, 348-349 (175 SE 421). Under a statute imposing a duty upon a motorist in an accident causing death, damage or injury to another to stop and identify himself, knowledge of the death, damage or injury is generally a prerequisite to conviction, even though the statute does not expressly require such knowledge by the motorist. Such knowledge is, of course, an element of the offense under a statute which imposes such duty upon a motorist who “knowingly” collides with or causes injury to any person. It is not absolute and positive knowledge which must be shown, but rather only that the circumstances were such that a reasonable person would have believed that an accident had occurred resulting in death, damage or injury to another. 7A AmJur2d, Automobiles and Highway Traffic, § 290. Further, as a general rule, “[a] ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1. Intent may be inferred from, and usually of necessity must be proved by, circumstantial evidence (Legg v. State, 204 Ga. App. 356, 357 (1) (419 SE2d 151)); it may be ascertained from acts and conduct. Lawrence v. State, 68 Ga. 289. Intention is a question of fact (see OCGA § 16-2-6); knowledge like intent is a fact question seldom capable of proof by direct evidence. Johnson v. State, 158 Ga. App. 183, 184 (1a) (279 SE2d 483). Knowledge and criminal negligence, like intent, may be proved by circumstantial evidence. There exist both direct and circumstantial evidence in this case, but the evidence as to appellant’s knowledge of the accident and as to his general criminal intent is circumstantial in nature.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; an appellate court determines evidence sufficiency and does not weigh the evidence or determine credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). To support the verdict, circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662).

Appellant stipulated he was driving the car that hit the victim. In this instance the factfinder could find from the conduct of appellant in driving his car toward the victim, speeding up after the victim screamed, slowing the car down and applying the brake lights about two football fields away, that appellant had knowledge of the accident and the requisite general intent. It would appear this is the type of offense that also could be committed through an act of criminal negligence, and likewise there also exists ample evidence for the factfinder to have made such finding beyond a reasonable doubt.

Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of leaving the scene of an accident. Moreover, viewing the evidence of this case in a light most favorable to the verdict, we conclude the judge rationally could have found no reasonable hypothesis except that of the defendant’s guilt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Whether every reasonable hypothesis except that of guilt of the defendant has been excluded is a question for the factfinder in a trial without a jury. Compare Schmalz v. State, 177 Ga. App. 634, 636 (341 SE2d 11).

As no enumeration of error was filed as to an alleged right to sentencing under the First Offender Act, as argued in appellant’s brief, this matter is not before us on appeal. Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522).

Judgment affirmed.

McMurray, P. J., Andrews, Johnson, Blackburn and Smith, JJ., concur. Pope, C. J., Beasley, P. J., and Cooper, J., dissent.

. Pope, Chief Judge,

dissenting.

I must dissent because there is insufficient evidence in this case from which a reasonable trier of fact could have found beyond a reasonable doubt that the defendant knowingly left the scene of an accident in violation of OCGA § 40-6-270 (a). I agree with the majority’s conclusions that knowledge is an element of the offense proscribed by OCGA § 40-6-270 (a) and that the only evidence in this case of criminal intent is circumstantial in nature. However, I do not agree with the majority’s further conclusion that viewing the evidence in the light most favorable to support the verdict the evidence in this case excludes every reasonable hypothesis except that of the defendant’s guilt.

In this case, the defendant, a 61-year-old engineer, who is a resident of San Francisco temporarily working in the Augusta area, was returning from a trip to the grocery store in his rental vehicle. The victim and his son were walking along an unlit, well-traveled road after dark. Because the grass on the shoulder of the road was high, the victim and his son both testified that they were walking single file with one foot on the asphalt and one foot on the ground. Both the victim and his son also testified that the defendant’s car was traveling at a normal speed for that portion of the road and the car made no erratic movement when it approached them but eased closer to the side of the road where they were walking. Defendant’s car did not strike the son of the victim, who was walking ahead of the victim. The victim’s son testified that he was wearing an “electric blue” shirt with yellow plastic letters which he opined was easy to see. However, he further testified that no one had ever told him his shirt was easy to see at night. The victim was wearing a solid blue shirt and tan pants, without any reflective material on his clothing.

The victim’s son testified that the defendant applied his brakes at the top of the hill. However, he testified that the defendant’s car was approximately the length of two football fields away from the area where he struck the victim at the time he applied brakes. The only other witness who had an opportunity to observe defendant and his car at the time he struck the victim was a passenger in the car traveling behind the defendant’s car who testified he did not recall whether defendant applied his brakes after striking the victim and also testified defendant “looked like he didn’t know if he hit him or not.” That witness further testified that the defendant’s car may have sped up after it hit the victim but he was not sure and offered it could have appeared that way because the driver of the car he was riding in was slowing down. The defendant’s testimony was not impeached. He testified that on the night in question he was returning from the grocery store and had both the air conditioner and music on in his car with all windows closed. He stated he had no idea he struck anyone or anything with his car until he was contacted by the police officer investigating the reported hit-and-run of the victim. He then inspected his rental car and noticed the side view mirror was bent slightly. The investigating officer corroborated the defendant’s testimony that the damage to his car was slight and not readily noticeable. The defendant also presented a character witness who testified the defendant had a good reputation for honesty and integrity.

Decided September 9, 1993

Reconsideration denied October 6, 1993

Kenneth R. Chance, for appellant.

Robert W. Hunter III, Solicitor, Carl P. Dowling, Assistant Solicitor, for appellee.

“ ‘Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a question for determination by the [finder of fact.] . . . However, this court as a court of law, where there appears a hypothesis from the evidence, or from the lack of evidence and the defendant’s statement, pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, may declare it so as a matter of law.’ ” Harris v. State, 236 Ga. 242 (223 SE2d 643) (1976) (quoting Smith v. State, 56 Ga. App. 384, 387 (192 SE 647) (1937)). In my opinion under the facts of this case, the hypothesis that the defendant did not know he had struck the victim with the side view mirror of his rental car until he was contacted by the police is a reasonable one which is tested by human experience and was not excluded by the evidence. Because the evidence in this case was not sufficient to authorize a finding that the defendant knowingly left the scene of an accident beyond a reasonable doubt, the judgment of the trial court should be reversed.

I am authorized to state that Presiding Judge Beasley and Judge Cooper join in this dissent.


text:
    A93A1049.
    JACKSON et al. v. STONE et al.
    (436 SE2d 673)
   Smith, Judge.

Harold and Betty Stone, Weldon Cantrell, and G. C. and Irene Lunsford sought a declaration of their rights regarding a road running across their property they claimed was a private drive, which adjacent property owners had been using to provide access to their own land. After a bench trial, the trial court entered judgment declaring that the road was not and had never been a public road, and that the defendants, Paul Jackson, Floyd Jackson, and W. C. Crider, had not acquired an easement by prescription across the plaintiff’s property. The Jacksons and Crider appeal.

The evidence established that an old road, running from Old Cool Springs/Holly Creek Road (the “paved road”) in Murray County, had existed for some time. By 1978, it had become substantially impassable, and appellee Lunsford built a new road onto his property from the paved road that did not follow the old roadbed. The trial court found as fact that in 1989 appellants bought at an estate auction a tract of land in Murray County intended for development adjacent to appellees’ property. Although other access to the property existed across the mountain, they considered the road in issue, running from the paved road across the land of appellees, to provide the most convenient access to portions of their property. Appellees Stone and Cantrell erected a gate across the road when the Stones were building their house. In the process of developing their property, appellants needed to send trucks and equipment up to their property, and they took down the gate and scraped the road with a grader, prompting this litigation.

1. Appellants contend the trial court erred in concluding that the southern portion of the road in issue was not a public road. They argue that the road was dedicated to public use and accepted by the county, and that consequently, their rights were materially affected by Lunsford’s reappropriation of the road to private purposes within the meaning of OCGA § 44-5-230.

A dedication to public use is not complete until both the intention of the owner to dedicate and the acceptance on the part of the public is shown. Healey v. City of Atlanta, 125 Ga. 736, 737 (54 SE 749) (1906). Intention to dedicate need not be shown by express declaration to that effect, but may be inferred from the owner’s acquiescence in the use of his property by the public, provided the use clearly indicates the public’s acceptance of the dedication. Id. at 737-738. Whether a dedication or acceptance has taken place is a question for the trier of fact. Penick v. County of Morgan, 131 Ga. 385, 390-391 (2) (62 SE 300) (1908).

In support of their contention that Lunsford dedicated the road to public use, appellants point to testimony that the road was a mail route and that the county had graded the road several times, and had provided gravel as well. However, in support of appellees’ claim that the road was private, Lunsford testified he had never deeded it or dedicated it to public use, and had never intended that it be public. Contrary to appellants’ argument, we do not find Lunsford’s testimony in this regard to be contradictory. In the past, he had been asked by others for easements to use the road, which he specifically granted in some cases, and specifically refused in others, retaining control over who used the road. He had granted an easement, for instance, to the Stones and Cantrell. He testified that when he built the road, he acquired some used tile from the county, which he incorporated into the road, and several times the county graded and graveled it. However, the road was built at his own expense; he hired a bulldozer and operator to build it.

Everett Jones, who had lived in Murray County all his life and was a former county road superintendent, testified that until recently, it had been the policy of the county to deliver gravel to and grade private drives and roads upon request, when trucks were in the area working; that such assistance was not an indication of the county’s acceptance of a road’s dedication to the public; and that to his knowledge the county had never claimed this road in issue as a public road. Appellant Jackson testified that he was aware when he bought the property at the auction that the county was not keeping up or maintaining the road, and that it was not a county road.

Given this evidence, we find appellants showed neither the intent to dedicate the road to the public nor its acceptance by the county. We therefore agree with and affirm the trial court’s conclusion that the southern portion of the Lunsford drive was not a public road.

2. Appellants also contend that because their predecessors in title and others used the road to reach their property for as long as anyone could remember, they acquired a right of private way by prescription over the northern portion of the road. See OCGA § 44-9-1. They argue that the trial court erred by concluding that appellees had not violated OCGA § 44-9-54, which provides that “[wjhenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.”

It is apparent from the evidence that many people, including appellants’ predecessors in title, used a road running from the paved road, to gain access to their property. However, the evidence conflicts as to the relationship borne by the new road, built by Lunsford and modified by the Stones and Cantrell, to the old road. There is evidence to support the trial court’s finding that the location of the Lunsford road appellants wish to use is not identical to that of the old roadway used by their predecessors in title. It is clear, for instance, that Lunsford built his road on the other side of an old rock wall from the location of the old road. Further, when Stone and Cantrell built a new concrete bridge over the creek at their own expense to replace a wooden bridge that had washed out, they moved it from the site of the old bridge. We therefore agree with the trial court that appellants have not shown “uninterrupted use of a permanent way ... for seven years” as required by OCGA § 44-9-54. Instead, the route of travel between the property now owned by appellants and the public road “has been over different paths at various times for less than the required time.”

Decided September 17, 1993

Reconsideration denied October 6, 1993.

Mitchell, Coppedge, Wester, Bisson & Miller, Terry L. Miller, for appellants.

Little & Adams, Robert B. Adams, for appellees.

Moreover, even assuming the existing road is identical to the old road, use of the road by appellants’ predecessors in title over a period of years with the acquiescence of appellees and their predecessors in title is insufficient to establish a prescriptive right to a private way. Georgia law requires that one seeking to establish a prescriptive right to a private easement over the land of another must show that the road has been kept open and in repair during the prescriptive period. The purpose of requiring a showing of repairs is to give notice to the landowner that the prescriber’s use is adverse, rather than permissive. Chota, Inc. v. Woodley, 251 Ga. 678, 679-680 (309 SE2d 132) (1983). The evidence was uncontroverted that neither appellants nor their predecessors in title contributed to the building of the road or its repair and maintenance. Indeed, when appellants did perform work on the road by grading it and removing the gate, those actions prompted this litigation. The evidence showed that use of the road was permissive in nature.

The trial court did not err in concluding that appellants had not acquired a prescriptive easement over the southern portion of the road.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.