author: Pope, Judge.

text:
    A91A0089.
    COLLINS v. THE STATE.
    (405 SE2d 892)
   Pope, Judge.

Defendant Demetrius Collins appeals his convictions of aggra-j vated assault and possession of a firearm during the commission of felony on the general grounds. The evidence at trial showed defendant pointed a pistol at the victim, stated ‘Tve got something for you,” and pulled the trigger. A bullet penetrated the victim’s neck, inflicting a life-threatening injury. Defendant argues that because no evidence of his intent to injure the victim was presented and because he testified he was only joking when he pointed a pistol at the victim, and did not realize it was loaded, the evidence is insufficient to convict him.

Decided May 8, 1991.

James W. Hall, Jr., for appellant.

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

Intent to injure is not an element of aggravated assault with a deadly weapon. In describing the distinction between the misdemeanor offense of pointing a firearm at another (OCGA § 16-11-102) and aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)), the Georgia Supreme Court declared, “if the pointing of the firearm placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.” Rhodes v. State, 257 Ga. 368, 370 (5) (359 SE2d 670) (1987). “A simple assault is defined as . . .an act which places another in reasonable apprehension of immediately receiving a violent injury. [OCGA § 16-5-20 (a) (2).] An assault becomes aggravated when it is perpetrated ... by use of a deadly weapon. [OCGA § 16-5-21 (a) (2).] Thus, ‘Aggravated assault with a deadly weapon is completed when a simple assault is committed by means of a deadly weapon,’ Scott v. State, 141 Ga. App. 848, 849 (234 SE2d 685) (1977). . . .” Tuggle v. State, 145 Ga. App. 603, 604 (1) (244 SE2d 131) (1978). It is the reasonable apprehension of harm by the victim of an assault by a firearm that establishes the crime of aggravated assault, not the assailant’s intent to injure. See Adsitt v. State, 248 Ga. 237 (6) (282 SE2d 305) (1981).

In this case, the victim testified he was scared when the defendant pointed the gun at him. The transcript shows the State presented evidence of all the elements of aggravated assault by a deadly weapon, as defined by OCGA § 16-5-21 (a) (2), and thus the evidence was sufficient to convict defendant of that offense and the offense of possession of a firearm during the commission of a felony.

Judgment affirmed.

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


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A0172.
    MARSHALL v. THE STATE.
    (405 SE2d 893)
   Birdsong, Presiding Judge.

Mark Marshall III appeals his conviction of theft by shoplifting by taking one set of Charisma queen-size flat sheets, with a value greater than $100 from a department store. He contends that the trial court erroneously denied his motion for a directed verdict because of a fatal variance between the allegation and the proof and also because of the lack of State’s evidence, a conflict in the State’s evidence, and the evidence is contrary to law and the principles of justice and equity. Marshall also alleges that the trial court erred by giving a charge on impeachment of a witness through prior inconsistent statements. Held:

1. (a) Regarding Marshall’s allegations concerning his motion for a directed verdict, such a motion should only be granted when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125127 (312 SE2d 311). In reviewing the trial court’s decision, an appelate court may consider all the evidence presented (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)) and must view the evidence in thlight most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436).

Review of the evidence in this manner reveals that Marshall entered the store, took the sheet from display, took it to a check-out counter where he claimed that the sheet was a Christmas gift and asked for arid obtained a refund slip from the sales clerk. Although Marshall asserts that there was a conflict in the testimony of the State’s two chief witnesses, we find none as their testimony is compatible. As there is ample evidence from which any rational trier of fact could find beyond a reasonable doubt that Marshall was guilty of the offense charged (Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)), we find that the trial court did not err by denying Marshall’s motion because of any alleged evidentiary deficiency.

(b) Further, Marshall’s claim that his motion was erroneously denied because of a fatal variance between the indictment that alleged he took a “set” of sheets valued at over $100 and the proof that showed that he took one sheet valued at over $100 is without merit. A “set” of sheets of necessity includes at least “one” sheet. Assuming without deciding that “one” does not constitute a “set,” nevertheless, we find no fatal variance between the indictment and the proof, “ ‘The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall bejffl definitely informed as to the charges against him, so that he may bejffl enabled to present his defense and not be taken by surprise by thejffl evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.’ ” DePalma v. State, 225 Ga. 465, 469-470 (169 SE2d 801). Here the only difference between the indictment and the proof was that the package of sheets that the jury found Marshall guilty of taking contained one rather than more than one sheet. The date, place, owner, brand name, and value were all the same. Most significantly, there was no difference between the offense alleged and proven or in the manner in which it was alleged to have been committed. See Hamby v. State, 76 Ga. App. 549, 554 (46 SE2d 615). Thus, there was no variance in a necessary fact. See Bell v. State, 227 Ga. 800, 802 (183 SE2d 357). Under these circumstances we find no fatal variance. See DePalma v. State, supra. Accordingly, the trial court did not err by denying appellant’s motion for a directed verdict on either basis alleged.

Decided May 8, 1991.

Michael S. Weldon, for appellant.

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

2. Finally, Marshall asserts that the trial court erred by giving a charge on impeachment through a prior inconsistent statement because he alleges that the inconsistencies in his statements concerned a collateral issue. See Strickland v. State, 166 Ga. App. 702 (305 SE2d 434). The inconsistencies in question were between the sales clerk’s testimony that Marshall told her that his mother had given him the sheet as a Christmas present and Marshall’s testimony that he bought the sheet himself at another one of the store’s locations with money given him by his mother. The significance of the testimony is that Marshall’s mother could not have purchased the sheet at this store as a Christmas present because the store started carrying the sheet only after Christmas. Thus, the testimony did not concern a wholly immaterial matter, and the charge was warranted by the evidence. OCGA § 24-9-82; Strickland, supra.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0216.
    VALHALLA, INC. v. O’DONNELL.
    (405 SE2d 895)
   Birdsong, Presiding Judge.

Valhalla, Inc., appeals from the trial court’s judgment enforcing he settlement of the lawsuit between Valhalla and John W. 3’Donnell a/k/a Jack O’Donnell. In essence, Valhalla contends the ;rial court erred by refusing to consider its affidavit and response to O’Donnell’s motion seeking enforcement of the settlement, erred by denying its motion to reconsider its judgment enforcing the settlement, and erred by denying its motion to strike parts of the affidavit submitted in support of O’Donnell’s motion. Held:

1. The record on appeal reveals that in June 1989, counsel for the parties agreed to settle the lawsuit with the understanding that Valhalla’s counsel would prepare the settlement documents. When the settlement documents were not prepared after repeated letters from O’Donnell’s counsel, on February 19, 1990, O’Donnell filed a motion to enforce the settlement with the affidavit of O’Donnell’s counsel attached. Thereafter a hearing on the motion was scheduled for June 12, 1990. Valhalla did not respond to the motion until June 11, 1990, when by certified mail it served its response and opposing affidavit on O’Donnell. The response and affidavit were not filed until June 12, 1990, the day of the hearing.

At the hearing, however, the trial court refused to consider the response and affidavit because they were not filed within 30 days of service of the motion as required by Rule 6.2 of the Uniform Rules for Superior Courts, and granted O’Donnell’s motion to enforce the settlement. Valhalla contends that rejecting its response and affidavit was prejudicial error because Rule 6.2 conflicts with the provisions of the Civil Practice Act. See O’Quinn v. Southeast Radio Corp., 190 Ga. App. 608 (380 SE2d 487).

Although Valhalla is correct that Rule 6.2 must yield to conflicting provisions of the Civil Practice Act, that principle is not controlling in this appeal. The applicable provisions of the Civil Practice Act provide that a respondent to a motion for summary judgment may serve opposing affidavits prior to the day of the hearing (OCGA § 9-11-56 (c)) and that “[a] 11 affidavits shall be filed with the court. . . .” OCGA § 9-11-56 (e). These provisions must be read in conjunction with OCGA § 9-11-6 (d) which specifies that “[o]pposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time,” and OCGA § 9-11-5 (d) which requires affidavits to be “filed with the court within the time allowed for service.” As the opposing affidavit was not filed until the day of the hearing, it was untimely, and the trial court did not err by refusing to consider it. “The trial court can exercise its discretion in determining whether to consider an affidavit filed on the hearing date. Blair v. Motorized Leasing, 173 Ga. App. 283 (325 SE2d 896).” Crucet v. Bovis, Kyle & Burch, 180 Ga. App. 765, 766 (350 SE2d 322). Thus O’Quinn v. Southeast Radio Corp., supra, is not controlling here, and Valhalla’s contention that the trial court improperly rejected its affidavit is without merit.

2. Because of our holding in Division 1, Valhalla’s other contentions are also without merit, as there was no rebuttal to his evidence and O’Donnell was entitled to summary judgment. Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544); Vandiver v. McFarland, 179 Ga. App. 411, 412 (346 SE2d 854).

Decided May 8, 1991.

Smolar, Peletier, Roseman & Barnes, Thomas A. Rice, for appellant.

John G. Haubenreich, for appellee.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Sognier, Chief Judge.

text:
    A91A0151.
    ROBERTSON v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (405 SE2d 745)
   Sognier, Chief Judge.

Thomas Robertson brought suit against Metropolitan Atlanta Rapid Transit Authority (MARTA), seeking damages for injuries he incurred at MARTA’s Peachtree Center rail station. The trial court granted MARTA’s motion for summary judgment, and Robertson brings this appeal.

Appellant testified by deposition that after spending time with friends at a local bar and consuming three or four large mixed drinks between midnight and approximately 3:00 or 4:00 a.m. on November 19, 1985, he entered appellee’s Peachtree Center station at about 5:00 a.m. and sat down on a bench to wait for the southbound train. Thinking he heard the train approaching, he walked to the edge of the platform, where he noticed another man nearby. The person observed by appellant was never identified or located. Appellant could recall nothing more about the incident other than awakening in the intensive care unit of a hospital. Appellant was discovered on the southbound track of the station shortly after 6:00 a.m. by two MARTA patrons, who signaled an oncoming southbound train in whose path appellant lay. He had incurred extensive injuries, necessitating amputation of his left arm above the elbow.

Appellant contends the trial court erred by granting summary judgment to appellee because material questions of fact remain for jury determination. We do not agree, and affirm the trial court’s grant of summary judgment to appellee.

To state a cause of action for negligence in Georgia, it is necessary to establish the essential elements of duty, breach of that duty, and proximate causation, as well as damages, as a basis for liability for the injuries of another. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). It is well established that “the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. [Cits.]” Hill v. Hosp. Auth. of Clarke County, 137 Ga. App. 633, 639 (4) (224 SE2d 739) (1976). In this case, two elements of the cause of action were established. It is clear that appellee had a duty to protect appellant from unreasonable risk of harm because ap-pellee is a common carrier, and accordingly has the duty to exercise “extraordinary diligence” to protect its fare paying passengers. OCGA § 46-9-132. It is also evident from appellant’s injuries that he was damaged. The remaining elements of breach of duty and proximate causation are more problematic.

In his complaint, appellant alleged that he fell asleep while waiting for the train; that while asleep he was assaulted, beaten, robbed, and left unconscious on the tracks; and that one or more of appellee’s trains ran over him, causing his injuries. In support of its motion for summary judgment, appellee submitted an affidavit from Michael Killian, its manager of Central Control. At the time of the incident, Killian was appellee’s Chief Controller, whose duties included maintaining records of train schedules. Killian detailed the pertinent train schedule for the morning of November 19, 1985, from the first “sweep” train, which inspects the tracks for any unusual condition, through the sixth train of the morning, which was the train flagged down by patrons when appellant was discovered on the tracks. Killian listed for each train the time of its departure from the beginning of the line; the time of its arrival at Peachtree Center Station; and the name of the operator. Appellee also submitted affidavits from these operators. Each operator averred that he had been trained “to be extremely alert and to maintain a constant visual check of conditions as far ahead as possible” when entering and leaving a station and “to visually scan the entire station area, including the platforms and the track itself,” and that he had done so upon entering and leaving the Peachtree Center station that morning and had observed nothing unusual.

In opposition to appellee’s motion for summary judgment, appellant proffered his own affidavit, in which he averred that although he did not remember how he came to be on the track, he did not voluntarily place himself there, and did not enter the station intending to sleep there or to commit suicide. Appellant also submitted the affidavit of Anthony Cabot, M.D., a diplómate of the American Board of I Orthopedic Surgery, who testified that he had personally examined appellant and reviewed his medical records, and who opined that appellant’s injuries were “most consistent with and . . . probably caused by being struck by a train.” I

Notwithstanding the sworn testimony of the train operators thatl they saw nothing unusual, and despite the lack of eyewitness testi-l mony, we do agree with appellant that sufficient circumstantial evidence exists in the record that appellant was run over by a train to create a jury question as to the element of proximate causation. However, we do not find a material question of fact remains as to the essential element of breach of duty. “Negligence cannot be presumed; on the contrary, performance of duty and freedom from negligence is presumed. [Cit.]” (Emphasis supplied.) Johnson v. Ellis, 179 Ga. App. 343, 345 (346 SE2d 119) (1986). The affidavits of appellee’s train operators pierced appellant’s bare allegations of negligence, and appellant failed to come forward with any evidence rebutting the affidavits of the train operators showing that they did nothing to breach appellee’s duty of care to appellant.

Decided May 9, 1991.

E. Graydon Shuford & Associates, Charles F. Perkins, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Michal J. Gorby, Stephanie L. Scheier, for appellee.

“ ‘(O)nce a party in the position of a defendant who is a movant for summary judgment pierces the pleadings of one in the position of a plaintiff and shows to the court that one essential element under any theory of recovery is lacking and incapable of proof, the defendant is entitled to summary judgment as a matter of law irrespective of any issues of fact with regard to other essential elements. (Cit.)’ [Cit.]” Adler’s Package Shop v. Parker, 190 Ga. App. 68, 72 (1) (378 SE2d 323) (1989). As appellant failed to show the essential element of breach of duty, the trial court correctly granted summary judgment to appellee. Id.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A91A0161.
    LODEN v. THE STATE.
    (406 SE2d 103)
   McMurray, Presiding Judge.

Defendant was charged in Count 1 of a nine count indictment with forgery in the first degree. In Counts 5 and 6, defendant was charged with forgery in the second degree in that he did knowingly make and possess, with intent to defraud, identification credentials bearing the fictitious name, “Joseph Steven Latvis.” In Count 9, defendant was charged with forgery in the second degree in that he did knowingly make and possess, with intent to defraud, an identification card bearing the fictitious name, “Joseph Latvis.” In Counts 2 and 4, defendant was charged with forgery in the second degree in that he did knowingly make and possess, with intent to defraud, identification credentials bearing the name, “Terry D. Johnson.” In Count 7, defendant was charged with forgery in the second degree in that he did knowingly make and possess, with intent to defraud, an identification card bearing the fictitious name, “Terrance Dawane Johnson.” Defendant was charged in Count 3 with forgery in the second degree in that he did knowingly make and possess, with intent to defraud, an identification card bearing the fictitious name, “Richard Allen West.” In Count 8, defendant was charged with forgery in the second degree in that he did knowingly make and possess, with intent to defraud, a Georgia temporary driver’s license bearing the fictitious name, “Steven Allen Miller.” The case was tried before a jury and the evidence revealed the following:

On October 10, 1988, defendant entered a K Mart store in Ken-nesaw, Georgia, seeking a cash refund for K Mart electrical merchandise. Defendant presented the merchandise and a photocopy of a sales receipt. He then entered a Marietta, Georgia, address and the name, “T. Johnson,” on a “REFUND IDENTIFICATION TICKET.” Defendant provided no information in a space designated, “CUSTOMER PHONE NO.” Assistant Store Manager George Burton examined the photocopied receipt and noticed that it reflected a transaction involving the same type equipment defendant was attempting to return. He also noticed that a number on the receipt appeared to be “altered” and that the receipt did not contain the often used logo, “thank you for shopping at K Mart. ...” Mr. Burton questioned defendant as to the authenticity of the receipt and the information on the “REFUND IDENTIFICATION TICKET” and defendant affirmed that he resided in Marietta; stated that he had no telephone number and explained that the receipt “came from somewhere in North Carolina, and his brother needed the original receipt because of a purchase of a boat on the same receipt, and he didn’t know whether he wanted to keep it or not.” Mr. Burton returned the photocopied receipt and the merchandise to defendant and informed defendant that “without proper ID, not able to verify [defendant’s] residence, [he] couldn’t help him.” Defendant then left the store and Mr. Burton alerted other K Mart stores of defendant’s “fishy” activities, describing defendant’s appearance and describing the photocopied receipt and the merchandise defendant presented for cash.

Dennis Goodrich, “a special agent with loss prevention [for] K Mart Corporation,” received the alert on defendant’s activities and, later that afternoon, he observed defendant enter the K Mart store in Acworth, Georgia, and he watched defendant approach the customer service desk and request a refund for merchandise which matched the equipment described in Mr. Burton’s alert. Defendant presented a photocopied sales receipt and he executed a “REFUND IDENTIFICATION TICKET,” identifying himself as “T. Latvis” and entering a Stone Mountain, Georgia address and a telephone number. Defendant informed an assistant store manager that he had no identification and that his brother in North or South Carolina had “the original receipt because it had an expensive boat on it [and that] in case [his] brother wanted to return [the boat] he wanted to keep the original receipt.” The assistant manager refused to exchange defendant’s merchandise for cash and defendant “started getting somewhat disorderly!,] using minor-type profanity, threatening of suing, and threatening that he wanted to see the main store manager. . . .” Special Agent Goodrich interceded and identified himself as “a loss prevention manager [and] asked [defendant] to come to the back to the office [and] try to work out the situation. . . .” Defendant followed Special Agent Goodrich and an assistant store manager to the special agent’s office, but defendant protested, “ ‘I’m going to sue you, y’all are holding me wrongly.’ ”

Special Agent Goodrich examined the photocopied receipt and “recognized that it was a computerized receipt that . . . most [K Mart] stores use. . . .” He noticed that the receipt reflected a transaction involving the same type equipment defendant attempted to return and that the receipt appeared to reflect accurate prices for the merchandise defendant presented for a refund. Special Agent Goodrich also “noticed several changes on the receipt, that . . . looked to be done deceptively,” i.e., a number on the receipt appeared to be altered, the receipt was blank in an area which normally indicates whether the transaction was completed via cash, check or charge and the receipt did not contain the often used logo, “thank you for shopping at K Mart.”

Special Agent Goodrich asked defendant for identification and defendant “hesitated for a few minutes . . .,” but he eventually produced “a driver’s license or registration, . . . something with the name Terry Johnson.” Defendant then “got a little belligerent and somewhat hostile [and asked,] am I under arrest?” Special Agent Goodrich said, “no, sir[, but] this is a private business, there’s an infraction here, and I’m going to let the law enforcement take care of it.” Defendant responded, “‘if you’re not arresting me I’m leaving.’ ” Defendant then “started to blurt toward the door where the assistant manager was [and defendant] reached back toward his back area. . . .” Special Agent Goodrich responsively “attempted to grab [defendant’s] hand at the elbow area [and] something fell to the ifloor[. Defendant] went to turn around and grab it[, but Special Agent Goodrich] grabbed for it first” and discovered a checkbook [with checks bearing the names, “Latvis and Latius. ...”

Lieutenant J. D. Woodruff and Officer Houston of the Acworth Police Department arrived at the scene and Special Agent Goodrich gave the officers “a checkbook in the name of . . . Joseph Latius” and a “paper driver’s license . . in the name of “Terry D. Johnson.” Lieutenant Woodruff “asked [defendant] what his name was [and defendant] identified himself as Terry Allen Johnson, Junior.” Defendant was then taken to the Acworth Police Department.

Defendant’s personal property was inventoried at the police station and conflicting identification credentials were found in defendant’s wallet, including a Georgia driver’s license bearing a photograph of defendant and the name, “Joseph Stephen Latvis.” Defendant’s wallet also contained a laminated “DESIGN SYSTEM, INC.” identification card bearing a photograph of defendant and the name, “Joseph Latvis.” Defendant was later transferred to the Cobb County Jail.

Officer Mike Reece of the Cobb County Sheriff’s “Fraud and Forgery Unit” obtained search warrants for defendant’s “1986 Chevrolet truck with a camper and [defendant’s] Ford Fairmont [automobile].” (The Ford Fairmont was found in the parking lot of the Acworth K Mart and defendant’s camper truck was discovered at a Cobb County campground.) A briefcase was found in the Ford Fairmont and “a brown satchel-type case [was found] in the truck.” The satchel contained a mutilated (cut) Georgia driver’s license with no photograph and reflecting the name, Terry D. Johnson; a North Carolina driver’s license bearing a photograph of defendant and the name, “Joseph Stephen Latvis”; a Commonwealth of Virginia driver’s license bearing a photograph of defendant and the name, “Terry D. Johnson” and “a South Carolina I.D. card [bearing] the name of Terrance Dawane Johnson.” The briefcase found in the Ford Fairmont contained identification credentials and business papers, including “a certificate of baptism for a Richard Allen West, a receipt for application of and the social security number for Richard Allen West, . . . xerox copy of a North Carolina birth certificate in the name of Richard Allen West, a temporary Georgia driver’s license in the name of Richard Allen West, and two South Carolina I.D. cards in the name of Richard Allen West.” The briefcase also contained “a certificate of baptism under the name of Steven Allen Miller, a receipt for application of social security in [the name of] Steven Allen Miller, ... a certified copy of a birth certificate [from] North Carolina [for] Steven Allen Miller, and a Georgia temporary driver’s license in the name of Steven Allen Miller.”

It was later discovered that the photocopied receipt defendant presented at the Kennesaw and Acworth K Mart stores as proof of purchase of the K Mart merchandise defendant attempted to return was a copy of a K Mart receipt, altered to conceal that the transaction had been completed via check. It was also discovered that the] check used to purchase the merchandise was drawn on the account of “Joseph S. Latvis” and that the check was returned unpaid. Defendant was found guilty on all counts of the indictment.

On April 7, 1989, judgment was entered on the jury’s verdicts and defendant was sentenced. Defendant’s trial counsel did not file a motion for new trial, but on May 5, 1989, he filed a timely notice of appeal. On June 19, 1989, upon the trial court’s determination that defendant was indigent, an attorney, who was not defendant’s trial counsel, was appointed to represent defendant on appeal. Held:

1. Defendant contends the trial court erred in failing to suppress evidence seized by K Mart Special Agent Dennis Goodrich.

“ ‘ “(T)he protection afforded by the Fourth Amendment proscribes only governmental action and is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation of a government official.” ’ Williams v. State, 257 Ga. 788, 789 (364 SE2d 569) (1988), quoting United States v. Jacobsen, 466 U. S. 109 (104 SC 1652, 80 LE2d 85) (1984). ‘ “The test ... is whether (the private individual), in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the (government) when (he) produced (the evidence).” Coolidge v. New Hampshire, 403 U. S. 443, 487 (91 SC 2022, 29 LE2d 564) ((1971)).’ Marks v. State, 174 Ga. App. 711, 714 (331 SE2d 900) (1985).” State v. Lovig, 189 Ga. App. 436, 437 (376 SE2d 229).

Dennis Goodrich was not a law enforcement officer at the time he detained defendant, nor was he then acting as an instrument or agent of the government. He was a private citizen working as “a special agent with loss prevention [for] K Mart Corporation.” Consequently, it is unnecessary to determine whether the property seized by Special Agent Goodrich was in violation of defendant’s Fourth Amendment rights. See State v. Lovig, 189 Ga. App. 436, 437, supra. This enumeration is without merit.

2. Defendant contends the trial court erred in failing to suppress evidence seized during the inventory of his personal effects at the Cobb County Jail.

“Property which the arrestee elects to take with him to jail is subject to search under analysis similar to that allowing search incident to an arrest. United States v. Edwards, 415 U. S. 800 (94 SC 1234, 39 LE2d 771) (1974); Abel v. United States, 362 U. S. 217 (80 SC 683, 4 LE2d 668) (1960). See also Williams v. State, 258 Ga. 80 (365 SE2d 408) (1988).” Batton v. State, 260 Ga. 127, 129 (3), 130 (391 SE2d 914). In the case sub judice, the items found during the inventory of defendant’s personal effects at the Cobb County Jail were the same as the items taken from defendant during the inventory search at the Acworth Police Department. Consequently, “no warrant was required for the subsequent search and seizure of these items, and this enumeration is without merit.” Williams v. State, 258 Ga. 80 (2), 81 (365 SE2d 408).

3. Defendant contends the trial court erred in failing to suppress evidence found in his motor vehicles, arguing that law enforcement officers exceeded the scope of the search warrants by opening the briefcase and the satchel found in the vehicles. This contention is without merit.

Search warrants issued for defendant’s truck and automobile authorized searches for “identification, checks and other financial information, and items purchased in any name other than Terry Duane Johnson.” These warrants authorized law enforcement officers “to open any receptacle reasonably that could hold the substance or thing being sought and to discover or seize any item, substance, object, thing or matter, the possession of which is unlawful or which is tangible evidence of the commission of a crime in the State of Georgia. OCGA § 17-5-1 (b) (Code Ann. § 27-301); Dugan v. State, 130 Ga. App. 527, 531 (2), 532 (203 SE2d 722). “To conclude they did not have the right to discover what was concealed in the [briefcase and the satchel-type case] would preclude the officers from examining any potential container of the contraband being sought where the contraband was not fully visible even though the container may be a logical and plausible receptacle for that which is being sought.” Whittington v. State, 165 Ga. App. 763, 764 (302 SE2d 617).

4. Defendant contends the trial court erred in failing to dismiss the indictment, arguing that prosecutions for the crimes charged are barred under OCGA § 16-1-7 (b).

OCGA § 16-1-7 (b) requires a single prosecution for crimes arising from the same conduct and that are within the jurisdiction of a single court and that are known by the proper prosecuting officer at the time of prosecution. In the case sub judice, defendant filed evidence showing that “Joseph S. Latuis” plead guilty on March 20, 1989, in the State Court of Cobb County for the misdemeanor offense of uttering a bad check. However, there is no evidence showing that the “Joseph S. Latuis” prosecution for uttering a bad check arose from the same conduct as the crimes charged in the case sub judice. Consequently, the trial court did not err in failing to dismiss the indictment under OCGA § 16-1-7 (b). i

5. In his fifth enumeration, defendant contends the trial court erred in allowing similar transaction evidence, showing that he tendered a bad check for merchandise at the Mableton, Georgia, K Mart store on September 26, 1988. 1

“Evidence of other criminal acts is admissible to show motivej intent, plan, identity, bent of mind or course of conduct. The Stati must show, however, that the accused was the perpetrator of th< other criminal act and that there is a sufficient similarity between the other criminal act and the crime charged. Gladson v. State, 253 Ga. 489, 491 (2) (322 SE2d 45); Thomas v. State, 176 Ga. App. 53 (1) [(335 SE2d 135)].” Dudley v. State, 179 Ga. App. 252, 255 (4), 256 (345 SE2d 888).

In the case sub judice, the State presented evidence showing that defendant possessed a Georgia driver’s license at the time of his October 10, 1988, arrest and that the Georgia driver’s license contained information used to verify the identity of the maker of a bad check tendered at the Mableton, Georgia, K Mart store on September 26, 1988. (The maker of the bad check was identified himself as “Joseph S.Latvis” and the driver’s license carried by defendant at the time of his arrest was purportedly issued to “Joseph Stephen Latvis.”) This evidence was sufficient to prove defendant’s identity as the perpetrator of the prior criminal act and the evidence was admissible to prove defendant’s intent to defraud others through use of forged documents. Consequently, we find no error in admitting evidence of the prior criminal act. Dudley v. State, 179 Ga. App. 252, 255 (4), supra.

6. Defendant also asserts the following argument in support of his fifth enumeration: “If the transaction used herein is similar to the crimes for which Defendant is charged, Defendant argues that the Defendant’s plea of guilty to the prior misdemeanor charge has to be similar and double jeopardy must attach. Defendant further argues that if such does not operate as procedural double jeopardy then the allegations testified to herein cannot be ‘similar transactions.’ ”

Defendant’s “procedural double jeopardy” argument inappropriately expands the scope of his fifth enumeration. Bowen v. State, 191 Ga. App. 760 (382 SE2d 694). Nonetheless, we find defendant’s reasoning unpersuasive. Procedural double jeopardy prevents successive prosecutions for the same offense, it does not prevent prosecutions for offenses which are separate and similar to a prior prosecuted offense. See OCGA § 16-1-8 and Daniel, Ga. Crim. Trial Prac. (1990 ed.), p. 380, § 14-26.

7. Defendant contends the trial court erred in failing to dismiss the indictment under his Challenge to the Array of the Grand Jury. This enumeration is not supported by the record.

“No question is presented to this court unless the enumeration of errors and record clearly show that the question was presented to and passed on by the trial court. Garland v. State, 101 Ga. App. 395, 398 (114 SE2d 176) (1960).” Betts v. State, 191 Ga. App. 427, 428 (382 SE2d 172). In the case sub judice, defendant’s brief does not show where the trial court passed on defendant’s challenge to the array of [grand jurors and our examination of the pretrial transcript does not ¡reveal a ruling on a challenge to the array of grand jurors. On the contrary, the transcript reveals defendant’s trial counsel’s statement, “We’ll withdraw the Challenge to the Array of the Grand Jury, satisfied by subpoena.” Under these circumstances, we find nothing for review.

8. Defendant contends the trial court erred in failing to grant a mistrial after objection to the following closing argument by the State’s attorney: “I’d like to point out . . . that you have not heard one scintilla of evidence, or not one scintilla of evidence has been admitted, not one document or exhibit has been admitted into evidence to rebut the State’s contentions. Nothing the State has presented to you as evidence has been rebutted by the defense.”

An examination of the trial transcript reveals no motion for mistrial in response to the relevant portion of the State’s closing argument. Consequently, this enumeration presents nothing for review. Betts v. State, 191 Ga. App. 427, 428, supra.

9. Defendant challenges the sufficiency of the evidence as to Counts two through nine of the indictment, arguing that there is no evidence that “he committed any crime nor acted with fraudulent intent using any of the items contained in [the] Bill of Indictment. . . .”

“A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. In the case sub judice, the State presented evidence that defendant was in possession of the identification credentials described in Counts 2 through 9 of the indictment; that the identification credentials were not in defendant’s name and that the identification credentials described in Counts 2, 3, 5, 6, 7 and 9 included photographs I of defendant. The State also proved that defendant used the identification card described in Count 5 of the indictment (a Georgia driver’s license in the name of “Joseph Steven Latvis”) to negotiate a $204.55 check; that the check was purportedly drawn on the account of “Joseph S. Latvis” and that the check was returned not paid. This evi-l dence and evidence showing that defendant identified himself as “T.J Johnson,” “T. Latvis” and “Terry Allen Johnson, Junior” during an| attempt to dupe K Mart out of the sales price of merchandise whicl had been purchased by defendant with a bad check is sufficient tol authorize the jury’s finding, beyond a reasonable doubt, that defendí ant committed forgery in the second degree as alleged in Counts 2, 3J 4, 5, 6, 7 and 9 of the indictment, i.e., that defendant possessed, wit! intent to defraud, identification credentials in the fictitious namei enumerated in Counts 2, 3, 4, 5, 6, 7 and 9 of the indictment. OCGA 16-9-2 (a). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Browning v. State, 174 Ga. App. 759, 760 (3) (331 SE2d 625). However, the State failed to prove that defendant committed forgery in the second degree as alleged in Count 8 of the indictment.

Decided May 10, 1991

Frank G. Smith, John R. Greco, for appellant.

Charles Loden, pro se.

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

Defendant was charged in Count 8 with forgery in the second degree in that he did possess a temporary Georgia driver’s license with the “fictitious name, . . . Steven Allen Miller.” The State presented evidence showing defendant possessed a temporary Georgia driver’s license bearing the name of Steven Allen Miller, but failed to prove that the name, Steven Allen Miller, was “fictitious” or that the name, Steven Allen Miller, was used on the Georgia temporary driver’s license in a fictitious manner. Defendant’s photograph does not appear on the temporary driver’s license and there is no evidence that defendant identified himself as Steven Allen Miller. Accordingly, defendant’s conviction under Count 8 of the indictment is reversed.

10. Defendant, on his own behalf, filed a supplemental enumeration of errors and brief after his appellate counsel filed an enumeration of errors and a brief.

“Neither our State Constitution, see Ga. Const. 1983, Art. I, Sec. I, Par. XII, nor the Federal Constitution provides defendant with a right to simultaneous representation by counsel and self-representation. Smith v. State, 194 Ga. App. 327 (390 SE2d 304) (1990); Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986). Thus, we do not consider those errors raised or arguments made by defendant himself. He is obligated to bring them to the attention of his counsel in a timely manner for counsel’s consideration and incorporation in the enumerations of error and brief if counsel deems them worthy and appropriate.” Coursey v. State, 196 Ga. App. 135, 137 (5) (395 SE2d 574).

Judgment affirmed in part and reversed in part.

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


text:
    A91A0241.
    MASON v. THE STATE.
    (405 SE2d 747)
   Birdsong, Presiding Judge.

Talbert Eugene “Gene” Mason appeals his conviction of voluntary manslaughter. He contends his conviction is not supported by fhe evidence and that he was denied the effective assistance of defense counsel. Held:

1. Mason was tried for the malice murder of Joan Mason, but was convicted of voluntary manslaughter. He alleges his conviction was based on circumstantial evidence which was insufficient to exclude every other reasonable hypothesis but that of his guilt..

On appeals from guilty verdicts the presumption of innocence no longer prevails; the jury has determined the credibility of witnesses and has been convinced of the appellant’s guilt beyond a reasonable doubt; and appellate courts review the evidence only to determine whether it is sufficient to support the finding of guilty. Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131). Further, appellate courts review the evidence in a light most favorable to the jury’s verdict (Watts v. State, 186 Ga. App. 358 (366 SE2d 849)), and do not speculate about what evidence the jury chose to believe or disbelieve. Mills v. State, 137 Ga. App. 305, 306 (223 SE2d 498).

Although a conviction based on circumstantial evidence is authorized only if the “proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused” (OCGA § 24-4-6), if the evidence meets this test, circumstantial evidence is as probative as direct evidence. Christmas v. State, 171 Ga. App. 4, 7 (318 SE2d 682). “Whether this burden has been met is a question for the jury.” Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546).

When the jury is authorized to find the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Pattillo v. State, 250 Ga. 510, 512 (299 SE2d 710); Jones v. State, 165 Ga. App. 36, 38 (299 SE2d 576). Viewing the evidence in this appeal in a light most favorable to the verdict shows the jury was authorized to conclude that the victim had visited Mason’s home contrary to his instructions; when Mason learned of this he got mad and left; Mason told investigators and others he took the victim to the Atlanta airport and they spent the night in a certain motel, but the records of the motel showed Mason did not stay there as he alleged; Mason told people he had borrowed money for the victim’s trip, but the evidence showed the money was borrowed after Mason allegedly took his wife to Atlanta; the victim did not tell her daughters she was leaving on a trip; Mason never called the victim’s parents’ home to find out if she ever arrived there! at any time after she allegedly left; Mason told the sheriff he would] send legal papers to the victim, but never called where she was alleg-j edly staying to deliver the papers; Mason never reported the victim aa missing to any law enforcement agency; after Mason knew the victim! was not with her parents, he told investigators she was there; Masorj changed the electric company account from the victim’s name to hi| after she supposedly left on the trip; Mason’s brother told a witness that he had buried the victim’s body for Mason; before the discovery of the victim’s body Mason told another witness he had killed one person and gotten away with it; Mason lied about speaking with the victim long after expert testimony established the approximate date of her death; Mason gave various accounts for the victim’s absence which conflicted with the fact of her death; and the forensic pathologist testified that the victim had been buried for about one year when the body was found and the victim’s body showed signs she had been manually strangled and had received a skull fracture near the time of death.

Although some of the State’s witnesses at trial recanted some of the statements attributed to them, the jury was not required to believe their trial testimony. In particular, Mason’s brother’s testimony was not inconsistent with Mason’s guilt.

We conclude that from this evidence the jury rationally could have found that every reasonable hypothesis was excluded except that Mason was guilty of the voluntary manslaughter of the victim. Although the circumstantial evidence must exclude every other reasonable hypothesis save Mason’s guilt, it need not exclude every inference or hypothesis. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Accordingly the trial transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Mason was guilty of voluntary manslaughter. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Mason contends that he was denied his right to the effective assistance of counsel because his trial defense counsel conducted an inadequate pretrial investigation which caused the defense counsel to cross-examine ineffectively the State’s witnesses and call rebuttal witnesses. The United States Supreme Court in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674), established a two-step test to resolve ineffective assistance of counsel claims such as this. When challenging his defense counsel’s effectiveness, an appellant [must establish that his counsel’s performance was deficient and that Ithe deficient performance prejudiced his defense (Brown v. State, 257 Ga. 277, 278 (357 SE2d 590)), and he must show that there is a rea-onable probability that the result of the proceedings would have >een different but for his counsel’s unprofessional deficiencies. Bagett v. State, 257 Ga. 735 (363 SE2d 257). Moreover, he must over-ome the strong presumption that the representation was effective. Marington v. State, 178 Ga. App. 663, 667 (344 SE2d 485). The fail-ire to establish either element of the test will result in the denial of lis claim. Thompson v. State, 191 Ga. App. 906 (383 SE2d 339).

In this appeal, Mason’s allegations rest upon his trial defense ounsel’s admission that his pretrial investigation relied almost exclu-ively upon information made available to him by the State. While such conduct is generally unacceptable, we must consider the facts of this particular appeal. Mason’s defense counsel was the former district attorney who served in that capacity for many years. As a consequence of that long service, he apparently had developed rapport with the sheriff and' other law enforcement officials which resulted in apparent total access to the investigative files on the case and access to the investigating officers. Further, as a long-time resident of the area, counsel knew personally almost all of the witnesses who were called to testify and ultimately many of the witnesses called by the State were supportive of the defense in their testimony

Decided May 13, 1991.

Bruce S. Harvey, for appellant.

Michael H. Crawford, District Attorney, for appellee.

Nevertheless, pretermitting the question of whether this perform-anee by Mason’s trial defense counsel was deficient within the meaning of Strickland is whether Mason established there is a reasonable probability that the outcome of this case would have been different but for the performance of his counsel. In our examination of the record and transcript in this appeal in their totality, we find that Mason failed to establish there was a reasonable probability that the outcome of Mason’s case would have been different within the meaning of Strickland. In particular, the transcript does not show that Mason’s trial defense counsel’s cross-examination of the State’s witnesses was significantly hampered by his failure to personally re-interview these witnesses and we do not find significant the failure to call a witness to testify that he believed he saw the victim alive after her disappearance and that Mason showed him a photograph of the victim to see if the person he saw was the victim. The medical evidence clearly showed that the supposed sighting of the witness was after the time of her death, and Mason’s actions were not inconsistent with his other attempts to convince people that she was alive after her death such as by saying that Mason had recently talked to her on the telephone. Further, we note that Mason’s trial defense counsel filed nu-j merous pretrial motions and otherwise conducted an active defense which undoubtedly had some part in Mason only being convicted of the lesser offense of manslaughter rather than malice murder as charged. Accordingly, we find that Mason has failed to establish that! his trial defense counsel’s performance was ineffective. j

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Birdsong, Presiding Judge. Pope, Judge,

text:
    A91A0558.
    SLAUGHTER v. THE STATE.
    (405 SE2d 897)
   Birdsong, Presiding Judge.

Frederick Slaughter appeals his convictions for two violations of the Georgia Controlled Substances Act. He contends that the trial court erred by denying his motions for a mistrial and for a new trial becáuse of a juror’s misconduct. Held:

The record shows that after a noon recess following the presentation of evidence one of the jurors did not return to court. When the missing juror could not be located after a two-hour search, the trial was recessed until the next morning. Before trial reconvened the next morning, Slaughter moved for a mistrial because of potential harm resulting from the unauthorized absence of the juror. After the motion was denied, the trial court charged the jury and the jury deliberated and convicted Slaughter. Slaughter subsequently renewed his motion for mistrial and included the juror’s misconduct as one of the grounds for his motion for new trial. The motions for mistrial and the motion for a new trial were denied by the trial court.

Other than showing the fact that a juror was absent, the record is silent about the absence of the juror, e.g., the reason therefor, whether the juror had any unauthorized communications, or the possible impact of the juror’s absence on the other jurors. Further, the record shows that there were no cautionary instructions to the jury about the entire matter.

“It has long been recognized by the courts of this state that the guarantee of a fair and impartial jury is a central safeguard to a fair trial in our system of criminal justice. There is a presumption of prejudice . . . when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” (Citation and punctuation omitted.) Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695). The unauthorized failure of this juror to return to court appears to qualify as “an irregularity in the conduct of a juror.” However, because no hearing was conducted, and the record is otherwise silent as to the circumstances surrounding the juror’s conduct, we cannot assess without speculation whether the trial court abused its discretion in denying the motion. See Johnson v. State, 235 Ga. 486, 495 (220 SE2d 448). Therefore, the record on appeal must be supplemented. See State v. Newsome, 259 Ga. 187, 188 (378 SE2d 125); OCGA § 5-6-48 (d).

Accordingly, this appeal is remanded to the trial court to give both parties the equal opportunity to supplement the record on this [issue, bearing in mind that during the hearing the State retains the [burden of proving beyond a reasonable doubt that no harm occurred. ¡The trial court may use the procedures set out in State v. Newsome, pupra, or a post-trial hearing similar to those suggested in Moore v. State, 187 Ga. App. 387, 392-393 (370 SE2d 511) and cases cited therein, but open to all parties and their counsel.

Decided May 13, 1991.

Wayne B. Kendall, for appellant.

William G. Hamrick, Jr., District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

Case remanded with direction.

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

Pope, Judge,

concurring specially.

The trial court in its order denying defendant’s motion for new trial did state that “there was no evidence that the juror communicated with any other juror or any party during her absence.” This suggests to me that, at some point during the proceedings, the juror may have been questioned concerning her absence. However, the record does not reflect that this in fact occurred and, as the majority states, “the record is silent as to the matter concerning the absence of the juror. ...” Thus I agree that the case should be remanded to the trial court for the purpose of supplementing the record on this issue.


text:
    A91A0230, A91A0231.
    JOHNSON v. SRIVASTAVA; and vice versa.
    (405 SE2d 725)
   Pope, Judge.

Plaintiff Bernadette F. Johnson brought this complaint against! defendant Ramesh Srivastava, M.D., alleging professional negligence! in his surgical treatment of certain skin lesions on plaintiff’s hand and! face. The complaint also contains a claim for battery because, plain-! tiff alleges, defendant performed an unauthorized procedure on her! face. The trial court granted partial summary judgment to defendant on the professional negligence claim and we granted plaintiff’s appli-j cation for interlocutory appeal (Case No. A91A0230). The trial courlj denied defendant’s motion for summary judgment on the battery claim and defendant filed a cross-appeal (Case No. A91A0231).

Case No. A91A0230

1. In support of his motion for summary judgment defendanj filed his own affidavit asserting his medical treatment of plaintiff complied with the appropriate standard of the medical profession. Ii opposition to defendant’s motion plaintiff filed the affidavit of an es pert witness asserting that defendant’s treatment deviated from tl appropriate standard of care in certain particulars. The affiant stated that his opinions were based on a review of the complaint, plaintiff’s affidavit, certain medical records, correspondence between the parties and photographs of plaintiff. Although copies of the medical records and photographs were attached to the affidavit, they were not certified or sworn and were not a part of the record in the case. The trial court granted summary judgment on the professional negligence claim on the ground that plaintiff’s expert’s affidavit was insufficient to create a genuine issue of fact.

OCGA § 9-11-56 (e) requires sworn or certified copies of all documents referred to in an affidavit to be attached to the affidavit. An expert affidavit is insufficient to oppose a motion for summary judgment if the documents on which the affiant relies in forming his opinions are not certified or sworn, even if unsworn copies are attached to the affidavit. Crawford v. Phillips, 173 Ga. App. 517 (1) (326 SE2d 593) (1985); see also Bush v. Legum, 176 Ga. App. 395 (1) (336 SE2d 284) (1985).

Relying upon Jones v. Rodzewicz, 165 Ga. App. 635 (3 & 4) (302 SE2d 402) (1983), plaintiff argues that because the affidavit relied in part upon her own affidavit, which was sworn and in the record, the affidavit is sufficient. In Jones, the affidavit in opposition to defendant doctor’s motion for summary judgment was based not only upon medical records which were not part of the record of the case but also upon the defendant’s own affidavit, which set forth plaintiff’s symptoms and the evaluative procedures, diagnosis, treatment and medication prescribed by the defendant as well as plaintiff’s course of recovery. Because the evidence opposing a motion for summary judgment must be treated with indulgence and because the defendant’s affidavit alone may have provided a sufficient basis for the opinion of plain-Itiff’s expert witness, this court held the expert witness’ affidavit was sufficient to create a factual issue and thus defeat the motion for summary judgment. In the instant case, however, the only evidence of record relied upon by plaintiff’s expert is the complaint and plaintiff’s [own affidavit. Of course, the allegations of the complaint are not ad[missible as evidence. A review of plaintiff’s affidavit shows it does not contain sufficient facts on which the expert, relying on the affidavit clone, could base his opinions. Thus, the trial court did not err in concluding that the expert’s affidavit was insufficient. Even in Jones, this court noted that if the affidavit had been based on facts not in Ihe record then it would have had no probative value in opposition to Ihe motion for summary judgment.

Case No. A91A0231

2. Plaintiff’s claim for battery is based upon her allegation that defendant performed a procedure on her face to which she did not consent. Defendant argues he is entitled to summary judgment on the battery claim because the plaintiff signed a consent form authorizing him to perform an “excision biopsy” on the lesion on her face. According to plaintiff, however, defendant did not perform the excision biopsy to which she consented but, instead, unnecessarily excised a mass from her face without first performing a biopsy to determine whether the lesion was malignant. The trial court denied the motion on the ground that the evidence presents a factual dispute as to the meaning and scope of the term “excision biopsy.”

Defendant admitted at the hearing on his motion that the evidence concerning the meaning of the term “excision biopsy” is in dispute. Nevertheless, defendant argues that pursuant to the statute governing consent to treatment at the time this surgery was performed, OCGA § 31-9-6 (d), all that was required is that the procedure be described in “general terms” and because plaintiff consented to surgical treatment of the lesion on her face she thereby consented to the procedure defendant actually performed. According to defendant, a patient’s consent to a general course of treatment precludes an action for battery for the treatment actually undertaken. However, those cases cited by defendant are distinguishable from the case at hand. In Holbrook v. Schatten, 165 Ga. App. 217 (299 SE2d 128) (1983), and Butler v. Brown, 162 Ga. App. 376 (290 SE2d 293) (1982), the issue was not whether the plaintiff consented to the treatment undertaken by the defendant but whether the plaintiff had been properly informed of the risks of the treatment. In this case it is not undisclosed risks which form the basis for plaintiff’s claim but an alleged undisclosed procedure to which the plaintiff claims she expressly withheld consent for fear of scarring. The facts of this case are also distinguishable from those cases in which the language of the consent form expressly authorized the surgeon to perform procedures not listed on the form but which the surgeon considered advisable during the course of the surgery. See Hutcheson v. McGoogan, 162 Ga. App. 657 (292 SE2d 527) (1982); Cole v. Jordan, 161 Ga. App. 409 (3) (288 SE2d 260) (1982); Winfrey v. Citizens &c. Nat. Bank, 149 Ga. App. 488 (254 SE2d 725) (1979). Here, by contrast, the consent form authorized defendant to perform procedures in addition to those listed “if any unforeseen condition arises in the course of the operation. . . .” It is undisputed that no unforeseen conditions arose dur-J ing the surgery. In fact, tests ordered after the tissue was excisei showed it was not malignant. We disagree that, pursuant to the terms of the consent form at issue in this case, plaintiff’s consent to an “excision biopsy” of a lesion on her face granted the defendant genera] authority for any other surgical treatment of the lesion.

The issue in dispute in this case is whether the language of th< consent form authorized defendant to perform only a limited excision for purposes of biopsy or the complete excision of the tissue in question. We cannot say as a matter of law that “the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” McCray v. Hunter, 157 Ga. App. 509, 512 (277 SE2d 795) (1981). Thus, the denial of summary judgment is affirmed.

Decided April 23, 1991

Rehearing denied May 15, 1991.

Downing, McAleer & Gaskin, Mark H. Johnson, for appellant.

Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, Lesley A. Troope, Richard L. Brittain, Andrew J. Hill III, for appel-lee.

Judgments affirmed.

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


text:
    A91A0011.
    A91A0012.
    NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION v. OGLETREE et al. NEWTON CROUCH, INC. v. OGLETREE et al.
    (405 SE2d 884)
   Pope, Judge.

This is a wrongful death action for the death of plaintiff Ogle-tree’s husband, who died as a result of injuries he sustained when a truck backed into him. Defendant Navistar International Transportation Corporation manufactured the cab and chassis of the vehicle and defendant Newton Crouch, Inc. installed a fertilizer spreader onto the truck chassis. The complaint alleges both defendants had a duty to design and manufacture their respective parts of the vehicle with due care for the safety of persons in the path of rearward movement of the vehicle. The complaint alleges both defendants breached that duty by failing to install an audible back-up alarm on the vehicle.'

In the first appearance of this case before this court, we reversed the trial court’s grant of summary judgment to defendant Navistar. I Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41 (390 SE2d 61) (1989) (“Ogletree I”). Just over three months later, in an unrelated case, this court overruled the rationale and holding in Ogletree fr. Weatherby v. Honda Motor Co., 195 Ga. App. 169 (393 SE2d 64) 11990). The Ogletree I case had not yet proceeded to trial, and both Defendants moved for summary judgment in reliance on our holding In Weatherby. The trial court denied the motions on the ground it Ivas bound by the law of the case rule to follow the holding in Ogletree I. Defendants brought separate appeals which we have consolidated herein for review.

1. Both defendants argue the law of the case rule does not require our initial opinion in this case to control the issues raised in their respective motions for summary judgment. “A decision by the [appellate court] is controlling upon the judge of the trial court, as well as upon the [appellate court] when the case reaches that court a second time. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case, even though the ruling has been disapproved . . . before the second appearance of the case in that court.” Western & Atlantic R. Co. v. Third Nat. Bank of Atlanta, 125 Ga. 489, 489-490 (1) (54 SE 621) (1906). Accord Walden v. Nichols, 204 Ga. 532 (2) (50 SE2d 105) (1948); Shirling v. Hester, 201 Ga. 706, 710 (1) (40 SE2d 743) (1946); Southern Bell Tel. &c. Co. v. Glawson, 140 Ga. 507 (79 SE 136) (1913); Redmond v. Blau, 153 Ga. App. 395 (265 SE2d 329) (1980). Thus, our holding in Ogletree I is the law of the case and must be followed.

Both defendants cite this court’s opinion in Hart v. Eldridge, 163 Ga. App. 295 (1) (293 SE2d 550) (1982), rev’d on other grounds 250 Ga. 526 (299 SE2d 560) (1983), in support of their argument against the application of the law of the case rule. The facts of Hart are distinguishable. Whereas the case now before us involves the application and interpretation of the common law, Hart involved the interpretation of a statute which, in the interim between the two appearances of I the case before this court, was interpreted differently by the Georgia Supreme Court. More importantly, on certiorari of our holding in Hart to the Supreme Court, the Supreme Court expressly did not address the issue of whether this court’s opinion violated the law of thel case rule because, as the court noted, its opinion reversing this court's] second ruling effectively restored our initial ruling. See Hart v. Eldridge, 250 Ga. 526 (2) (299 SE2d 560) (1983). Thus, even in Hart,| the law of the case effectively prevailed.

2. Defendant Newton Crouch further argues that the law of th( case rule does not preclude summary judgment in its favor because if was not a party to the first appeal and should not be bound by it] However, “[a] 11 parties to the proceedings in the lower court shall bt parties on appeal and shall be served with a copy of the notice o] appeal. . . .” OCGA § 5-6-37. “The . . . language of the [statute] i| all-inclusive and mandatory, with no exceptions provided.” Munday v. Brissette, 113 Ga. App. 147, 150 (1) (148 SE2d 55), rev’d on other grounds 222 Ga. 162 (149 SE2d 110) (1966).

The rule does not apply, however, when the evidentiary postur] of the case changes after the initial ruling of the appellate court Modern Roofing &c. v. Owen, 174 Ga. App. 875 (1) (332 SE2d 14 (1985). See also Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 77] (2a) (386 SE2d 696) (1989). Even though Newton Crouch was not a party to the motion for summary judgment which was reviewed in the initial appeal of this case, the only issue raised by Newton Crouch’s motion, i.e., whether the absence of a back-up alarm was an open and obvious characteristic of the vehicle so that it was not, as a matter of law, defective, was raised and reviewed in the initial appeal. Though the two defendants might present different evidence on the issue of the duty to install an alarm on the vehicle (an issue not raised by Newton Crouch’s motion) the issue of whether the vehicle is not defective because the absence of the alarm was open and obvious is identical as to both defendants. Because the evidentiary posture of the case as to the sole issue on appeal is identical to the posture at the time of the first appeal, the law of the case rule must apply to defendant Newton Crouch as well as defendant Navistar.

Decided April 18, 1991

Rehearings denied May 15, 1991

Neely & Player, Edgar A. Neely III, Richard B. North, Jr., E. Casgey Brock II, for appellant (case no. A91A0011).

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Kathryn S. Whitlock, Joseph W. Watkins, for appellant (case no. A91A0012).

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellees.

Judgments affirmed.

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


text:
    A91A0040.
    WALKER v. THE STATE.
    (405 SE2d 887)
   Birdsong, Presiding Judge.

Steven David Walker appeals from the judgment of the superior court affirming the probate court’s denial of his “Motion to Declare [Judgment and Sentence Void.” Walker argues that his motion should have been granted because he did not personally waive in writing a trial by jury even though his counsel filed a demand for a speedy trial [in the probate court. Held:

I The record shows that Walker was convicted for DUI on October 12, 1985, and that twice in 1986 and once in 1987 Walker attempted to initiate appellate review of his conviction. In 1986, however, this court pismissed his discretionary appeal and the superior court dismissed is petition for certiorari. Then, in 1987, the superior court also dis-lissed Walker’s renewed petition for certiorari.

After almost two years of inactivity, on October 2, 1989, Walker led, and the probate court denied, the motion which is the subject of this appeal. Then, Walker filed a petition for certiorari to the superior court challenging the decision of the probate court. Subsequently, the superior court ruled Walker’s motion was not authorized under Georgia law and affirmed the decision of the probate court.

Relying on OCGA § 40-13-23 (a) and Snellings v. State, 194 Ga. App. 552, 553 (391 SE2d 36), Walker argues that the superior court erred because he was convicted at a bench trial without personally waiving in writing his right to a jury trial. Although Walker’s motion also challenged the probate court’s jurisdiction because a city court operated within the county, that allegation has been abandoned on appeal.

Although Walker’s motion was designated a “Motion to Declare Judgment and Sentence Void,” the designation of the motion is not controlling (Jones v. Spindel, 128 Ga. App. 88, 103 (196 SE2d 22)). It is the function and substance of the motion which is determinative. Holloway v. Frey, 130 Ga. App. 224, 227 (202 SE2d 845). Walker’s motion and argument make clear that the function of his motion was to set aside the verdict and vacate the judgment. Such motions, however, are not authorized in this state in criminal trials. Waye v. State, 239 Ga. 871, 874 (238 SE2d 923); Grant v. State, 159 Ga. App. 2, 3 (282 SE2d 668). Moreover, neither court erred by not treating Walker’s motion as a motion in arrest of judgment because the time for such motions has long since passed. See OCGA § 17-9-61 (b); Ferguson v. State, 197 Ga. App. 443, 444 (398 SE2d 738).

In any event, Walker’s argument is without merit in substance. Walker waived any objection to proceeding without a jury and he cannot raise that issue for the first time on appeal. Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991).

Moreover, Walker’s untimely challenge to his convictions because either ground raised in his motion is barred by OCGA § 40-13-33. Although the caption of this Code section suggests it is applicable only to habeas corpus petitions, the Code’s descriptive headings “do not constitute part of the law and shall in no manner limit or expand the construction of any Code section.” OCGA § 1-1-7. On its face OCGA § 40-13-33 (a) requires that “[a]ny challenge to a misde meanor conviction of any of the traffic laws of this state or the traffic laws of any county or municipal government which may be brought pursuant to Chapter 14 of Title 9 must be filed within 180 days of th< date the conviction becomes final.” (Emphasis supplied.) Thus, the 180-day limitation is not restricted only to habeas corpus challenge; (as that class is further defined in Earp v. Boylan, 260 Ga. 112 (390 SE2d 577)) actually brought under Chapter 14 of Title 9, but applie to “any challenge” (except those categories of habeas corpus cha lenges excluded for obvious constitutional reasons by the Suprem Court’s holding in Earp v. Boylan, supra), which may have bee brought pursuant to Chapter 14 of Title 9.

Decided April 22, 1991

Rehearing denied May 15, 1991

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams \III, for appellant.

W. Fletcher Sams, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Although Walker’s motion was unauthorized, he could have challenged his misdemeanor traffic conviction by habeas corpus petition since he attacked the jurisdiction of the probate court. Compare Earp v. Boylan, supra; Hardison v. Martin, 254 Ga. 719 (334 SE2d 161). Accordingly, the 180-day limitation in OCGA § 40-13-33 is applicable and Walker’s untimely challenge to his misdemeanor traffic conviction is barred. See generally Earp v. Brown, 260 Ga. 215 (391 SE2d 396).

Furthermore, the legislative history of OCGA § 40-13-33 unequivocally reflects the legislature’s intent that the statute would apply also to bar untimely challenges to misdemeanor traffic offenses by means other than habeas corpus. Examination of the Senate’s substitute version of House Bill 1351 clearly reveals that, in addition to applying to those limited classes of habeas corpus challenges referred to in Earp v. Boylan, supra, OCGA § 40-13-33 was intended to prohibit untimely non-habeas corpus challenges as well. See generally Ga. L. 1986, p. 444, § 1; House Journal 1986, p. 2528; Senate Journal 1986, pp. 1771, 2022-2023. Therefore, this challenge is barred by Walker’s procedural default in failing to bring a timely challenge to his conviction.

Accordingly, the superior court did not err by affirming the probate court’s denial of Walker’s untimely challenge to his conviction.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A90A0168, A90A0169.
    DeKALB COUNTY v. ORWIG; and vice versa.
    (406 SE2d 577)
   Birdsong, Presiding Judge.

The Supreme Court on certiorari review of our decision in DeKalb County v. Orwig, 196 Ga. App. 255 (395 SE2d 824), having expressly disapproved certain language in Fulton County v. Wheaton, 252 Ga. 49 (310 SE2d 910), upon which language and reasoning we [ffirmed an award of attorney fees in a suit brought against DeKalb ounty on the theory of inverse condemnation; and the Supreme Court having thus affirmed in part and reversed in part our decision in this case, we therefore remand this case to the trial court for proceedings not inconsistent with the opinion of the Supreme Court and with this order, with instruction to strike the award of attorney fees and to grant a new trial to DeKalb County on the issue of damages consistent with the ruling of the Supreme Court.

Decided April 29, 1991

Rehearing denied May 15, 1991

Johnson & Montgomery, Nisbet S. Kendrick III, for appellant.

Gail C. Flake, for appellee.

Judgment affirmed in part and reversed in part; case remanded.

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


text:
    A91A0047.
    GORDON v. THE STATE.
    (406 SE2d 110)
   Pope, Judge.

Defendant Willie Allen Gordon, Jr., was convicted of DUI and obstruction of a law enforcement officer. See OCGA § 16-10-24. He appeals from the denial of his motion for new trial, enumerating as error the denial of his motion for directed verdict as to the obstruction charge. We affirm.

1. Defendant first argues that there was a fatal variance between the allegata and probata as to the obstruction offense, because the indictment in this case charged that the defendant “did . . . knowingly and willfully obstruct James Fouchia of the Gwinnett County Division of Police Services, a law enforcement officer in the lawful discharge of his official duties by spitting on him and scratching him while the officer was attempting to determine his name ...” and there was no evidence that defendant scratched Officer Fouchia. Officer Fouchia testified that he arrived on the scene after defendant! had been arrested and placed in the back of Officer Conner’s patrol) car. Because defendant was “combative” and threatening to kick ou the back window of Officer Conner’s car, the officers placed defendan in the back of Officer Fouchia’s car, which was an older patrol ca: that had been loaned to him while his regular car was in the shop Both officers testified that defendant had refused to provide his nam and address and that they had been unable to find any form of identi fication on him. Fouchia testified he went back to his patrol car fc question the defendant again about his name and address and whe: he opened the back door of the car defendant turned in his directio: “and raked the back of his throat and spit in [Fouchia’s] face.’l Fouchia testified he slammed the car door and cleaned his face and that both he and Officer Conner again approached defendant for the purpose of questioning him about his identity but that defendant became very belligerent. Defendant’s identity was not ascertained until the officers were able to identify the car’s owner by running a tag check on the car and then looking the owner’s name up in the telephone book. The owner of the car was then contacted and she provided the officers with defendant’s name and address.

Decided May 15, 1991.

D. Warren Auld, for appellant.

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

“When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. In view of the conjunctive form of the indictment in [this] case . . ., it was not incumbent upon the State to prove that defendant . . . both [spit on and scratched officer Fouchia. Thus the trial court did not err in denying defendant’s motion for directed verdict].” (Citations and punctuation omitted.) Lubiano v. State, 192 Ga. App. 272, 274 (1a) (384 SE2d 410) (1989). See Mathis v. State, 194 Ga. App. 498, 499 (2) (391 SE2d 130) (1990); Chapman v. State, 173 Ga. App. 824, 824-825 (328 SE2d 425) (1985); Henry v. State, 154 Ga. App. 120 (1) (267 SE2d 653) (1980); see also Kelly v. State, 188 Ga. App. 362, 363 (2) (373 SE2d 63) (1988); Davenport v. State, 184 Ga. App. 214 (361 SE2d 219) (1987); cf. Ross v. State, 195 Ga. App. 624 (1b) (394 SE2d 418) (1990).

2. Defendant also contends that his action in spitting on Officer Fouchia, although an obnoxious or contemptuous act, did not obstruct the officer in the performance of official duties. We disagree. “The [jury] was authorized to find that [defendant’s spitting on the officer while refusing] to identify himself was not merely discourteous, it actually hindered and obstructed Officer [Fouchia] in [the discharge of his official duties]. Therefore, applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we find the evidence sufficient to authorize a rational trier of fact to find [defendant] guilty beyond a reasonable doubt of the offense of obstruction of an officer.” Bailey v. State, 190 Ga. App. 683, 684 (379 SE2d 816) (1989). See Hudson v. State, 135 Ga. App. 739, 742 (2) (218 SE2d 905) (1975).

Judgment affirmed.

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


author: Cooper, Judge.

text:
    A91A0087.
    A91A0088.
    In the Interest of G. T. T., a child. In the Interest of T. T. T., a child.
    (405 SE2d 750)
   Cooper, Judge.

Appellant appeals the termination of her parental rights to G. T. T., a boy born on November 16, 1988 (Case No. A91A0087), and T. T. T., a girl born on September 17, 1989 (Case No. A91A0088). The father of the children surrendered his parental rights and is not a party to this appeal.

The Bleckley County Department of Family & Children Services (“DFCS”) was awarded temporary legal custody of G. T. T. after the juvenile court determined that the child was deprived and his parents were unfit to retain custody. At the age of two months, G. T. T. had been taken to the emergency room by appellant because of swelling in his right thigh. An examination revealed that within three days of his admission to the hospital, the child had suffered a spiral fracture of his right femur resulting from the twisting of the leg such that it completely severed the bone. The child had also sustained two-week-old fractures of the tibia and fibula of the right leg and a lateral skull fracture which ran from above the right ear around the back of the skull. The court was unpersuaded by the parents’ explanations that a babysitter was responsible for the injuries, that the father might have rolled over the child in his sleep or that the child’s head might have been bumped while the father was walking with him to obtain a night feeding. The child had been hospitalized earlier for treatment of a scalded throat caused by appellant feeding him milk which was excessively heated in the microwave. In the order awarding temporary custody to DFCS, the court held that G. T. T. was the victim of child abuse and that the parents, even if not responsible for the injuries, were “grossly negligent in permitting such injuries to occur, and that the child [was] without proper parental care or control necessary for his physical health. . . .” The court also noted that the father suffered from schizophrenia, which inhibited him from asserting himself in the protection and care of the child; that appellant’s older child was adopted by appellant’s mother because of neglect; that the couple had an unstable marriage; and each had unstable employment histories.

Because of the treatment of G. T. T., DFCS placed a homemaker with appellant and the father at T. T. T.’s birth to provide assistance to the parents and to monitor the child’s condition on a daily basis. When T. T. T. was one month old, the homemaker discovered a bruise on the child’s upper right chest, and the child was placed in immediate custody. Appellant contended the bruise appeared while she was at work; however, neither parent offered an explanation for the cause of the bruise. After a detention hearing, T. T. T. was returned to appellant, and appellant was required to attend various counseling sessions and to cooperate with DFCS. The father was restricted from further contact with appellant and the child. Within a month, the parents were indicted for cruelty to children for the injuries sustained by G. T. T. Unable to make bond, appellant remained in jail for four months before entering a guilty plea and being sentenced by the court to probation. DFCS obtained temporary legal custody of T. T. T. while appellant was in jail upon the court’s determination that she was a deprived child. Based, in part, on a condition of appellant’s probation that for five years she have only supervised visits with the children, DFCS petitioned the court for the termination of appellant’s parental rights to both children.

At the hearing on the termination petitions, in addition to testifying regarding the injuries to the children and the neglect of appellant’s first child, a representative from DFCS explained that the practical effect of the restriction on appellant’s contact with the children was that she would have only one supervised visit per month with them due to the limitations of DFCS. Upon her release from jail, having no residence of her own, appellant moved in with a friend. Two weeks later she got a job at Dairy Queen which she kept for only one day because of a second arrest for writing bad checks. Appellant’s probation was revoked, and her new sentence continued the restriction on contact with the children but also required confinement in a diversion center until a $1,000 fine and fees were paid in full. The sentences entered on appellant’s guilty pleas to 25 counts of writing bad checks required the payment of additional fines and fees in the diversion center.

1. Appellant contends the evidence adduced below did not warrant termination of her parental rights given the permanence of severance of the parent-child relationship and appellant’s desire to resolve her legal difficulties and establish a stable home life for the children.

The trial court noted in its findings that reasonable efforts were made to prevent the need for terminating appellant’s rights and that allowing the children to remain with appellant would be contrary to their best interests. The record demonstrates that appellant failed to attend counseling sessions scheduled after G. T. T. was removed from her custody; that appellant never maintained a consistent work history or a healthy and independent household for any considerable length of time; and that at least on one occasion after T. T. T. was returned to appellant and while receiving the counsel of a homemaker placed in her home on a daily basis by DFCS, appellant left the child for at least 45 minutes with a male friend who had no knowledge about the care of a two-month-old baby. “ ‘(T)he appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . . The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test. . ., is not met. . . .’ [Cits.]” In the Interest of J. L. G., 191 Ga. App. 904, 905 (1) (383 SE2d 376) (1989). Applying the test to the evidence presented to the trial court, including all prior orders and findings of fact previously made in the juvenile court relative to G. T. T. and T. T. T., we find that there was clear and convincing evidence from which a rational factfinder could have found parental misconduct or inability and that termination was in the best interest of the children as provided by OCGA § 15-11-81. “ ‘ “In a case such as this, a plea of (additional time) to improve is without force to overcome the proof of unrelieved detriment already suffered by the [children] . . . where there is no indication but the promise to suggest hope of improvement.” [Cit.]’ [Cits.]” In the Interest of C. M., 194 Ga. App. 503, 504 (1) (391 SE2d 26) (1990).

Decided May 15, 1991.

2. Appellant’s second enumeration of error that the trial court’s orders failed to contain specific findings in accordance with OCGA § 15-11-81 (b) (4) is without merit. To the contrary, in both orders the trial court determined that appellant’s conviction of a felony and imprisonment had “a demonstrable negative effect on the quality of the parent-child relationship”; that there was egregious conduct by appellant toward G. T. T. which was “of a physically and emotionally cruel and abusive nature”; that G. T. T.’s injuries constituted substantial evidence that they resulted from parental neglect or abuse; that “there was evidence of past physical, mental, and emotional neglect” of appellant’s first child; and that the injury to T. T. T., while occurring when the child was left in the father’s care, was attributable to appellant’s “inability to provide proper parental care or control necessary for the physical health and well being” of T. T. T. The court incorporated its earlier findings that the children were deprived as defined by OCGA § 15-11-2 and concluded that “continuation in the home would be contrary to the welfare” of both children. In our view, the trial court’s findings were sufficiently explicit to support termination. Compare McCary v. Dept. of Human Resources, 151 Ga. App. 181 (2) (259 SE2d 181) (1979).

Judgments affirmed.

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

W. Dennis Mullís, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Harrison, Harrison & Llop, Steven M. Harrison, Special Assistant Attorney General, for appellee.


text:
    A91A0235.
    GIVENS v. THE STATE.
    (405 SE2d 898)
   Cooper, Judge.

Appellant was arrested an charged with driving under the influence of alcohol. The arresting officer testified at trial that the appellant had refused at the time of arrest to submit to a chemical test used to determine the alcohol content of his blood. In her closing argument, the prosecutor commented on appellant’s refusal to take the chemical test and asked the jury: “What did the defendant have to hide that night? Why wouldn’t he take the test? I’ll leave that for you to determine.” Counsel for appellant objected to the prosecutor’s question and moved for a mistrial on the grounds that the prosecutor’s comment was an impermissible reference to appellant’s right to remain silent under the Fifth Amendment. The trial court overruled the motion for mistrial and appellant was convicted of driving under the influence. He now brings this appeal of his conviction and the denial of his motion for a new trial.

“In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him” OCGA § 40-6-392 (c). “This refusal [to submit to a test] itself may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance. [Cits.]” Brooks v. State, 187 Ga. App. 194 (1), 195 (369 SE2d 801) (1988). Accordingly, the prosecutor’s reference to appellant’s refusal to submit to a blood-alcohol test was a proper subject for comment in closing argument.

Appellant contends, however, that the question posed by the prosecutor was, in reality, an oblique reference to the appellant’s failure to testify at trial in violation of the Fifth Amendment and OCGA § 24-9-20. “ ‘To reverse for improper comment by the prosecutor, we must find one of two things: that “the prosecutor’s manifest intention was to comment upon the accused’s failure to testify” or that the remark was “of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” (Cits.)’ [Cit.]” Neal v. State, 198 Ga. App. 518, 519 (402 SE2d 114) (1991). The prosecutor’s remark in the present case, taken in context, was a comment on the appellant’s failure to take the chemical test at the time of his arrest. “Inasmuch as there is another equally plausible explanation for the prosecutor’s statement, we cannot conclude that it was intended to comment on appellant’s failure to testify or that the jury would naturally take it to be such a comment.” Neal v. State, supra at 519. See also Ranger v. State, 249 Ga. 315 (3) (290 SE2d 63) (1982).

Decided May 15, 1991.

Mark T. Sallee, for appellant.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, William F. Bryant, Assistant Solicitors, for appellee.

Judgment affirmed.

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


author: Carley, Judge.

text:
    A91A0411.
    BREWER v. THE STATE.
    (405 SE2d 899)
   Carley, Judge.

After a jury trial, appellant was found guilty of aggravated assault upon a police officer, carrying a concealed weapon and carrying a pistol without a license. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates the general grounds as to his conviction for aggravated assault. However, the evidence adduced at trial was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. A domestic disturbance had precipitated the events which ultimately resulted in appellant’s arrest and prosecution. After the first day of trial, appellant again became involved in what his own counsel called “a loud violent confrontation” with family members. This confrontation occurred in the courthouse itself and in the parking lot and it had been necessary to restrain appellant. After making a general inquiry of the jury to determine whether it had observed or overheard this confrontation, the trial court denied appellant’s motion for mistrial. The trial court did, however, order that appellant wear leg irons in the courtroom and this order is enumerated as error.

“At trial, where there is good and sufficient cause, the court has¡ discretion in requiring a defendant to be handcuffed or shackled for security reasons. [Cits.] Abuse of discretion is the test on appeal where restraining devices have been used in the trial court. [Cit.]” Dennis v. State, 170 Ga. App. 630, 632 (3) (317 SE2d 874) (1984).| There was no abuse of discretion in the instant case. See Allen v. State, 235 Ga. 709, 711-712 (221 SE2d 405) (1975); Collins v. State, 164 Ga. App. 482, 484 (4) (297 SE2d 503) (1982).

Decided May 15, 1991.

A. Beth Ramshaw, for appellant.

Robert F. Mumford, District Attorney, Alan S. Clarke, Assistant District Attorney, for appellee.

Judgments affirmed.

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


text:
    A91A0416.
    LANOIS et al. v. PETTY.
    (405 SE2d 753)
   Carley, Judge.

Appellant-plaintiffs brought suit, seeking to recover for personal injuries and property damage allegedly incurred in a vehicular collision. Appellee-defendant answered and counterclaimed to recover for personal injuries and property damage allegedly incurred in the collision. The case was tried before a jury and a verdict in favor of appel-lee was returned on the main action and a verdict in favor of appellants was returned on the counterclaim. Appellants appeal from the judgment entered by the trial court on the jury’s verdicts.

1. In several enumerations, appellants urge that the investigating officer was erroneously allowed to give inadmissible opinion testimony.

The record shows that the only objection in this regard that was raised in the trial court was when the investigating officer was asked if he had “an opinion as to whether [appellant] Ms. Lanois contributed in any manner to this accident?” Although appellants’ objection I to this question was overruled and the investigating officer testified that he did have an opinion, the record shows that he never testified as to what that opinion was. Since no opinion was ever elicited, the error, if any, in failing to sustain appellants’ objection was harmless.

2. During the direct examination of the investigating officer, appellants made numerous objections to questions on the ground that they were leading. However, even assuming that the questions were leading, there was no reversible error in the trial court’s failure to [sustain appellants’ objections thereto. “A judge is given latitude and discretion in permitting leading questions, and unless there has been fcn abuse thereof, resulting in prejudice and injury, there is no reversible error. [Cits.]” Brown v. State, 203 Ga. 218, 221 (3) (46 SE2d 160) 1948).

Decided May 15, 1991.

Fraser & Bussart, Sherman C. Fraser, Mark S. Fraser, for appe' lants.

Michael L. Wetzel & Associates, Michael L. Wetzel, Freeman ( Hawkins, Edward M. Newsom, Morse & Ontal, Jack 0. Morse, fc appellee.

3. The failure to give one of appellants’ requested charges is enumerated as error.

The record shows that the trial court undertook to charge the jury on the relevant legal principles contained in appellants’ request, and that it did so without employing the argumentative language that was contained in appellants’ refused request. Accordingly, there was no error.

4. Appellants’ enumeration of the general grounds is without merit. “Questions of negligence, contributory negligence, cause and proximate cause, and whose negligence or what negligence constitute® the proximate cause of the injury are solely for the jury, except i plain, palpable and indisputable cases. [Cits.]” Burger Barn v. Young 131 Ga. App. 828, 829 (3) (207 SE2d 234) (1974).

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concur in Divisions 2, 3 and in the judgment.


text:
    A91A0413.
    GORHAM v. TURNER OUTDOOR ADVERTISING, LTD.
    (405 SE2d 900)
   Birdsong, Presiding Judge.

Leo H. Gorham appeals from the judgment in favor of Turne Outdoor Advertising, Ltd. (“Turner”) on Turner’s claim against hii for failure to pay for advertising services rendered under a contrac Although he concedes that there is evidence to support the verdie against him personally, Gorham contends that the trial court erred b failing to include in its charge an instruction that an agent acting fc a disclosed principal may be excused from obligation under the cor tract. Held:

1. The face of Gorham’s request to charge shows the trial coui refused to give it because it was not filed in a timely manner. Ther was no error. Uniform State Court Rule 10.3; General Warrant Corp. Ins. &c. v. Cameron-Hogan, 182 Ga. App. 434, 438-439 (35 SE2d 83). Further, we do not find that the charge requested was er tirely correct, accurate, and adjusted to the evidence. Glenridge United Owners Assn. v. Felton, 183 Ga. App. 858, 861 (360 SE2d 418). Additionally, the trial court did not err by not specifically charging on this issue in its general charge because there was no evidence to support Gorham’s contention that he was merely an agent for a disclosed principal known to all the parties. Indeed, the plain language of the contract in this case and Gorham’s testimony rejected any contention that he signed as an agent. Instead, Gorham contended that he signed as a witness to another’s signature and that he did not know what he signed. Therefore, considering the full charge given by the trial court, we are satisfied that no charge on this issue was required and that the charge to the jury fairly and fully instructed the jury on the law applicable to the case. Grier v. State, 173 Ga. App. 739, 740 (327 SE2d 849). Accordingly, the trial court did not err by not charging on this point.

Decided May 15, 1991.

Bauer, Deitch & Raines, Gilbert H. Deitch, George R. Ference, for appellant.

Schreeder, Wheeler & Flint, Timothy C. Batten, for appellee.

2. Turner’s motion for imposition of damages under OCGA § 5-6-6 is denied. Although Gorham’s brief concedes that the evidence is sufficient to support the verdict against him, this appeal however concerns the sufficiency of the charge. Thus, the record and briefs filed in this appeal do not demonstrate that the appeal was filed only for purposes of delay.

Judgment affirmed.

Pope and Cooper, JJ., concur.