text:
    A91A0417.
    DUTTON v. THE STATE.
    (406 SE2d 85)
   Andrews, Judge.

Dutton appeals his conviction for robbery by the use of force, claiming the evidence was insufficient to show he used force to take the property.

Viewed in a light most favorable to the verdict, the evidence shows Dutton entered a convenience store, walked to where the beer cooler was located, and was informed by the store’s cashier that he could not purchase beer since it was Sunday. He took two 12 packs of beer from the cooler, and began to walk down a narrow aisle leading past the check-out counter to the exit. The cashier moved from behind the counter into the aisle, confronted Dutton inside the store, and asked him to put the beer back. Dutton knocked the cashier aside, and ran out of the store with the beer.

Under OCGA § 16-8-40 (a) (1), the force used to commit robbery must be employed contemporaneously with obtaining possession of the property. Cantrell v. State, 184 Ga. App. 384, 385 (361 SE2d 689) (1987); Byrd v. State, 171 Ga. App. 344 (319 SE2d 460) (1984). If taking possession of the property was completed without using force, and force was subsequently employed only in an effort to escape, this is insufficient to sustain a conviction for robbery by the use of force. See Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974).

Dutton claims he took possession of the beer when he took it from the cooler without using force, and that knocking the cashier aside was part of his subsequent escape. We disagree; there was evidence that the beer was taken by force. Regardless of the fact that Dutton took physical custody of the beer without using force, he did not divest the store of legal possession until, by using physical force against the cashier, he compelled her to relinquish possession of the beer to him. Cantrell, supra at 385; Grant v. State, 125 Ga. 259, 260-261 (54 SE 191) (1906); Rivers v. State, 46 Ga. App. 778 (169 SE 260) (1933).

The evidence was sufficient to enable a rational trier of fact to find the defendant guilty of robbery by force beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 29, 1991

Rehearing denied May 23, 1991

Michael M. White, for appellant.

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

Judgment affirmed.

Sognier, P. J., and McMurray, P. J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A0474.
    HANDLER v. HULSEY.
    (406 SE2d 225)
   Andrews, Judge.

Handler sued Hulsey in magistrate court. After a judgment was entered in favor of Handler on his claim and against Hulsey on his counterclaim, Hulsey appealed to state court for a de novo trial pursuant to OCGA § 15-10-41 (b). After a jury trial in state court, judgment was entered in favor of Hulsey on his counterclaim and against Handler’s claim. Handler filed a direct appeal to this court. Hulsey moved for dismissal of the direct appeal on the basis that OCGA § 5-6-35 (a) (11) requires that an application for discretionary appeal be filed when an appeal is sought from a state court decision reviewing the decision of the magistrate court in a de novo proceeding. Handler counters that OCGA § 5-6-35 (a) (11) does not apply, and a direct appeal was proper because the state court judgment from which he appeals was not the result of a de novo proceeding. He claims the de novo nature of the state court proceeding was destroyed when issues not raised in magistrate court were raised for the first time in Hul-sey’s amended state court counterclaim.

The only avenue of appeal available from the magistrate court judgment is provided by OCGA § 15-10-41 (b) (1), which allows for a de novo appeal to the state or superior court. Regardless of whether this litigation was subsequently erroneously expanded in state court to include matters beyond the parameters of a de novo investigation (OCGA § 5-3-29), where the litigation reached the state court by means of a de novo appeal from magistrate court, in order to obtain appellate review of the state- court judgment in this Court, an application for appeal must be sought as required by the clear and unambiguous language of OCGA § 5-6-35 (a) (11). Further, even accepting Handler’s premise, for the reasons stated below, we find the present state court claims were within the parameters of a de novo appeal.

In a de novo appeal of this action from magistrate to state court the issues to be litigated are framed by the claims raised below. Rus sell v. Flynn, 191 Ga. App. 196, 198 (381 SE2d 142) (1989). “So long as the subsequent litigation can be said to relate to that civil claim, there is no erroneous evasion of the magistrate court’s jurisdiction since the higher court had concurrent jurisdiction over that claim . . . When a case is on appeal [in the state court from a magistrate court], any amendment whether in matter of form or substance may be made which could have been made while the case was in the primary court.” Id. at 198. (Punctuation and citations omitted.)

The original magistrate court claim brought by Handler and Seibert against Hulsey arose out of an automobile accident. While being towed, an automobile owned by Handler and being used by his stepdaughter, Seibert, broke loose from the towing vehicle and crashed into Hulsey’s business sign. A dispute ensued over Handler’s liability for damage to the sign, and Hulsey’s retention of the automobile, which he claimed was by agreement until the damages were paid. Eventually, Seibert brought criminal charges against Hulsey for theft of the automobile, and Handler and Seibert sued Hulsey in magistrate court for damages resulting from the taking of the vehicle. In his counterclaim Hulsey sought recovery of damages to his sign, and citing the criminal charges brought against him, also sought recovery for the expenses and attorney fees incurred by him in defending the criminal prosecution and the civil action. After the magistrate court action terminated in favor of Handler both on his claim and on Hul-sey’s counterclaim, Hulsey brought the state court appeal. While the state court action was pending, the criminal charges against Hulsey were dismissed by the district attorney. Thereafter, Hulsey amended his counterclaim and, in addition to the property damage, attorney fees and expenses he sought in magistrate court, he alleged malicious prosecution of the criminal charges and sought punitive damages. Judgment was entered on the jury verdict in state court against Handler and Seibert on their claim and in favor of Hulsey on his counterclaim for malicious prosecution, attorney fees, punitive damages and property damage.

The issues raised by Hulsey in his amended counterclaim in state court were directly related to the issues raised in magistrate court, and were properly considered as part of the de novo proceedings. Though the malicious prosecution claim did not accrue until the criminal charges were dismissed while the case was pending in state court (see McCord v. Jones, 168 Ga. App. 891, 892-893 (311 SE2d 209) (1983)), the claim was related to the magistrate court litigation, and could have been pursued there but for the timing of the dismissal.

Accordingly, the present appeal should have been brought pursuant to the discretionary appeal procedures of OCGA § 5-6-35, and the failure of Handler to follow these mandatory procedures requires that his direct appeal be dismissed. McSmith v. Marshall, 194 Ga. App. 331 (390 SE2d 126) (1990).

Decided April 29, 1991

Rehearing denied May 23, 1991

Swift, Currie, McGhee & Hiers, Guerry R. Moore, David R. Hughes, Stewart, Melvin & House, J. Douglas Stewart, for appellant.

Hulsey, Oliver & Mahar, Julius M. Hulsey, Thomas D. Caulkins, for appellee.

Hulsey’s motion to dismiss the appeal is granted.

Appeal dismissed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A0504.
    BAILEY v. BUTLER et al.
    (406 SE2d 97)
   Andrews, Judge.

Bailey appeals the trial court’s grant of summary judgment based on the family purpose doctrine to Butler’s mother, Mrs. Kaplan, in his personal injury action.

Viewed in favor of Bailey, the opponent of the summary judgment motion, OCGA § 9-11-56; Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the evidence was that Kaplan financially helped her son buy a car in January 1988. Although Butler paid half of the purchase price of the car, the title remained in Kaplan’s name. At the time of the purchase, Butler lived with his grandmother in Macon and used the car for driving himself back and forth to college.

In the summer of 1988, Butler moved to his mother’s house in Atlanta, but continued to use the vehicle exclusively for his personal errands, including going to work and to school. He did not use the vehicle for family errands.

The uncontradicted evidence established that Butler was financially responsible for the vehicle. Although the insurance was in Kaplan’s name, Butler paid all of the premiums on the policy and was listed on the policy as the only authorized driver of the vehicle. He also paid for maintenance on the vehicle and for the requisite license [tags.

Kaplan’s involvement with the vehicle was minimal. She testified that she considered the vehicle Butler’s and neither she nor her husband had driven the car since originally delivering it to Butler in learly 1988. Kaplan stated that had she wanted to use the vehicle, she Iwould have needed Butler’s permission. Just as the Kaplans did not [drive Butler’s car, Butler was not allowed to drive any of the Kaplans’ ¡Four other automobiles and was excluded from the insurance policies on those vehicles. Butler kept the set of keys to the car, although an emergency spare set was kept in the kitchen.

In January, 1989, the collision between Bailey and Butler occurred and Bailey sued Butler for negligence and Kaplan on the basis of the family purpose doctrine.

The family purpose doctrine states that “when an automobile is maintained by the owner for the use and convenience of his family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose.” Phillips v. Dixon, 236 Ga. 271, 272 (223 SE2d 678) (1976); Quan v. Johnson, 190 Ga. App. 510 (379 SE2d 426) (1989). Accordingly, the mere fact that a vehicle is registered in the head of the household’s name and driven by a family member does not, by itself,' establish that the family purpose doctrine is applicable. Keith v. Carter, 172 Ga. App. 588, 589 (323 SE2d 886) (1984). “To apply the family purpose doctrine to a given situation, four criteria must be met: (1) the owner of the vehicle must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose. [Cits.]” Quan, supra at 510.

Although the four factors prescribe the parameters of the doctrine, the determinative test under the family purpose doctrine is whether the non-driving family member exerted authority and control over the vehicle. See Finley v. Berman, 190 Ga. App. 692, 693 (379 SE2d 640) (1989). In other words, after it is determined that the four factors listed above are present, the inquiry becomes whether the owner of the vehicle exerted sufficient authority and control for the doctrine to be applied. The vehicle owner is vicariously liable only “if he had the right to exercise such authority and control that it may be concluded that an agency relationship existed between him and the [driving] family member with respect to the use of the vehicle.” Quan, supra at 511, citing Murch v. Brown, 166 Ga. App. 538, 539 (304 SE2d 750) (1983).

Here the family purpose doctrine is not applicable because the¡ undisputed evidence established that Kaplan did not have the requi site authority and control over Butler’s use of the vehicle. From th depositions of Kaplan and Butler, it was clear that Kaplan had n right to specify when, how, or for what purpose Butler used it. Th requisite authority over the vehicle was not established merely be cause the insurance policy and the title to the car were in Kaplan’: name. See Finley, supra. The uncontradicted facts showed that But ler had exclusive authority, custody and control over the vehicle. Se Young v. Wooldridge, 187 Ga. App. 661, 662 (371 SE2d 100) (1988) cf. Tolbert v. Murrell, 253 Ga. 566 (322 SE2d 487) (1984).

Decided May 3, 1991

Rehearing denied May 23, 1991.

Mark F. Dehler, for appellant.

Webb, Carlock, Copeland, Semler & Stair, D. Gary Lovell, Jr., Murray, Temple & Dinges, William D. Strickland, George P. Graves, E. Graydon Shuford, for appellees.

Because the unrebutted evidence established that the family purpose doctrine was inapplicable, the trial court properly granted the motion for summary judgment.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Pope, Judge.

text:
    A91A0129.
    FUDGE v. BALKISSOON et al.
    (406 SE2d 116)
   Pope, Judge.

Plaintiff Gerald W. Fudge, an attorney proceeding pro se, filed a complaint against defendants Peter and Dhanwantie Balkissoon but was unsuccessful in perfecting personal service on them. Plaintiff obtained an order from the trial court authorizing service by publication which, pursuant to OCGA § 9-11-4 (e) (1) (C), must be published “four times within the ensuing 60 days, publications to be at least seven days apart.” In this case, the first publication was printed only three days before the 60-day period for publication expired and the remaining three publications occurred outside the period. Defendants answered and raised the defense of insufficiency of service of process. The trial court granted defendants’ motion to dismiss and we affirm.

Plaintiff’s argument on appeal is based on the substantial compliance rule of Brim v. Pruitt, 178 Ga. App. 321 (342 SE2d 690) (1986). However, Brim and the substantial compliance rule were expressly overruled by the Georgia Supreme Court in Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989). With regard to the method of service, substantial compliance is not sufficient; service must be made as provided by statute. Id. at 419, n. 2. Service in this case did not comply with the terms of the statute authorizing service by publication and thus the trial court did not err in dismissing plaintiff’s complaint, j Because the only argument in support of plaintiff’s appeal has been expressly overruled by the Supreme Court we find the appeal was frivolous and grant defendants’ motion for the imposition of a $500 penalty pursuant to Rule 26 (b) of the Rules of the Court of [Appeals of Georgia. On remittitur of this case, the trial court is directed to enter judgment accordingly.

Decided May 23, 1991.

Gerald W. Fudge, pro se.

Stanley M. Lefco, Ned Blumenthal, for appellees.

Judgment affirmed. Motion for penalty for frivolous appeal granted.

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


author: Beasley, Judge.

text:
    A91A0389.
    FLETCHER v. THE STATE.
    (406 SE2d 245)
   Beasley, Judge.

Defendant appeals her conviction of simple battery, OCGA § 16-5-23. The enumerations of error raised the “general grounds,” Lewis v. State, 186 Ga. App. 92 (1) (366 SE2d 305) (1988), which have been abandoned by the absence of argument or citation of authority, and the admission of certain evidence.

Defendant allegedly struck the victim, a teacher, during an altercation which arose from the victim’s determination that defendant’s daughter was tardy on three occasions. Defendant sought to establish that the teacher was overly strict and demanding of her students. The teacher was asked on cross-examination whether she was aware that this parent had made a complaint about her to the school principal. The teacher responded negatively.

On redirect the teacher was asked about a letter from the school superintendent, Dr. McGill, to her. The letter, written just before the incident, was commendatory and made no mention of complaints. Defendant objected to examination of the witness based on the letter unless the State planned to call Dr. McGill so defendant could cross-examine her. The prosecuting attorney requested time to get McGill.

Sua sponte the court inquired of the teacher if she kept records “like that” as part of her practice as a teacher and if that was one of I the records she kept. Based upon the victim’s affirmative answers, the court admitted the letter as a business record, under that exception to [ the hearsay exclusion rule. Defendant objected, stating no ground.

The State then moved the admission of certain teacher evalúa-1 tions. The teacher responded affirmatively to questions inquiring if I she kept the records in the course of her business and if they were! business records. Counsel for defendant objected, stating “I don’t carel whether they’re kept as business records or not.” The objection was| overruled.

A letter is incompetent as hearsay in the absence of its authorl being available for cross-examination. Page v. State, 237 Ga. 20, 211 (3) (227 SE2d 8) (1976). Further, letters are ordinarily inadmissible as business records. Sabo v. Futch, 227 Ga. 216, 218-219 (179 SE2d 763) (1971); American Sanitation Services v. EDM of Texas, 139 Ga. App. 662, 664 (3) (229 SE2d 136) (1976). See Newport Timber Corp. v. Floyd, 247 Ga. 535, 541 (277 SE2d 646) (1981).

Decided May 23, 1991.

Murray, Donovan & Nabors, Donald R. Donovan, for appellant.

William A. Foster III, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

However, objections to evidence must state the grounds upon which they are based; merely objecting is not enough. Hayes v. State, 189 Ga. App. 39, 40 (1) (375 SE2d 114) (1988). Defendant had to do more than merely state: “I object,” to preserve a ground of error. Griffin v. State, 123 Ga. App. 820, 821 (3) (182 SE2d 498) (1971). In addition an otherwise valid reason why evidence should not be admitted will not be considered on appeal unless the specific reason was urged below. Smith v. State, 189 Ga. App. 244, 246 (7) (375 SE2d 496) (1988); Thaxton v. State, 184 Ga. App. 779, 781 (2) (362 SE2d 510) (1987). Both defense objections were insufficient to notify the trial court of the legal ground so that its applicability could be measured and error avoided. The objections were waived by their generality. Reaves v. State, 242 Ga. 542, 551 (6) (250 SE2d 376) (1978).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A91A0403.
    O’NEAL v. THE STATE.
    (406 SE2d 247)
   Beasley, Judge.

O’Neal was prosecuted as a recidivist, OCGA § 17-10-7, for violation of the Georgia Controlled Substances Act by possessing cocaine with intent to distribute, OCGA § 16-13-30 (b), and by possessing less Ithan one ounce of marijuana, OCGA § 16-13-2 (b). He appeals follow-ling conviction of the drug charges and denial of his motion for new [trial. He challenges the court’s refusal to suppress evidence seized pom his person and his car without warrant. He enumerates that the trial court erred in “finding probable cause justifying the stop of [O’Neal] in his vehicle” and in allowing the evidence despite the lack If either a search warrant or an arrest warrant.

I The substance of the challenge is not reached because the basis |or the trial court’s denial of suppression was the court’s determination that the motion to suppress was untimely. The record shows that the motion to suppress was not filed until the course of trial, two days after the jury was selected and sworn and approximately four months after O’Neal had been arraigned, appointed counsel, and given an additional 15 days to file any motions and pleas. During that time, O’Neal filed several motions but did not file a motion to suppress even though evidence of the stop and search had already been presented at a parole revocation hearing several weeks prior to arraignment on the drug charges. See Van Huynh v. State, 258 Ga. 663, 664 (2) (373 SE2d 502) (1988); State v. Grandison, 192 Ga. App. 473 (385 SE2d 139) (1989); Stansifer v. State, 166 Ga. App. 785, 788 (3) (305 SE2d 481) (1983); Burney v. State, 159 Ga. App. 651 (285 SE2d 49) (1981). Cf. Thomas v. State, 118 Ga. App. 359, 360 (2) (163 SE2d 850) (1968); Maness v. State, 159 Ga. App. 707 (285 SE2d 193) (1981).

Decided May 23, 1991.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellant.

Ralph M. Walke, District Attorney, Peter F. Larsen, Assistant | District Attorney, for appellee.

The circumstances in Lazarz v. State, 187 Ga. App. 107 (369 SE2d 355) (1988) are similar here, and we rule likewise: “The trial court’s finding as to the untimeliness of . . . [the] motion to suppress would, if correct, be a sufficient reason, in and of itself, for the denial of the motion. The trial court’s holding in that regard is not enumerated as error and appellant thus concedes the correctness of that ruling. Accordingly, the trial court did not err in denying appellant’s motion to suppress. ‘Since we find that the . . . motion to suppress was not timely made, we need not address the question whether the evidence should have been admitted.’ [Cits.]” See OCGA § 17-5-30; Dixson v. State, 191 Ga. App. 410 (1) (382 SE2d 357) (1989).

Judgments affirmed.

Banke, P. J., and Carley, J., concur.

       After the presentation of the evidence, the court did say that it found no violation ol defendant’s constitutional rights but reiterated that the motion to suppress was untimely anq was denied for that reason.


author: Banke, Presiding Judge.

text:
    A91A0152.
    BAKER v. A. G. EDWARDS & SONS, INC.
    (406 SE2d 87)
   Banke, Presiding Judge.

Acting in her capacity as guardian of her aunt, Marie R. Baker] the appellant brought suit against ten named defendants (consisting of her aunt’s son and several banks and investment brokerage companies), alleging that they had converted certain funds belonging to her aunt and had engaged in certain securities transactions on her behalf without proper authorization during a time when she was incompetent to manage her own affairs. The appellee herein is one of the brokerage companies named as a defendant in the action, the claim against it being predicated on allegations that it had guaranteed the aunt’s signature in connection with several unauthorized stock sales in which her signature had allegedly been forged by her son. This appeal is from an order dismissing the appellee from the action on the ground that the complaint failed to state a claim against it upon which relief could be granted. This judgment was rendered directly appealable by virtue of an express determination of finality made by the trial court pursuant to OCGA § 9-11-54 (b). Held:

Decided April 30, 1991

Rehearing denied May 28, 1991

Jones, Cork & Miller, Carr G. Dodson, Bradley J. Survant, Brandon A. Oren, for appellant.

Lamar, Archer & Cofrin, Robert C. Lamar, David W. Davenport, for appellee.

“When examining a complaint, courts are compelled to determine whether the facts alleged state a claim for relief under which the plaintiff may recover. It is not necessary that the complaint be perfect in form or set out all of the issues with particularity, it is necessary only to place a defendant on notice of the claim against him.” Walton v. James & Dean, Inc., 177 Ga. App. 77, 78 (338 SE2d 516) (1985). “ ‘ “Under the [Civil Practice Act], a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” (Cit.)’ [Cit.]” Sheppard v. Yara Eng. Corp., 248 Ga. 147, 149-150 (281 SE2d 586) (1981). Based on these principles, we hold that the trial court erred in concluding that the appellant’s complaint failed to state a claim against the appellee on which relief could be granted.

Judgment reversed.

Carley and Beasley, JJ., concur.


text:
    A91A0199.
    WILLIAMS v. COLONIAL INSURANCE COMPANY OF CALIFORNIA.
    (406 SE2d 99)
   Banke, Presiding Judge.

The appellant filed this action seeking to recover for personal injuries he had allegedly sustained in an automobile accident which occurred on February 18, 1988. The complaint was filed on Monday, February 19, 1990, the last day of the two-year limitation period applicable to such actions. See generally OCGA §§ 9-3-33; 1-3-1 (d) (3). The named defendant was served with the complaint on February 23, 1990; and on February 26, 1990, the appellee herein was served with a duplicate original in its capacity as the appellant’s uninsured motorist carrier. The appellee moved for summary judgment on the ground that service had not been effected within the two-year limitation period, and the case is before us on appeal from the trial court’s grant of that motion. Held:

“In this State the filing of the petition in the clerk’s office will be considered as the commencement of the suit, if service is perfected as required by law. . . . Filing followed by service creates a pending suit from the date of filing.” ’ [Cit.] ‘Service is required to be made within 5 days (although not invalid where made later). [OCGA § 9-11-4 (c)] . . . Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff.’ [Cits.]” (Emphasis supplied.) Scoggins v. State Farm &c. Ins. Co., 156 Ga. App. 408, 409-410 (274 SE2d 775) (1980). This rule has previously been applied by this court with respect to service against uninsured motorist carriers. See Johnson v. Shield Ins. Co., 189 Ga. App. 333 (375 SE2d 510) (1988).

It is apparent without dispute in the present case that the appel-lee insurer was served within five business days after the date of filing of the complaint, in accordance with OCGA §§ 9-11-4 (c) and 9-11-6 (a). (The latter Code section provides that “[i]n computing any period of time prescribed or allowed by [The Civil Practice Act] the computation rules prescribed in paragraph (3) of subsection (d) of Code Section 1-3-1 shall be used”; and OCGA § 1-3-1 (d) (3) in turn specifies that where the period of time prescribed or allowed for an action is less than seven days, “intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.”) It follows that the service against the appellee related back to the date of filing as a matter of law. Accord Southern Guaranty Ins. Co. v. Cook, 194 Ga. App. 613, 614 (2) (391 SE2d 452) (1990).

In reaching a contrary conclusion, the lower court relied on Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976), and State Auto Ins. Co. v. Reese, 191 Ga. App. 818 (383 SE2d 157) (1989), evidently being persuaded by the following language appearing in Reese that the general rules regarding the relation back of service have no applicability to uninsured motorist carriers: “ ‘In Vaughn v. Collum, [supra], the Supreme Court held that an uninsured motorist carrier is entitled to service within the time allowed for service on the defendant in the tort action. This court has since applied that holding to affirm summary judgments granted to insurers on whom service was not made within the period of limitation. (Cit.)’ [Cits.]” State Auto Ins. Co. v. Reese, supra, 191 Ga. App. at 819, quoting from Williams v. Thomas, 183 Ga. App. 51, 52 (357 SE2d 872) (1989). However, neither in Reese nor in any of the cases cited therein, including Williams v. Thomas, supra, had the uninsured motorist carrier been served within five days of the filing of the complaint. Being aware of no authority for the proposition that tort actions involving uninsured motorist carriers constitute a special class of cases in which service never relates back to the date of filing for statute of limitation purposes, we hold that the trial court erred in granting summary judgment to the appellee in the present case.

Decided May 3, 1991

Rehearing denied May 28, 1991.

B. T. Edmonds, Jr., for appellant.

Alexander & Vann, William C. Sanders, for appellee.

Judgment reversed.

Carley and Beasley, JJ., concur.


text:
    A91A0253.
    ALFARO v. THE STATE.
    (406 SE2d 86)
   Banke, Presiding Judge.

The appellant was convicted of speeding and possessing cocaine. He contends on appeal that the evidence was insufficient to support the possession conviction and that the trial court erred in admitting certain evidence to which he had objected on relevancy grounds.

While driving southbound on Interstate 75 in a rented car, the appellant was stopped by a Georgia State trooper for speeding. At the trooper’s request, the appellant produced his driver’s license and the rental agreement for the vehicle. As he was completing the citation, the trooper questioned the appellant concerning his itinerary and the reason for his journey; and the appellant responded that he had driven to Atlanta from Miami two days earlier to visit a sick aunt and was in the process of returning to Miami. The trooper then questioned a passenger who was accompanying the appellant in the vehi-ele, and she told him that she and the appellant had been in Atlanta visiting friends. The trooper thereupon asked the appellant if he was carrying any illegal substances, weapons, or large amounts of cash; and the appellant responded that he was not. He then consented to a search of the vehicle. After searching the passenger compartment, the trooper removed a locked briefcase from the trunk and opened it with the appellant’s assistance. Inside, he found $35,000 in currency. The appellant was arrested at this time; and after complying with a request by the trooper to follow him to a police station, he consented to a further search of the vehicle. During this second search, a handgun was seized from inside a suit bag and some “very small flakes of cocaine,” weighing less than lA gram, were found on the rear seat and floorboard of the vehicle. Both the appellant and the passenger were charged with possession of cocaine, but the trial judge directed a verdict of acquittal in favor of the passenger. Held:

1. The appellant contends that the trial court erred in admitting the handgun, currency and briefcase over his objection as to relevancy. This contention is without merit. “ ‘ “[T]he manner of the arrest, how [the defendant] was armed,. . . and all other circumstances connected with the arrest, [is] consider [ed] proper evidence to be submitted to the jury to be weighed by them for what they are worth.” [Cit.]”’ State v. Luke, 232 Ga. 815, 816 (209 SE2d 165) (1974).

2. The evidence was sufficient to support the conviction. In the absence of evidence or circumstances giving rise to a contrary inference, it may be inferred that the driver or other person in possession or control of an automobile is in knowing possession of all that is contained therein. See Reed v. State, 186 Ga. App. 539, 540 (367 SE2d 809) (1988). Besides being in possession and control of the vehicle, the appellant in this case was in possession of a handgun and a large amount of currency. We believe the jury could reasonably have inferred from this evidence, and from his false denial that he was carrying the latter items, that he was aware of the presence of the cocaine found in the vehicle. In addition, there was evidence that two drug detector dogs had “alerted” to his briefcase, indicating that it, too, had contained drugs at one time. See generally Smith v. State, 188 Ga. App. 415 (373 SE2d 97) (1988); Jones v. State, 242 Ga. 893 (252 SE2d 394) (1979). Viewing the evidence in the light most favorable to the verdict, we find that it was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of possession of cocaine. Accord Reed v. State, supra. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Beasley, JJ., concur.

Decided April 30, 1991

Rehearing denied May 28, 1991.

Dodd & Turner, Roger J. Dodd, Brian L. Howell, for appellant.

H. Lamar Cole, District Attorney, Catherine D. Helms, Assistant District Attorney, for appellee.


text:
    A91A0408.
    COLLIER v. EVANS et al.
    (406 SE2d 90)
   Beasley, Judge.

Appellant Jerry Larry Collier sued appellees, the former Commissioner of the Georgia Department of Corrections and the former Warden of Georgia State Prison. He sought damages of $15,000 for holding him in false imprisonment for one year, and denying him due process of law by taking 627 days of “good time” earned on six allegedly invalid disciplinary charges.

Without any forfeiture of time served, appellant would have been eligible for discharge from Georgia State Prison in June 1987, but as a result of a series of sanctions imposed he was required to serve an additional year, until June 1988. Collier alleged that, in connection with 1981 and 1982 disciplinary reports, he lacked any knowledge he had been so punished until the day in 1987 when he was initially authorized to be released. He challenged the disallowances as procedurally defective, when measured by constitutional standards.

Both parties moved for summary judgment. The trial court denied appellant’s motion. On the other hand, it granted appellees’ motion, on the grounds that (1) Collier’s claim was barred by the statute of limitation; (2) the claim was barred by the doctrines of res judicata and collateral estoppel; (3) Collier had been afforded due process of law; (4) defendants were entitled to qualified immunity; (5) Collier could bring his complaint only through class counsel in federal district court.

This appeal is brought pro se, and additional amicus curiae briefs have been filed in appellant’s behalf by counsel for the class of inmates of Georgia State Prison certified in Guthrie v. Evans, Civil Action No. 3068, United States District Court, Southern District of Georgia, decided July 14, 1986.

I 1. The trial court held that because appellant had alleged that his Constitutional rights had been violated, his suit was brought under federal law, 42 USC § 1983; that his cause of action arose in 1981 and .982 at the time of the allegedly defective disciplinary proceedings; md that under the applicable two-year statute of limitation for per-onal injury cases, the action in 1990 was barred. These rulings ignore the fact that appellant’s complaint, specifically denominated a “State Law Suit,” was premised on his claim of false imprisonment and alleged no 42 USC § 1983 or other federal statute violation.

False imprisonment is codified in OCGA § 51-7-20. “The only essential elements for false imprisonment are (1) detention and (2) the unlawfulness thereof. OCGA § 51-7-20; [cit.].” Reese v. Clayton County, 185 Ga. App. 207, 208 (363 SE2d 618) (1987). See generally Williams v. Smith, 179 Ga. App. 712 (348 SE2d 50) (1986); Stewart v. Williams, 243 Ga. 580 (255 SE2d 699) (1979). It is an intentional tort. Williams, supra at 713 (2). “The action must be brought within two years of its accrual, OCGA § 9-3-33, which is from the release from imprisonment. [Cits.]” Reese, supra. Appellant’s additional year of incarceration ran from June 2, 1987, until he was released on June 2, 1988. He filed the instant lawsuit on March 30, 1990, which was within the statutory limitation period. The claim was not time-barred.

2. The trial court’s application of the doctrines of res judicata and collateral estoppel was based on the view that appellant had “previously submitted the claims brought in this action” in suits filed in federal district court and the Superior Court of Tattnall County and by mandamus in the Georgia Supreme Court. The federal civil rights complaints had been dismissed and the dismissal was affirmed without opinion in Collier v. Evans, 887 F2d 1091 (11th Cir. 1989). The court considered the claims as having been “fully litigated.”

“A plea of res judicata or of estoppel by judgment ‘should allege all the facts and exhibit all the record essential to show that the plea is meritorious’ [cits.]. ... [I]f no evidence is tendered to support it,f the plea should be dismissed. [Cit.]” (Indention omitted.) Smith v. Wood, 115 Ga. App. 265, 268 (3) (154 SE2d 646) (1967). See also Carr v. Car-Perk Srvs., 222 Ga. 793 (152 SE2d 692) (1966). The appellees placed in evidence only the unpublished opinion from Collier v. Evans, supra, in which two judges concluded that the district court complaint filed by appellant, then an inmate at Georgia State Prison, was frivolous because of prior civil rights claims alleging the same facts] Nothing appears in this opinion from which the trial court could hav( resolved whether the district court’s determination was based on substantive issue of any relevance to the present suit, whereas appellant’s complaint expressly averred that the federal court decision hac not been on the merits of his claims.

Further, when appellees responded to appellant’s pretrial requesj to produce copies of the six disciplinary reports giving rise to his ex tended imprisonment, they could not identify which disciplinary re| ports were the operative ones. Such a response is inconsistent witl the contention that this claim had already been decided. Without thil clarity, there was no basis for the conclusion that the same claim ha{ been litigated in other cases.

3. The trial court ruled that in order to state a claim under 42 USC § 1983, appellant had to demonstrate that appellees acted under color of state law to infringe a liberty interest protected by the Fourteenth Amendment and that his confinement constituted a deprivation of such interest and occurred without due process. Citing Lee v. Dugger, 902 F2d 822 (11th Cir. 1990), the trial court concluded that having already availed himself of the opportunity to seek judicial relief regarding his treatment, discipline or conditions of confinement, the former inmate had been afforded the requisite due process by the commissioner and the warden.

The trial court relied principally on the special concurrence of Chief Judge Tjoflat in Lee, in which he stated that the Fourteenth Amendment did not protect all deprivations of prisoner good time credit or always amount to a violation of due process. This premise is not controlling. Both the majority opinion and the dissent agreed that any deprivation of liberty contrary to law was also a deprivation of liberty without due process of law. The substantive point on which the trial court in Collier’s case relied was a minority view.

Moreover, Chief Judge Tjoflat’s opinion was based upon his finding that the correctional officials had denied good time solely because of an innocently mistaken interpretation of a newly-enacted Florida law. He expressly recognized that “Lee may well have a state tort claim for false imprisonment . . . [which] must be sought in state court under traditional tortlaw principles.” Id. at 824, n. 3. So long as appellant’s claim, that he is entitled under state law to be compensated for loss of good time of which he was deprived, remains unresolved, summary judgment was inappropriate.

4. As to the ground of qualified immunity, the trial court ruled that appellant failed to clearly establish a violation of constitutional principles, again citing Chief Judge Tjoflat’s special concurrence in Lee v. Dugger, supra, to the effect that the alleged detention of a prisoner beyond the expiration of his sentence is not a federal constitutional violation so long as a judicial remedy is available. In Section 1983 suits, government officials can be insulated from personal liability for civil damages by qualified immunity for actions taken pursuant I to their discretionary authority, “ ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ The right must be sufficiently [clear that ‘in light of preexisting law the unlawfulness (of the officer’s [conduct) must be apparent.’ [Cit.] ” Waldrop v. Evans, 871 F2d 1030, 1032-1033 (11th Cir. 1989).

I This does not command summary judgment on appellant’s tort [claim for false imprisonment. Appellees have not shown that federal ualified immunity from liability for civil rights violations governs suits for false imprisonment under state law.

5. The final ground underlying summary judgment was the trial court’s consideration of appellant as a member of the inmate class in Guthrie v. Evans, supra. The class members were ordered to proceed through class counsel, and not by pro se petitions, with complaints of violations of the substantive orders in that case. See, e.g., Saleem v. Evans, 866 F2d 1313 (11th Cir. 1989).

Although an uncertified copy of the procedural order was attached as an appendix to an amicus curiae brief below, it is not evidence. Moreover, it states that the matter before the court, conditions of confinement at Georgia State Prison, “involved whether individual class members could file contempt actions on issues which affected the entire class pro se.” It ruled that they could not do so.

It does not appear that appellant’s complaint is subsumed in any issue in Guthrie. As a former inmate who had no interest in enforcing future obedience to the substantive orders in Guthrie, appellant instead sought compensation for alleged past wrongs peculiar to himself and proceeded in law rather than in equity.

“ ‘In order “(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)” [Cit.]’ [Cit.]” Baughcum v. Cecil Key Paving, 190 Ga. App. 21, 22 (1) (378 SE2d 151) (1989). Defendants have not shown that appellant’s claim of false imprisonment has ever been addressed in any forum or that it fails as a matter of law. “ ‘The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. (Cit.)’ [Cits.]” Id. at 23. The absence of a prima facie showing precludes summary judgment. Val Preda Motors v. National Uniform Svc., 195 Ga. App. 443 (2) (393 SE2d 728) (1990).

6. In his motion for summary judgment Collier contended thatl because he had received no notice of the disciplinary actions taken[ against him, he was entitled to judgment against the defendants as matter of law under Wolff v. McDonnell, 418 U. S. 539 (94 SC 2963 41 LE2d 935) (1974). Wolff holds that prison officials are obligated t satisfy “the minimum requirements of procedural due process” b providing the prisoner with “advance written notice of the claime violation and a written statement of the factfinders as to the evidenc relied upon and the reasons for the disciplinary action taken.” Id. a 563. Appellant has not yet made out his case. For one thing, he hai not identified the specific disciplinary proceedings, which he targets from his long history at the prison.

Decided May 1, 1991

Rehearing denied May 28, 1991.

Jerry Collier, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Neal B. Childers, Assistant Attorneys General, for appellee.

Judgment affirmed in part and reversed in part.

Banke, P. J., and Carley, J., concur.


author: Sognier, Chief Judge.

text:
    A91A0512.
    ROSS v. THE STATE.
    (406 SE2d 101)
   Sognier, Chief Judge.

Terry Ross was convicted of burglary, and he appeals.

The evidence adduced at trial showed that on July 27, 1989, Kevin Wayne Little discovered that a storage building behind his residence, in which he worked on race cars, had been forcibly entered, and several items, including a battery charger, an electric drill, and an automobile jack, were missing. Little could not testify precisely when the burglary had occurred because he had not checked the building for two or three days. Latent fingerprints lifted from a disabled car in the yard near the burglarized building were later identified as appellant’s by Louis Cuendet, a latent print examiner for the State Crime Lab. A latent palm print was also found, which matched neither that of appellant nor that of Little. Cuendet testified that the prints must have been recent when lifted, because latent prints such as those pound on the hood of the car, when exposed to the elements outdoors, Iwould begin to deteriorate almost immediately, and within a day Iwould be almost undiscernible even under the best of atmospheric conditions.

I Following a pretrial hearing, the trial court ruled that the State Ivould be permitted to introduce evidence of a similar burglary com-Initted by appellant seven years earlier. At trial Lieutenant Ronnie Borrells of the Walton County Police Department testified about the fcrior burglary. In that crime, in which appellant had been implicated ly an accomplice and had pled guilty, a residential garage, in which laaintenance had been performed on race cars, had been burglarized Ind a battery charger, jack, and drill taken.

I Appellant testified in his own defense, denied having been on little’s property or in the area, and offered no explanation for the presence of his fingerprints on the car.

1. Appellant enumerates the general grounds, arguing specifically that the fingerprint evidence was insufficient because the State had not proved “ ‘to the exclusion of every reasonable hypothesis, that the fingerprints could only have been impressed at the time the crime was committed. [Cits.]’ [Cits.]” Jeffares v. State, 162 Ga. App. 36 (290 SE2d 123) (1982). However, that principle applies only when the conviction is based solely on fingerprint evidence. Id. Here, other evidence was presented — i.e., the fingerprint evidence in conjunction with the striking similarity of the prior burglary committed by appellant, and appellant’s testimony negating any innocent explanation for the presence of his fingerprint. This evidence was sufficient to allow a jury to conclude that the State had carried its burden of negating all other reasonable hypotheses and to authorize appellant’s conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Davis v. State, 194 Ga. App. 902, 903 (1) (392 SE2d 327) (1990).

2. We find no merit in appellant’s contention that the trial court erred by admitting into evidence the prior burglary conviction. “Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.” (Punctuation and citations omitted.) Colquitt v. State, 196 Ga. App. 817, 818 (2) (397 SE2d 164) (1990). Appellant admits that he was the perpetrator of the prior burglary, and we find sufficient similarity existed to warrant its admission and that its relevance to show identity was great enough to outweigh its prejudicial impact. Id.

Although we agree with appellant that lapse of time is an important factor to be weighed in considering the admissibility of evidence of prior crimes, see Campbell v. State, 234 Ga. 130, 132 (214 SE2d 656) (1975), the time lapse between the two crimes in this case, seve years, is no longer than that in Mims v. State, 180 Ga. App. 3, 4-5 (2) (348 SE2d 498) (1986). In Mims we approved the trial court’s rulin¡ that the prior crime was admissible, stating that “there is no require ment that a previous offense be absolutely identical to the one bein prosecuted so as to make it admissible, [cit.], nor does the lapse o: time between the two [crimes] automatically require the exclusion o such evidence. [Cit.]” Id. at 5 (2). See Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985) (lapse of 11 years does not make prior crim inadmissible). Accordingly, the trial court did not err by admittin the evidence of the prior crime. Colquitt, supra.

3. Appellant maintains the trial court erred by failing to give contemporaneous instruction to the jury limiting consideration of th evidence of the prior burglary to its proper purpose. Appellant requested such an instruction, and the trial court refused, stating that it would charge the jury on similar transactions in its regular charge, so as not to highlight that evidence, because he believed “the Court’s posture should be not to give the similar transactions testimony any greater weight or highlight it any greater than I would any other testimony.” Although the trial court indicated that if appellant could show a precedent or authority for doing otherwise, it would be considered, appellant did not do so. Appellant cites no authority to this court for his contention that failure to give a contemporaneous limiting instruction was reversible error, and we have found none. Given that the trial court instructed the jury fully and correctly in its charge on the limited purpose of that evidence, we find no reversible error in the failure to give a contemporaneous instruction.

Decided May 3, 1991

Rehearing denied May 28, 1991.

David F. Dickinson, for appellant.

John M. Ott, District Attorney, Alan A. Cook, Assistant District Attorney, for appellee.

4. Following the selection of the jury, appellant challenged, under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the State’s use of peremptory strikes to disqualify five of the seven black members of the jury panel. The trial court ruled that no prima facie showing of racial discrimination had been made under Batson, but nevertheless, using the procedure approved in Williams v. State, 258 Ga. 80, 81 (3) (365 SE2d 408) (1988), required the prosecution to state its reasons for striking blacks from the jury and found that the State’s reasons were nondiscriminatory. We find no error. Appellant and the State stipulated that there were seven black potential jurors in the panel of 42 from which the jury was selected, and that there were two black jurors on the jury selected. Accordingly, as the proportion of blacks on the selected jury was identical to that on the panel (16.66 percent), the trial court correctly found that a prima facie case under Batson had not been made. Id. See also Aldridge v. State, 258 Ga. 75, 76-79 (4) (365 SE2d 111) (1988). “Accordingly, we need not review the trial court’s findings with regard to the [S]tate’s reasons for exercising its peremptory challenges.” (Footnote omitted.) Williams, supra.

Judgment affirmed.

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


text:
    A91A0038.
    STATE OF GEORGIA v. HIGHTOWER.
    (406 SE2d 117)
   Beasley, Judge.

This appeal turns on the statutory provisions for remission of bond, OCGA § 17-6-72 (f).

On December 3, 1988, Hightower posted a $2,200 property bond for his son who had been arrested on traffic charges the day before. The defendant son waived arraignment on March 31, 1989, and signed a notice of return to a July 3, 1989, jury trial calendar. Defendant failed to appear on July 3 and a bench warrant issued for his arrest. On the same day, the court signed a bond forfeiture order, setting a hearing date for September 22. All parties were notified of the hearing date. On September 22, the court signed a judgment for $2,200 on the bond against surety Hightower. On that day, Hightower paid the entire judgment prior to a fi. fa. being issued.

Sometime after September 22, Hightower became aware of his son’s whereabouts and substantially caused the son’s apprehension. Defendant was arrested on October 26, 1989, and subsequently pled guilty to all charges on January 24, 1990.

On February 28, 158 days after he paid the judgment, Hightower filed a “Motion to Exonerate Bondsman After Forfeiture,” asking that the order and judgment of forfeiture be set aside and the proceeds of the bond in full less costs be refunded. The court vacated and set aside the bond forfeiture order and judgment in entirety and directed that Hightower receive an 80 percent remission of the bond in the amount of $1,760.

The State asserts error in ordering any remission of the bond because more than 90 days had elapsed between payment of the judgment and the filing of the motion for remission, in contravention of OCGA § 17-6-72 (f). It further asserts that if remission was permissible, the court erred in the amount because the statute allows either 95 percent or 50 percent.

OCGA § 17-6-72 (f) provides that in cases other than when the surety who has not yet paid the judgment surrenders the principal to the sheriff within 90 days after judgment, the court shall order remission of bond under certain conditions “on application filed within 90 days from the payment of judgment.” Subsection (f) (1) further provides only two possible amounts, 95 percent and 50 percent, which are to be refunded to the surety under differing circumstances.

The statute sets a limited time period for filing and measures it from the surety’s payment of judgment on the bond rather than from the apprehension of the principal. This is required even when the principal is found and returned at some time beyond that period.

The statutory language is clear and unambiguous. “[T]he true test for the interpretation of a statute is not a judicial determination of its desired result, but a determination of the intention of the legislature as it is expressed by the language of the statute.” Bauer Intl. Corp. v. Cagles, Inc., 225 Ga. 684, 686 (1) (171 SE2d 314) (1969).

Decided May 28, 1991.

Patrick H. Head, Solicitor, B. Martin First, Beverly M. Hartung, Assistant Solicitors, for appellant.

Charles W. Lane, for appellee.

Hightower suggests that the statute be construed so as to obviate the need for application within 90 days of judgment payment and to provide for judicial discretion as to the amount of remission. The Court is without authority to so construe this statute, much less disregard its clear and unambiguous language and ignore the time limit. See Aldridge v. Federal Land Bank of Columbia, 203 Ga. 285, 289 (1) (46 SE2d 578) (1948). “[C]ourts can not change laws; they can only interpret them.” Adams v. Powell, 67 Ga. App. 460, 462 (21 SE2d 111) (1942). If the statute is flawed, it is up to the legislature to revise it.

Under OCGA § 17-6-72 (f) as written, Hightower was not entitled to any remission of the bond payment because he did not apply for it within 9Ó days of paying the judgment, as he could have done inasmuch as the principal had been apprehended with the surety’s help 34 days after payment.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


author: Coopee, Judge.

text:
    A91A0075.
    SMITH v. THE STATE.
    (406 SE2d 118)
   Coopee, Judge.

The appellant, charged in the Superior Court of Fulton County with violations of the Georgia Controlled Substances Act, moved for discharge and acquittal based on the State’s failure to honor his demand for trial and try him within two terms of court pursuant to OCGA § 17-7-170. He appeals the denial of the motion.

The terms of the Superior Court of Fulton County commence on the first Monday in January, March, May, July, September and November. Appellant filed his demand for trial on Friday, March 2, 1990, the final day of the January term of court, and filed the motion for discharge and acquittal on May 7, 1990, during the May term of court. On May 8, 1990, his case was called for trial, and appellant entered a plea of guilty, specifically reserving his right to appeal the denial of his motion.

OCGA § 17-7-170 (b) provides: “If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment. ...” During the hearing on the motion, the State did not dispute that there were juries impaneled to try cases during the January and March terms but argued that no juries were impaneled on the final day of the January term to trigger the provisions of OCGA § 17-7-170, which would have required a trial by the end of the March term. The State pointed out that the last jurors for the term were summoned on February 22, 1990, at which time a jury and alternates were selected for a trial and those not selected were released; that the week ending March 2, 1990 was a non-jury week in which no jurors were called; and that on March 2, 1990, there were two trials in Fulton Superior Court, both beginning during the week of February 19, 1990, one of the trials ending in the evening of March 2 after 9:00 p.m. and the other concluding on March 8, 1990. Denying the motion, the trial court stated that jurors selected and sworn to try the other cases were not available because they could not be impaneled and qualified to try an entirely different case on March 2. Thus, there was no jury qualified to try the case for the remainder of the January term after the demand was filed, and the demand did not become effective until the March term. With this conclusion, we agree.

In Strickland v. State, 192 Ga. App. 613, 615 (386 SE2d 165) (1989), we held it was immaterial whether a defendant sought a bench trial or a jury trial but that “[p]ursuant to [OCGA § 17-7-170], acquittal depends on the availability of a jury (and, logically, the court sitting without a jury) to try defendant.” “[I]n computing the time allowed by the two-term requirement, terms or remainders of terms during which no jury is impaneled are not counted.” Kaysen v. State, 191 Ga. App. 734, 735 (382 SE2d 737) (1989). See also Deadwiley v. State, 192 Ga. App. 229 (384 SE2d 221) (1989). “If no jury is impaneled and qualified to try a person when the demand is filed, the time designated in § 17-7-170 does not begin to run until the term at which jurors are impaneled and qualified to try the person. [Cit.]” Kersey v. State, 191 Ga. App. 847 (383 SE2d 348) (1989). We find, based on the facts discussed above, that because there were no juries impaneled on | the date the demand was filed, that date being the last day of the j January term, the demand did not become effective until the March term, and the case was required to be tried, at the latest, before the end of the May term. See Kaysen, supra. The State was prepared to try the case at the May term; therefore, the trial court did not err in| denying appellant’s motion.

Judgment affirmed.

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

Decided May 28, 1991.

Stephen T. Maples, for appellant.

Lewis R. Slaton, District Attorney, Grover W. Hudgins, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.


text:
    A91A0096.
    BROWN v. THE STATE.
    (406 SE2d 248)
   Beasley, Judge.

Ronnie A. Brown was convicted of one count of burglary (OCGA § 16-7-1), two counts of armed robbery (OCGA § 16-8-41) and one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106). He enumerates as error the trial court’s denial of his motion for new trial, urging that the evidence was insufficient and that the sentence was excessive given the facts.

Melissa Lesko lived with her mother, Joyce Hill, in Valdosta. An intruder appeared in the home at approximately midnight. When she initially confronted him in a well-lit hallway, he was not wearing a mask, although he belatedly pulled a nylon stocking over his head. He demanded money, but when Lesko went into her bedroom she found that her wallet and checkbook had already been taken. He then sought entrance to Hill’s room. She had shut her bedroom door, having been made aware of the intruder, and retrieved a .25 caliber handgun. When the intruder started beating on her door, she fired the weapon through it. The intruder was not hit but ran down the hallway and attempted to flee.

The two women pursued him into the kitchen, where his exit was impeded by dead-bolt lock doors. He got behind the refrigerator to shield himself and pulled something out of his pocket and pointed it at the women. He told Hill to drop her gun. She pulled the trigger but the gun misfired. Again he demanded that she drop her gun. Believing that the intruder possessed a gun, she complied and the intruder retrieved hers.

He then demanded that Lesko give him money. At point of the relinquished gun, she went into her bedroom and found $6 in currency which she gave up. She let appellant out of the house but followed him until the police, who had been called, arrested him. He was in possession of some of the stolen items and was transported back to the victims’ house, where they both identified him as the intruder.

The indictment alleged that appellant committed burglary by entering the dwelling of another with the intent to commit theft. One armed robbery count was based on allegations that appellant had taken U. S. currency and other items from Lesko by use of a firearm. The other armed robbery count was based on allegations that he took the handgun from Hill by use of a firearm. Another count charged possession of a firearm during the commission of the armed robbery against Lesko.

Decided May 28, 1991.

David F. Sandbach, Jr., for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Under Georgia’s statutory double jeopardy provisions (OCGA §§ 16-1-6; 16-1-7), there is no prohibition against a defendant’s being convicted of both burglary and a completed criminal offense, in this case armed robbery, after gaining entry into the dwelling, as each offense has distinct elements. See Groves v. State, 152 Ga. App. 606, 607 (2) (263 SE2d 501) (1979). Likewise, the offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery, so that the defendant can be convicted of both without statutory or constitutional prohibition. Wiley v. State, 250 Ga. 343, 351 (6) (296 SE2d 714) (1982). Contrary to appellant’s argument, armed robbery can be committed with either a real weapon “or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a); Moody v. State, 258 Ga. 818 (375 SE2d 30) (1989).

As required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient to authorize a rational trier of fact to find appellant guilty of the offenses beyond a reasonable doubt.

Appellant, who has a prior burglary conviction, was sentenced to a term of 15 years imprisonment for the burglary conviction, 15 years for each armed robbery, and five years for possession of a firearm. These sentences, though each is consecutive to the preceding one, are within legal limits and not excessive.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A91A0164.
    HOOD v. THE STATE.
    (406 SE2d 120)
   Beasley, Judge.

Charlie Hood appeals his convictions of armed robbery and aggravated assault after being granted an out-of-time appeal in a state habeas corpus proceeding. The sole question is whether the pretrial show-up to the victim was suggestive so as to taint her in-court identification of Hood and thus render it inadmissible.

Betty New worked as the night-shift desk clerk at the John Mil-ledge Motel. One night shortly after midnight, a black male came into the motel office and asked if there were any vacancies. She said there were none until the following morning. Although the man left, he returned and asked if a Richard Parham was registered as a motel guest. New told him he was but that she could not reveal room numbers of motel guests. She offered to call Parham, but the man mumbled something and left.

The man returned again later that night. He was not wearing a shirt, and he had a broken whiskey or beer bottle in his hand. He demanded money, so she opened the cash register, which contained about $53 or $54. He told New to look at his face, which she did. She asked him what he was going to do, and he said, “Make love to you.” He told her to turn off the lights but she refused. He grabbed her and they scuffled. She began to scream “Charles,” calling for motel owner Charles Boon, whose bedroom adjoined the office. A noise emanated from the bedroom, and the robber fled. New “got several good looks at him because he demanded twice that I look him straight in the face.”

Twelve days later, Michelle Maddox was working as the desk clerk at the motel. At approximately 1:30 a.m., a man came into the office holding a shovel as one would hold a baseball bat. He threatened to strike her with it if she did not give him money. Charles Boon, who has an audio and visual device in. his bedroom which monitors the motel office, heard Maddox scream, looked at the monitor and realized there was a robbery in progress. He grabbed a gun, entered the office, and subdued the robber. The police were summoned, and appellant was arrested.

Early the next morning, Boon’s wife telephoned New and asked her to come to the motel because there had been an attempted robbery. When she arrived, she saw several police cars. As she got out of her car and turned around, she saw the appellant sitting in the back seat of one of the police cars. She immediately recognized him as the man who had robbed and assaulted her previously. He tried to shield his face, but she stood there until he moved his hands. After he did, she told the police he was the man who had victimized her.

At trial, New testified that her robber was a black male, four or five inches taller than she, and “not real dark complected.” She positively identified appellant as that man.

“Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a ‘likelihood of misidentification which joffends against due process and “the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation.” [Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1982)].’ Yancey v. State, 232 Ga. 167, 169 (205 SE2d 282).” Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975).

Decided May 28, 1991.

Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, Al C. Martinez, Jr., Assistant District Attorney, for appellee.

Except for the passage of time, the so-called show-up in this case was somewhat akin to an immediate on-the-scene confrontation between the victim and a suspect. Considering the relevant factors, it was not unnecessarily suggestive, and under the totality of the circumstances New’s recognition of appellant when she came to the motel did not give rise to a likelihood of misidentification but was instead reliable. See Byrd v. State, 173 Ga. App. 449, 450 (2) (326 SE2d 813) (1985); Stone v. State, 167 Ga. App. 759, 761 (2) (307 SE2d 543) (1983). Thus, New was not precluded from making the in-court identification.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


author: Cooper, Judge.

text:
    A91A0202.
    GIBSON v. SOUTHERN GENERAL INSURANCE COMPANY.
    (406 SE2d 121)
   Cooper, Judge.

Appellant appeals the order of the trial court granting summary judgment to Southern General Insurance Company (“Southern General”) and denying appellant’s motion for partial summary judgment | on his claim for legal expenses and attorney fees incurred in defending a declaratory judgment action brought by Southern General.

This suit arose out of an automobile accident which took place I while appellant was driving an automobile owned by Vicki Brown] (“Brown”) in which Brown was a passenger. Brown initiated a personal injury action against appellant in the State Court of Fulton I County for injuries allegedly incurred by Brown during the accident. [ Appellant’s insurance carrier, Southern General, defended the personal injury action on appellant’s behalf pursuant to a reservation ofl rights, and then filed a declaratory judgment action in the Superior Court of Fulton County naming appellant and Brown as defendants. The action sought a ruling that no coverage existed under the policy because of the “use of other automobiles” exception which excluded liability coverage with respect to any nonowner “automobile . . . furnished for regular use ... to the named insured. ...” Appellant counterclaimed in the declaratory action and sought court costs and attorney fees. After Southern General voluntarily dismissed the declaratory action, appellant filed a motion pursuant to OCGA § 9-15-14, also seeking litigation costs and attorney fees for defending the declaratory judgment action. Appellant and Southern General filed cross-motions for partial summary judgment on the issue of liability on the appellant’s counterclaim and motion. The trial court granted Southern General’s motion and denied appellant’s motion on the basis that appellant failed to show that Southern General “acted in bad faith, interposed this suit for delay, or brought a law suit that lacks merit.” Having determined that no other issue remained to be decided in the case, the court entered judgment in favor of appellee.

In four enumerations of error, appellant contends the trial court erred by granting summary judgment to Southern General and denying appellant’s motion because there were three legal theories under which appellant could recover his legal expenses and attorney fees.

1. Appellant’s reliance on OCGA § 13-6-11 as authority for allowing a defendant to recover legal expenses and attorney fees for defending an action under the circumstances present in this case is misplaced. Although OCGA § 13-6-11 creates a cause of action for bad faith damages to a plaintiff for having to resort to litigation, no such provision is available to a defendant in the absence of “viable independent counterclaims asserting [a claim for relief independent of the assertion of the [plaintiff’s] harassment, litigiousness and bad faith in bringing [its suit].” Florida Rock Indus. v. Smith, 163 Ga. App. 361, 363 (3) (294 SE2d 553) (1982). Appellant, having asserted no other independent claim against Southern General other than a claim for litigation costs and attorney fees, is not a true plaintiff in counterclaim so as to claim litigation expenses under OCGA § 13-6-11. See Vogtle v. Coleman, 259 Ga. 115 (2) (376 SE2d 861) (1989).

2. Appellant’s reliance on OCGA § 33-7-15 (b.l) as authority for allowing him to recover legal expenses and attorney fees in the present action is similarly misplaced. This court has previously held that recovery of attorney fees under OCGA § 33-7-15 (b.l) is limited to those situations involving non-cooperation by an insured with his insurance company. Hall v. Canal Ins. Co., 195 Ga. App. 16 (392 SE2d 340) (1990). “[Although the language of subsection (b.1) does not expressly limit recovery of attorney fees only to situations of non-cooperation by the insured, placement of the subsection in the context of OCGA § 33-7-15 leads to the conclusion that the legislature did intend to so limit the application of the subsection.” Id. at 17. Inasmuch, as the declaratory action filed in the present case involved the interpretation of a policy exclusion rather than the failure of the appellant to cooperate with Southern General, OCGA § 33-7-15 (b.1) is inapplicable.

3. The third Code provision upon which appellant relies as authority for recovery of legal expenses and attorney fees under the present circumstances is OCGA § 9-15-14. Subsection (a) of OCGA § 9-15-14 provides that “reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to .which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” Subsection (b), on the other hand, provides that “[t]he court may assess reasonable and necessary attorney’s fees and expenses of litigation . . . if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. ... As used in this Code section, ‘lacked substantial justification’ means substantially friviolous, substantially groundless, or substantially vexatious.” Claims asserted pursuant to either subsection (a) or (b) are to be adjudicated by the trial court without a jury. OCGA § 9-15-14 (f); Ferguson v. City of Doraville, 186 Ga. App. 430 (2) (367 SE2d 551) (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, fn. 8, supra. The standard of review for motions under OCGA § 9-15-14 (a) is the “any evidence” rule, and the standard of review for motions under OCGA § 9-15-14 (b) is the “abuse of discretion” rule. Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524 (4c) (360 SE2d 566) (1987).

The basis for appellant’s claim that he was entitled to attorney fees and litigation costs under OCGA § 9-15-14 was appellant’s belief that Southern General was obligated under the insurance policy to defend and pay the costs of appellant’s defense of the declaratory judgment action brought by Southern General by the following language: j

“II. Defense, Settlement, Supplementary Payments. With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall: (a) defend any suits against the insured alleging such injury, sickness, disease or destruction, and seeking damages on account thereof, evenl if such suit is groundless, false or fraudulent. ...” j

Decided May 28, 1991.

George P. Graves, for appellant.

Michael L. Wetzel & Associates, Michael L. Wetzel, for appellee.

Contrary to appellant’s belief, this policy provision did not obligate Southern General to defend appellant in the declaratory action seeking a determination of Southern General’s liabilities and obligations under the insurance policy. The right of an insurance company to seek declaratory clarification of its obligations under an insurance policy has long been recognized by this court. Richmond v. Ga. Farm &c. Ins. Co., 140 Ga. App. 215, 219 (231 SE2d 245) (1976). Absent a showing of bad faith, fraud or litigiousness, the expenses of an insured incurred in the defense of a legitimate request for a declaration of rights through the use of a declaratory action are not recoverable from an insurance company. Hilde v. U. S. Fire Ins. Co., 184 Ga. App. 611, 614 (362 SE2d 69) (1987); Maryland Cas. Co. v. Sammons, 63 Ga. App. 323 (2) (11 SE2d 89) (1940).

The evidence before the trial court was void of any showing of bad faith on the part of Southern General. Appellant contends that bad faith is evidenced by Southern General’s payment, prior to the filing of the declaratory action, of a claim made by Georgia Power Company for property damage arising out of the same accident and has attached to his brief a copy of the check evidencing the payment to Georgia Power Company; however, the check was not part of the record before the trial court. “ ‘ “[A] brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record.” ’ [Cit.]” Rowe v. Rowe, 195 Ga. App. 493 (1) (393 SE2d 750) (1990). There was, however, sufficient evidence in the record to support Southern General’s contention that it filed the declaratory action after its investigation disclosed that the address given for appellant’s insurance application was the same as Brown’s address and that appellant had paid for tires and the maintenance costs of Brown’s automobile. The trial court concluded that Southern General’s declaratory action justifiably sought a determination that the insurance company was not obligated to appellant under the “use of other automobiles” exception in the insurance policy. Finding no evidence of bad faith, fraud or litigiousness, under both standards of review set forth above, the record supports the trial court’s decision.

Judgment affirmed.

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


text:
    A91A0303.
    JOSEY v. THE STATE.
    (406 SE2d 125)
   Beasley, Judge.

Appellant was convicted of distributing cocaine. OCGA § 16-13-30 (b). He appeals, enumerating that the trial court erred in failing to require the State to reveal the identity of a confidential informant and that the evidence is insufficient to support the verdict.

Two GBI agents, Harper and Buggage, were conducting an undercover narcotics investigation in Laurens County. One evening they, along with a local resident acting as a confidential informant, were driving in the area of a housing project in Dublin. They saw an individual on the street later identified as appellant, Ronnie Josey. The informant told them to stop the car and summoned Josey, asking him if he had anything. He stated “he had two pieces, referring to two pieces of crack cocaine to sell. And he would let them go for twenty dollars.” He took from his pocket a small plastic matchbox-size box and opened it. Inside were two small pieces of crack cocaine. The GBI agent gave Josey the 20 dollars, and Josey gave the agent the cocaine.

Josey was arrested about a month later. He was taken to jail and was interviewed by a GBI agent in the presence of a county law enforcement officer. After signing a written waiver-of-rights form, Josey gave an oral statement reduced to writing by the agent and signed by the agent, the officer, and Josey. Josey stated that “about a month ago I was on the corner with some friends in Jones Village when a car pulled up with a black male and two black females in it. They wanted to purchase some crack. I took one rock of crack from a black male named ‘June bug’ and gave it to Ulysses Morris. Morris then sold it to them for $20.00. This statement is the full truth and I give it freely and voluntarily.”

At trial, Josey denied making the foregoing statement. He testified that at the time in question he was walking down the street, and June Bug Channell called him and told him to hand something to Gladys Ingram. By the time Ingram had gotten there, another fellow came up and said he would give it to her. He gave the substance to the other fellow and left. Contending that he never met the GBI agents and he never sold cocaine to anyone, appellant’s defense was misidentification.

Appellant was positively identified by both GBI agents, whose testimony was corroborated by the oral statement given by appellant in the presence of two other law enforcement officers.

1. During appellant’s cross-examination of one GBI agent, the trial judge sustained an objection to a line of questions through which defendant sought the disclosure of the identity of the confidential informant. The ruling is enumerated as error.

When a confidential informant takes an undercover police officer to a location and introduces the officer to the defendant, from whom the undercover officer purchases contraband, and the informant merely witnesses the sale, the informant is not a “decoy” or “informant-participant.” See Moore v. State, 187 Ga. App. 387, 389 (2) (370 SE2d 511) (1988). The disclosure of such informant’s identity rests in the discretion of the trial judge, balancing the rights of the defendant against the rights of the State under all the facts and circumstances of the case. Milsap v. State, 196 Ga. App. 820 (397 SE2d 168) (1990); Statiras v. State, 170 Ga. App. 739, 740 (318 SE2d 156) (1984). “Where the disclosure of the informant’s identity would at most serve only to furnish possible testimony impeaching the officer’s testimony, disclosure of the informant’s identity is not required.” Black v. State, 154 Ga. App. 441, 442 (2) (268 SE2d 724) (1980). Compare Taylor v. State, 136 Ga. App. 31 (3) (220 SE2d 49) (1975), concerning an “informant-participant” who has made arrangements for the sale of contraband with the defendant, under circumstances unknown to anyone other than the informant and the defendant, with the defendant pleading entrapment.

In this case, as in Milsap, the informant’s testimony was sought in order to impeach the undercover officers’ identification of defendant. Evidence as to the identification of the defendant was presented through the testimony of multiple witnesses.

Although appellant argues that the court should have conducted an in-camera hearing, he did not seek such at the trial. See State v. Mason, 181 Ga. App. 806, 812 (4) (353 SE2d 915) (1987).

Furthermore, as in Hatcher v. State, 154 Ga. App. 770, 772 (270 SE2d 16) (1980), the defense had some knowledge of the identity of the other individual who was in the presence of the undercover officers at the time of the drug buy and could have subpoenaed the person.

The trial court did not abuse its discretion in refusing to order the disclosure of the identity of the confidential informant.

2. In determining the sufficiency of the evidence in a criminal case, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Jackson v. Virginia, [443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979)]. On appeal of a criminal conviction, the evidence is to be viewed ‘in the light most favorable to the prosecution’ (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not in the light most favorable to the defendant.” (Emphasis in original; footnote omitted.) Adams v. State, 255 Ga. 356 (338 SE2d 860) (1986). The evidence was sufficient.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

Decided May 28, 1991.

Larsen & Flanders, H. Gibbs Flanders, Jr., for appellant.

Ralph M. Walke, District Attorney, for appellee.


text:
    A91A0392, A91A0393, A91A0983.
    HOLSEY et al. v. THE STATE.
    (406 SE2d 127)
   Banke, Presiding Judge.

Howard Holsey was jointly indicted and tried with his brothers, Cedric and Paul Holsey, on charges of aggravated child molestation, child molestation, and statutory rape. The alleged victim was Howard Holsey’s stepdaughter, Latrece, who was ten years old at the time of trial. All three defendants were found guilty on all three counts of the indictment, and each has filed a separate appeal to this court. Held:

1. The evidence, construed in the light most favorable to the verdict, was amply sufficient to enable a rational trier of fact to find each of the appellants guilty beyond a reasonable doubt of all three offenses. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellants Howard and Cedric Holsey contend that the trial court erred in refusing to declare a mistrial in response to certain unresponsive comments made by the victim revealing that both of them had previously spent time in jail. The first such comment came following the child’s testimony to the effect that her stepfather, Howard, had repeatedly engaged in sexual intercourse with her. The state’s attorney asked her whether this conduct had been “going since you were in the second grade,” and she responded as follows: “While I was in the second grade, he was in prison.” Howard’s counsel moved for a mistrial at this time, whereupon the trial court offered to give curative instructions, but the offer was declined. Subsequently, the state’s attorney asked the victim: “When your stepfather was gone, did Cedric keep doing these things?” Referring to Cedric, she responded: “He went to jail — he went away.” At this time, Cedric’s attorney announced that he was making “that same motion” that Howard’s attorney had made earlier, “for exactly the same reason.” He indicated, however, that he saw no necessity for sending the jury out to discuss the motion, stating that he was assuming the motion was overruled.

“ ‘[W]here counsel requests that no curative instruction be given to the jury, the trial court is not obliged to do so, and the denial of the motion for mistrial is generally not an abuse of discretion.’ [Cit.]” Conklin v. State, 254 Ga. 558, 568 (331 SE2d 532) (1985). Accord Bromley v. State, 259 Ga. 377, 380 (380 SE2d 694) (1989). Given the overwhelming evidence of guilt introduced by the state during the trial of this case, these unresponsive statements by the victim clearly did not, in any event, “rise to ‘the level of prejudice that would demand a mistrial.’ ” Hillman v. State, 184 Ga. App. 712, 714 (362 SE2d 417) (1987).

3. Appellants Howard and Cedric Holsey contend that the court further erred in allowing the victim to testify without first making a determination that she was competent to do so. The trial took place after the effective date of OCGA § 24-9-5 (b) (Ga. L. 1989, p. 1639, § 1), which specifies, in pertinent part, that “in criminal cases involving child molestation, and in all other criminal cases in which a child was a victim of or a witness to any crime, any such child shall be competent to testify. . . .” Accordingly, the trial court was not required to make an express determination that the victim was competent before allowing her to testify. We reject the appellants’ contention that this statute was inapplicable with respect to testimony concerning events which had already occurred prior to its effective date. The child was either competent to testify or she was not. “[W]here a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. [Cits.]” Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988).

4. Appellants Howard and Cedric Holsey contend that the trial court erred in refusing to allow them to cross-examine the victim as to whether she had engaged in sexual activity with persons other than them or had reported such activity, without first making a threshold determination that no reasonable probability existed that such prior reports were false. See generally Shelton v. State, 196 Ga. App. 163, 164 (4) (395 SE2d 618) (1990). However, the appellants did not suggest during the trial of this case that the victim had falsely accused other persons of engaging in sexual activity with her. Rather, it is evident that what they were attempting to prove through this line of questioning was that the victim had in fact engaged in sexual conduct with persons other than them. As such evidence had no relevance whatever to the issues being tried, it was properly excluded.

5. The trial court did not err in denying the appellants’ request for additional jury strikes. “When two or more defendants are tried jointly for a crime or offense, such defendants shall be entitled to the same number of strikes as a single defendant if tried separately. . . . In the event two or more defendants are tried jointly, the court, upon request of the defendants, acting in its sole discretion, may allow an equal number of additional strikes to the defendants, not to exceed five each, as the court shall deem necessary, to the ends that justice may prevail.” OCGA § 17-8-4. We have been offered no basis whatever for a conclusion that the trial court abused its discretion in refusing to allow additional strikes in this case. See Ramsey v. State, 165 Ga. App. 854, 855-856 (303 SE2d 32) (1983).

Decided May 28, 1991.

Waddell, Emerson, George & Buice, Hulane E. George, for appellant (case no. A91A0392).

Wayne Rogers, for appellant (case no. A91A0393).

Arthur L. Walker, for appellant (case no. A91A0983).

6. Appellants Howard and Cedric Holsey complain that the state’s attorney made various improper comments during his closing argument. “When improper argument is made to the jury, it is necessary, in order to make the alleged error the basis for appeal, that opposing counsel, during the trial, properly object to the argument, invoke the ruling or instruction of the court, and if dissatisfied with the action taken to renew the objection and move for mistrial. [Cits.]” Epps v. State, 168 Ga. App. 79, 81 (4) (308 SE2d 234) (1983). Since this procedure was not followed by the appellants in response to any of the comments at issue, these enumerations of error present nothing for review.

7. Appellant Howard Holsey contends that the trial court erred in allowing one of the state’s witnesses to offer opinion testimony to the effect that the victim had been sexually molested. He contends that such testimony was improper both because the witness lacked sufficient training and experience to qualify as an expert on the subject of sexually abused children and because her opinion went to the ultimate issue to be decided by the jury. With respect to the first of these contentions, the court was clearly authorized to conclude from the witness’s testimony that she was qualified by training and experience to testify as an expert on the subject of sexually abused children. With respect to the second contention, the witness was not asked on direct examination whether she believed the child had been sexually abused, nor did she testify to that effect. Rather, she was asked whether the child exhibited behavioral characteristics consistent with those of a child who had been sexually abused. This was a permissible subject for expert opinion testimony. See Landers v. State, 194 Ga. App. 329 (390 SE2d 302) (1990). Compare Coxwell v. State, 195 Ga. App. 751 (3) (395 SE2d 38) (1990). Although the witness subsequently testified that she had never doubted the child’s veracity, she did so only in direct response to a question propounded to her on cross-examination; and no objection was made to her testimony in this regard.

8. We have carefully reviewed appellant Howard Holsey’s remaining two enumerations of error and have determined that they establish no ground for reversal of his conviction.

Judgments affirmed.

Carley and Beasley, JJ., concur.

Joseph H. Briley, District Attorney, Al C. Martinez, Jr., Assistant District Attorney, for appellee.


text:
    A91A0394.
    TECHNOLOGY DISTRIBUTORS, INC. v. AMERICAN COMPUTER TECHNOLOGY, INC.
    (405 SE2d 907)
   Banke, Presiding Judge.

The appellant initiated this action against the appellee pursuant to OCGA § 44-14-230 et seq., seeking to foreclose an alleged security, interest in “all . . . assets of the [appellee] including but not limited to all personal property, furniture fixtures, intangible property, inventory, contract rights, accounts receivable, and all other property of any kind and all proceeds thereof. ...” The appellee filed an answer denying that the appellant had a valid security interest in any of its property, and the case was thereafter tried without a jury. Based on the evidence introduced at the trial, the court determined that the appellant had an enforceable security interest in a mainframe computer belonging to the appellee and accordingly issued the appellant a writ of possession with respect to that property. However, the court declined to issue a writ of possession with respect to the remainder of the appellee’s property, concluding that the purported security agreement pertaining to that property “merely reflected] the intention of the parties to create a security interest sometime in the future,” by the execution of certain documents which had never been executed. This appeal followed.

In late 1989 or early 1990, a representative of a corporation known as Libram International contacted the appellee’s president, Samuel Barber, seeking to purchase certain computer equipment for delivery to a Nigerian steel company. Barber in turn contacted the appellant in an effort to purchase the equipment for resale to the Nigerian company through Libram International. On February 2, 1990, the appellant received a purchase order from the appellee for $85,695 worth of computer equipment on the following specified terms: “50% upon delivery balance in 30 days.” The appellant requested “some sort of collateral” for the transaction, and on February 16, 1990, Barber signed a ten page security agreement on behalf of the ¡appellee, conveying to the appellant a security interest in a Digital mainframe computer which it owned. This security agreement provided, inter alia, that “[d]ebtor shall, from time to time on request of secured party, execute such financing statements, notices and other i [documents (and pay the cost of filing or recording the same) and do ;uch other acts and things, as secured party deems appropriate to es-;ablish, perfect, maintain and continue a valid, security interest in and security title to the collateral. ...”

On February 28, 1990, following further negotiations and discussions between the parties, the appellant delivered to the appellee all or most of the equipment specified in the order. At this time, the appellee tendered a check to the appellant for $10,000 as a deposit on | the purchase price. However, this check was dishonored by the I drawee bank due to a stop payment order issued by the appellee. In j late April of 1990, Barber informed the appellant’s president that the I appellee could not pay for the equipment until it received payment I from Libram International and that the latter had indicated that it I would not release any money until the equipment was shipped to Ni- I geria. This was unsatisfactory to the appellant, and on April 27 it re- I possessed the equipment from the appellee. However, negotiations E continued between the parties in an effort to save the deal; and as a I result of these negotiations, the parties signed a letter agreement on | May 2, 1990, specifying, in pertinent part, as follows: “[The appellee] I hereby grants to [appellant] a security interest in all assets of [the I appellee] current (sic) but not limited to all personal property, furni- I ture, fixtures, intangible property, inventory, contract rights, accounts I receivable, and all other property of any kind and all proceeds | thereof. [The appellee] shall execute such documents as may be re- I quired by [the appellant] from time to time to evidence [the appel- f| lant’s] security interest. [The appellant] shall have all rights and rem- l| edies and [the appellee] shall have all duties and obligations set forth || in the ‘Security Agreement’ dated 02/16/90 between the parties |fl hereto.” 1|9

The equipment was shipped to Nigeria the day after this letter l|| agreement was signed, but no payment from the appellee was forth- llw coming. The appellant accordingly filed the present action seeking to In foreclose both security interests. This appeal concerns only the en- (H forceability of the May 2 agreement, there being no challenge by the IH appellee to the court’s ruling that the original security agreement of I|M February 16 was valid and enforceable. Held: JIM

“Where no matter of fact is involved, the construction of a plain fjfl and definite contract, if needed, is a matter of law for the court. . . .Hjfl However, no construction is required or even permissible when the 111 language employed by the parties in the contract is plain, unambigu-|ll ous and capable of only one reasonable interpretation. . . . [More-EH over,] though parol evidence be admitted without objection or overjffl objection, it is without probative value to vary terms of a written con-jm tract. [Cits.]” Crooks v. Crim, 159 Ga. App. 745, 748 (285 SE2d 84)lffl (1981).

The agreement of May 2, 1990, clearly and unambiguously purjH ports to transfer to the appellant a present security interest in all onffl the appellee’s assets. Although the agreement obligates the appelleaH to “execute such documents as may be required by [the appellant] from time to time to evidence [the appellant’s] security interest,” it contains no language remotely suggesting that the existence of the security interest was intended to be contingent upon the execution of such additional documents. Indeed, the original security agreement of February 16,1990, contained the same type of provision. Accordingly, we hold that the trial court erred in concluding that the May 2 agreement was merely an unenforceable agreement to agree, rather than a presently enforceable security agreement.

Decided May 28, 1991.

Bisbee, Rickertsen & Herzog, Richard B. Herzog, Jr., Diane V. Roggen, for appellant.

Vaughan & Murphy, Clifford E. Hardwick IV, Lela L. Smith, for appellee.

Judgment reversed.

Carley and Beasley, JJ., concur.