author: Birdsong, Chief Judge.

text:
    76181.
    MOORE v. THE STATE.
    (370 SE2d 511)
   Birdsong, Chief Judge.

Appellant Keith Moore was convicted of a violation of the Georgia Controlled Substances Act by selling (0.1 gram) cocaine to a law enforcement agent on October 25, 1986.

At trial appellant made and subsequently withdrew a motion to dismiss for lack of speedy trial. Appellant then made a motion for a continuance on the grounds of newly discovered evidence. Appellant also made a motion for disclosure of the identity of a confidential informant. The trial judge denied appellant’s motion for continuance and motion for disclosure.

Certain material facts in this case are controverted. It appears that on October 25, 1986, appellant and a friend named Harris were in Gus’ bar. Also in the bar that evening were two GBI agents and a confidential informant. According to both agents, the appellant approached the bar and was introduced to Agent Carwell by the informant. Appellant then asked if Agent Carwell wanted to buy any “rocks” (a street term for cocaine). Subsequently the appellant, a black man who was identified only as Isaac, a GBI agent named Carwell, and, according to Carwell, the confidential informant, entered either the women’s or men’s 5’ x 10’ rest room. Agent Carwell testified that appellant sold him cocaine in the ladies’ rest room in the presence of the informant and the unidentified black man. Agent Carwell also testified that neither the informant nor the unidentified black man participated in the drug transaction. Appellant testified that he entered the men’s room as a matter of need and observed Agent Carwell and Isaac already inside by themselves. Appellant further testified that he observed Isaac hand something to Agent Carwell and state its price was $20. A friend of appellant, named Harris, testified that he had been drinking with appellant in the bar in October or November. He saw Agent Carwell and a man named Isaac go to the men’s room, and that while the two were still in the rest room, the appellant went to use the facilities therein. Harris saw no other person enter or leave the rest room during this time. Two or three minutes later, he observed appellant leave the facility, followed by Agent Carwell about three or four minutes thereafter, and lastly by the man named Isaac. Another GBI agent, named Ellington, testified that following the informant’s introduction of Agent Carwell to appellant, the three men went toward the rest room area. Agent Ellington did not see the man named Isaac; however, Agent Carwell testified that an unidentified black man joined appellant just before they reached the rest room area. Thus, according to Agent Carwell there were four men present during the sale. Held:

1. Appellant enumerates as error that the trial court abused its discretion in refusing to grant a motion for continuance based on the grounds of newly discovered evidence. Appellant sought this continuance in order to find the missing witness “Isaac.” The newly discovered evidence ground rests on appellant’s contention that through no lack of diligence on his part, the defense had been searching for the wrong witness until the morning of the trial. Appellant’s counsel in his brief “concedes that [appellant] did not and could not have met the strict criteria required to justify a continuance based on ‘absence of a witness,’ ” see generally OCGA § 17-8-25, but asserts that a different criteria applies to the continuance motion made on the grounds of newly discovered evidence. At trial the appellant was unable to establish the last name of “Isaac,” but introduced evidence that it may have been “Bowden or Bowen.” A man believed to be the “Isaac” in question was living in Albany; however, one of appellant’s witnesses had heard that “Isaac” was on the run and wanted by the police. “Isaac” was known to sell drugs. Prior to his ruling, the trial judge observed and appellant’s counsel conceded that “Isaac” could not reasonably be expected to incriminate himself before the court; however, appellant’s counsel did expect that if “Isaac” appeared he would testify truthfully and either support or refute the appellant’s assertion that it was “Isaac” who had sold drugs to Agent Carwell.

Appellant clearly has failed to meet the statutory requirements for a continuance upon the ground of “the absence of a witness,” OCGA § 17-8-25, nor has he met any other statutory criteria which under the circumstances would mandate such relief. Unless otherwise mandated by law, see, e.g., McGuire v. State, 185 Ga. App. 233, 236 (363 SE2d 850), “ ‘ “[a] refusal to grant a continuance will not be disturbed by appellate courts unless it clearly appears that the judge abused his discretion in this regard.” [Cits.]’ ” Pope v. State, 256 Ga. 195, 207 (345 SE2d 831). We are satisfied that no such breach of discretion occurred in this case.

2. Appellant also enumerates as error that the trial court abused its discretion in refusing to grant the defendant’s motion to reveal the identity of the confidential informant.

In Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639), the United States Supreme Court held that the government’s privilege to withhold from disclosure the identity of a confidential informant is limited by the underlying purpose of the privilege itself and “the fundamental requirements of fairness.” Id. at 60. Thus, the court concluded that “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60-61. The Supreme Court declined to adopt a fixed rule of disclosure, opting instead for a balancing test which would balance “the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Id. at 62. The resolution of each case, accordingly, depends on the particular circumstances involved, “taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Emphasis supplied.) Id. at 62. In Roviaro, the Supreme Court, after applying the balancing test, held that it was prejudicial error not to reveal the informant’s identity where the informant was the sole participant, other than the accused, in the transaction and, thus, “was the only witness in a position to amplify or contradict the testimony of government witnesses.” (Emphasis supplied.) Id. at 64. Further, although the defendant in Roviaro was not in a position to interview the unidentified informant (decoy) and thereby ascertain the anticipated scope and content of his testimony, the Supreme Court concluded that “[t]he circumstances of this case demonstrate that [the informant’s] possible testimony was highly relevant and might have been helpful to the defense.” (Emphasis supplied.) Id. at 63-64.

In the keystone case of Thornton v. State, 238 Ga. 160 (231 SE2d 729), cert. den. 434 U. S. 1073, our Supreme Court, after reaffirming Georgia’s policy against nondisclosure of an informant’s identity, unequivocally embraced the Roviaro balancing test as “it is now well established as the law of Georgia.” Id. at 163-164. In Thornton the disclosure was being sought pursuant to a Brady motion. In disposing of the issue, the Supreme Court first distinguished between a “decoy” or “informer-participant” (a person used to obtain evidence), and “informer-witness” (a person used to establish facts upon which to base a prosecution), and a “mere tipster” (one who provides information about criminal activity). Id. at 163. After noting that both Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) and Roviaro had a common basis of “fundamental fairness to the accused,” the court concluded that they must be read together where the question is disclosure of the identity of an informer-witness or informer-participant “if material to the defense on the issue of guilt or punishment.” Id. at 164-165. If such an informer’s identity is required to be disclosed under Brady, the trial court should than apply the Roviaro balancing test. Id. at 165. However, the court observed that when “the informer is a pure tipster, who has neither participated in nor witnessed the offense, any evidence he might offer would be hearsay and inadmissible. Thus the tipster’s identity could not be material to the guilt or innocence of the defendant under Brady or be relevant and helpful to the defense under Roviaro.” (Emphasis supplied.) Id. at 165. Accordingly, the Supreme Court opined that if the trial court initially determined that the informant was merely a pure tipster, his identity should be privileged, and no further inquiry would be necessary. Id.; see Mooney v. State, 243 Ga. 373, 396 (254 SE2d 337) (pure tipster who had neither participated in nor witnessed the offense); Branch v. State, 248 Ga. 300, 301 (282 SE2d 894) (merely a tipster where not paid, took no part in offense, and not present at time of offense); see also Johnson v. State, 164 Ga. App. 501 (4) (297 SE2d 38) (mere tipster who had not participated in and was not present at appellant’s search and arrest). Thus, one of the important factors for determining whether an informant’s identity must be revealed is the “type of informer involved.” Thornton, supra at 165.

In Connally v. State, 237 Ga. 203, 208 (227 SE2d 352), the Supreme Court stated “[w]ithout deciding whether or not this rule is applicable to informers as well as decoys, we hold that in any case, where the evidence sought from the unidentified source is required by the defendant on ‘the mere possibility that the police might be impeached (it) is not enough to demand disclosure of the informer’s identity.’ ” (Emphasis supplied.) See also Keith v. State, 238 Ga. 157 (231 SE2d 727) (informant’s identity need not be disclosed at a probable cause hearing on a motion to suppress, as the sole question presented is whether the information offered to support the warrant meets the probable cause test).

At a probable cause hearing on a motion to suppress, the informer’s privilege presents only a question of evidentiary rather than constitutional magnitude. Keith, supra at 158. However, “where the guilt or innocence of the accused is at stake” the invocation of the informer’s privilege will raise constitutional questions. Keith, supra at 158, n. 2. Further, it is clear from a reading of Roviaro that the appellant need not conclusively establish what the informer’s testimony will be before he can rely on the Roviaro rule. In fact, the balancing test of Roviaro includes consideration of “the possible significance of the informer’s testimony.” (Emphasis supplied.) Roviaro, supra at 62. The fact that an informant’s “possible testimony was highly relevant and might have been helpful to the defense” can be established by the circumstances of the case. Roviaro, supra at 63-64; see also United States v. Valenzuela-Bernal, 458 U. S. 858, 871 (102 SC 3440, 73 LE2d 1193) (events to which a witness might testify, and the relevance of those events to the crime charged, may well demonstrate either the presence or absence of the required materiality).

In the case at bar, appellant was charged with the sale of cocaine. Only three or four persons were present at the time of the sale, depending upon which evidence one chooses to believe. According to the GBI agents, one of the persons witnessing the sale was an informant who introduced the agents to the appellant but did not otherwise participate in the transaction. An unidentified man named “Isaac” also was present at the sale. The current location of “Isaac” is unknown, but he is believed to be “on the run” from the police. Only one GBI agent participated in the actual sale of cocaine; he testified that it was the appellant who sold him the drug. However, the appellant took the stand in his own defense and testified that it was in fact “Isaac” who had handed the GBI agent something, and that he merely witnessed this transaction when using the rest room facilities. The trial record demonstrates that “Isaac” is not reasonably available as a witness. Moreover in the instant case, it cannot be presumed that “Isaac’s” testimony would provide a satisfactory substitute for the testimony of the informant-witness; because, as repeatedly asserted by the trial judge and as conceded by the appellant’s attorney, “Isaac” cannot reasonably be expected to appear in court and incriminate himself. Thus, the informer is “the only witness in a position to amplify or contradict the testimony” of the appellant and the police officer. See Roviaro, supra at 64.

It is clear from the facts of this case that the informant’s testimony was not just of value in the impeachment of Agent Carwell, rather it was material to the appellant on the issue of his guilt or innocence. Accordingly, the balancing test of Roviaro and Thornton must be applied. Applying that test, we find that under the currently existing facts of this case the identity of the informer should have been disclosed.

We are mindful of the long-established precedent of this court, which can be traced back to cases prior to Thornton, Mooney, and Branch that: “ ‘ “[w]here a person merely takes an undercover police officer to a location and . . . introduces the officer to the defendant, and the officer arranges for and buys contraband from the defendant, and the person witnesses such sale, or alleged sale, such person is an informer and not a ‘decoy’ and a disclosure of his [identity] to the defendant is not required as a matter of law under [OCGA § 24-9-27], but rests in the discretion of the trial judge, balancing the rights of the defendant and the rights of the state under all the facts and circumstances.” ’ ” (Emphasis supplied.) Statiras v. State, 170 Ga. App. 739, 740 (318 SE2d 156); accord Carver v. State, 175 Ga. App. 599 (1) (333 SE2d 697); Gilmore v. State, 168 Ga. App. 76, 77 (308 SE2d 232) (also opining that “[w]here the disclosure of the informant’s identity would at best serve only to furnish possible impeachment of the agent’s testimony, disclosure is not appropriate considering the overriding rule of nondisclosure,” and that “[u]nder the facts before the trial court, there were no discovery rights in the tipster mandated by Brady v. Maryland [supra] and thus the disclosure rested within the sound discretion of the trial court”); Carter v. State, 165 Ga. App. 427 (301 SE2d 658); Taylor v. State, 136 Ga. App. 31 (2) (220 SE2d 49); see Welch v. State, 130 Ga. App. 18 (3) (202 SE2d 223). We find that the facts of this case distinguish it from this precedent. First, the appellant testified in his own defense and the informer’s testimony reasonably can be expected to directly support or refute his testimony. Thus, the expected informant’s testimony would not merely be impeaching in nature. Secondly, the tipster in this case is not a “mere tipster” within the meaning of Thornton, Mooney and Branch, but is under the circumstances more closely akin to an informer-witness. Thirdly, applying the balancing test of Roviaro, Thornton and Statiras, we find that disclosure is mandated under the currently existing circumstances, especially as there exists no reasonable substitute testimony for that of the informer.

Having determined that error of a constitutional magnitude has occurred in this case, we will now test for prejudice. See, e.g., Ramsay v. State, 175 Ga. App. 97 (3) (332 SE2d 390); Riceman v. State, 166 Ga. App. 825, 828 (305 SE2d 595). If the record reveals by evidence beyond a reasonable doubt that the error of nondisclosure did not affect the verdict then the error is harmless; otherwise, reversal is required. LaRue v. State, 137 Ga. App. 762, 764 (224 SE2d 837). We find that the trial record currently is inadequate to enable us to accomplish our judicial responsibility accurately for testing for prejudice. Accordingly, we will remand this case to the trial judge with the following direction. The State shall be required to disclose the identity of the informant to the trial judge who shall forthwith conduct a post-trial, in-camera proceeding. During the proceedings, the informant shall be placed under oath and the testimony of the informant shall be duly reported and thereafter transcribed. Care shall be exercised not to cause the informant to reveal his name, address, place of business, etc., nor to cause such information to be recorded. The transcript of the informer’s sworn testimony shall be ordered to be sealed. If the trial judge determines, using the test for prejudice for errors of constitutional magnitude found in LaRue that prejudicial error has occurred he shall forthwith take the necessary corrective action to set aside the judgment and authorize a new trial. Conversely, if the trial judge determines that harmless error has occurred, he shall then enter judgment reaffirming the conviction and sentence and announcing that a new trial is not required. In the event that the State cannot produce the informant for in-camera proceedings, a post-trial hearing shall be conducted in the presence of the parties and the trial judge shall determine the circumstances surrounding the informer’s nonavailability. The State should not be required to reveal the identity of the informant at such a post-trial hearing. Both the defendant and the State shall be entitled to present any relevant evidence or to present argument bearing on the sole issue of whether the error in failing to reveal the informant’s identity was prejudicial or harmless within the meaning of the LaRue test. Thereafter, the trial judge shall resolve this issue and enter an appropriate judgment. The hearing shall be recorded and a transcript thereof shall be attached to the trial record. Ga. Const. Art. VI, Sec. I, Par. IV; see generally Thornton, supra at 165 (use of post-trial hearing); Pierce v. State, 238 Ga. 126, 129 (231 SE2d 744) (discussing return of case to trial court for Jackson-Denno hearing); Hicks v. State, 255 Ga. 503, 504-505 (340 SE2d 604) (returning case for clarification of admissibility of any statements or confessions by defendant).

We believe this procedure will provide a reasonable methodology for determining whether appellant has, in fact, been prejudiced by the trial court’s error in not ordering the disclosure of an informant’s identity. Moreover, this procedure will assist in the “discovery of truth.” See generally OCGA § 24-1-2.

The use of in-camera proceedings, as means of determining if the invocation of the informer privilege is proper, has been acknowledged with tacit approval by our Supreme Court. Thornton, supra at 164, n. 1. Although we recognize that some limitations exist on the use of an in-camera procedure by a defendant, compare Tribble v. State, 248 Ga. 274 (1) (280 SE2d 352) (use of in-camera proceedings in connection with a Brady motion) with State v. Mason, 181 Ga. App. 806 (4) (353 SE2d 915) (suppression motion hearing case), in certain instances the State may wish to request or the trial court may elect sua sponte to conduct such a procedure. This invaluable procedure can insure that both the identity of an informant can continue to be lawfully protected and that appellant’s fair trial rights will be adequately safeguarded, even after an appellant has met the threshold requirements for disclosure of Roviaro and Thornton. For example, it may be determined during the course of a reported in-camera inquiry that the informer will testify substantially the same as the police. In such circumstances, the informer’s identity normally would not be required to be disclosed to the defense. Conversely if, during the in-camera proceedings, the informant proves to be a material witness for the defense within the meaning of Roviaro and Thornton, fundamental fairness and fair trial concerns dictate that his identity must be disclosed.

For the reasons above stated, and pursuant to our constitutional authority and the precedent of Hicks v. State, supra, this case is remanded for post-trial hearing as above described. If the trial court rules that a new trial is not required, then the defendant may appeal from that judgment in which event the case shall be re-docketed in this court for resolution of any remaining issues and any additional issues which might be presented by the judgment on remand.

Decided June 2, 1988

Charles R. Hunt, for appellant.

Charles R. Ferguson, District Attorney, for appellee.

Case remanded with direction for further proceedings.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    76193.
    TOMMY NOBIS CENTER et al. v. BARFIELD.
    (370 SE2d 517)
   McMurray, Presiding Judge.

The principal question for decision in this workers’ compensation case is whether claimant was an “employee” within the meaning of the Act. The employer, Tommy Nobis Center, Inc., is a non-profit corporation which trains handicapped persons participating in a Job Training Partnership Act (“JTPA”) program. It takes the position that claimant, a participant in such a program, was a “trainee” — not an “employee” — and that, therefore, he was not entitled to workers’ compensation protection.

Claimant, a 52-year-old man, was severely injured in an automobile accident in 1982. (The accident was not job related.) He underwent surgery for the replacement of his right hip (in 1983 and again in 1985) as a result of that accident. In the summer of 1985, claimant enrolled in a JTPA (29 USCA § 1501 et seq.) program at the Tommy Nobis Center (hereinafter “Center”). The program was to last for seven weeks.

Upon enrollment in the program, claimant signed a “Contract for JTPA Participants” which reads, in part: “I am in the program because I want a job. I understand that at the end of this program I will be placed on a job. I understand that the production work at the Tommy Nobis Center is part of my training program and I will do my best on the job I am placed in.” He also signed an agreement entitled “JTPA — Meals, Transportation, Income.” It reads: “I understand that I will receive $100.00 per week for 30 hours a week if I am present and participating for 30 hours a week. $3.33 per hour will be deducted if I am not present or am present but not participating. ... I will provide for my own meals from the income received above. ... I will be utilizing the Tommy Nobis Center bus. I understand the cost is $15.00 per week, whether or not I am absent during that time because a slot will be reserved for me.”

On his first day at the Center, claimant was given classroom instruction concerning job search readiness. Thereafter, claimant was placed on an assembly line where he was required to box plastic trash bags. (One day claimant performed a different task — he stuffed envelopes.) Periodically, claimant received additional instruction in the classroom. Claimant continued his assembly line work until he was “terminated” by the Center in the fall of 1985.

During his stay at the Center, claimant was continuously supervised and evaluated by the Center’s regular employees. The employees observed and noted claimant’s job attitude and ability to function in a work environment. The goal of the Center was to be able to recommend claimant to a prospective employer.

The Center received monies from outside sources for the assembly line work performed by claimant and others enrolled in the JTPA program. In turn, the Center gave claimant $100 per week. Taxes were not withheld from claimant’s pay.

Taxes were withheld from the wages paid to regular employees of the Tommy Nobis Center. These employees were paid on an hourly, piecework or annual basis. Some of the “regular” employees were “graduates” of the JTPA program.

On September 17, 1985, claimant slipped as he attempted to board the Center’s bus following his work day. Claimant fell on his right leg. As a result of claimant’s fall, yet another hip replacement was required to be performed (in January 1986). Claimant has been totally disabled since the performance of that surgery.

In May 1986 a hearing was held upon claimant’s application for workers’ compensation benefits. Following the hearing, the administrative law judge determined that claimant was an employee of the Center and that he sustained a compensable injury when he slipped and fell on September 17, 1985. He also determined that the defense of the claim was unreasonable. Accordingly, attorney fees were assessed against the employer/insurer pursuant to OCGA § 34-9-108 (b). The board adopted the decision of the administrative law judge and the superior court affirmed. We granted the discretionary appeal application of the employer/insurer. Held:

1. Whether a participant in a JTPA program is entitled to workers’ compensation benefits is a question of State law. 29 USCA § 1553 (3). (Compare the treatment afforded Comprehensive Employment and Training Act (“CETA”) participants who were “assured of workers’ compensation.” 29 USCA § 848 (a) (4); Larson, Law of Workmen’s Compensation, § 47.33.) Thus, we look to our Workers’ Compensation Act to determine whether claimant was an “employee” within the meaning of the Act. In pertinent part, OCGA § 34-9-1 (2) reads: “ ‘Employee’ means every person in the service of another under any contract of hire or apprenticeship, written or implied, except a person whose employment is not in the usual course of the trade, business, occupation or profession of the employer . . .” Was claimant an “employee” within this definition of the Act?

“The question of whether a person is an employee is one of fact, and, where there is any evidence to sustain the board’s finding of fact, the trial court should not interfere. Golosh v. Cherokee Cab Co., 226 Ga. 636 (176 SE2d 925) (1970); Ocean Accident & Guarantee Corp. v. Farr, 180 Ga. 266 (178 SE 728) (1934).” Goolsby v. Wilson, 150 Ga. App. 611, 612 (258 SE2d 216). “In determining whether or not the relationship of master and servant prevails in a compensation case, the same principles that exist under the common law obtain.” Travelers Ins. Co. v. Clark, 58 Ga. App. 115, 121 (197 SE 650). The chief test to be applied is “whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work . . .” Brewer v. Pacific Employers Ins. Co., 95 Ga. App. 270, 272 (97 SE2d 643). Any doubt about the claimant’s status as an employee must be resolved in his favor. Unigard Mut. Ins. Co. v. Hornsby, 134 Ga. App. 157, 159 (213 SE2d 538).

The facts demonstrate that in addition to receiving classroom instruction from the Center, claimant performed work for the Center. In performing the work, claimant was subject to the Center’s supervision and control. Claimant was paid so long as he participated in the Center’s program activities and the Center was paid from outside sources for the work which claimant performed on its behalf. Given these facts, it cannot be said that the superior court erred in affirming the board’s finding that claimant was an employee of the Center. See Grant v. Blazer Coordinating Council, 267 A2d 568 (111 N.J. Super. 125) (1970); State Subsequent Injuries Fund v. Indus. Accident Comm., 16 Cal.Rptr. 323 (1961). After all, our Workers’ Compensation Act “must be construed reasonably and liberally with a view of applying the beneficent provisions of the statute so as to effectuate its purposes, and to extend them to every class of workman and employee that can fairly be brought within the provisions of the act.” Lee v. Claxton, 70 Ga. App. 226, 228 (28 SE2d 87).

Overton v. Rochambeau School, 396 NYS2d 78 (58 AD2d 694) (1977), upon which the employer/insurer relies, is inapposite. In that case, the board denied claimant benefits on the ground that he was a student, not an employee. Affirming the board’s decision, the Overton court observed that it was a factual determination supported by the evidence. In the case sub judice, that factual determination was adverse to the employer/insurer’s position.

2. “While the matter of whether the employer of the insured has defended a claim without reasonable grounds and is thus liable for attorney fees under Code Ann. § 114-712 [now OCGA § 34-9-108 (b)] is a factual issue for determination by the board, Meeks v. Travelers Ins. Co., 119 Ga. App. 569 (167 SE2d 927); McCoy v. J. D. Jewell, Inc., 123 Ga. App. 175 (179 SE2d 654), the finding that the matter was defended without reasonable grounds must be supported by the evidence, and there must be supporting evidence upon which to make the finding, just as is the case of other findings upon which the award is made.” Pacific Employers Ins. Co. v. Peck, 129 Ga. App. 439, 441 (200 SE2d 151).

Decided June 2, 1988.

Kenneth B. Donahue, for appellants.

Steve T. Woodman, for appellee.

Having reviewed the evidence, we are of the opinion that the employer/insurer’s defense was not unreasonable. A novel, serious question was raised with regard to claimant’s employment status as a JTPA participant.

Claimant was enrolled in a seven-week JTPA program. Through that program, claimant was given instruction to enable him to seek future employment. His attitude and work habits were evaluated with that goal in mind. Arguably, claimant was not paid a wage; rather, he was given a training allowance (from which taxes were not withheld). In this respect, he was treated differently from the Center’s “regular” employees. In our view, these facts cast legitimate doubt upon claimant’s employment status and therefore afforded the employer/insurer a reasonable basis for defending the claim.

There being a reasonable basis for the employer/insurer’s defense, the superior court erred in affirming that portion of the board’s award finding the employer/insurer liable for attorney fees.

Judgment affirmed in part and reversed in part.

Pope and Ben-ham, JJ., concur.


text:
    76277.
    TAYLOR v. COLWELL MORTGAGE CORPORATION.
    (370 SE2d 520)
   McMurray, Presiding Judge.

Plaintiff Colwell Mortgage Corporation filed this action against defendant Taylor alleging wrongful interference with plaintiff’s efforts to complete a nonjudicial repossession of a mobile home. Defendant answered and counterclaimed. Prior to trial summary judgment was granted in favor of plaintiff and against defendant as to defendant’s counterclaims. At trial the jury returned a verdict in favor of defendant. Defendant appeals the grant of summary judgment in favor of plaintiff in regard to defendant’s counterclaims. Held:

Plaintiff’s motion for summary judgment was based on the pleadings and the deposition of defendant. The deposition of defendant is not included in the record designated by defendant’s notice of appeal. “It is still the law of Georgia that the burden is upon the party asserting error on appeal to show such error by the record. Smith v. State of Ga., 203 Ga. 636, 637 (47 SE2d 866); Herring v. Herring, 228 Ga. 492 (186 SE2d 538). . . . Since the proof necessary for determination of the issues of this case are not lawfully before this court, we will assume that the judgment is correct and affirm it. Greene v. McIntyre, 119 Ga. App. 296, 298 (167 SE2d 203); Attaway v. Duncan, 206 Ga. 230 (2) (56 SE2d 269).” Brooks v. Home Credit Co., 128 Ga. App. 176 (196 SE2d 176). See also Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16).

Decided June 2, 1988.

Richard D. Phillips, for appellant.

Ronald C. Crawford, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76359.
    GROOM v. THE STATE.
    (370 SE2d 643)
   McMurray, Presiding Judge.

Defendant was convicted of the offenses of driving under the influence of alcohol (DUI) (OCGA § 40-6-391), driving without no-fault insurance (OCGA § 33-34-12), leaving the scene of an accident (OCGA § 40-6-270), and improper passing (OCGA § 40-6-42). Defendant’s enumerations of error raise the sufficiency of the evidence as to the offenses of DUI, speeding and leaving the scene of an accident. Held:

1. While the transcript of the trial before the state court without a jury suggests that defendant was also charged with speeding, it also shows that the state court judge stated he was “not going to adjudicate any guilt in the speeding.” This contention is without merit as the issue raised is moot.

2. The State’s case is predicated entirely upon circumstantial evidence. The State presented the testimony of two witnesses, Ms. Cooper, who was dating defendant at the time of the incident in issue and Trooper Sumner, of the Georgia State Patrol.

The State’s evidence in regard to the offense of leaving the scene of an accident shows that: On February 19, 1987, defendant was at a bar with Ms. Cooper. Defendant had driven to the bar in his automobile, a brown station wagon. At 9:30 or 10:00 p.m. Ms. Cooper left the bar and went home. Defendant told her that he would be over to her house at 11:00 p.m. Defendant did not arrive at Ms. Cooper’s house as planned. Subsequently, about 2 a.m., Ms. Cooper received a telephone call from defendant in which defendant stated that he had wrecked his car and asked her to come and pick him up. She left immediately to pick defendant up and along the way saw defendant’s wrecked car on “319 South.” Subsequently defendant asked Ms. Cooper to testify for him, “to say that [she] had been with him,” and threatened to hurt her if she testified against him. There was further evidence as to Ms. Cooper’s driving defendant to a hospital for treatment of injuries and that defendant used a false name at the hospital. Trooper Sumner testified as to investigating a motor vehicle collision on the night in question south of the Tifton city limits on 319. One of the vehicles in that collision was a brown Oldsmobile station wagon. The driver of the station wagon was absent from the accident scene when the trooper arrived, precipitating an investigation which indicated defendant was the owner of the wrecked Oldsmobile station wagon.

Defendant testified that he was not driving the brown station wagon on the evening in question, and was not driving under the influence, nor did he leave the scene of an accident on the night in question. Additionally, defendant presented evidence that he had sold the brown Oldsmobile station wagon to a migrant farm worker prior to February 19, 1987. “ ‘ “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. . . . Questions of reasonableness are generally decided by the jury, and this court will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law. Harris v. State, 236 Ga. 242 (223 SE2d 643) (1976); Butler v. State, 150 Ga. App. 751 (258 SE2d 691) (1979)’. . . . ‘ “The term ‘hypothesis’ as used in (OCGA § 24-4-6 (Code Ann. § 38-109)) refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life; the Code section does not mean that the act might by bare possibility have been done by somebody else, but that the State should show to a moral certainty that it was the defendant’s act.” Hunter v. State, 91 Ga. App. 136, 138 (85 SE2d 90) (1954); cited in McGee v. State, 159 Ga. App. 763 (285 SE2d 224) (1981). See also Wrisper v. State, 193 Ga. 157 (17 SE2d 714) (1941).’ Hopkins v. State, 167 Ga. App. 811, 815 (307 SE2d 707).” Atchison v. State, 181 Ga. App. 351, 352 (1) (352 SE2d 201). See also Johnston v. State, 178 Ga. App. 219, 220 (342 SE2d 706).

In the case sub judice, the state court, as trier of fact, was authorized to conclude that defendant was driving the brown Oldsmobile station wagon at the time it was involved in the collision investigated by Trooper Sumner and that following the collision defendant had failed to comply with the requirements of OCGA § 40-6-270. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of leaving the scene of an accident in violation of OCGA § 40-6-270 beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hudson v. State, 185 Ga. App. 508, 509 (2) (364 SE2d 635).

In regard to the offense of DUI the State presented evidence (in addition to that above) that: Defendant while at the bar with Ms. Cooper drank “[a] lot.” While in the presence of Ms. Cooper defendant drank more than six beers.

Defendant was charged with a violation of OCGA § 40-6-391. As there is no evidence as to alcohol content of the blood or drugs other than alcohol, defendant’s conviction will be sustained if at all, under the provisions of OCGA § 40-6-391 (a) (1) which makes it a criminal offense to drive or be in actual physical control of any moving vehicle while under the influence of alcohol. “Although [OCGA § 40-6-391 (a) (1)] does not state such, the requirement of proof that the driver be under the influence of alcohol to a degree which renders him less safe or incapable of safely driving has been judicially imported. See Cargile v. State, 244 Ga. 871 (1) (262 SE2d 87) (1979); Jones v. State, 168 Ga. App. 106 (1) (308 SE2d 209) (1983).” Peters v. State, 175 Ga. App. 463 (1) (333 SE2d 436).

Under the particular facts and circumstances of the case sub judice a reasonable doubt remains as to whether defendant was under the influence of alcohol to a degree which renders him a less safe driver. While there is some evidence as to the quantity of alcohol consumed by defendant, it is less than definite in that it fails to show the size of each beer consumed by defendant. Perhaps more importantly, there is no evidence as to the time span over which the alcohol was consumed. Thus, there was no data from which the state court as trier of fact, could apply its own knowledge and form a reasonable estimate of the alcohol content of defendant’s blood at the time of the collision. Nor does defendant’s involvement in a collision after consuming alcohol alone provide sufficient proof of DUI. No witness expressed any opinion that defendant was a less safe driver due to alcohol consumption and in addition, there is no evidence as to defendant’s conduct or appearance which would authorize the state court as trier of fact to form such an opinion. The conviction of DUI was not authorized by the evidence. See Jackson v. Virginia, 443 U. S. 307, supra. Compare Morgan v. State, 181 Ga. App. 150 (351 SE2d 497); Clark v. State, 178 Ga. App. 47, 48 (3) (341 SE2d 909).

Judgment affirmed in part and reversed in part.

Pope and Ben-ham, JJ., concur.

Decided June 2, 1988.

Elsie H. Griner, for appellant.

David R. Hege, Solicitor, for appellee.


author: Banke, Presiding Judge.

text:
    76534.
    STAFFORD v. THE STATE.
    (370 SE2d 646)
   Banke, Presiding Judge.

The appellant and two other individuals, Jack Guyton and Bennie Andrews, were jointly indicted on the charge of conspiring to traffic in cocaine. The indictment alleged that the conspiracy had also involved two unindicted co-conspirators, Wendell Waters and Ira Warnock. Of the three indictees, only the appellant was convicted. Both Guyton, who was tried jointly with the appellant, and Andrews, who was tried separately, were found not guilty.

This is the second appearance of the case before this court. In the earlier appeal, we remanded the case to the trial court for compliance with the appellant’s request for an in-camera inspection of certain tape recordings in the state’s possession. See Stafford v. State, 185 Ga. App. 205 (363 SE2d 637) (1987). The case is again before us following the trial court’s entry of an order certifying that the tape recordings contain “no items of an exculpatory nature, no statements of key state’s witnesses which could be used for impeachment purposes nor any items which could be used in mitigation of punishment.” Held:

1. The appellant contends that because the evidence warranted a finding that the object of the conspiracy had been completed, the trial court should have ruled that the conspiracy merged with the substantive offense of trafficking in cocaine, with the result that he could not be convicted of conspiracy. As support for this position, the appellant cites Crosby v. State, 232 Ga. 599 (207 SE2d 515) (1974), and Meyers v. State, 174 Ga. App. 161 (329 SE2d 293) (1985).

In Crosby, the Supreme Court, citing Dutton v. State, 228 Ga. 850, 853 (188 SE2d 794) (1972), stated that to the extent the offense of conspiracy may be considered a lesser included offense to any charge alleged in an indictment, “ ‘it clearly is merged into the greater crime where the evidence shows without dispute that the crime charged was actually committed, or that all of the essential acts constituting the crime were committed.’ ” 232 Ga. at 602. However, the Supreme Court did not hold in Crosby that a conviction of conspiracy would never be allowed to stand under such circumstances. Rather, it held: (1) that because the evidence in that case established without dispute the commission of the substantive offense towards which the conspiracy had been directed, the omission to charge on conspiracy was not error, and (2) that the defendant could not be convicted both of conspiring to commit a crime alleged in the indictment and of committing the crime itself. The former holding is merely an application of the principle that a defendant is not entitled to a charge on a lesser included offense where the evidence establishes without dispute the commission of the greater offense charged. See, e.g., Robinson v. State, 232 Ga. 123,127 (3) (205 SE2d 210) (1974); Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974); Dutton v. State, supra, 228 at 853. The latter holding is merely an application of the principle, set forth in OCGA § 16-1-7, that although “[a]n accused may be prosecuted for each crime arising from the same conduct, ... he may not be convicted of more than one crime if one crime is included in the other.” State v. Estevez, 232 Ga. 316, 320 (206 SE2d 475) (1974).

Although this court’s decision in Meyers v. State, supra, contains language which is supportive of the appellant’s position, we subsequently held, in Moser v. State, 178 Ga. App. 526, 530 (343 SE2d 703) (1986), that “to the extent that the dictum in Meyers indicates that the state cannot elect to indict and proceed on a conspiracy charge where the object of the conspiracy is completed but not charged [it] will not be followed.” Accordingly, this enumeration of error is without merit.

2. The appellant contends that the trial court erred in admitting evidence that he had attempted to flee from the police upon being arrested, since the arrest in question was on an unrelated charge and occurred prior to his being charged in connection with the cocaine conspiracy. This contention is without merit. The evidence revealed that, some 11 days prior to the arrest, unindicted co-conspirator Waters had been arrested in connection with the cocaine trafficking investigation; and the evidence further revealed that Waters’ arrest had been highly publicized in the local newspapers. Under such circumstances, the appellant’s attempt to elude his arrest was clearly a relevant factor to be considered by the jury in determining his guilt or innocence of the charge for which he was being tried. See generally Johnson v. State, 148 Ga. App. 702 (1) (252 SE2d 205) (1979).

3. The court did not err in refusing to grant a continuance to enable the appellant to obtain the presence of an absent witness, it being clear both that the testimony expected from the witness was merely impeaching and that it was cumulative of other testimony in the case. See Grimes v. State, 168 Ga. App. 372 (308 SE2d 863) (1983). Gallimore v. State, 166 Ga. App. 601 (305 SE2d 164) (1983). See generally OCGA § 17-8-25.

4. The evidence presented at trial was sufficient to enable a rational trier of fact to find the appellant guilty of the offense charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided June 2, 1988.

H. Gibbs Flanders, Jr., for appellant.

Beverly B. Hayes, District Attorney, William T. McBroom, Assistant District Attorney, for appellee.

Judgment affirmed. Birdsong, C. J., and Beasley, J., concur.


author: Carley, Judge.

text:
    73896.
    NOVA GROUP, INC. v. M. B. DAVIS ELECTRIC COMPANY, INC.
    (370 SE2d 626)
   Carley, Judge.

On May 15,1986, appellee-plaintiff filed this ex contractu action, seeking the recovery of $107,813.80 from appellant-defendant. On July 30, 1986, the trial court entered a default judgment in favor of appellee and against appellant. The trial court’s judgment states, in part, that “the issue of damages having been tried before the court without a jury and decision having been rendered by the court for [appellee] and against [appellant] in the sum of $107,813.80, it is ORDERED AND ADJUDGED, that [appellee] recover of [appellant] the sum of $107,813.80, with interest and costs of this action.”

On August 25, 1986, appellant filed a motion which it denominated as its “Motion To Set Aside Judgment!,] Or In The Alternative [,] Motion For New Trial.” According to the terms of that motion, appellant was moving the trial court “pursuant to OCGA § 9-11-60 for an Order setting aside the default of this action or in the alternative for a new trial so that [appellant] can assert its defenses and counterclaims. ...” The trial court, after conducting a hearing, denied the motion and appellant filed a direct appeal to this court. By an unpublished opinion issued on July 1, 1987, we dismissed the appeal because appellant had failed to follow the discretionary appeal provisions of OCGA § 5-6-35. The Supreme Court, however, granted appellant’s application for certiorari and held: “If the damages in this contract action are unliquidated, [appellant] would have been entitled to an evidentiary hearing on the issue of damages under OCGA § 9-11-55 (a). In that case, its motion for new trial was an appropriate means to request such a hearing, which, apparently, did not take place, and the denial of that motion was directly appealable. Accordingly, this case is reversed with direction that the Court of Appeals determine whether the damages in this case are unliquidated, see generally Hazlett & Hancock Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25, 26 (2) (351 SE2d 218) (1986) and, if so, treat this case as a direct appeal.” Nova Group v. M. B. Davis Elec. Co., 258 Ga. 7, 8 (364 SE2d 833) (1988).

As the Supreme Court’s opinion indicates, appellant’s motion for new trial could not be a viable method to attack the liability portion of the default judgment and would be a viable method to attack the damages portion of the default judgment only insofar as the damages which were being sought were unliquidated. “As the issue of [appellant’s] liability to appellee had been established by default, it was only the [unliquidated] damages portion of the judgment which [could and should have] been based on evidence and, consequently, it was only that [unliquidated damages] portion of the judgmentf, if any,] which could be subject to a motion for new trial. [Cits.]” Crolley v. Johnson, 185 Ga. App. 671, 672 (365 SE2d 277) (1988). It necessarily follows that it is only if unliquidated damages were being sought by appellee that appellant would be entitled to file a motion for new trial and urge thereby that the trial court erroneously failed to conduct an evidentiary hearing to determine the amount of the damages which it actually awarded. The trial court’s order in this case, however, clearly indicates that the issue of damages was tried before it. Therefore, if the trial court’s order correctly states the facts of this case, any determination by this court as to whether the damages which were awarded to appellee were actually liquidated or unliquidated would appear to be a superfluous exercise, at least insofar as that determination might ultimately bear upon appellant’s entitlement to seek a new trial for the alleged failure of the trial court to conduct an evidentiary hearing as to damages. If the damages awarded to appellee were unliquidated and the trial court’s order correctly states the facts, then the trial court did hold the necessary hearing to determine the amount of damages that it awarded. If, on the other hand, the damages awarded were liquidated and the trial court’s order correctly states the facts, then the trial court, although it was not legally required to conduct a hearing as to the amount of damages, nevertheless afforded a procedural protection which appellant was otherwise not entitled to receive. Therefore, in either event, it would appear that, as against the wording of the trial court’s order, any asserted lack of an evidentiary hearing in this case would fail to state a viable ground for a new trial as to the issue of damages. If, on the face of the record, appellant’s motion for new trial raised no viable issue as to damages, then denial of the appellant’s motion to set aside the judgment as to liability would be the only dispositive issue. See Crolley v. Johnson, supra.

Notwithstanding the wording of the trial court’s order, however, the Supreme Court has apparently determined that no hearing as to the amount of damages was ever conducted by the trial court. The Supreme Court reversed our judgment and remanded with direction only that we determine whether the damages which were being sought by appellee were unliquidated. It did not remand for our determination of whether the trial court’s order is erroneous insofar as it indicates that an evidentiary hearing was held as to damages. This court is bound by the Supreme Court’s implicit determination that no such evidentiary hearing was ever held by the trial court and the scope of our authority is necessarily limited to compliance with the Supreme Court’s direction. Accordingly, we must now determine whether the damages which appellee sought were unliquidated. If they were, then we must treat this case as a direct appeal and determine whether, in view of the trial court’s apparent failure to conduct an evidentiary hearing as to damages, it erred in denying appellant’s motion for new trial.

Appellee’s complaint did not consist of a bare allegation as to appellant’s breach of contract or a bare allegation as to the amount of damages which had resulted therefrom. Compare Hazlett & Hancock Constr. Co. v. Virgil Womack Constr. Co., supra. Appellee’s complaint, in effect, alleged a claim against appellant based upon an account for a stated balance, a copy of which account was actually attached to appellee’s unanswered complaint. “[I]n a suit on account for the balance due, when there has been no plea or other defense filed by the defendant, and no appearance by him, and the case has been marked in default under our statutes, the defendant will be taken to have admitted each and every allegation of the plaintiff’s petition, including the allegation as to the balance due, and the plaintiff may take a judgment without the introduction of any proof. In such circumstances the account becomes ‘liquidated’ by operation of law, as contradistinguished from the term ‘unliquidated,’ as these two words are used in the Code. . . .” Davies v. Turner, 61 Ga. App. 531, 536 (6 SE2d 356) (1939). Accordingly, we hold that the damages which were being sought by appellee and which the trial court awarded were liquidated.

Since the damages were liquidated rather than unliquidated, a motion for new trial by appellant and a direct appeal to this court from the denial thereof would not be authorized in this case. “ ‘There being no verdict and judgment based on testimony of witnesses, a motion for new trial was not in order here. [Cits.]’ [Cit.]” Lewis v. Sun Mgt., 182 Ga. App. 560 (356 SE2d 526) (1987). Appellant was limited in the trial court to seeking to set aside the judgment as to liability and, consequently, appellant must now be limited to seeking appellate review of the denial of its OCGA § 9-11-60 (d) motion. With regard to the denial of that motion, appellant did not comply with the provisions of OCGA § 5-6-35. There being no viable motion for new trial in this liquidated damages case and no compliance with the discretionary appeal provisions as to the motion to set aside the judgment as to liability, this court has no jurisdiction over this appeal.

Decided May 20, 1988

Rehearing denied June 3, 1988

James E. Graham, for appellant.

John B. Degonia, for appellee.

Moreover, even assuming that the ex contractu damages which were being sought by appellee had been unliquidated rather than liquidated, the trial court’s denial of appellant’s motion for new trial was nevertheless correct. Appellant did not predicate its motion for new trial upon the purported lack of an evidentiary hearing as to the issue of damages. As indicated previously, appellant’s motion sought only the opportunity to “assert its defenses and counterclaims. . . .” “The rule is that a defendant in default ‘is in the position of having admitted each and every material allegation of the plaintiffs petition except as to the amount of [ex delicto or unliquidated ex contractu] damages alleged.’ [Cit.] The default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery. [Cits.]” Cohran v. Carlin, 254 Ga. 580, 585 (3) (331 SE2d 523) (1985). See also Fadum v. Liakos, 186 Ga. App. 556 (367 SE2d 843) (1988). Accordingly, since appellant’s motion sought only a new trial as to the issue of its liability and not as to the issue of the damages awarded to appellee, the trial court correctly denied that motion for new trial.

Appeal dismissed.

Banke, P. J., and Benham, J., concur.


author: Sognier, Judge.

text:
    76022.
    76023.
    76024.
    PATTERSON v. THE STATE. PERKINS v. THE STATE. WYLDON v. THE STATE.
    (370 SE2d 500)
   Sognier, Judge.

Appellants were convicted of armed robbery in a joint trial and they appeal.

1. Appellants contend the evidence is not sufficient to support the verdict, and it was error to deny their motions for a directed verdict of acquittal based on that ground.

The evidence disclosed that shortly after closing Wendy’s Old Fashioned Hamburger restaurant at 11:00 p.m., Ronnie Milner, co-manager of Wendy’s, was counting the day’s receipts in his office. A man pushed open the office door hard and fast, put a gun to Milner’s head and turned his face away. Milner was able to see three hands removing the cash from his desk and knew that two men were present. After the cash was collected Milner was ordered to lie on the floor and the men departed. Lisa Lassiter, an employee, was walking toward the office and saw a man with money in his hand go out the back door of Wendy’s. She then entered Milner’s office and discovered he had been robbed, so she ran to the front of the restaurant and informed the other employees of the robbery. Lassiter then went to the door to see if anyone was running or driving away, and saw what she described as a black-over-white Monte Carlo speed up a ramp to 1-75, then turn north. Just after closing Lassiter had seen a man walking alongside Wendy’s; that man was not appellant Patterson or appellant Perkins.

The police were called and a lookout was broadcast for the car described by Lassiter. A few minutes later Detective William Raiford spotted a car fitting that description and followed it, notifying other officers by radio that he was following the car the police were looking for. After another officer caught up with Raiford he stopped the suspected vehicle, which was occupied by appellants. Perkins was driving the car, Patterson was in the front passenger seat, and Wyldon was in the right rear passenger seat. The men were ordered out of the car and while the car door was open, Detective Raiford saw a large amount of cash on the floorboard, partially under the front passenger seat. The money on the floor, plus $50 in Patterson’s pocket, totalled $1,969, just $15 less than the amount taken in the robbery. Appellants were arrested and taken to the police station, where Patterson was identified by Milner and Lassiter as the robber, and Wyldon was identified by Lassiter as the man she had seen walking alongside the restaurant just before the robbery. However, this identification testimony was suppressed because it was tainted by the manner in which the police conducted the showup.

Just before Detective Raiford stopped appellants on 1-75 he saw something thrown out the sunroof of the car they were driving. The area near where appellants were stopped was searched the following morning and a pistol was found a few feet from the edge of the road. Although Milner testified at trial that he could not state that the pistol found by the road was the pistol used in the robbery, the regional coordinator for Wendy’s and Detective Fred Albertson testified that Milner had earlier identified the pistol as the one used in the robbery.

Dale Farley, an employee at Wendy’s who had pled guilty to participating in the robbery, testified that five days before the robbery he and appellant Patterson had discussed how they could commit the robbery if Farley would leave the back door unlocked when the restaurant closed. He told Patterson where the manager’s office was located, and that the manager always counted the money on his desk immediately after closing. Although Farley could not decide whether or not he would participate in the robbery, he received a call at Wendy’s from Patterson the night of the robbery, and Farley told him it was a good night for the robbery, and Farley would leave the back door unlocked. Farley also testified that Patterson owned a pistol, and that he and Wyldon lived together, although Wyldon was not present when Farley and Patterson planned the robbery.

a. Appellant Patterson contends the evidence, being all circumstantial, is insufficient to support the verdict because it does not exclude every reasonable hypothesis except that of guilt. Whether every reasonable hypothesis except that of guilt of the defendant has been excluded is primarily a question for the jury, especially where, as here, the jury has been charged on this issue. Johnson v. State, 185 Ga. App. 505, 506 (2) (364 SE2d 893) (1988). Considering testimony that Farley and Patterson planned the robbery; that Patterson called Farley shortly before the robbery and said he was going to commit it; and the fact that Patterson was in the “getaway” car with almost the exact amount of money taken under his seat, we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Accordingly, it was not error to deny Patterson’s motion for a directed verdict of acquittal. Eaton v. State, 184 Ga. App. 645, 647 (3) (362 SE2d 375) (1987).

b. The evidence connecting appellants Wyldon and Perkins to the robbery is not as clear-cut as the evidence against appellant Patterson. Basically, the only evidence connecting Wyldon and Perkins to the robbery is that they were in the car where the money was found, and Perkins was driving the car. However, Wyldon shared an apartment with Patterson, and there was testimony that the gun used in the robbery was thrown out of the sunroof of the car occupied by appellants. Further, Lassiter described the getaway car as a black-over-white Monte Carlo, and the vehicle driven by Perkins was a burgundy-over-white Trans Am, described by a police officer as having a body style similar to a Monte Carlo. Although Wyldon and Perkins argue there is nothing to establish they even had knowledge of the robbery, they were all in the same car when the gun was thrown out of it, and almost $2,000 in cash was lying on the floor of the car. Further, Milner testified that more than one person was involved in the robbery. Appellant Perkins also relies on Oldwine v. State, 184 Ga. App. 173 (360 SE2d 915) (1987) as authority for the proposition that mere presence at the scene of the crime is insufficient to sustain a verdict. However, his reliance on Oldwine is misplaced, as in that case Oldwine and another defendant were not present at the scene of the drug transaction involved. Rather, one defendant was in an apartment two miles away and Oldwine was in a van parked outside that apartment. Thus, there was nothing to connect those two defendants to the drug transaction involved, and the facts are clearly inapposite to the facts of the instant case.

Decided May 23, 1988

Rehearings denied June 3, 1988

James P. Brown, Jr., for appellant (case no. 76022).

Wade M. Crumbley, for appellant (case no. 76023).

Benjamin W. Studdard III, for appellant (case no. 76024).

E. Byron Smith, District Attorney, Tommy K. Floyd, Assistant District Attorney, for appellee.

In a case factually more similar to the instant case, where drugs were found in a bag on the floor of a van occupied by three defendants, we held that such evidence was sufficient to show that the defendants had equal access to the contraband (in the case sub judice, stolen money), and were in joint constructive possession of the contraband. Blaise v. State, 185 Ga. App. 653, 654 (1) (365 SE2d 499) (1988). By showing circumstantially that the defendants had equal access to the contraband, the evidence established that defendants were parties to the crime. Id. Applying the rules set forth in Blaise to the facts of the instant case, we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, supra. Accordingly, it was not error to deny Wyldon and Perkins’ motions for a directed verdict of acquittal. Eaton, supra.

2. Appellants Patterson and Perkins contend the trial court erred by charging the jury that flight, if any, was subject to explanation. Appellants argue that this charge impermissibly shifted the burden of persuasion to them. This contention has been decided adversely to appellants. Benton v. State, 181 Ga. App. 853 (2) (354 SE2d 195) (1987).

Judgments affirmed.

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


text:
    76587.
    WILLIAMS v. THE STATE.
    (370 SE2d 497)
   Banke, Presiding Judge.

The appellant was stopped by a Georgia State trooper while driving a rented van on 1-75 near Dalton, Georgia, and was given a warning ticket for speeding. Thereafter, the trooper conducted a search of the van pursuant to a written consent form signed by appellant authorizing the search. The search resulted in the seizure of a kilogram of cocaine as well as a quantity of marijuana; and the appellant was subsequently convicted of trafficking in cocaine, possession of marijuana, and speeding. In this appeal from the denial of his motion for new trial, he contends that the trial court erred in denying his motion to suppress the contraband as the fruit of an unlawful search and also in allowing the state to bring to the jury’s attention the fact, that he had invoked his right to counsel following his arrest.

The stop occurred at approximately 3:00 a.m. on October 22, 1986. Although the trooper who made the stop was on routine patrol duty at the time, he had been assigned, as part of a State Patrol program known as “Operation Nighthawk,” to concentrate his efforts on interstate highway drug interdiction; and his interest in stopping the van was clearly attributable, at least in part, to his observation of information appearing on its license plate indicating that it was a rental vehicle from the Miami, Florida, metropolitan area. The trooper was in fact accompanied at the time of the arrest by a reporter from USA Today, who was riding in the patrol car with the consent of the State Patrol for the express purpose of obtaining information for an article on interstate highway drug arrests.

After stopping the van and speaking briefly with the appellant, the trooper spoke with a passenger seated in the front seat. At this time, the trooper “smelled an odor of burnt marijuana coming from inside the vehicle” and observed, from the passenger’s glazed physical appearance and the slowness of his responses, that he seemed to be “under the influence of some intoxicant.” Also, the trooper observed that the passenger was making an apparent effort to conceal a brown box located under his seat and further noted, upon questioning him, that some of his responses concerning the nature of his trip appeared inconsistent with those previously elicited from the appellant on the subject. The trooper then issued the appellant a warning ticket for speeding and asked him to consent in writing to a search of the vehicle. Following a brief discussion with the appellant concerning his alternatives in this regard, which was recorded on tape via a remote microphone being worn by the trooper, the appellant executed the consent form. During the ensuing search of the vehicle, marijuana was discovered inside the brown box which the trooper had previously noticed under the passenger’s seat, and cocaine was discovered inside a cardboard box bearing the appellant’s name located in the rear of the van. Held:

1. The appellant contends that the initial detention of the van was unlawful because the speeding violation was utilized as a mere pretext for the trooper’s actual intention, which, from the outset, was to conduct a search for drugs. It may indeed be inferred from the evidence presented at the hearing on the motion to suppress that the trooper would not have stopped the van for speeding but for his suspicion that it might be transporting illicit drugs. However, it is further apparent that the trooper formed the belief that the van was exceeding the speed limit immediately upon his initial observance of it and that he proceeded forthwith to confirm this belief by clocking it with his patrol car. Thus, there is no question that the trooper was relying at all times on the speeding violation as his authorization for making the stop. The trial judge concluded that under such circumstances the trooper’s conduct could not be considered violative of the Fourth Amendment merely because he had been influenced by his “acute awareness for drug courier activities.” We agree. A rule requiring a law enforcement officer to forego making a traffic stop which he would otherwise be authorized to make merely because he suspects that the vehicle might be engaged in the transport of illicit drugs would have little to commend it, and we have previously declined the invitation to create such a rule. See Coop v. State, 186 Ga. App. 578 (367 SE2d 836) (1988); Eisenberger v. State, 177 Ga. App. 673 (340 SE2d 232) (1986).

The appellant relies upon United States v. Smith, 799 F2d 704, 709 (11th Cir. 1986), for the proposition that a search will be considered unreasonably pretextual unless “a reasonable officer would have made the stop in the absence of the invalid purpose.” The stop at issue in Smith was not predicated on an observed traffic violation, as was the stop in this case, but on “inarticulate hunches” arising from completely lawful activity. Specifically, the defendants in that case were stopped because they “matched a few nondistinguishing characteristics contained on a drug courier profile,” and because the driver had avoided looking at the trooper upon passing him. While the trooper testified that he had observed the appellants’ vehicle “weaving” after he began following it, he acknowledged that he had, by that time, already decided to make an investigative stop of the vehicle, id. at 706; and the Court specifically held that he did not have probable cause to stop the car for any traffic violation. Id. at 708.

We find nothing in the Smith decision which would suggest that an officer is precluded from stopping a vehicle for an observed traffic violation if he is motivated by a suspicion, itself insufficient to justify an investigatory stop, that the vehicle might be transporting drugs. In fact, the Court emphasized in Smith that the officer’s actual state of mind was irrelevant to the legality of the stop, holding that such an assessment must always be based on objective criteria. Id. at 709.

It being undisputed in the present case that the stop of the appellant’s vehicle was predicated on an actual, observed speeding violation, we hold that the trial court did not err in concluding that the stop was lawful.

2. The appellant further contends that even if the initial stop was lawful the search was not, because the trooper induced him to sign the consent form by deceiving him as to the scope and intensity of the proposed search. As previously indicated, the discussion between the appellant and the trooper which preceded the signing of the consent form was recorded on tape, so there is no question about what actually transpired. Although the trooper initially told the appellant that he merely wanted “to look in the van real quick,” he then proceeded to read the consent form to the appellant, and the form unambiguously authorized a “complete search” of the vehicle and its contents. Evidently understanding this, the appellant thereupon expressed reservations about signing the form and asked what would happen if he refused. The trooper responded that in such an event he would attempt to obtain a search warrant, adding that “it would take me a few minutes to see whether or not I can obtain one.” The trooper repeatedly assured the appellant that he was not required to sign the form; and, indeed, his last words to the appellant before the appellant signed were, “You don’t have to but I’d appreciate it.” On the basis of this conversation, the trial court was quite clearly authorized to conclude that the appellant had consented to the search freely and voluntarily and that he had not been induced to sign the form by the use of coercion, duress, or deception. Accord Fuller v. State, 165 Ga. App. 55 (1) (299 SE2d 397) (1983); Jones v. State, 154 Ga. App. 21 (1) (267 SE2d 323) (1980).

We additionally note that the trial court did not uphold the search solely on the ground that it was consensual but further concluded that the trooper already had probable cause to conduct a search of the vehicle at the time the consent was given, “because of the smell of marijuana connected with the other characteristics observed and the totality of the circumstances.” Based on the trooper’s perception of the passenger’s physical appearance, the passenger’s furtive conduct with respect to the brown box, and the inconsistencies between the passenger’s responses and those the appellant had given concerning the nature of their trip, we concluded that this assessment was correct. Accord Brooker v. State, 164 Ga. App. 775 (1) (298 SE2d 48) (1982); Holmes v. State, 163 Ga. App. 753 (294 SE2d 719) (1982). Accordingly, we hold that the trial court did not err in denying the appellant’s motion to suppress.

3. While it is true that the state emphasized to the jury the fact that the appellant had requested an attorney upon being informed of his Miranda rights, it was shown that the appellant had thereafter made certain spontaneous statements which could be viewed as incriminatory. The state’s introduction of these statements into evidence necessarily brought into question the issue of their voluntariness, with the result that the circumstances under which they were made became a proper subject for the jury’s consideration. Cf. Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981). At the conclusion of the trial, the jury was specifically charged that the appellant’s invocation of his right to talk with an attorney was pertinent solely to the issue of the voluntariness of any statements he might have made while he was in custody and could not be considered as evidence of his guilt or innocence. Consequently, we find the appellant’s final enumeration of error also to be without merit.

Decided May 16, 1988

Rehearing denied June 3, 1988

Robert W. Ritchie, Marcus R. Morris, for appellant.

Jack O. Partain III, District Attorney, Lee R. Taylor, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


text:
    74025.
    74026.
    74027.
    GORLIN et al v. HALPERN et al. BURGESS et al. v. GORLIN et al. FIRST GEORGIA BANK v. GORLIN et al.
    (371 SE2d 179)
    Decided June 3, 1988.

      Robert N. Meals, Larry H. Chesin, for First Ga. Bank.

      Taylor W. Jones, Rickman P. Brown, for Gorlin and Long.

      J. Wayne Moulton, for Burgess and Brown.

      Joseph Lefkoff, for Halpern.
   McMurray, Presiding Judge.

The Supreme Court in Burgess v. Gorlin, 258 Ga. 127 (365 SE2d 405), having reversed this court’s decisions in the above captioned cases, Gorlin v. Halpern, 184 Ga. App. 10 (360 SE2d 729), the prior judgments of this court are vacated, and, in accordance with the decision of the Supreme Court, the judgments of the trial court are reversed in Case Nos. 74026 and 74027 and affirmed in Case No. 74025.

Judgment affirmed in Case No. 74025. Judgments reversed in Case Nos. 74026 and 74027.

Birdsong, C. J., and Sognier, J., concur.


author: Carley, Judge. Deen, Presiding Judge,

text:
    76153.
    HILL et al. v. BAILEY et al.
    (370 SE2d 520)
   Carley, Judge.

Appellee-plaintiffs filed suit and appellant-defendants, having been properly served with the complaint, retained counsel and filed their answer and a counterclaim. Appellants’ counsel, after receiving the permission of the trial court and giving notice to his clients, subsequently withdrew from the representation. Appellants did not retain new counsel for approximately one year.

During the period in which appellants were without counsel, the case was placed on the trial calendar. However, appellees’ counsel notified the court of the illness of one of the appellants and requested a continuance. By letter, appellees’ counsel subsequently requested that the case be placed on the trial calendar for the April 1987 Term of court. Appellants acknowledge that they received a copy of this letter. Counsel for appellees sent a second letter to appellants, informing them of the week during which the case was scheduled to be tried. Appellants deny receipt of the second letter. The case was tried during the week scheduled, but the appellants failed to appear. The trial, from which appellants were absent, resulted in a verdict for appellees. Following the jury’s return of the verdict, but prior to the trial court’s entry of judgment on the verdict, appellants filed a “Motion to Set Aside Verdict and Judgment and for New Trial.” The only issue raised by appellants in this motion was their lack of notice of the date of trial. The trial court conducted a hearing and denied appellants’ motion. Appellants bring this direct appeal from the judgment entered by the trial court on the jury verdict and from the trial court’s denial of their post-judgment motion.

1. Before the merits of appellants’ appeal can be considered, we must first ascertain whether jurisdiction exists. Appellants styled their pleading in the trial court as “A Motion to Set Aside Verdict and Judgment and for New Trial.” In denying appellants’ motion, the trial court did not indicate whether it was purporting to rule upon a motion for new trial or a motion to set aside. Whether the motion is properly considered to be a motion for new trial or a motion to set aside is determinative of whether appellants are authorized to bring this direct appeal under OCGA § 5-6-34 or whether this appeal must be dismissed for failure to follow the discretionary appeal procedure of OCGA § 5-6-35 (a) (8).

“A judgment or order based upon a trial or hearing entered against a party without notice to that party of the trial or hearing is subject to a motion to set aside where the lack of notice appears on the face of the record. [Cits.]” (Emphasis supplied.) Brown v. C & S Nat. Bank, 245 Ga. 515, 518 (265 SE2d 791) (1980). “Where the matter asserted to be error, such as a defect in notice, does not appear upon the face of the record but is developed by the evidence . . . , the judgment may not be set aside. . . . [Cits.] The . . . [proper] motion [would be] for a new trial under [OCGA § 9-11-60 (c)]. [Cits.]” (Emphasis supplied.) Newman v. Greer, 131 Ga. App. 128, 129-130 (205 SE2d 486) (1974). Therefore, whether it is permissible to attack a judgment for lack of notice by a motion to set aside or by a motion for new trial is dependent upon the face of the record. In the present case, appellants’ motion was not based upon a lack of notice appearing on the face of the record. Appellants relied upon extrinsic evidence in the form of numerous affidavits to demonstrate their alleged lack of sufficient notice. Thus, appellants’ “claim is in actuality one of ‘some extrinsic defect which does not appear on the face of the record or pleadings,’ and therefore the proper means of attack is a motion for new trial. [Cit.]” Scott v. Morris Brown College, 164 Ga. App. 264, 265 (297 SE2d 45) (1982). Because appellants seek direct appellate review of a ruling on what is properly denominated a motion for new trial and their notice of appeal from the denial of such motion was not untimely, this court has jurisdiction to entertain the appeal pursuant to OCGA § 5-6-34. Compare Crolley v. Johnson, 185 Ga. App. 671 (365 SE2d 277) (1988) (appeal from the denial of a motion to set aside dismissed for lack of compliance with the requirements of OCGA § 5-6-35). Although appellants’ motion for new trial was prematurely filed, such premature filing of a motion for new trial does not deprive this court of appellate jurisdiction where, as here, the notice of appeal was filed within thirty days of the entry of the trial court’s order disposing of the prematurely filed motion for new trial. Harrison v. Harrison, 229 Ga. 692 (1) (194 SE2d 87) (1972); Joiner v. Perkerson, 160 Ga. App. 343 (1) (287 SE2d 327) (1981). Compare Leader Nat. Ins. Co. v. Martin, 185 Ga. App. 27, 29 (1) (363 SE2d 281) (1987) (a motion for new trial which is invalid as the procedurally improper vehicle for securing review, and not merely due to its prematurity, does not extend the time for filing the notice of appeal).

2. The only issue raised on appeal is appellants’ lack of notice of the date of trial. Under our holding in Division 1, appellants’ only proper means of attacking such error in the trial court was by motion for new trial. “Since both enumerations of error are directed only to the court’s action in denying the [prematurely filed] motion for new trial, that judgment must be affirmed.” Joiner v. Perkerson, supra at 343 (2). See also Harrison v. Harrison, supra at 692 (2).

3. Appellees have moved for frivolous appeal damages pursuant to OCGA § 5-6-6. Based on our examination of the entire history of the case, appellees’ motion for damages under OCGA § 5-6-6 is denied.

Judgment affirmed.

Sognier, J., concurs. Deen, P. J., concurs specially.

Deen, Presiding Judge,

concurring specially.

While concurring generally with the majority opinion, I must concur specially to suggest the following clarification. A prematurely filed motion for new trial is void. Harrison v. Harrison, 229 Ga. 692 (1) (194 SE2d 87) (1972). That is why, as held by the majority opinion in Division 2, since the only enumerations of error concern the trial court’s denial of the appellant’s prematurely filed motion for new trial, affirmance is mandated.

Decided June 3, 1988.

Walter S. Chew, Jr., for appellants.

Verlin L. Jones, Jr., for appellees.


text:
    76166.
    INTERNATIONAL ENERGY STRUCTURES et al. v. FENNELLY.
    (370 SE2d 523)
   McMurray, Presiding Judge.

Claimant suffered a compensable injury in this workers’ compensation case on August 14, 1983. He received temporary total disability benefits of $135 per week. Thereafter, on April 2, 1987, claimant sought a lump sum advancement of $5,500. The request was made by claimant’s counsel who explained in a letter that claimant needed $2,700 to pay Piedmont Hospital (for medical expenses unrelated to claimant’s injury) and $2,300 for a used automobile. (In connection with the automobile, claimant’s counsel explained: “The employee . . . is receiving treatment from various physicians and hospitals and is in desperate need of transportation. . . . The employee has visited many used car lots in the Cobb County area where he lives and has determined that he can purchase an old, used automobile for $2,300.00. This automobile would be used almost exclusively for transportation to the various treating physicians, hospitals and physical therapist.”) The balance of the request, $500, was “for attorney’s fees in preparing the application.”

In conjunction with the letter request submitted by claimant’s counsel, claimant filed an application for advance payment upon which he set forth the state of his finances. The application was unsworn. No other documentation was submitted by claimant.

The employer/insurer objected to the application for advance payment. It pointed out, inter alia, that claimant failed to submit affidavits and documentation in accordance with Rule 222 of the Rules and Regulations of the State Board of Workers’ Compensation and that the statements made by claimant’s attorney were based on hearsay. Based on its objections, the employer/insurer sought a hearing to consider the merits of claimant’s lump sum application.

Thereafter, without holding a hearing, the full board issued an award in which it found that a “lump sum advance is in the best interest of claimant to prevent extreme hardship” and that such an “advance will not work an undue hardship on employer/insurer.” It approved the application in the amount of $2,800 ($2,300 and $500 attorney fees) and ordered the reduction of claimant’s weekly benefits to repay the advance and interest. In this regard, the employer/insurer was authorized to reduce claimant’s weekly benefits by $5 per week for 700 weeks.

The employer/insurer appealed the award of the board to the superior court. The award was affirmed and the employer/insurer applied for discretionary review. We granted the employer/insurer’s discretionary review application and this appeal followed. Held:

1. Ordinarily, the parties in a workers’ compensation proceeding are entitled to a hearing in order to present their claims or defenses. Miller v. Brunswick Pulp &c. Co., 184 Ga. App. 172 (360 SE2d 754). When it comes to lump sum advances, however, formal hearings are not always required. Johnson v. Atlanta Dairies Co-op., 172 Ga. App. 403 (323 SE2d 185). “Instead, the board may, as appropriate, conduct a formal hearing or may consider the application based on depositions, interrogatories, verified documents, etc.” Id. at 404.

Rule 222 of the Rules and Regulations of the State Board of Workers’ Compensation, applicable to the case sub judice, is based on this court’s decision in Johnson v. Atlanta Dairies Co-op., supra. In pertinent part, it provides that lump sum payments can be approved by the board without a hearing upon the consideration of affidavits and documentation demonstrating a need for the payment, the current physical condition of the claimant, a proposed method of repayment and the attorney’s fee for handling the application. Specifically, the rule requires the filing of an affidavit setting forth claimant’s living expenses, debts and total household income. Moreover, it mandates the filing of an affidavit setting forth the “emergency needs” of claimant “to prevent undue hardship.”

A review of the record discloses that the verified documentation contemplated by Rule 222 (and Johnson v. Atlanta Dairies Co-op., 172 Ga. App. 403, supra) was not submitted by claimant in the case sub judice. Yet, over the objection of the employer/insurer, the board granted claimant’s request for a lump sum advance. In so doing, the board erred. Why? Because lump sum awards “must be supported by competent proof.” Johnson v. Atlanta Dairies Co-op., supra at 404. And this contemplates the submission of verified documentation unless evidence is presented at a formal hearing. Id.

The board is vested with a legal discretion in determining whether to award a lump sum advance. West Point Pepperell v. Luallen, 147 Ga. App. 135 (1) (248 SE2d 287). In the case sub judice, the board abused its discretion in failing to base its award upon competent proof. See generally Johnson v. Atlanta Dairies Co-op., 172 Ga. App. 403, supra at 404. It follows that the superior court erred in affirming the award of the full board.

Decided June 3, 1988.

Donald M. Shivers, for appellants.

Jack 0. Morse, for appellee.

2. In view of our ruling in Division 1, we need not consider the remaining enumerations of error.

Judgment reversed.

Pope and Benham, JJ., concur.


text:
    76196.
    MIZE v. THE STATE.
    (370 SE2d 525)
   McMurray, Presiding Judge.

Defendant appeals his conviction of two counts of the offense of arson in the first degree and one count of influencing a witness. Held:

1. The arson charges arose from the destruction by fire of defendant’s residence. At trial one of the State’s witnesses was an eight-year-old child who testified that she had seen defendant at his residence on the day of the fire. Defendant’s first three enumerations of error involve defendant’s attempts to present evidence of prior contradictory statements of the young witness.

The evidence which defendant sought to present was recorded on a video cassette tape. On the date of the trial, defendant moved for an order to provide for courtroom use of a video cassette recorder (“VCR”). The trial court did not err in denying defendant’s motion as untimely filed. See Rule 31.1 of the Uniform Rules for the Superior Courts; Tillman v. State, 184 Ga. App. 210, 211 (3) (361 SE2d 66). Moreover, there was no denial of due process since defendant was afforded an opportunity to prepare a transcript of the video tape, which was used by defendant at trial.

Following direct and cross-examination of the child, the trial court permitted defendant to reserve the right to recall the child for continuation of cross-examination after a transcript of the video cassette tape could be obtained. During a colloquy with counsel, which preceded recalling the child, the trial court stated: “You [apparently the district attorney] have rested and I allowed the defendant to recall one witness for continuing cross-examination due to the fact you [apparently defense counsel] had to get the transcript made on a VCR that the Court refused to allow you to use, and this will be for impeachment testimony only. We will play it by ear as we go along.” (Emphasis supplied.) Defendant contends that the emphasized language was error in that it was in direct contradiction of the ruling in Gibbons v. State, 248 Ga. 858 (286 SE2d 717), which would permit use of the child’s prior contradictory statement as substantive evidence as well as for impeachment purposes. However, we find no error in the trial court’s direction to defense counsel. Contrary to defendant’s contention the trial court did not admonish defense counsel that the witness’ prior statements could be used for impeachment only. The trial court’s direction related to the scope of inquiry on the recall of the witness for a continuation of cross-examination following preparation of the transcript of the video tape. The trial court’s direction did not address the effect of any evidence.

Defendant also contends the trial court erred in not allowing defense counsel to read the transcript of the video tape to the jury or allowing defense counsel to show the video tape to the jury. However, while defense counsel was permitted to use the transcript in an attempt to impeach the witness, defendant never attempted to establish proper authentication by foundation in regard to either the video tape or transcript. Consequently, the trial court did not err in refusing to admit into evidence the video tape and transcript thereof. Compare Smith v. State, 171 Ga. App. 758, 761 (5) (321 SE2d 213); Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211 (3), 212 (88 SE2d 167); Elliott v. State, 168 Ga. App. 781, 784 (3) (310 SE2d 758); King v. State, 168 Ga. App. 291, 292 (3) (308 SE2d 612).

2. The count of the indictment charging defendant with the offense of influencing a witness charged that defendant committed the offense of influencing a witness in an endeavor to deter his accomplice and co-indictee Gentry from testifying against him on the arson charges by threatening Gentry and his family with death if he testified. Defendant’s conviction of the offense of influencing a witness was not authorized as the evidence did not establish proper venue in Rockdale County. OCGA § 16-10-93 provides that: “A person who, with intent to deter a witness from testifying freely, fully, and truthfully to any matter pending in any court . . . , communicates, directly or indirectly, to such witness any threat of injury or damage to the property or person of the witness or to the . . . person of any relative of the witness . . . shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.” OCGA § 17-2-2 (a) provides: ‘In general. Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.’ OCGA § 17-2-2 (h) provides: ‘Crime in more than one county. If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.’ ” Sanders v. State, 182 Ga. App. 581, 583 (2) (356 SE2d 537).

The evidence in the case sub judice shows but one threat communicated to Gentry. The threat was communicated to Gentry by telephone. At that time Gentry was in DeKalb County and there is no evidence as to the location from which defendant was speaking. Accordingly, it was error to deny defendant’s motion for directed verdict of acquittal as to the offense of influencing a witness. Sanders v. State, 182 Ga. App. 581, 583 (2), supra; Overcash v. State, 111 Ga. App. 549, 550 (2) (142 SE2d 306).

Decided June 3, 1988.

Morton M. Wiggins III, Edward D. Tolley, for appellant.

Robert F. Mumford, District Attorney, for appellee.

Judgment affirmed as to the convictions and sentences for the offenses of arson in the first degree. Judgment reversed as to the conviction and sentence for the offense of influencing a witness.

Pope and Benham, JJ., concur.


text:
    76254.
    CHATTANOOGA TRUCK PARTS OF NORTH GEORGIA, INC. et al. v. ROBERTS.
    (370 SE2d 527)
   Banke, Presiding Judge.

We granted an application for discretionary appeal in this workers’ compensation case to consider the appellant-insurer’s contention that another insurance carrier should be held jointly liable with it for the award of benefits to the claimant.

The claimant sustained a compensable injury on September 26, 1985. Appellant United States Fidelity & Guaranty Company (USF&G) appeared at the initial hearing on the claim and during this hearing stipulated that it had been the employer’s workers’ compensation insurance carrier at the time of the injury. However, after the claimant was awarded benefits by the administrative law judge, USF&G discovered that its insurance coverage had in fact terminated on September 22, 1985, four days prior to the injury, and that a new carrier, Bituminous Casualty Company, had assumed the risk of that date. USF&G accordingly sought a de novo review of the coverage issue by the board. Relying on Food Giant v. Brown, 174 Ga. App. 485 (330 SE2d 183) (1985), the board found USF&G’s prior stipulation of coverage to be conclusive on that issue; and that ruling was affirmed by the superior court. On appeal to this court, USF&G concedes that it is bound by its prior stipulation of coverage but argues that Bituminous Casualty may nevertheless be held jointly liable with it for payment of the claim. Held:

As evidence that another insurer was providing joint coverage at the time of the accident would not contradict USF&G’s prior stipulation in the case, we hold that the board was not precluded from considering such evidence. Compare Food Giant v. Brown, supra. Furthermore, as there appears to be no question that the Bituminous Casualty coverage was in fact in force on the date the accident occurred, there would appear to be no basis upon which it could escape liability on the claim. The decision of the superior court is consequently reversed with direction that the case be remanded to the board for the entry of a new award holding both insurers jointly liable for payment of the benefits previously determined to be due the claimant. Accord Maryland Cas. Co. v. Walls, 184 Ga. App. 267 (361 SE2d 253) (1987), overruled on other grounds in American Centennial Ins. Co. v. Flowery Branch Nursing Center, 258 Ga. 222 (367 SE2d 788) (1988).

Decided June 3, 1988.

Timothy H. Allred, Richard H. Sapp III, for appellants.

F. Bryant Henry, Jr., for appellee.

Judgment reversed and case remanded with direction.

Birdsong, C. J., and Beasley, J., concur.