text:
    A91A0689.
    A91A0690.
    SOUTHERN RAILWAY COMPANY v. REESE. CSX TRANSPORTATION, INC v. REESE.
    (407 SE2d 139)
    Decided June 4, 1991.

      Branch, Pike & Ganz, Burt DeRieux, Keith J. Reisman, Eileen M. Crowley, for appellant (case no. A91A0689).

      Webb, Kicklighter & Casey, Robert E. Casey, Jr., Matthew D. Williams, for appellant (case no. A91A0690).
   Carley, Judge.

Appellee-plaintiff brought suit, seeking to recover for injuries that he suffered while engaged in his employment with Georgia Power Company. Appellant-defendants answered and, after extensive discovery, they moved for summary judgment. The trial court granted summary judgment in appellants’ favor and, on appeal, this court affirmed. Reese v. Southern R. Co., 199 Ga. App. 320 (404 SE2d 643) (1991). In the instant appeals, appellants appeal from the denial of their respective motions for litigation costs and attorney’s fees pursuant to OCGA § 9-15-14. The two appeals are hereby consolidated for appellate review in this single opinion.

“The trial court [refused to award] attorney[’s] fees and expenses of litigation [pursuant to either] OCGA § 9-15-14 (a) [or] (b). OCGA § 9-15-14 (a) provides for a mandatory award. The standard of review for this section is the ‘any evidence’ rule. OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion. Under both standards[,] the record supports the trial court’s [denial of an] award.” Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4c) (360 SE2d 566) (1987).

Judgments affirmed.

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

Richard E. Stark, for appellee.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A0120.
    COVRIG et al. v. MILLER et al.
    (406 SE2d 239)
   Birdsong, Presiding Judge.

Alex and Elaine Covrig appeal from the judgment of the trial court, following a bench trial, in favor of Jerry Houston Miller, Violet Miller, Melvin Chaney, and K. C. Campbell (“appellees”) in litigation arising from a land line dispute. The trial court ruled against the Covrigs on the location of the land line and found as fact that the Covrigs’ land had not been trespassed upon, and found that “as to the claims, defenses and other positions of Alex Covrig and Elaine M. Covrig that there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept [them].” The trial court, however, found in favor of the Covrigs on appellees’ Yost v. Torok, 256 Ga. 92 (344 SE2d 414) abusive litigation claims, but concluded that appellees had carried their burden of proof on their claims for attorney fees and expenses of litigation under OCGA § 9-15-14. The trial court also found in favor of appellees on the Covrigs’ Yost claims. Thereafter, the trial court rendered judgment in favor of appellees, including an award for ap-pellees’ attorney fees and expenses of litigation under OCGA § 9-15-14.

The Covrigs contend the trial court erred by awarding attorney fees and expenses of litigation under OCGA § 9-15-14 and Yost v. Torok; that the judgment was contrary to law, the evidence was insufficient to support the verdict; and that the judgment was against the weight of the evidence. The Covrigs also allege that the trial court erred by denying their motion for new trial. Held:

1. Examination of the trial court’s findings of fact and conclusions of law shows plainly that although the trial court found there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the Covrigs’ claims, defenses, and positions, the trial court did not award damages for abusive litigation under Yost v. Torok to any of the parties, and the award of attorney fees and expenses of litigation was made solely under OCGA § 9-15-14. Therefore, the trial court’s failure to use the procedures prescribed in Yost v. Torok for deciding such claims did not prejudice the Covrigs and this allegation is without merit.

The trial court’s findings of fact regarding the Covrigs’ claims,! however, required the award of attorney fees and expenses of litiga-1 tion. OCGA § 9-15-14 (a). As the standard of review for awards of I attorney fees and expenses of litigation is the any evidence standard (Haggard v. Bd. of Regents, 257 Ga. 524, 527 (360 SE2d 566)), the Covrigs’ arguments based upon Yost v. Torok and cases interpreting OCGA § 13-6-11 are not persuasive. Award of Yost damages was not mandated, however, even though the trial court found that it could not be reasonably expected that a court would accept the Covrigs’ claims. See Yost v. Torok, supra at 95; Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149 (311 SE2d 818). Consequently, denial of Yost damages did not require the denial of the OCGA § 9-15-14 award and the judgment was not inconsistent.

Further, the judgment complained of resulted from a bench trial. In bench trials, the findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses. OCGA § 9-11-52 (a). Moreover, the “clearly erroneous” test is in essence the same as the “any evidence” rule and appellate courts cannot disturb the findings of fact by the trial court if there is any evidence to support them. Commonwealth Fin. Corp. v. Sherrill, 197 Ga. App. 403, 404-405 (398 SE2d 438). As the trial court’s findings of fact are supported by evidence in the record, the Covrigs’ arguments asking this court to interpret the evidence differently from the trial court are to no avail. Accordingly, the Covrigs’ enumerations of error alleging that there was insufficient evidence to support the verdict or that the judgment is against the weight of the evidence are without merit.

2. The Covrigs support their allegation that the judgment is contrary to the law by various references to Title 44 of the Official Code of Georgia Annotated and a decision of the Georgia Supreme Court. Nothing in their argument, however, shows how these authorities might be applicable to this appeal or how the judgment of the trial court is contrary to them. Accordingly, these arguments are without merit. In any event, as the location of the land line is primarily a question of fact and the trial court’s findings of fact are supported by the evidence, there was no error.

3. The Covrigs assert that a new trial was warranted because ap-pellees’ evidence did not correspond to their pleadings. The Covrigs, however, have not shown how the evidence did not correspond to the pleadings. Moreover, we have examined the record and the pleadings and we find these assertions to be without merit.

4. Appellees’ motion for damages under OCGA § 5-6-6 is granted. Review of the briefs filed in this appeal by the Covrigs shows that there was no reason to believe that any of the arguments advanced therein would result in reversal of the trial court’s judgment. “After reviewing the record and the briefs, and after consideration of the enumerations of error, we conclude that the appeal in this case ‘was so palpably without merit as to admit of no other conclusion than that it was filed for purposes of delay.’ [Cit.] Accordingly, we grant [appellees’] motion for the imposition of ten percent damages pursuant to OCGA § 5-6-6. The clerk is directed to enter ten percent damages upon the remittitur.” Adams v. Cato, 175 Ga. App. 28, 29 (332 SE2d 355).

Decided May 17, 1991

Rehearing denied June 5, 1991.

Ronald G. Shedd, for appellants.

F. Bryant Henry, Jr., Westbrook & Vines, Carlton H. Vines, for appellees.

Judgment affirmed with direction.

Pope and Cooper, JJ., concur.


text:
    A91A0331.
    EQUITABLE MORTGAGE RESOURCES, INC. v. CARTER.
    (406 SE2d 494)
   Birdsong, Presiding Judge.

This appeal is one of at least three appeals arising from a construction project gone bad. For the facts generally, see Light v. Equitable Mtg. Resources, 191 Ga. App. 816 (383 SE2d 142), which concerned the same actions by Equitable Mortgage Resources, Inc., and almost the identical allegations as in this appeal. In short, Equitable lent money to a developer to build two houses. The loan was evidenced by a real estate note and a construction loan agreement, and the loan was secured by a deed to secure debt and security agreement.

Subsequently, the developer retained a general contractor who thereafter contracted with Carter to perform some of the work on the project. Although the developer received loan advances from Equitable, Carter was not paid for the work performed. Carter, however, did not perfect a lien against the property in a timely manner and did not inform Equitable that he had not been paid. In any event, Carter’s lien would have been subordinate to Equitable’s.

After the developer defaulted on the loan and Equitable foreclosed on the property, Carter filed suit against the developer/owner and the general contractors for fraud and breach of contract. Later, with permission of the trial court, Carter amended the complaint adding Equitable as a defendant and alleged claims to enforce his lien, for unjust enrichment, for negligently making loan disbursements, and to set aside the foreclosure sale.

Subsequently, Equitable moved for summary judgment and, although the trial court found there were no genuine issues of material fact concerning Equitable’s contractual duty to Carter since there was no contract between them and granted summary judgment to Equitable “as to all claims based on lien or other contract theories,” the trial court found there were issues of fact concerning Carter’s fraud and tort claims and therefore denied Equitable’s motion for summary judgment on those claims. After the trial court denied Equitable’s renewed motion for summary judgment based upon Light v. Equitable Mtg. Resources, supra, Equitable was granted permission to appeal. Held:

Carter alleges that Equitable fraudulently lent money to the developer and negligently and fraudulently disbursed funds to the general contractor in a manner that prevented Carter from being paid for his work performed. The principles repeated in Light v. Equitable Mtg. Resources, supra at 817, are dispositive of this appeal. “A construction lender has no duty to protect the subcontractors from the risks of doing business with its borrower or to supervise the borrower’s disbursement of the advances and control the funds for the benefit of the subcontractors. Similarly, where [Equitable] undertook no duties for the benefit of the appellants here, [Equitable] owed . . . no duty with regard to the disbursements of the construction loan proceeds. The contractual provision giving [Equitable] the right to inspect and withhold advances if it was not satisfied with the progress of construction inured to the benefit of [Equitable], and any failure of [Equitable] to exercise that contractual right provided the appellants no basis for complaint. Accordingly, the appellants have no claim against [Equitable] for negligent disbursement of the loan funds.” (Citation and punctuation omitted.) Therefore, the trial court erred by denying Equitable’s renewed motion for summary judgment on Carter’s tort claim for negligent disbursement.

In the same manner we also reject Carter’s conspiracy/fraud claim. “[I]n handling the loan [Equitable] did nothing that it was unauthorized to do under the note and deed to secure debt... or under the construction loan itself. Under these circumstances there simply was no evidence to support the asserted claims for conspiracy. . . .” Light v. Equitable Mtg. Resources, supra at 818. Accordingly, Carter’s claim that Equitable conspired with the developer to defraud the subcontractors is without support. The advances to the developer were made expressly for the purpose of and conditioned upon the developer’s payment of its outstanding obligations to Carter. Under the circumstances OCGA § 16-8-15 is inapplicable.

Accordingly, the trial court erred by denying Equitable’s renewed motion for summary judgment on Carter’s fraud and tort theories of recovery.

Judgment reversed with direction that the trial court enter sum mary judgment for appellant.

Decided May 17, 1991

Rehearing denied June 5, 1991

Jones, Day, Reavis & Pogue, R. Dal Burton, Michael J. McConnell, for appellant.

Bips & Bips, Mark C. Bips, R. Andrew Bips, Chambers, Chambers & Chambers, John W. Chambers, Sr., for appellee.

Pope and Cooper, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A91A0006.
    CITATION BONDING COMPANY, INC. v. STATE OF GEORGIA.
    (406 SE2d 289)
    Decided June 5, 1991.

      John A Hildebrand, for appellant.

      Thomas J. Charron, District Attorney, J. Richard Edwards, Jerry L. Gentry, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Following the grant of judgment absolute on a criminal bond forfeiture, Citation Bonding Company, Inc., moved to set aside the judgment pursuant to OCGA § 9-11-60 (d). The motion to set aside was denied and the bonding company brought this direct appeal. Held:

Bond forfeiture proceedings are civil in nature. State v. Slaughter, 246 Ga. 174, 176 (269 SE2d 446). Thus, if “the bond forfeited is void on its face, a motion to set aside is proper. [Cit.]” Gunsallus v. Busbee, 149 Ga. App. 109, 110 (253 SE2d 470). See also Osborne Bonding Co. v. State of Ga., 163 Ga. App. 648 (295 SE2d 577).

Pursuant to OCGA § 5-6-35 (a) (8), an appeal from an order denying a motion to set aside a judgment under subsection (d) of OCGA § 9-11-60 is discretionary and shall be made by application. It follows that this direct appeal from an order denying the bonding company’s motion to set aside judgment must be dismissed for lack of jurisdiction. N.C. Constr. Co. v. Action Mobilplatform, 187 Ga. App. 507 (370 SE2d 800).

Appeal dismissed.

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


text:
    A91A0018.
    CHEZEM v. THE STATE.
    (406 SE2d 522)
   Birdsong, Presiding Judge.

Appellant, Dale Chezem, appeals from the verdict of guilty of public indecency, as charged, and denial of his motion for new trial. The amended accusation avers, inter alia, appellant did unlawfully perform a lewd appearance in a state of complete nudity in a public place, to-wit: in front of a glass door facing a city street, and that said appearance further involved a lewd exposure of appellant’s sexual organs. Held:

1. Appellant asserts that the trial court erred in allowing two witnesses to testify when they had not been listed as witnesses, following a timely defense demand prior to arraignment, until immediately prior to trial.

The record reflects that the husband and wife who lived across the street from appellant and who had filed a complaint with the police regarding appellant’s conduct and from whose house appellant’s conduct was witnessed by two law enforcement officers, were allowed to testify as rebuttal witnesses for the State. Appellant’s counsel made an admission in judicio of knowledge that the wife was the person who had been present in the room with the officers the day of the incident, although counsel disclaimed having any information as to the scope of the husband’s knowledge of the incident. The record further reflects that although the State had been aware of these witnesses prior to trial, it was not until immediately before trial that appellant was served with a supplemental witness list including the names of these witnesses; thereafter, an agreement apparently was entered between the State and appellant that the witnesses would not be used by the State. Appellant, however, does not assert the State broke this agreement in bad faith, rather it is asserted the use of the witnesses in rebuttal was not authorized where the State was well aware of the witnesses in advance, and where the nature of the witnesses’ testimony was such that the State reasonably knew it would use the witnesses at trial “and their evidence was, in essence, case-in-chief evidence.”

Appellant cites a number of cases for our consideration, see, e.g., Allison v. State, 256 Ga. 851 (353 SE2d 805), which involve situations where defendant was never given any type of witness list prior to trial. These cases are not controlling, as they are factually distinguishable from this case where written notice, albeit late, was given to appellant immediately before trial. Moreover, at no point during trial did appellant affirmatively assert either a lack of prior actual knowledge of the witnesses’ existence or request a continuance on the record notwithstanding his counsel’s claim that the untimely notificátion procedure used by the State caused a lack of opportunity to interview the witness prior to trial.

The transcending purpose of OCGA § 17-7-110 is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had the opportunity to interview prior to trial. Moody v. State, 258 Ga. 818 (4) (375 SE2d 30); Sheriff v. State, 197 Ga. App. 143, 144 (3) (397 SE2d 732). We are satisfied that the circumstances in this case sufficiently establish, as in Moody, supra, that appellant possessed reasonable information as to the identity and location of the witnesses who lived directly across the street, so that he was not deprived, in fact, of an opportunity to interview them had he chosen to do so before trial.

“The sanction of the statute excluding the testimony of a witness whose identity has not been disclosed as required by the statute is not a mandatory exclusion and the protection contemplated by the statute can be accomplished where the trial court in its discretion determines the defendant can be protected by some other form of relief.” Bone v. State, 178 Ga. App. 802, 805 (1) (345 SE2d 46). Appellant failed at trial to timely move the court for either á continuance or a mistrial. Appellant cannot complain of a ruling his own procedure or conduct aided in causing. Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251); compare Hardin v. State, 142 Ga. App. 795, 796 (1) (237 SE2d 202). Viewing the record in its totality, we conclude, as in Moody, supra, the trial judge did not abuse his discretion in permitting the witnesses to testify in the face of the specific objection posed on the record and encompassed within this particular enumeration of error.

Additionally, if it is not error to call an unlisted witness in rebuttal (Wilson v. State, 257 Ga. 444, 447 (7) (359 SE2d 891)), it is not error to call an untimely listed rebuttal witness as well. See generally the discussion at Division 3, below.

2. Appellant’s brief contains a reference to the failure of the trial court to give certain limiting instructions. On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration. Nobles v. State, 191 Ga. App. 594, 599 (6) (382 SE2d 637).

3. Appellant asserts the trial court erred in allowing similar transaction evidence to be presented when the State had not served a notice of similar transaction, as required by Uniform Superior Court Rule 31.3.

The testimony of the husband and wife elicited by the State, during its rebuttal, included instances of so-called similar transactions, that is, other instances of similar public indecency committed by appellant, notwithstanding no notice of such similar transactions had been served upon appellant pursuant to Uniform Superior Court Rule 31.3.

We note that before the evidence of similar transactions was introduced at trial appellant had taken the stand in his own defense, and had presented a character witness who testified appellant enjoyed a “very good” reputation in the community and that he would believe him under oath. This is not a situation where State’s similar transaction evidence causes defendant’s character to be placed in issue before defendant has affirmatively done so. Appellant does not claim a violation of OCGA § 24-9-20 occurred, and accordingly any such appellate contention is abandoned. Court of Appeals Rule 15 (c).

Contrary to appellant’s assertions, USCR 31.3 was not violated in this case for two distinct reasons. First, the so-called similar transaction evidence establishes an unmistakable pattern of public indecency involving the same type of conduct as contained in the alternative averments of the amended accusation. These acts occurred well within the statute of limitation as the record established unmistakably the time frame during which appellant lived in that neighborhood prior to his arrest. Evidence of guilt of an accused is not restricted to the day mentioned in the indictment or accusation, but may extend to any appropriate date previous to the finding in the indictment or accusation, and within the statute of limitation from the prosecution of the offense charged. Compare Keri v. State, 179 Ga. App. 664, 668 (4) (347 SE2d 236) and Carpenter v. State, 167 Ga. App. 634, 642 (9) (307 SE2d 19), aff’d 252 Ga. 79 (310 SE2d 912). Viewed in this light, the evidence in issue would not merely constitute prior similar transaction evidence. Rather, it would constitute evidence of the crime charged, as it clearly occurred within the statute of limitation period and before the date alleged in the indictment, and as such, USCR 31.3 would not apply. Secondly, the questioned testimony would be admissible in this instance for purposes of impeachment. USCR 31.3 (E) provides that “[n]othing in this rule is intended to alter the rules of evidence relating to impeachment of witnesses.” Thus if the evidence was admissible for purposes of impeachment admission thereof, it would not violate USCR 31.3. Compare Farmer v. State, 197 Ga. App. 267, (3) (b) (398 SE2d 235); Willis v. State, 193 Ga. App. 659, 661 (4) (388 SE2d 869), and Sidwell v. State, 185 Ga. App. 138, 139 (363 SE2d 603). “A party may not question a witness concerning inadmissible matter and then elicit testimony thereafter to be impeached with evidence inadmissible in the case-in-chief,” State v. Rocco, 259 Ga. 463, 467 (1) (384 SE2d 183), and it would violate rules of evidentiary law and contravene OCGA § 17-7-95 to allow the prosecution to elicit testimony initially from a criminal defendant on cross-examination and then impeach such testimony thereafter with evidence inadmissible in the case-in-chief. Rocco, supra. Compare Cross v. State, 196 Ga. App. 714 (397 SE2d 125). Nevertheless where evidence is offered that would tend to directly refute and impeach both defendant’s inherent assertions on direct examination and his express assertions on cross-examination, such evidence is duly admissible as rebuttal evidence for impeachment purposes as it is “inextricably linked” to the defendant’s direct testimony. Butts v. State, 193 Ga. App. 824, 825 (2) (389 SE2d 395); compare Weaver v. Ross, 192 Ga. App. 568, 569 (2) (386 SE2d 43). Appellant voluntarily presented a witness in his behalf who attested to his “very good” character in the community. Appellant testified he was a salesman, and in response to an obviously leading question by his counsel, he affirmed he had formerly been a police officer elsewhere. Thereafter, in response to a final question on direct examination posed by his counsel, appellant unequivocally denied he had intentionally exposed himself in a public place. The basic assertion for purposes of defense strategy inherently contained in appellant’s testimony on direct is that he was a person of very good reputation in the community who had previously served as a law enforcement officer, and that he would never intentionally expose himself in public because he was not that type of person. The searing cross-examination of appellant merely focused on the heart of appellant’s obvious defense, and the questions regarding whether appellant had ever exposed himself to anyone, at any time whether that day or before, constituted a legitimate probe designed to test the validity of this portion of the defense strategy.

Moreover, as in Smith v. State, 260 Ga. 746 (399 SE2d 66) (1991), appellant’s claim that evidence offered by the State in rebuttal should have been brought out in the State’s main case, is wanting in persuasiveness. “Under the facts of this case, ‘(t)he trial court did not abuse its discretion in controlling the scope of rebuttal testimony.’ ” Smith, supra at 748 (1). We will not reverse the trial court’s determination that the evidence in question could be offered as rebuttal.

4. Appellant asserts that the trial court erred in denying a motion for mistrial when the State elicited testimony about unconnected sexual misconduct. Specifically, appellant argues that the State elicited testimony that implied appellant had done some intentional act to the rebuttal witnesses’ nine-year-old daughter, as the wife testified that after her daughter had come to her she started to “watch her a little closer to make sure she’s okay.”

Appellant timely moved for a mistrial but after it was denied requested no curative instructions. See generally Oller v. State, 187 Ga. App. 818 (4) (371 SE2d 455). “ ‘ “In the absence of a demonstration that a mistrial was essential to preservation of a defendant’s right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial even where no curative instructions were given.” ’ ” Shivers v. State, 188 Ga. App. 21, 23 (4) (372 SE2d 2).

Review of the record establishes that the testimony of which appellant complains was not responsive to the question asked by the prosecutor, the State did not intentionally elicit the witness’ response, and contrary to appellant’s claim it was standing alone, innocuous in its content. The trial court did not abuse its discretion in denying the mistrial motion.

Decided June 5, 1991.

Amy A. Petulla, Christopher A. Townley, for appellant.

Ralph Van Pelt, Jr., District Attorney, for appellee..

Moreover, during cross-examination of the husband after the wife testified in rebuttal, appellant’s attorney asked a question tending to imply the husband had been intentionally looking into appellant’s house. This question drew both an angry denial from the husband, and a preparatory remark to a further explanation by the husband, as follows: “what he’s [appellant] doing, mooning my little daughter and start doing this damage. . . .” Neither a motion for mistrial nor a motion to strike as nonresponsive was made to the husband’s testimony by the appellant’s counsel. Under these circumstances, it was the trial tactics of appellant rather than the State which directly led to the jury’s knowledge of appellant’s conduct toward the daughter.

5. Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99. SC 2781, 61 LE2d 560). Compare Greene v. State, 191 Ga. App. 149, 151 (381 SE2d 310) (appearing nude in presence of babysitter in bedroom and bathroom of his home); McGee v. State, 165 Ga. App. 423, 424 (2) (299 SE2d 573) (lewd exposure of sexual organ occurred in victim’s apartment); Hester v. State, 164 Ga. App. 871 (298 SE2d 292) (standing behind mobile home window 50 feet from a public, highway).

Appellant’s other contentions are without merit.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0041.
    FRENCH v. THE STATE.
    (406 SE2d 526)
   McMurray, Presiding Judge.

Defendant was charged in a multi-count indictment with aggravated assault and simple battery. The evidence adduced at a jury trial showed that defendant entered the victim’s home, placed the barrel of a .38 caliber pistol in the victim’s mouth and threatened to kill her. Defendant also pinned the victim to the floor and choked her. The jury found defendant guilty of aggravated assault and simple battery.

This appeal followed. Held:

1. Defendant contends “[t]he trial court erred in failing to charge the jury on OCGA § 16-11-102, being ‘pointing or aiming a gun or pistol at another,’ being a misdemeanor and included in the greater crime of Aggravated Assault. . . .”

“ ‘A trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.’ Mosley v. State, 257 Ga. 382, 383 (2) (359 SE2d 653).” Robinson v. State, 194 Ga. App. 432, 433 (3) (390 SE2d 652). The record in the case sub judice does not contain a written request to charge on the offense of “pointing or aiming a gun or pistol at another person.” Consequently, the trial court did not err in failing to give such a charge.

2. Defendant challenges the trial court’s preliminary jury instructions that “[i]t is your responsibility to determine the truth of the case from a factual standpoint and from all of the evidence presented during trial[; that verdict] means truth of the case[; that] the ultimate goal in all criminal investigations [is] the discovery of the truth [and that by] applying the law as given you by the Court to the facts as you find them to be then you make your judgment as a jury as to the truth of this case.” Defendant contends these instructions diminished the jury’s ability to understand the State’s burden of proving guilt beyond a reasonable doubt, arguing that “[t]he focus of the Court’s charge should have been on the State’s burden, rather than upon the creation of a romantic notion of a jury’s ability to find the truth, from inarticulable factors.”

The charge to the jury is to be taken as a whole and not out of context. Sharp v. State, 192 Ga. App. 353, 354 (2a) (385 SE2d 23). Further, ‘“[i]t is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. (Cit.)’ Clark v. State, 153 Ga. App. 829, 831 (2) (266 SE2d 577) (1980).” Kenny v State, 195 Ga. App. 22, 23 (392 SE2d 344).

An examination of the record in the case sub judice reveals that defendant’s complaints are based on excerpts taken out of context from the trial court’s preliminary charge. The pertinent portion of the trial court’s preliminary charge includes clear and unambiguous instructions on the presumptions of innocence, the burdens of proof and reasonable doubt. We find nothing which could possibly lead reasonable jurors to believe that the State’s burden of proving defendant’s guilt beyond a reasonable doubt was diminished by the trial court’s comments on “truth.” This enumeration is without merit.

Judgment affirmed.

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

Decided June 5, 1991.

Watson & Watson, Herman A. Watson III, for appellant.

C. Andrew Fuller, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.


author: McMurkay, Presiding Judge.

text:
    A91A0086.
    THOMASON v. THE STATE.
    (406 SE2d 528)
   McMurkay, Presiding Judge.

This is the second appearance of the case sub judice before this Court. Following this Court’s decision in Thomason v. State, 196 Ga. App. 447 (396 SE2d 79), the case was returned to the trial court for the resentencing of defendant. Defendant Thomason now appeals from the sentence then imposed and also from the denial of his motion to recuse. Held-.

1. “When a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted.” Rule 25.3 of the Uniform Rules for the Superior Courts. See also State v. Fleming, 245 Ga. 700, 701 (1) 702 (267 SE2d 207) and Smith v. State, 192 Ga. App. 18, 19 (1) (383 SE2d 600).

Consistent with this rule, the trial judge reviewed defendant’s motion to recuse and affidavit in support thereof, determining that the motion was untimely as to most of the facts alleged in the affidavit and that the remainder of the affidavit was legally insufficient. “Under Rule 25.1 of the Uniform Rules for Superior Courts (253 Ga. 841), the motion is timely if filed and presented to the judge not later than five days after the affiant first learned of the ground for disqualification, unless good cause is shown for failure to meet such time requirement.” Mills v. State, 187 Ga. App. 79 (1) (369 SE2d 283). A trial court does not err in denying a motion to recuse which was not timely filed. Id. at 80.

Nonetheless, since in our view the five-day time limit should be computed under the method set out in OCGA § 1-3-1 (d) (3), one allegation deemed untimely by the trial judge, which began on August 13, 1990, was timely raised by defendant’s motion to recuse, which was filed and presented on August 20, 1990. The computation of time which we hold to be error was harmless since the allegation involved was legally insufficient. The allegation at issue, that “one of the vie-tim’s close relatives served as bailiff for the Honorable Robert B. Struble’s term of criminal trials,” does not show any bias on the part of Judge Struble.

Decided June 5, 1991.

James T. Irvin, for appellant.

Michael H. Crawford, District Attorney, George N. Guest, Assistant District Attorney, for appellee.

The remaining allegations merely state the rulings and decisions made by Judge Struble in the course of the case. These allegations fail to satisfy the requirement that the alleged bias stems from an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Smith v. State, 192 Ga. App. 18, 19 (1), supra. We find no error in the denial of defendant’s motion to recuse.

2. Defendant contends that the trial court erred during resen-tencing in increasing his sentence on two misdemeanor counts from 12 months probation to 12 months to serve on each count. We agree and reverse.

The original sentence in the case was ambiguous in that defendant was sentenced to confinement for a period of “Five (5) years (ct. 5)*(ct. 1) 12 months consecutive to ct. 5 (ct. 2) 12 months consecutive to ct. 1,” but provided that “upon service of Three (3) years (ct. 5) of the above sentence, the remainder of Two (2) years (ct. 5) may be served on probation.” Since defendant was sentenced to seven years, three to serve and two on probation, the question remains as to what became of the two missing years of defendant’s sentence. Defendant must be given the benefit of the doubt as to the effect of the sentence. Stephens v. State, 245 Ga. 835 (268 SE2d 330). In other words, the ambiguous sentence must be given the construction which favors the liberty of the individual. Guest v. State, 87 Ga. App. 184 (73 SE2d 218). Thus, the original sentence must be construed as sentencing defendant to probation for the two missing years of the sentence which relate to the two misdemeanor counts.

Since defendant has entered upon the execution of his sentence, the trial court is without power to change it by increasing the punishment. Inman v. State, 124 Ga. App. 190, 192 (183 SE2d 413). On the resentencing, the trial court erred by increasing defendant’s sentence in that the court provided that the misdemeanor sentences be served in confinement rather than on probation.

Judgment reversed.

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


author: Cooper, Judge.

text:
    A91A0097, A91A0098, A91A0099.
    STIRLING v. THE STATE (three cases).
    (406 SE2d 282)
   Cooper, Judge.

In Case No. A91A0097, defendant appeals his conviction by a jury of aggravated assault, theft by taking and criminal trespass.

Defendant’s trial counsel filed a notice of appeal from the conviction. Prior to the docketing of the case in the Court of Appeals, the trial court entered an order allowing defendant’s trial attorney to withdraw as counsel and appointed another attorney to represent defendant. The case was docketed in this court on October 3, 1990. In a letter to this court dated October 19, 1990, defendant’s new attorney wrote that defendant no longer wanted his representation and requested an extension of time to file a brief and enumeration of error for defendant so that defendant could make appropriate arrangements. On October 31, 1990, defendant’s attorney was granted a 20-day extension of time to file a brief and enumeration of error. No brief or enumeration of error was filed, and on November 27, 1990, this court issued an order directing counsel for defendant to file a brief and enumeration of error no later than December 3, 1990. A brief and enumeration of error has never been filed. Pursuant to the rule set forth in Conyers v. State, 183 Ga. App. 591 (1) (359 SE2d 454) (1987), we have reviewed the record submitted on appeal and find no error. Griffin v. State, 184 Ga. App. 62 (2) (361 SE2d 284) (1987).

In Case No. A91A0098, defendant, pro se, appeals from an order of the trial court dated February 12, 1990, denying his motion for discharge and acquittal. Defendant’s motion, filed on January 9, 1990, was on the grounds that the trial court failed to grant defendant a speedy trial. The record reflects that defendant previously filed a motion for discharge and acquittal on the same grounds, and the trial judge entered an order denying the motion. On appeal to this court of that order, we affirmed the decision of the trial judge. Stirling v. State, 192 Ga. App. 39 (383 SE2d 595) (1989). “It is axiomatic that the same issue cannot be relitigated ad infinitum. [Cit.] The same is true of appeals of the same issue on the same grounds. Our determination [in the earlier appeal] is res judicata; the instant appeal is therefore barred, and we are without jurisdiction to review this same matter for a second time.” Horton v. State, 189 Ga. App. 370 (375 SE2d 668) (1988).

In Case No. A91A0099, defendant, pro se, appeals from an order of the trial court denying his petition for rehearing of the defendant’s motion for discharge and acquittal. The order denying defendant’s motion for discharge and acquittal is dated February 12, 1990, and the order denying defendant’s petition for rehearing is dated March 27, 1990. Defendant’s notice of appeal was filed April 9, 1990. A petition for rehearing is not one of the three statutory motions identified in OCGA § 5-6-38 which will extend the time for filing a notice of appeal. Defendant’s notice of appeal having been filed more than 30 days after the entry of the order denying his motion for discharge and acquittal, the appeal was untimely and we lack jurisdiction to entertain it.

Decided June 5, 1991.

Kenneth L. Chalker, Jr., for appellant.

Alan Stirling, pro se.

Thomas J. Charron, District Attorney, Joan V. Bloom, Assistant District Attorney, for appellee.

Judgment affirmed in Case No. A91A0097. Appeals dismissed in Case Nos. A91A0098 and A91A0099.

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


text:
    A91A0154.
    EVANS v. CITY OF ATLANTA et al.
    (406 SE2d 530)
   McMurray, Presiding Judge.

This marks the second appearance of this case in our court. Previously, we ruled that plaintiff was entitled to file this action against three law enforcement officers and their governmental employers. Accordingly, we vacated the trial court’s judgment denying the filing of the complaint and remanded the case to the trial court with direction. Evans v. City of Atlanta, 189 Ga. App. 566 (377 SE2d 31).

This appeal by plaintiff, as pro se, follows the grant of defendants’ motion for summary judgment. Held:

1. The trial court did not err in refusing to enter a default judgment against defendant Jowers, a City of Atlanta police officer, since he was not personally served with a copy of the complaint and summons. Service upon another police officer at Jowers’ place of employment did not constitute personal service upon Jowers. See Bible v. Hughes, 146 Ga. App. 769, 771 (247 SE2d 584) (service on physician’s secretary at his office is not service upon the physician unless the secretary was appointed as an agent for service).

2. The trial court did not err in granting defendants’ motion for summary judgment. Via affidavits, the law enforcement officers demonstrated that they had probable cause to arrest defendant on the night in question and that they were entitled to judgment as a matter of law. Plaintiff failed to make a response showing a genuine issue of material fact for trial. “When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavit or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” OCGA § 9-11-56 (e).

Decided June 5, 1991.

Richard Evans, pro se.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

3. In the previous appeal, we noted that plaintiff’s claim against the municipal court judge is barred by the doctrine of judicial immunity. Accordingly, in directing the trial court to allow the filing of the complaint, we excepted the claims against the municipal court judge from our ruling. Evans v. City of Atlanta, 189 Ga. App. 566, supra.

Plaintiff contends the trial court erred in failing to follow our direction by not having the complaint served upon the municipal court judge. We find plaintiff’s contention to be baffling, at best, and see no error.

4. It cannot be said the trial court erred in failing to serve defendants with copies of the complaint and summons. It was not incumbent upon the trial court to perfect service upon defendants. It was plaintiff’s obligation to see that service was perfected pursuant to law. See Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360).

5. The remaining enumerations of error are without merit.

Judgment affirmed.

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


author: Pope, Judge.

text:
    A91A0228.
    CHERRY v. THE STATE.
    (406 SE2d 531)
   Pope, Judge.

Defendant Kenneth Cherry was convicted of the false imprisonment and rape of a 14-year-old victim and appeals.

1. The trial transcript shows the victim testified readily until the prosecutor commenced questioning her about the details of the crime. At that point, she would remain silent in response to a question or state she did not know the answer. The trial judge noted the witness’ reticence and granted the prosecutor permission to lead the witness if necessary. We reject defendant’s argument that the prosecutor was improperly allowed to testify. The prosecutor did not testify but merely asked leading questions. The necessary elements of the crimes were established by the witness’ own testimony in response to these questions.

Decided June 5, 1991.

Kenneth D. Kondritzer, Lori Silverman, for appellant.

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

The trial court did not abuse its discretion in allowing leading questions under the circumstances of this case. “The courts have traditionally accorded a great deal of latitude in the examination of young or timid or otherwise disadvantaged witnesses. Hayslip v. State, 154 Ga. App. 835 (270 SE2d 61) (1980); Hanson v. State, 86 Ga. App. 313 (71 SE2d 720) (1952). In Hanson the witness, testifying in a seduction trial, was seventeen — [two] years older than the victim Jat the time of trial] in the instant case. In that case, this court specifically noted that the nature of the offense was sexual and held that in such a case, when the victim was of tender years, the trial court did not abuse its discretion in permitting repetitive and even leading questions. We find the same considerations to obtain here, and therefore find [defendant’s] . . . enumeration without merit.” Amerson v. State, 111 Ga. App. 97, 99 (338 SE2d 528) (1985).

2. We also find no merit in defendant’s challenge to the verdict on the general grounds. The victim testified that she was held against her will in defendant’s apartment and that he had sexual intercourse with her forcibly and against her will. When the police found her she was disheveled, crying and anxious, and her clothers were torn. She told the police she had been raped and led them to defendant’s apartment where the bedroom in which the victim claimed to have been raped was in disarray and defendant was found asleep in another bedroom wearing nothing but a condom. The existence of the condom was the only evidence presented which could support defendant’s argument that the intercourse was consensual. The victim testified that when defendant told her he was going to have sex with her despite her protestations, she asked him to use a condom. Construing the evidence in the light most favorable to sustain the verdict, we hold the evidence was sufficient to convince a rational trier of fact that defendant was guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A91A0276.
    PULLEN v. THE STATE.
    (406 SE2d 283)
   Pope, Judge.

Defendant Duane L. Pullen was charged by accusation with the offense of operating a vehicle while under the influence of alcohol and drugs. Defendant waived formal arraignment and pleaded not guilty. He waived trial by jury and the case proceeded to a bench trial. During trial defendant made an oral motion to quash the accusation on the ground it did not set forth a crime. The trial judge completed the trial of the case but permitted the parties to submit briefs addressing defendant’s motion to quash. The trial court ultimately denied the motion and found defendant guilty. Defendant appeals.

The accusation charges defendant with the offense of operating a vehicle while under the influence of alcohol and drugs “for that the said accused . . . did . . . unlawfully drive and be in [sic] actual physical control of a motor vehicle upon and along that certain public road, street and highway known as U. S. Highway 278 West, contrary to the laws of this State, the good order, peace and dignity thereof.” Defendant is correct in arguing that the accusation does not charge him with any offense. Except for alleging he was in control of a vehicle, it merely states the conclusion that he was driving unlawfully without alleging any of the other essential elements of driving under the influence as set forth in OCGA § 40-6-391 (a). Because defendant could admit the accusation and still be innocent of the offense charged, the accusation is defective. See Brooks v. State, 141 Ga. App. 725 (1) (234 SE2d 541) (1977); Reliford v. State, 101 Ga. App. 244 (1) (113 SE2d 473) (1960). The trial judge nevertheless denied the motion to quash on the ground that it was made untimely.

Rule 31.1 of the Uniform Superior Court Rules does require all motions and demurrers to be made and filed at or before the time of arraignment unless the time is extended in writing by the judge. In addition, OCGA § 17-7-111 requires such motions to be made in writing. These rules, however, do not preclude an oral objection to the sufficiency of an indictment or accusation at any time during trial if it is so defective that judgment upon it would be arrested. “ ‘Where the accused desires to take exception to the form of an indictment or accusation, it is essential that he should do so by a demurrer or motion to quash, made in writing and before pleading to the merits. If, however, the indictment or accusation is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during the trial, and it may be quashed on oral motion. These rules are clearly deducible from the decisions of this court dealing with the law embraced in [OCGA § 17-7-111].’ Gilmore v. State, 118 Ga. 299 (45 S. E. 226) [(1903)].” Gower v. State, 71 Ga. App. 127, 128 (1) (30 SE2d 298) (1944). See also Jordan v. State, 121 Ga. App. 303 (1) (173 SE2d 462) (1970); cf. OCGA § 17-7-113. Because the accusation was substantively defective in that it did not set forth a criminal offense, the trial court erred in denying defendant’s motion to quash the accusation.

Decided June 5, 1991.

Duffey & Duffey, Harl C. Duffey III, for appellant.

William A. Foster III, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.

Judgment reversed.

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


text:
    A91A0468.
    AGENCY MANAGEMENT SERVICES v. ESCAPE TRAVEL/TOUR SERVICES.
    (406 SE2d 285)
   McMurray, Presiding Judge.

Escape Travel/Tour Services (plaintiff) instituted this action for enforcement of a foreign judgment in the State Court of Fulton County, Georgia, and filed an authenticated judgment from the District Court of Clark County, Nevada pursuant to Georgia’s Uniform Enforcement of Foreign Judgments Law, OCGA § 9-12-130 et seq. The Nevada judgment was entered against Agency Management Services (defendant) on December 28, 1989, and it is in the principal amount of $50,278. Defendant, acting pro se, filed a motion to set aside the Nevada judgment. Plaintiff later filed a “MOTION TO AMEND FOREIGN JUDGMENT,” seeking to change the “caption in this matter [to] show the Plaintiff as being ‘ESCAPE TRAVEL/ TOUR SERVICES, INC.’ and the Defendants as being ‘AGENCY MANAGEMENT SERVICES, INC., a Georgia corporation; TOM STERNBERG; HAIM STERNBERG and DOES I through X, inclusive. . . .” Plaintiff alleged “that the sole reason for misstating the Plaintiff’s name and omitting the complete list of Defendants was a clerical error as evidenced by the ‘ORDER CORRECTING JUDGMENT NUNC PRO TUNC.’ ” Plaintiff filed an authenticated copy of a District Court of Clark County, Nevada “ORDER CORRECTING JUDGMENT NUNC PRO TUNC,” providing, in pertinent part, as follows:

“Plaintiff appearing by and through its attorney . . . and Defendants having appeared neither personally nor through counsel. . . and the court being fully apprised in the premises and having entered Findings of Fact and Conclusions of Law, and a Judgment having been filed on December 28, 1989, and certain Defendants’ names, which were on the original Complaint and Answer, having been inadvertently omitted from the caption on said Judgment, and Plaintiff’s own corporate name having been slightly misstated thereon, the court finds that [the] correct caption in this matter should show the Plaintiff as being ‘ESCAPE TRAVEL/TOUR SERVICES, INC.’; and the Defendants as being ‘AGENCY MANAGEMENT SERVICES, INC., a Georgia corporation; TOM STERNBERG; HAIM STERNBERG and DOES I through X, inclusive’; and that the sole reason for misstating the Plaintiff’s name and omitting the complete list of Defendants was a clerical error, and good cause appearing therefor: IT IS HEREBY ORDERED that this Order and Judgment be entered in place of the Judgment entered herein on December 28, 1989[, and] that Defendants, jointly and severally, shall pay to Plaintiff the sum of $50,278.00, plus interest at the statutory rate until paid in full, calculated from September 18, 1989, the date of service of the Summons and Complaint upon Defendants.”

At a hearing on defendant’s motion to set aside and plaintiff’s “MOTION TO AMEND FOREIGN JUDGMENT,” the state court denied defendant’s motion to set aside and ordered a change in the caption to the case sub judice. The state court later entered an order amending the caption of the case sub judice “to show the Plaintiff as being ‘ESCAPE TRAVEL/TOUR SERVICES, INC.’ and the Defendants as being ‘AGENCY MANAGEMENT SERVICES, INC., a Georgia corporation; TOM STERNBERG; HAIM STERNBERG and DOES I through X[,] inclusive’; and [ordering] a replacement Writ of Fifa issue with the corrected caption.” This pro se appeal followed. Held:

1. An appeal from an order denying a motion to set aside filed pursuant to OCGA § 9-11-60 (d) is subject to the application procedures set forth in OCGA § 5-6-35 (b). Leader Nat. Ins. Co. v. Martin, 185 Ga. App. 27, 30 (2) (363 SE2d 281). In the case sub judice, defendant failed to follow the discretionary appeal procedure of OCGA § 5-6-35 (b). Consequently, the appeal from the order denying defendant’s motion to set aside the Nevada judgment must be dismissed. Further, this Court has no jurisdiction to consider the direct appeal from the state court’s interlocutory order recognizing the misnomer in the December 28, 1989, Nevada judgment. See English v. Tucker Fed. Sav. &c. Assn., 175 Ga. App. 69 (332 SE2d 365b However, assuming the contrary, the order correcting the misnomer presents nothing for review since the state court’s ruling did nothing to change the effect of the properly filed and authenticated foreign judgment entitled “ORDER CORRECTING JUDGMENT NUNC PRO TUNC.” See OCGA §§ 9-12-132; 9-12-133. This appeal must be dismissed.

2. Defendant Agency Management Services’ motion for sanctions is denied.

Decided June 5, 1991.

Tom Sternberg, pro se.

Scott F. Randolph, pro se.

Appeal dismissed.

Andrews, J., concurs. Sognier, C. J., concurs in the judgment only.


text:
    A91A0661.
    LITTLE v. THE STATE.
    (406 SE2d 286)
   Pope, Judge.

Defendant Butch Little was convicted of trafficking in cocaine. On appeal he challenges the sufficiency of the evidence to convict him. We affirm.

The record shows that defendant and Keith Strickland were arrested at Strickland’s sister’s apartment on July 20, 1989. The arresting officers originally came to the apartment in search of a murder suspect. The officers observed defendant come to the door, and then go back into the apartment after telling the officers to “wait a minute.” Defendant then returned to the door, unlocked it, and admitted the officers. The officers observed an ammunition clip in defendant’s pocket and immediately conducted a protective search for possible weapons. During the search, the officers discovered a substance subsequently identified as more than 28 grams of cocaine. A .45 caliber pistol belonging to defendant and a large amount of cash were also found hidden with a portion of the cocaine in a shoe box in the oven.

Defendant testified at trial that he met Strickland the evening before the arrest at a pool hall where he was employed. He further testified that he, Strickland, and another person left the pool hall sometime after midnight and that they spent the early morning hours driving around drinking beer, finally arriving at Strickland’s sister’s apartment. Defendant testified that he was totally unaware that there were drugs at the apartment and denies any involvement in a scheme to distribute or sell cocaine. Defendant did testify, however, that the weapon found hidden with the cocaine belonged to him.

Strickland, who pled guilty to trafficking in cocaine before trial, testified at trial that he was introduced to defendant the morning before the arrest at a pool hall he often frequented. He further testified that he and defendant obtained the drugs which were found in the apartment at the pool hall from a third party, presumably a relative of defendant’s. Strickland testified he was to sell the drugs and defendant was to return the proceeds from the sale to the third party. Strickland testified that due to heavy rain and a great number of police being in the area, no drugs were sold and that he, defendant, and another person went to his sister’s apartment to decide what they should do with the unsold drugs.

Decided June 5, 1991.

Debra B. Randall, Andrei G. Howze, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Assistant District Attorneys, for appellee.

“In Georgia, the testimony of an accomplice used to convict the accused of a crime must be supported by independent corroborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inference that he is guilty.” Eubanks v. State, 240 Ga. 544, 545 (1) (242 SE2d 41) (1978). “The corroboration, however, need not be sufficient to warrant a guilty verdict or prove every element of the crime; it need only tend to connect and identify the defendant with the crime charged.” (Punctuation omitted.) Raines v. State, 186 Ga. App. 239, 240 (2) (366 SE2d 841) (1988) (quoting Fowler v. State, 171 Ga. App. 491, 492 (1) (320 SE2d 219) (1984)). “The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said as a matter of law, that the verdict is contrary to the evidence. (Cits.) (Cit.) Cole v. State, 156 Ga. App. 288, 289-290 (1) (274 SE2d 685) (1980).” (Punctuation omitted.) Adams v. State, 191 Ga. App. 16, 18 (3) (381 SE2d 69) (1989). We find the fact that the defendant’s gun was found hidden with the drugs in a shoe box inside the oven in the apartment is sufficient evidence to corroborate the testimony of Strickland, defendant’s accomplice, to connect defendant with the crime for which he was convicted. We conclude, therefore, that pursuant to the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), a rational trier of fact could have found defendant guilty beyond a reasonable doubt of the crime charged.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A91A0686.
    METMOR FINANCIAL, INC. v. JENKINS.
    (406 SE2d 288)
   Banke, Presiding Judge.

The appellant lender extended mortgage financing to the appel-lee for the purchase of a home. Several days after the closing, the appellee purchaser inspected the property and observed that construction had not been completed. He subsequently defaulted in making the required monthly payments, prompting the appellant to institute foreclosure proceedings. The appellee then filed the present action seeking to enjoin the foreclosure and to recover damages based on allegations that, prior to the closing, one of the appellant’s employees had fraudulently misrepresented to the closing attorney that “construction [of the house] was complete, that the house was ready for occupancy and [that] any minor repairs, or corrections which were needed would be corrected by the builder.” The appellee alleged that the following items, among others, actually remained to be completed: “The entire house was void of carpet and the flooring consisted of splintered unfinished wood. Parts of the wall and ceiling were unfinished. Cabinets were not varnished. There were no light fixture coverings, and in some areas wires were exposed. The light switches were also without covers.”

The appellant moved to dismiss the complaint for failure to state a claim, contending that the allegations set forth therein established as a matter of law that the appellee had failed to exercise due diligence in ascertaining the condition of the home prior to closing, with the result that he was unjustified in relying on the alleged misrepresentations. The trial court denied the motion, and we granted the appellant’s application for an interlocutory appeal from that ruling. It appears from the record that the trial court previously had denied the appellee’s request for injunctive relief pending the outcome of the action, thereby allowing the foreclosure proceedings to proceed. Held:

In Crawford v. Williams, 258 Ga. 806, 808 (375 SE2d 223) (1989), the Supreme Court held that “[a] party buying real property who makes no attempt to discover the boundaries of the property cannot be said to have ‘justifiably relied’ on a misrepresentation by the seller regarding those boundaries.” Accord Brakebill v. Hicks, 259 Ga. 849 (388 SE2d 695) (1990). Here, the lack of effort by the purchaser to protect himself was even more egregious than in Crawford and Brakebill, since even a cursory visual inspection of the property would have revealed the construction deficiencies of which he complains. Additionally, we note that the alleged misrepresentation at issue in this case was made not by the seller of the property but by the appellee’s lender, which presumably had nothing to gain by proceeding with the closing prior to the completion of construction. Cf. Pardue v. Bankers First Fed. Sav. &c. Assn., 175 Ga. App. 814, 815 (334 SE2d 926) (1985) (holding that there is no confidential relationship between lender and borrower or mortgagee and mortgagor). We accordingly conclude that the complaint demonstrates on its face that the appellant has no liability to the appellee for fraud, and we hold that the trial court erred in denying the appellant’s motion to dismiss for failure to state a claim.

Decided June 5, 1991.

McCalla, Raymer, Padrick, Cobb & Nichols, Teresa L. Perrotta, Carol V. Clark, for appellant.

Charles N. Hawk III, for appellee.

Judgment reversed.

Carley and Beasley, JJ., concur.


author: Beasley, Judge. Pope, Judge,

text:
    A90A2160.
    CONNOLLY v. STATE OF GEORGIA.
    (406 SE2d 222)
   Beasley, Judge.

The present case concerns OCGA § 44-3-143 (d), which was enacted as part of the Georgia Cemetery Act of 1983. OCGA § 44-3-130 et seq.

State statutory provisions regulating the operation of cemetery companies were originally enacted in 1969. (Ga. L. 1969, p. 242). With the enactment of the Official Code of Georgia in 1982, these statutory provisions became OCGA §§ 44-3-130 through 44-3-142. When the Georgia Cemetery Act of 1983 was enacted, the former Code sections were repealed and superseded by the provisions of the 1983 Act, which became OCGA §§ 44-3-130 through 44-3-152.

Under the 1983 Act, a “cemetery company,” which is defined as a company which owns or controls cemetery lands or property and conducts the business of a cemetery, must obtain a certificate of registration from the Secretary of State. OCGA §§ 44-3-131 (5); 44-3-134 (a) (1). A “preneed dealer,” which is defined as a company engaging in the retail business of dealing in burial merchandise which is not attached to realty or delivered to the purchaser at the time of sale, must also obtain a certificate of registration. OCGA §§ 44-3-131 (15); 44-3-134 (a) (1). Certificates of registration were likewise required under former OCGA § 44-3-136.

In order to ensure the availability of sufficient funds to provide for the perpetual upkeep of cemeteries, the 1983 Act requires perpetual care cemeteries to establish and maintain “an irrevocable trust fund.” OCGA § 44-3-134 (c) (2). In order to ensure the availability of sufficient funds to obtain delivery of burial merchandise which has already been paid for but which is not required to be delivered until the future, preneed dealers must establish and maintain “a preneed escrow account.” OCGA § 44-3-134 (e) (1). Prior to enactment of the 1983 Act, former OCGA § 44-3-132 (a) likewise required a perpetual care cemetery to establish and maintain an “irrevocable trust fund,” and former OCGA § 44-3-141 required a cemetery company selling burial merchandise to establish and maintain a “merchandise trust fund.”

Under OCGA § 44-3-135 (e) (1) and (2), as enacted in 1983, upon the sale or transfer of a cemetery or preneed dealer, the Secretary of State shall not issue a certificate of registration to the purchaser until the purchaser submits proof that the perpetual care trust fund or preneed escrow account is adequately funded. Comparable provisions were contained in former OCGA § 44-3-141 (h) and (g).

In 1979, the General Assembly amended the 1969 Act by, among other things, enacting Code Ann, § 84-5112 (g) [OCGA § 44-3-141 (g)], which provided: “If the perpetual care [i.e., irrevocable] trust fund has not been set up as required, the assets of the company may be seized and sold by the State under orders of the court to the extent necessary to provide said perpetual care trust fund and set up the same. In addition, where the certificate of registration has been revoked, the whole company property may be ordered sold after the perpetual care trust fund has been set up, so that the purchaser of the cemetery may continue to operate the same and maintain it under the terms of this Act.” The 1979 Act became effective April 17, 1979. Ga. L. 1979, pp. 1305, 1311.

With the enactment of the 1983 Act, OCGA § 44-3-141 (g) was repealed and superseded by OCGA § 44-3-143 (d), which provides: “In any civil proceeding brought under this Code section, if the Secretary of State shall establish that a perpetual care trust fund or preneed escrow account has not been established and maintained as required, the assets of the cemetery, cemetery company, or preneed dealer may be seized and sold by the state under orders of the court to the extent necessary to provide said perpetual care trust fund or preneed escrow account and set up same. In addition, where the certificate of registration has been revoked, the whole company property may be ordered sold after the perpetual care trust fund and preneed escrow account have been established so that the purchaser of the cemetery may continue to operate the same and maintain it under the terms of this article.”

Thus, the 1979 Act authorized the Secretary, by an equity action in part in rem to seize and sell the assets of a cemetery company in order to provide and set up a perpetual care trust fund. The 1983 Act extended this authorization to preneed escrow accounts.

In 1986, the State filed such a complaint upon relation of the Secretary of State against Restlawn Memory Gardens, Inc., Marc Bluestein, and Harry Connolly.

Restlawn was incorporated by Connolly in 1969 for the purpose of operating a perpetual care cemetery. In 1979, Connolly sold the stock of Restlawn to Haynes who began operating the cemetery. In payment, Connolly accepted a promissory note in the principal amount of $137,513 and a purchase-money security deed on the whole cemetery property. The security deed is dated August 28, 1979, approximately four months after the effective date of the 1979 Act.

In 1984, Bluestein purchased Restlawn. At that time the 1979 promissory note was in arrears. Connolly agreed to forebear from accelerating the note and instituting foreclosure proceedings in exchange for a new note in the amount of $112,000. This note was secured by the security deed and personally guaranteed by Bluestein.

When Bluestein began operating the cemetery in 1984, deficiencies existed in both the perpetual care trust fund and the preneed escrow account. Bluestein was granted a certificate of registration authorizing his operation of the cemetery as a perpetual care cemetery and preneed dealer, based on his agreement to establish the trust fund and escrow account and keep them adequately funded. He failed to comply, so the superior court, in a prior proceeding, appointed a temporary receiver to take charge of Restlawn’s assets and solicit purchase offers. In an administrative proceeding Restlawn’s certificate of registration was revoked.

The State alleges in its complaint that the temporary receiver was unable to find suitable purchasers for Restlawn because of Connolly’s unwillingness to relinquish his security interest or institute foreclosure proceedings. Connolly states that he has not instituted foreclosure proceedings because of his belief that if he were the successful bidder at the sale, he would be forced to operate and maintain the cemetery, which he does not wish to do.

The question for decision is whether Connolly, as the grantee of the purchase-money security deed, has á superior lien on the proceeds derived from a sale of assets or of the whole company property pursuant to OCGA § 44-3-143 (d). The trial court granted summary judgment to the State, holding that “the security interest of defendant Connolly shall not take priority over the satisfaction of the deficiencies in the perpetual care trust fund and the preneed escrow account.”

A purchase-money security deed operates as an absolute conveyance of title until the secured indebtedness is fully paid. OCGA § 44-14-60; see also OCGA § 44-14-321. It generally takes precedence over simultaneous or prior liens against the purchaser, but not prior liens against the property. See Murray v. Chulak, 250 Ga. 765, 770 (3) (300 SE2d 493) (1983). OCGA § 44-14-323 provides, “All liens which are not regulated and fixed as to rank by this title shall rank according to date, the oldest having priority.”

OCGA § 44-3-143 (d) authorizes the Secretary of State to levy an execution on cemetery assets and company property and sell them in order to fund the perpetual care trust fund and preneed escrow account required by the Cemetery Act. Former OCGA § 44-3-141 (g), which predated Connolly’s security deed, so authorized the Secretary as to the fund but not as to the account. These statutory provisions, which operate as to property rights, in effect grant a lien on company assets and property but are silent concerning the rights and priorities of competing liens. Cf. OCGA § 48-2-56 (b) (1), providing that tax liens do not have priority as against a deed to secure debt where the rights of the holder of the security deed have attached prior to the filing of the notice of tax lien.

The purchase money security deed of which Connolly is grantee was executed on August 28, 1979. OCGA § 44-3-143 (d) in effect created a lien in 1983. Former OCGA § 44-3-141 (g) in effect created a lien on April 17, 1979.

Applying OCGA § 44-14-323, Connolly’s security deed has priority over the statutory lien pertaining to the preneed escrow account but not to the perpetual care trust fund.

Other issues in this case are rendered moot. The challenge to the constitutionality of the statute was not preserved for review because a ruling was not obtained from the trial court. Perry v. Md. Cas. Co., 216 Ga. 93 (115 SE2d 102) (1960).

Judgment affirmed in part and reversed in part.

Sognier, C. J., McMurray, P. J., Banke, P. J., Carley and Andrews, JJ., concur. Birdsong, P. J., Pope and Cooper, JJ., concur in part and dissent in part.

Pope, Judge,

concurring in part and dissenting in part.

The trial court in this matter ruled that upon seizure and sale of the land in question, pursuant to the authority granted to the Secretary of State by OCGA § 44-3-143 (d), the security interest of defendant Connolly shall not take priority over the right of the Secretary of State to satisfy the deficiencies in the perpetual care trust fund and the preneed escrow account. The majority opinion affirms the superior court only as to the statutory lien imposed by OCGA § 44-3-143 (d) on the perpetual care trust fund, but not as to the lien on the preneed escrow account. I would affirm this judgment in its entirety, and I dissent from the holding of the majority opinion that Connolly’s security interest has priority over the statutory lien created by OCGA § 44-3-143 (d) on the preneed escrow account.

“In the exercise of the police power of the State, and in order to promote the public health and well-being, the legislature may pass reasonable regulations as to the establishment and operation of cemeteries.” Arlington Cemetery Corp. v. Bindig, 212 Ga. 698, 702 (95 SE2d 378) (1956). Clearly, the legislative enactment of the Georgia Cemetery Act of 1983 (OCGA § 44-3-130 et seq.), including the requirements for maintaining a perpetual care trust fund and a preneed escrow account, was an exercise of that police power. It is only by the terms of OCGA § 44-3-143 that the Secretary of State is given the power to enforce the rules concerning these two funds and thus to protect the public from irresponsible or unscrupulous operation of perpetual care cemeteries and preneed businesses. Consequently, OCGA § 44-3-143 (d) must be interpreted as a statutory exception to the general rule granting priority to liens according to date. It matters not that the security deed granting Connolly a security interest in the land at issue in this case was executed before the enactment date of the statute creating a lien on the preneed escrow account.

Decided March 29, 1991

Rehearing denied June 6, 1991

Stroud P. Stacy II, for appellant.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, J. Robert Coleman, Deputy Attorney General, John B. Ballard, Jr., Senior Assistant Attorney General, for appellee.

I am authorized to state that Presiding Judge Birdsong and Judge Cooper join in this opinion.


author: Sognier, Chief Judge.

text:
    A91A0590.
    ZACHERY v. THE STATE.
    (406 SE2d 243)
   Sognier, Chief Judge.

Alexander Zachery was charged with murder in the shooting death of Kenneth Banks, and a Bartow County jury convicted him of voluntary manslaughter. He appeals from the denial of his motion for new trial.

Appellant’s sole enumeration raises the general grounds. Specifically, appellant asserts that the evidence demands a finding of justification pursuant to OCGA § 16-3-23.

Construed to support the verdict, the evidence adduced at trial established that appellant and Banks lived in the same Kingston neighborhood and had been acquainted with one another for several years. Early in the evening of Saturday, March 4, 1989, after consuming several shots of corn whiskey at his home, appellant went to a neighborhood cafe. Upon encountering Banks outside after the cafe closed, appellant asked for a ride home. When the two men arrived at appellant’s home, appellant invited Banks inside for a drink. James Newell, who was living with appellant at the time, testified that when he arrived at the house about 8:30 p.m., Banks and appellant were sitting in the living room drinking corn whiskey. Newell recalled that appellant and Banks’ conversation grew louder over the course of the evening as they continued to drink. At one point, Newell stated, Banks left the room to use the bathroom, and returned in a disheveled state and stumbled over and broke a coffee table. After Banks then bumped into a floor heater and fumbled with a picture hanging on the wall, appellant instructed him to leave. Newell testified that Banks resisted, departed and returned once to argue with appellant, and ultimately left the house a second time. Newell then locked the door. Banks stayed outside the house, banging on the door and shouting at appellant. Newell observed appellant take a shotgun from his gun rack, walk to the front door and “[do] something to the knob.” Appellant then fired a shot through the closed door. Banks continued to pound on the door, and then opened it and walked three or four steps into the room where appellant was seated on the couch holding the shotgun. Newell testified that when Banks approached appellant, shouting and dodging the gun, appellant fired one shot, hitting the victim in the neck. Appellant walked to his sister’s home a few blocks away and asked her to call police. Two county investigators arrived at 11:25 p.m. and found Banks’ body lying several feet inside appellant’s front door. The county medical examiner testified that the shotgun bullet, which he estimated was fired from three or four feet away, penetrated Banks’ lung and severely injured his spine, and the latter injury caused his death.

Appellant testified that he wanted Banks to leave once he became so intoxicated that he disturbed the furniture and other items in appellant’s home, but that Banks became belligerent and argumentative when appellant told him to leave. After Banks departed from the house but continued to bang on the front door and curse loudly, appellant stated he fired the warning shot through the door in an attempt to scare Banks. Appellant recalled that the shouting stopped for a few minutes, but Banks soon started pounding on the door and cursing at appellant again. Appellant testified that Banks entered the house with his hand in his pocket and advanced toward appellant, threatening to kill him. Appellant then fired a shot “to stop the man from hurting me or something or killing me, whatever he had in mind to do.” He stated that he was aware of Banks’ tendency to become violent when he drank, and that after Banks failed to leave despite the warning shot, he became “scared for [his] life.” The investigators found no weapon on or near Banks’ body, and Newell testified he did not see Banks with a weapon.

“A person is justified in using deadly force in defense of habitation only if the entry into his habitation is made or attempted in a violent and tumultuous manner and he reasonably believes the entry is being made for the purpose of assaulting or offering personal violence to a person therein, or to commit a felony therein, and such force is necessary to prevent the assault, personal violence or felony. [OCGA § 16-3-23].” Washington v. State, 245 Ga. 117, 119 (263 SE2d 152) (1980). Although there was evidence that Banks’ entry into appellant’s home was “tumultuous,” the jury was authorized to conclude that Banks was unarmed and that deadly force was not necessary for appellant’s protection. Appellant contends the verdict was against the weight of the evidence; however, this court reviews the sufficiency of the evidence, not its weight. Rose v. State, 195 Ga. App. 399, 400 (1) (393 SE2d 459) (1990). We hold the evidence was sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to authorize a verdict of voluntary manslaughter. See Tew v. State, 179 Ga. App. 369-372 (346 SE2d 833) (1986).

Decided May 22, 1991

Rehearing denied June 6, 1991.

Harry B. White, for appellant.

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

Judgment affirmed.

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


text:
    A90A0915.
    DECATUR et al. v. BARNETT et al.
    (407 SE2d 139)
    Decided June 6, 1991.

      Levine & D’Alessio, Caitlin L. Decatur, pro se.

      Sarah H. Murphy, Saveli & Williams, John C. Parker, Debra L. Dalton, R. Dolores Daniel, McMorries, McClure, Daniel & Lunday, Jon W. McClure, for appellees.
   Pope, Judge.

Our judgment in this case at 197 Ga. App. 459 (398 SE2d 706) (1990) has been reversed by the Supreme Court on certiorari. Barnett v. Decatur, 261 Ga. 205 (403 SE2d 46) (1991). Accordingly, our judgment is vacated and the judgment of the Supreme Court is made the judgment of this court. The judgment of the trial court is affirmed.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A91A0242.
    SMITH v. THE STATE.
    (406 SE2d 532)
   McMurray, Presiding Judge.

Via indictment, defendant Larry John Smith and Elouise Callo-way were charged with selling and delivering cocaine in Cobb County, Georgia, on July 10, 1989, in violation of the Georgia Controlled Substances Act. In a trial in which only defendant Smith was tried, a jury found defendant Smith guilty and he was sentenced to confinement for ten years. This appeal followed. Held:

1. After the completion of voir dire and the selection of a petit jury, defendant made a challenge to the array, contending the panel of 48 was not fairly or properly impanelled because blacks were underrepresented. (Only one of the 48 jurors put upon defendant was black.) The trial judge ruled that the challenge to the array was not timely. On appeal, defense counsel contends the challenge was timely inasmuch as it was made at the first available opportunity. See Cobb v. State, 218 Ga. 10, 22 (4) (126 SE2d 231) (“[Wjhere a person accused of a crime is not afforded the opportunity to make appropriate objections to the illegal composition of the . . . jury . . . during the progress of the trial, he may raise the issue by motion for new trial . . . .”) See also McKenzey v. State, 138 Ga. App. 88 (1) (225 SE2d 512). We disagree.

Defendant should have challenged the array when it was first put upon him. Williams v. State, 210 Ga. 665, 667 (82 SE2d 217); Williams v. State, 31 Ga. App. 173 (120 SE 131). See also Guest v. State, 186 Ga. App. 318 (1) (367 SE2d 105). (A jury is “put upon” defendant when the array is seated and voir dire is commenced.) Instead, defendant participated in the entire selection of the petit jury without raising this issue. He waited until the panel of 48 was reduced to 12 before notifying the trial judge that he intended to challenge the array. It cannot be said, therefore, that defendant did not have an opportunity to present his challenge in a timely fashion. Compare Morgan v. State, 161 Ga. App. 484 (1) (287 SE2d 739).

2. During direct examination of the undercover agent who purchased cocaine from Elouise Calloway and defendant on the day in question, the agent was asked what took place at the Heartwood Apartments. The agent responded: “Upon arriving at Apartment Number 74 at Heartwood Apartments I was to meet with an Elouise Calloway. I had met with her on a previous occasion and had purchased drugs from her four days earlier.” At that point, defendant interposed an objection and moved for a mistrial, asserting he was prejudiced by the reference to another crime committed by a co-in-dictee. The trial court denied the motion for a mistrial. He instructed the prosecutor, however, that he was not “to taint [defendant] with anything else.”

Later, on redirect examination, the prosecutor asked the undercover agent: “[W]ith regard to the scope of your investigation . . . without going into the nature of those dealings, were there any dealings in this area with related persons on July the 6th?” The agent responded affirmatively and defense counsel asked for the jury to be excused. When the jury left the courtroom, the trial judge rhetorically asked the prosecutor if he had been told to leave the subject of other dealings alone. Again, the trial judge instructed the prosecutor to “try this man on this case. ...”

In the meantime, defense counsel interposed an objection to the prosecutor’s opening statement. The trial judge informed defense counsel that his objection was not timely. Nevertheless, defense counsel was permitted to state the basis of his objection: “[The prosecutor] stated [in opening argument] that Heartwood Apartments is a hotbed of drug dealing. . . . Now this man lives there. Now, we’ve gone beyond a [co-indictee] to anybody in the world that lives in Heartwood who deals in drugs. It’s gotten even worse. I renew my motion for mistrial.” The trial court denied defendant’s mistrial motion.

The trial court did not give curative instructions to the jury when defendant’s mistrial motions were denied. The trial court did instruct the jury, however, at the conclusion of the charge, that it should disregard any evidence which was excluded, that it should not use such evidence in its deliberations and that it should put such evidence out of mind.

Defendant contends the trial court erred in denying defendant’s mistrial motions. We disagree.

“The grant or denial of a mistrial is necessarily a matter that lies within the sound discretion of the trial court. Absent an abuse of that discretion, the refusal to grant a mistrial is not reversible error. [Cits.] To determine whether the trial court abused its discretion, it is necessary to examine each case in light of its relevant circumstances. Some of the factors to be considered are the action taken by the court concerning the impropriety, the strength of other evidence, and the nature of the question or statement. [Cit.]” McDermott v. State, 183 Ga. App. 693, 694 (359 SE2d 750).

Applying these factors to this case, we find no abuse of discretion: The first statement by the undercover agent was not so prejudicial as to constitute a denial of due process. See Givens v. State, 184 Ga. App. 498, 499 (1, 2) (361 SE2d 830). Nevertheless, after the statement was made, the trial court instructed the prosecutor not to pursue the matter. The prosecutor’s subsequent question concerning “dealings” was not answered by the undercover agent. Even so, the prosecutor was again instructed to confine his questions to the case against defendant. Although the trial court did not immediately instruct the jury concerning the prejudicial effect of the evidence, the trial court ultimately charged the jury that it was not to consider excluded matters in its deliberations. Finally, we note that the other evidence against defendant was solid. It cannot be said that the trial court erred in denying defendant’s mistrial motions.

3. At trial, defendant orally moved to dismiss the indictment because it failed to allege to whom defendant sold cocaine and precisely where and when the sale was made. The trial court overruled the motion.

Defendant contends the trial court erred in overruling his oral motion to dismiss the indictment. We disagree. “ [Generally a motion for demurrer to an indictment must be made in writing at time of arraignment and before pleading to the merits. [Cit.] Where such motion is not made at the proper time, it is deemed to have been waived. [Cits.]” McArthur v. State, 169 Ga. App. 263 (1) (312 SE2d 358).

Judgment affirmed.

Andrews, J., concurs in Divisions 1, 2 and in the judgment. Sognier, C. J., concurs specially.

Sognier, Chief Judge,

concurring specially.

Although I agree with the result reached in Division 3, I cannot agree completely with the analysis therein. I write specially to point out that the language in the quotation therein from McArthur v. State, 169 Ga. App. 263 (1) (312 SE2d 358) (1983) was in all likelihood overbroad when McArthur was decided.

Demurrers to an indictment may be either general or special. “A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. [Cits.]” (Footnote omitted.) Bramblett v. State, 239 Ga. 336, 337 (1) (236 SE2d 580) (1977). Under OCGA § 17-7-111, all demurrers to the indictment must be in writing. Special demurrers, such as the one in this case, must be made before trial. OCGA § 17-7-113. In Bramblett, supra, the Supreme Court held, however, that was not true of general demurrers because the sufficiency of the substance of an indictment could be made after trial by means of a motion in arrest of judgment. Therefore, “ ‘[i]f . . . the indictment or accusation is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during the trial[.] . . .’ ” Id. at 338, n. 2.

In this case, appellant’s demurrer was special, not general, and because it was oral, in violation of OCGA § 17-7-111, and untimely pursuant to OCGA § 17-7-113, I agree that the trial court did not err by overruling it.

Decided June 6, 1991.

James W. Bradley, for appellant.

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

       This distinction appears to have been overlooked by the adoption of USCR 31.1, which states simply that in criminal matters, “[a]ll motions, demurrers, and special pleas shall be made and filed at or before the time of arraignment, unless time therefor is extended by the judge in writing prior to trial.”


text:
    A91A0494.
    BATTALLIA et al. v. CITY OF COLUMBUS.
    (406 SE2d 290)
   Sognier, Chief Judge.

Joe and B.ettie Battallia brought suit against the government of Columbus, Georgia, seeking damages for injuries incurred by Joe Bat-tallia when he fell in a city street. Columbus filed an answer and motion to dismiss asserting that as a consolidated government composed of the former governments of the City of Columbus and the County of Muscogee, it was entitled to be treated as a county government for the purpose of tort liability and thus was entitled to the defense of sovereign immunity pursuant to Bowen v. Columbus, Ga., 256 Ga. 462 (349 SE2d 740) (1986). The trial court granted the motion to dismiss, and the Battallias appeal.

1. Appellee has moved to dismiss the appeal pursuant to Kennedy v. Savannah News-Press, 122 Ga. App. 175 (176 SE2d 540) (1970) for untimely submission of the record because appellants erroneously stated in their notice of appeal that a transcript would be prepared for inclusion in the record when no such transcript existed. This contention is without merit. Unlike the circumstance in Kennedy, in the instant case there is no evidence the delay resulted from any action or omission of appellants, as the trial court clerk certified in accordance with OCGA § 5-6-43 (a) that the delay in transmission of the record was due to a heavy work load in the clerk’s office.

2. In three enumerations of error, appellants challenge the trial court’s dismissal of their claim, contending that appellee did not prove that the legislature obtained preclearance under Section 5 of the Voting Rights Act of 1965, 42 USC § 1973c, prior to enactment of the legislation consolidating the former city and county governments (Ga. L. 1971, Ex. Sess., Sept.-Oct., p. 2007); that as a result the legislation creating the governmental entity is null and void; and that consequently appellee cannot assert the defense of sovereign immunity.

Initially, we note that when appellants made this argument below, appellee responded by filing an authenticated copy of a document from appellee’s files indicating that the Department of Justice had reviewed pursuant to 42 USC § 1973c and approved the proposed charter for the consolidated government. Since the trial court’s order granting the motion to dismiss expressly stated the court considered matters outside the pleadings (and we note appellants were given ample time to file a response to appellee’s proffer), appellee’s motion to dismiss was required to be treated as a motion for summary judgment. OCGA § 9-11-12 (b); Peeples v. City of Atlanta, 189 Ga. App. 888-889 (1) (377 SE2d 889) (1989). Accordingly, we will consider the motion as such for this appeal. See Peeples, supra at 889 (1).

Decided June 6, 1991.

Patrick J. Araguel, Jr., Deborah B. De Palo, for appellants.

Eugene H. Polleys, Jr., for appellee.

Pretermitting the question whether a failure to obtain preclearance prior to enactment of the change in governmental form would render void the legislation establishing the consolidated government, it is well established that “ ‘[a] duly enrolled act properly authenticated by the regular presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, will be conclusively presumed to have been enacted in accordance with the constitutional requirements.’ ” Capitol Distrib. Co. v. Redwine, 206 Ga. 477, 484-485 (57 SE2d 578) (1950). Similarly, it is presumed that all statutes are enacted by the General Assembly with full knowledge of the existing law. Leonard v. Benjamin, 253 Ga. 718, 719 (324 SE2d 185) (1985). Therefore, since 42 USC § 1973c was in effect at the time the consolidation legislation was enacted, we must presume the legislature acted in accordance with the applicable federal law. Considering this presumption together with the evidence adduced by appellee, and given the complete absence from the record of any evidence to rebut this presumption or to suggest that the legislature failed to follow the preclearance requirements, we find appellant’s argument to be without merit. We agree with the trial court that Bowen, supra, controls the question of appellee’s entitlement to sovereign immunity, and accordingly we affirm the trial court’s decision.

Judgment affirmed.

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


text:
    A91A0519.
    STINE v. THE STATE.
    (406 SE2d 292)
   Pope, Judge.

Defendant Kenneth Stine was convicted of five counts of child molestation and two counts of aggravated sodomy. Defendant appeals following the denial of his motion for new trial.

1.(a) Defendant first argues that the evidence was insufficient to convict him of the offense of aggravated sodomy because the State failed to show that the acts of sodomy were committed “with force,” as required by OCGA § 16-6-2 (a). This contention is wholly without merit. The victim in this case was seven years old at the time the acts were committed against her. “A [seven]-year-old child cannot consent to any sexual act. [Cits.] Sexual acts directed to such a child are, in law, forcible and against the will. [Cit.]” Cooper v. State, 256 Ga. 631 (2) (352 SE2d 382) (1987). See also Richardson v. State, 256 Ga. 746, 747 (2) (353 SE2d 342) (1987). “Therefore, proof that the child was [seven] years old at the time of the offense is sufficient evidence that the act of sodomy was done with force and against the will of the victim. ... In light of the above, there was sufficient evidence for a rational trier of fact to find [defendant] guilty [of the offense of aggravated sodomy] beyond a reasonable doubt . . . .” Huggins v. State, 192 Ga. App. 820, 821 (1) (386 SE2d 703) (1989).

(b) Defendant also challenges the sufficiency of the evidence to convict him of the offense of child molestation, contending there was no evidence that he committed the acts against the victim “with the intent to arouse or satisfy the sexual desires of either the child or the [defendant].” OCGA § 16-6-4. The evidence adduced at trial included testimony that defendant achieved orgasm while molesting the victim. After a careful review of the transcript, we have no hesitancy in concluding that the evidence in this case was sufficient to authorize a rational trier of fact to find defendant guilty of the offenses charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Zilka v. State, 194 Ga. App. 471 (391 SE2d 23) (1990); Thompson v. State, 187 Ga. App. 563 (2) (370 SE2d 819) (1988).

2. Defendant next argues that the trial court erred in admitting evidence showing he had previously entered a guilty plea to an act of child molestation involving a ten-year-old girl because it placed his character in evidence and was highly prejudicial. “The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” Johnson v. State, 242 Ga. 649, 653 (3) (250 SE2d 394) (1978). “In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. . . . There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.” Kilgore v. State, 195 Ga. App. 884, 885 (2) (395 SE2d 337) (1990). In this case defendant pled guilty to the earlier offense and thus there is no question that he was the perpetrator of the independent crime. “We also are satisfied that there exists a sufficient similarity [or] connection between the prior independent [crime] and the offenses charged. The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible. [Cits.]” Oller v. State, 187 Ga. App. 818, 820 (371 SE2d 455) (1988). Consequently, the trial court did not err in admitting evidence of the previous offense.

Decided June 6, 1991.

Harry B. White, for appellant.

Darrell E. Wilson, District Attorney, Kimberly L. Schwartz, Assistant District Attorney, for appellee.

3. Contrary to defendant’s final enumeration of error, the trial court did not abuse its discretion in allowing the State to use leading questions on direct examination of the victim. “The courts have traditionally accorded a great deal of latitude in the examination of young or timid or otherwise disadvantaged witnesses. Hayslip v. State, 154 Ga. App. 835 (270 SE2d 61) (1980); Hanson v. State, 86 Ga. App. 313 (71 SE2d 720) (1952). ... In [Hanson], this court specifically noted that the nature of the offense was sexual and held that in such a case, when the victim was of tender years, the trial court did not abuse its discretion in permitting repetitive and even leading questions. We find the same considerations to obtain here, and therefore find [defendant’s] . . . enumeration without merit.” Amerson v. State, 177 Ga. App. 97, 99 (338 SE2d 528) (1985).

Judgment affirmed.

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