text:
    A92A2198.
    HARRIS v. SEABOARD FARMS OF ELBERTON et al.
    (427 SE2d 524)
   Blackburn, Judge.

The claimant, Genora D. Harris, began experiencing pain in her right arm in January of 1989 while cutting chicken breasts for Seaboard Farms of Elberton (employer). She received weekly indemnity benefits from July 21, 1989, through August 28, 1989, at which time these benefits were unilaterally suspended by Seaboard, and its insurer, Hartford Insurance Company (insurer), based upon the claimant’s release to return to work without restrictions and release to return to work in a light duty capacity. The claimant subsequently requested a hearing before an administrative law judge (ALJ) and in his award of December 14, 1989, the ALJ found that the suspension of benefits was proper. The ALJ further found that benefits were properly reinstated after the employee had undergone surgery on her right elbow in November of 1989. He also noted that the claimant remained disabled as of the day of the hearing.

The claimant was later released to return to work in a light duty capacity by Dr. Ormonde Mahoney on February 23, 1990. Based upon this light duty release, the claimant attempted to return to work with this employer on February 26, 1990. After working as a cup sizer for approximately two hours, the employee was forced to cease work as a result of the extreme pain in her right arm. She informed her supervisor of the difficulty that she had with her arm, and subsequently left the employer’s premises. The employee sought medical treatment from Dr. Mahoney, and Dr. Mahoney indicated that he could not see any reason why the employee could not continue working in a light duty capacity. The employee has also been treated at the chronic pain control clinic at the Medical College of Georgia upon the referral of Dr. Glenn Poon.

The employer and its insurer again unilaterally suspended the employee’s weekly indemnity benefits on February 27, 1990, based upon the employee’s release to return to work without restrictions from the authorized treating physician. Another hearing was held before an ALJ at the request of the employee, and the ALJ in his award of October 24, 1990, found that the employee was unable to perform the cup sizer job that had been offered to her by the employer, warranting a recommencement of her weekly benefits. The employer and its insurer appealed the ALJ’s award to the Full Board and on May 13, 1991, the Board issued an interlocutory order, remanding the claim to an ALJ to receive additional medical evidence on the employee’s ability to return to work in the position that had been offered to the employee by the employer. Pursuant to the Board’s interlocutory order, Dr. Francis Watson, an orthopedist, examined the employee on August 16, 1991, and opined that the employee had developed reflex sympathetic dystrophy of the right upper limb after her November 1989 surgery and would not have been capable of returning to any occupation which involved the use of her right hand since the surgery. However, he noted that if the job required only the use of her left hand, the employee would have been capable of performing that job. After receiving the report of Dr. Watson, the Board, in its award of February 20, 1992, with one member dissenting, essentially adopted the award of the ALJ, affirming the ALJ’s finding that the claimant was unable to perform the offered job. The employer and its insurer appealed the award to the Superior Court of Elbert County, which on May 12,1992, reversed the award of the Full Board, finding that no evidence existed in the record to support the claimant’s inability to do light work. We granted the appellant’s application for discretionary appeal.

The appellant contends that the trial court erred as a matter of law in reversing the award of the State Board of Workers’ Compensation by failing to adhere to the “any evidence” standard of review as prescribed by OCGA § 34-9-105 and thereby substituting its interpretation of the evidence for that of the Board. As provided in OCGA § 34-9-105 (c) (3) and (4), the findings made by the members of the Board within their powers shall be conclusive, in the absence of fraud, and shall be set aside if “[t]he facts found by the members do not support the decision,” or if “[t]here is. not sufficient competent evidence in the record to warrant the members making the decision.” “The exclusive authority to make findings of facts in claims under the Georgia [Workers’] Compensation law is vested in the State Board of [Workers’] Compensation. [Cit.] Neither the superior court nor this court has the authority to substitute itself as a fact-finding body in lieu of the board. [Cits.]” Employers Ins. Co. of Ala. v. Amerson, 109 Ga. App. 275, 277 (2) (136 SE2d 12) (1964). “[T]he Board is presumed, in the absence of a showing [to the contrary] to have based its award only on legal evidence having probative value.” Zurich Ins. Co. v. Hightower, 113 Ga. App. 503, 506 (148 SE2d 464) (1966). “It is mandatory upon this court ... to examine the record to see if there is sufficient competent evidence in the record to support the award.” Chevrolet-Atlanta Div., GMC v. Nash, 81 Ga. App. 671, 680 (59 SE2d 681) (1950). In an appeal from an award of the State Board of Workers’ Compensation granting compensation, “[t]he evidence [will be] construed in [a] light most favorable to the prevailing party. [Cit.]” King v. James King Cleaners & Laundry, 199 Ga. App. 796 (405 SE2d 909) (1991).

At the hearing of April 17, 1990, before the ALJ, the employee testified that the cup sizer job that she attempted to perform on February 26, 1990, required the use of both hands. In this position, she had to pick up pieces of chicken and place them in cups on a conveyor belt. The employee is right-hand dominant. She further testified that she could not perform the job with just one hand and had not been told that she did not have to keep up with production. Although Dr. Mahoney indicated in his medical records of that date that he could not see any reason why the employee could not continue working in a light duty capacity, the employee testified that she was unable to continue in the position because of the extreme pain in her arm. The medical report of Dr. Watson also supported the employee’s contention that she was unable to perform the offered position if it required the use of both hands. The Board considered the testimony of the witnesses as well as the medical evidence, placed greater weight on the evidence presented by the claimant, and found as fact, as did the ALJ, that the employee was physically unable to handle the light duty position offered by the employer.

Decided January 22, 1993.

Morgan & Silver, Kent E. Silver, Arthur S. Archibald, for appellant.

Perry M. Sartain, for appellees.

“A finding of fact by a director or deputy director of the State Board of Workman’s Compensation, when supported by the evidence, is conclusive and binding upon the court, and the judge of the superior court does not have any authority to set aside an award based on those findings of fact, merely because he disagreed with the conclusions reached therein. [Cits.]” Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410 (1) (224 SE2d 65) (1976). “The superior court, when sitting as an appellate body, is bound by the ‘any evidence’ standard of review and is not authorized to substitute its judgment as to weight and credibility of the witnesses. [Cit.]” Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 481 (1) (382 SE2d 150), cert. denied, 191 Ga. App. 922 (1989). Viewing the evidence under the any evidence standard, we find that the superior court went beyond its authority because there was some evidence to support the award of the Board. Accordingly, the judgment of the superior court must be reversed.

Judgment reversed. McMurray, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A92A2233.
    HARDAWAY v. THE STATE.
    (427 SE2d 527)
   Blackburn, Judge.

On May 17, 1992, the appellant, Roosevelt Hardaway, was charged with speeding by a Georgia State Patrol officer when a radar device clocked the speed of Hardaway’s vehicle at 72 mph in a 55 mph zone. During a bench trial, the state introduced into evidence, over objection, the reading of the radar device utilized by the state patrolman. On appeal, Hardaway contends that the admission of that radar evidence was erroneous, because the state failed to show all the foundational requirements delineated in Wiggins v. State, 249 Ga. 302 (290 SE2d 427) (1982).

In Wiggins, the Supreme Court reviewed the conditions imposed by the General Assembly upon the admissibility of evidence of speed gained through use of a radar device. The Court concluded that “[e]vidence of speed obtained by a state officer by use of a radar speed detector is admissible if: (1) the device was ‘marketed under the name “Vascar,” or (is) any similar device operating under the same or similar principle which is approved by the Department of Public Safety for the measurement of speed, including any devices for the measurement of speed or velocity based on the principle of radar,’ (2) the state law enforcement agency ‘possesses a license in compliance with the applicable parts of 47 CFR, Part 89 of the Federal Communications Commission rules,’ (3) the device ‘before being placed in service and annually after being placed in service, is certified for compliance by a technician possessing at least a Second Class Radiotelephone License from the Federal Communications Commission,’ (4) the device has passed tests ‘for accuracy’ conducted ‘in accordance with the manufacturer’s recommended procedure’ by the officer or officers using the device, these tests having been conducted ‘at the beginning and ending of each duty tour’ and the results of the tests having been recorded and maintained, and (5) the vehicle from which the device was being operated at the time of its use was ‘visible to approaching motorists for a distance of at least 500 feet.’ [Cit.] Failure of proof as to any one of those elements results in the evidence of speed gained by use of the speed detection device being inadmissible.” Wiggins v. State, supra at 304-305.

As noted by this court in Carver v. State, 199 Ga. App. 842 (406 SE2d 236) (1991), the fifth requirement listed in Wiggins no longer applies to state law enforcement officers, pursuant to a 1989 amendment of OCGA § 40-14-7. The third requirement also was modified somewhat by the 1989 amendment of OCGA § 40-14-4, eliminating the need to show the certifying technician’s Second Class Radiotelephone License from the Federal Communications Commission and instead requiring that the technician is certified by the Department of Public Safety.

In the instant case, the state satisfied the first, second, and fourth requirements in Wiggins. Specifically, the state produced a certification by the Department of Public Safety of its approval of the Decatur MVR-724 radar device, which was the type of unit used by the state patrolman who arrested Hardaway; the state presented an authenticated copy of the Federal Communications Commission license issued to the Georgia Department of Public Safety, authorizing transmission and receipt of certain radio frequencies, including radar; and the state presented the testimony of the arresting officer concerning his daily testing of the radar device for accuracy, and his register of the results of that daily testing. However; it is uncontroverted that the state did not strictly satisfy the third requirement, i.e., showing that before the radar device was placed in service, it was certified for compliance by a technician “possessing a certification as required by the Department of Public Safety.” OCGA § 40-14-4.

The radar device had only been in service for about four months prior to Hardaway’s arrest, and the requirement of an annual certification for compliance was inapplicable. As evidence of the required certification for compliance prior to placement of the device in service, the state submitted a certification from the manufacturer stating that the device had been checked for accuracy and correctness of operation. This certification was signed by a Vincent B. Read, but it fails to indicate his capacity with the manufacturer or whether he possesses the requisite certification from the Georgia Department of Public Safety.

The trial court found that this manufacturer’s certification substantially complied with the third foundational requirement. This court has held that less than “total literal compliance” with OCGA § 40-14-6 (requiring warning signs regarding the use of speed detection devices) does not require exclusion of the evidence of speed gathered by a radar device. Royston v. State, 166 Ga. App. 386 (304 SE2d 732) (1983); Ferguson v. State, 163 Ga. App. 171 (1) (292 SE2d 87) (1982). However, that requirement of warning signs is not one of the foundational requisites delineated in Wiggins.

In Wiggins, in response to a motion to suppress the radar evidence, the state submitted a manufacturer’s certification similar to the one at issue here, as compliance with the third requirement. The Supreme Court accepted that certification as “part of requirement no. 3,” but later emphasized that “the state’s proof on the motion . . . fell far short of the proof required on trial of the issue. Evidence of speed gained by a state patrolman by use of a radar speed detection device is [in] admissible only if the state introduces [inadmissible] evidence establishing its compliance with each of the conditions of admissibility imposed upon such evidence by the General Assembly.” Wiggins v. State, supra at 305-306.

In the instant case, the manufacturer’s certification of accuracy and correctness of operation satisfied part of the third foundational requirement, but it failed to show that the compliance check was done by a technician possessing a certification as required by the Department of Public Safety. We do not consider insignificant the requirement of showing that the radar equipment was checked for compliance by someone who is properly qualified. For that reason, we find that the state failed to show compliance with the third foundational requirement contained in Wiggins, and the admission of the radar evidence of speed was error.

The arresting officer testified that based upon his experience, Hardaway’s vehicle appeared to be exceeding the speed limit, but he was unable to estimate the appellant’s speed. Such evidence is insufficient to support the conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The erroneous admission of the radar evidence requires reversal of the trial court’s finding of guilty, and a new trial is necessary.

Decided January 22, 1993.

James R. Jester, for appellant.

Daniel W. Lee, Solicitor, for appellee.

Judgment reversed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2352.
    OWENS v. THE STATE.
    (427 SE2d 529)
   Blackburn, Judge.

The defendant, William Owens, was charged with two counts of aggravated assault and two counts of possession of a firearm during the commission of a crime. The jury found the defendant guilty of one count of aggravated assault and one count of firearm possession but acquitted him of the other charges. The defendant was sentenced to five years of imprisonment on each charge. This appeal followed.

At trial, the male victim, a convicted felon and friend of the defendant, testified that on the day in question, he and Joe “Bug” Williams, another friend of the defendant, were standing near a car owned by the victim’s brother-in-law when they saw the defendant. Williams asked the defendant if he was going to speak to them. The defendant mumbled something in response to Williams and continued walking. As the defendant reached the corner, he made a derogatory statement to the two men, and suddenly shot out one of the tires of the car. The defendant came back toward the victim and shot the gun twice in front of the victim, hitting the ground. As the defendant walked away, he told them that he would kill them.

The defendant later returned with a larger caliber gun and informed the victim again that he would kill him. The victim subsequently asked the defendant if anything was wrong. As the defendant reached to pick up the gun, the victim grabbed the defendant and the two men struggled with the gun. The victim was shot in the right foot and leg as a result of this scuffle. The defendant later threw the victim onto the car and shot him in the hip. The defendant was identified by the victim in court as his assailant.

Williams’ testimony essentially corroborated the testimony of the victim. On the day in question he had jokingly asked the defendant if he was going to speak to them as the defendant walked by. The defendant replied, using vulgarities, that he was tired of them bothering him. Williams, in response to the defendant, told him that he was no longer wanted on the block. He later saw the defendant shoot the car tire and shoot the gun twice in front of the victim, hitting the ground. Williams also observed the defendant verbally threaten the victim’s life while holding the gun. According to Williams, the victim grabbed the gun and the two men struggled for possession. He later heard the gun discharge and saw the victim leave the scene. Williams testified that he had not known the victim to carry a gun. He also stated that on the evening in question, the defendant had been carrying a cup of whiskey in his hand.

Officer Donald Lee testified that he arrested the defendant after the defendant called the police department and wanted to turn himself in. The defendant had heard that a warrant had been issued for him for shooting a man.

The defendant testified on his behalf. According to the defendant, he was on the way to a neighborhood bar when he heard the victim shooting in the air with a gun. He suggested to the victim that he needed to be careful with his use of the gun. The victim subsequently pointed the gun at the defendant, stated that he would shoot him and pulled the trigger. Although the gun did not discharge at that time, the defendant testified that he took the gun from the victim and shot the victim in an act of self-defense. He denied having a cup of whiskey in his hand at the scene, but admitted that he had been drinking with a few friends earlier in the day. However, he thought that the victim had been using drugs on the day in question.

1. In his first enumeration of error, the defendant contends that he was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and the Constitution of the State of Georgia. He argues that his former counsel failed to have him testify as to his lack of a criminal record and about his good character, which would have entitled him to a charge on good character.

“Pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), [a] defendant must meet two tests [in order] to prevail on his ineffective assistance of counsel claim: ‘ 1) he must show that trial counsel’s performance was deficient in that he made errors so serious that he was not functioning as the “counsel” guaranteed defendant by the Sixth Amendment; [and] 2) defendant must show that the defense was prejudiced by the deficient performance so that defendant was deprived of a fair trial, one whose results were reliable. (Cit.)’ [Cit.]” White v. State, 193 Ga. App. 428, 429-430 (2) (387 SE2d 921) (1989). “ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. [Cits.]”’ Spivey v. State, 193 Ga. App. 127, 131 (3) (386 SE2d 868) (1989). However, “[t]here is a strong presumption that representation has been effective. [Cit.]” Clarington v. State, 178 Ga. App. 663, 667 (344 SE2d 485) (1986).

“ Tn a criminal case the State can not rebut or question the presumption of the defendant’s good character unless the defendant discards the presumption thus afforded and elects to put his actual character in issue by evidence or by his statement to the jury.’ [Cit.]” Favors v. State, 145 Ga. App. 864, 865 (1) (244 SE2d 902) (1978); Murray v. State, 157 Ga. App. 596 (1) (278 SE2d 2) (1981). The defendant’s former counsel’s decision to not place the defendant’s character in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel. As this court has recently held in Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992), “[t]actical decisions are the exclusive province of the lawyer. . . . [Cit.]” Id. at 725. The defendant did not subpoena his trial counsel to appear at the hearing on the motion for new trial based upon his ineffective assistance claim and has not affirmatively shown that any purported deficiencies were not examples of a conscious and deliberate trial strategy. See Garrett v. State, 196 Ga. App. 872 (397 SE2d 205) (1990). On the contrary, defendant’s former counsel was successful in obtaining not guilty verdicts on one count of aggravated assault and on one count of possession of a firearm during the commission of the crime. Accordingly, we hold that the evidence is insufficient to compel a finding that defendant’s former trial counsel’s assistance was deficient or that any deficiency of trial counsel prejudiced the defense. In that the defendant’s trial counsel’s actions did not constitute ineffective assistance of counsel, the trial court did not err in denying defendant’s motion for a new trial.

2. In the defendant’s second enumeration of error, he contends that the evidence produced at trial was insufficient to support his conviction.

On appeal of a criminal conviction, the standard of review is whether, “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Cit.]” Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986). At trial, the evidence was in conflict as to whether the defendant was the victim or the aggressor. The state presented testimony of the victim, a corroborating witness, and the arresting officer in support of its case whereas the defense relied solely upon the testimony of the accused. “The question of witness credibility ... is for the jury. [Cit.] [T]his court determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility. [Cit.]” Daniel v. State, 200 Ga. App. 79, 80 (1) (406 SE2d 806) (1991). The jury resolved the conflict in the evidence and found against the defendant and this court may not substitute its judgment for that of the jury. We have reviewed the evidence in the light most favorable to the prosecution and conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 22, 1993.

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Elise O. Gray, Assistant District Attorney, for appellee.

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


text:
    A92A2434.
    ANIMASHAUN v. THE STATE.
    (427 SE2d 532)
   Blackburn, Judge.

The appellant, Olufemi Olarewaju Animashaun, was convicted of felony obstruction of a law enforcement officer, for which he was sentenced under the First Offender Act to serve 12 months on probation, 240 hours of community service, and payment of a $550 fine. On appeal, he contends that the evidence was insufficient to support his conviction, and that the trial court erred in failing to charge the jury on defense of habitation.

On the evening of December 5, 1990, the appellant’s wife, who had left him three days earlier, returned to their apartment to retrieve some of her personal belongings. Fearing a violent confrontation with her husband, she had requested two men from her church and also a City of Marietta police officer to accompany her.

The arresting officer testified that when he drove into the apartment parking lot, he saw the appellant walk out of the apartment and approach his wife in an animated fashion. The appellant was jumping up and down, waving his arms, and screaming obscenities. At that point, the officer was concerned that the appellant might harm his wife, and he quickly exited his patrol car and positioned himself between the two. For two to three minutes, he unsuccessfully tried to calm the appellant down, explaining that his wife merely wanted to pick up some personal property and then leave. However, the appellant remained irate and continually screamed obscenities at his wife and the officer. The appellant then ran into the apartment, locked the door, and resumed screaming obscenities from the apartment windows. By this time, a throng of approximately 60 to 80 onlookers was assembling, and the officer called in for back-up.

The officer recalled that he then continued to try to reason with and calm the appellant, but when the appellant demonstrated no sign of ceasing his disruptive behavior, the officer decided to place him under arrest for misdemeanor obstruction of a police officer, based on the appellant’s actions when the officer arrived at the scene, i.e., his interference with the officer’s effort to maintain the peace. He also pointed out that the appellant’s behavior violated a city ordinance prohibiting disorderly conduct, although he did not choose to arrest the appellant for that offense. The officer was able to inform the appellant that he was under arrest while the appellant had his head in a window, and the appellant’s wife then willingly gave him her key to the apartment so that they could effect his arrest. Before he and the other officers entered the residence, however, the appellant shouted that “the first officer that comes in will have his head broken open.”

When the officers entered the apartment, the appellant was standing on a stairway leading to the upper level of the apartment; he was panting heavily, and his eyes were flaring. The arresting officer encouraged the appellant to cooperate and warned him that any further hostility on his part may result in a felony charge, which could have some impact upon his immigrant status in the United States. The appellant did not move from his position, but when the officer grabbed his arm, he resisted and continually elbowed and pushed the officers. It took three or four officers two to three minutes to subdue the appellant and handcuff him.

The two church members who accompanied the appellant’s wife both testified that the police officer had been exceptionally calm in dealing with the appellant, who constantly screamed obscenities during the incident. Their recollections differed from that of the arresting officer, in that they did not remember the appellant ever walking out of his apartment. One of the men did recall that the appellant levied a threat that “the first one that comes through the door is going to get it.” He also had noticed that, when the appellant was brought out from the apartment, one of the officers appeared to have been bitten above his wrist.

The appellant testified, and his version of the incident differed greatly from the account given by the arresting officer and the two companions. He stated that earlier on the day in question, he had spoken with his wife and consented to her request to pick up some of her personal property that evening. He acknowledged that he became upset because she arrived with two companions and the police, and that he behaved in an obnoxious manner that night. He also admitted that he had refused to allow anyone to enter the apartment, including the police officers, because he thought that no one could enter without a warrant. However, he expressly denied ever making a threat to the police officers or anyone else, and he denied resisting his arrest once the officers entered the apartment. Rather, he stated that he docilely complied with the officers’ instructions, and complained that the officers had physically manhandled him without provocation.

1. OCGA § 16-10-24 (b) provides that “[w]hoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer . . . in the lawful discharge of his official duties by offering or doing violence to the person of such officer or legally authorized person is guilty of a felony. ...” One essential element of the offense, of course, is that the law enforcement officer must be engaged in the lawful discharge of his official duties, Dixon v. State, 154 Ga. App. 828 (269 SE2d 909) (1980), and the appellant contends that the arresting officer’s capacity during the incident was that of a volunteer outside the lawful discharge of his official duty. We disagree.

Law enforcement officers have a full-time duty to maintain the peace. Carr v. State, 176 Ga. App. 113 (1) (335 SE2d 622) (1985). The appellant’s wife requested that the arresting officer be present when she attempted to retrieve her possessions, for the very purpose of avoiding a violent confrontation with the appellant. When the officer arrived at the scene, he immediately had to act to defuse such a situation. For two to three minutes, he tried to persuade the appellant to calm down, but the appellant persisted in his verbal barrage of obscenities and insults addressed to his wife and the police. It was this interference with the officer’s attempt to maintain the peace that formed the basis for the officer’s ultimate decision to arrest the appellant for misdemeanor obstruction. The fact that the officer delayed his decision until the appellant retreated to the apartment and continued to disrupt the peace (eventually producing a crowd of 60 to 80 onlookers) does not detract from the propriety of that basis for arrest.

The appellant also contends that the officers’ entry into the apartment was unlawful. Absent exigent circumstances or consent, an entry into a private home to conduct a search or to effect an arrest is unreasonable without a warrant. See Thompson v. State, 248 Ga. 343 (285 SE2d 685) (1981). However, in the instant case, when the appellant refused to exit the apartment after being advised that he was under arrest, the appellant’s wife willingly gave the police officers her key to the apartment. At that point in time, the appellant’s wife still possessed common authority over the premises, and the police officers’ entry based upon her consent was authorized. See United States v. Matlock, 415 U. S. 164 (94 SC 988, 39 LE2d 242) (1974).

Prior to the officers’ entry into the apartment, the appellant threatened that the first person who entered would be injured. At one point, he also turned off the lights in the apartment. Initially, it should be emphasized that the appellant expressly denied making any threat at all. However, he asserts that any such alleged threat was conditional upon the illegal entry of the officers into his home, which was beyond his control, arid therefore was not an actual threat. Speech must reasonably be interpreted as a threat of violence in order to constitute an offer of violence under OCGA § 16-10-24 (b). Wells v. State, 154 Ga. App. 246 (268 SE2d 74) (1980); see also Duke v. State, 205 Ga. App. 689 (423 SE2d 427) (1992). The verbal warning levied by the appellant, as recalled by the arresting officer and the other witness, met that criterion.

In any event, the evidence also established that the appellant went beyond threatening violence and, in fact, did violence to the persons of the police officers when they attempted to arrest him. Specifically, the arresting officer stated that the appellant repeatedly resisted his arrest by elbowing and pushing the officers, and one witness observed that one officer appeared to have been bitten above his wrist when they removed the appellant from the apartment.

In summary, the appellant’s contentions regarding the insufficiency of the evidence requires acceptance of his account of the incident to the exclusion of the other testimony by the arresting officer and the two companions of the appellant’s wife. It is the function of the jury to weigh and resolve any conflicts presented by the evidence, and it did so adversely to the appellant in this case. Hargrove v. State, 202 Ga. App. 854 (2) (415 SE2d 708) (1992). On appeal, we must review the evidence in the light most favorable to support the jury’s verdict, and, applying that standard in this case, we find that the evidence was sufficient to authorize a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court thus properly denied the appellant’s motion for directed verdict of acquittal.

2. The appellant also contends that the trial court erred in failing to charge the jury on the defense of habitation as provided in OCGA § 16-3-23, even though such a charge was not requested during the trial, because it constituted his sole defense.

Generally, where no written request for a jury charge has been filed, the failure to give that charge is not error. Meyer v. State, 201 Ga. App. 756 (412 SE2d 575) (1991). Also, it should be noted that the appellant’s trial attorney stated that he had no objection to the jury charge as given and did not reserve the right to object later, in response to the trial court’s specific inquiry, which generally results in a waiver of any objection. Concepcion v. State, 200 Ga. App. 358 (408 SE2d 130) (1991). However, failure to charge the sole defense, even without a request, constitutes reversible error. Wells v. State, 200 Ga. App. 104 (407 SE2d 86) (1991).

Decided January 22, 1993.

Whatley & Associates, Lynn H. Whatley, for appellant.

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

In the instant case, the evidence, and particularly the appellant’s own testimony, does not show defense of habitation to have been the sole defense. In fact, during the trial, the appellant steadfastly denied committing any of the obstructionist acts of which he was charged, i.e., threatening the police officers and physically resisting arrest by elbowing and pushing the arresting officers. “Thus, under the evidence, [the appellant] either committed the alleged acts of obstruction or [he] did not and no charge on [defense of habitation] as to the felony obstruction of an officer was authorized.” Love v. State, 194 Ga. App. 601, 602 (1) (391 SE2d 447) (1990).

Judgment affirmed. McMurray, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A0272.
    LEMACKS v. THE STATE.
    (427 SE2d 536)
   McMurray, Presiding Judge.

Defendant Lemacks appeals his conviction of two counts of the offense of statutory rape and two counts of the offense of child molestation. Held:

A physician who examined the two victims testified that she found evidence of repeated penetration of the vaginal area of one of the victims, and that there was evidence of repeated penetration of both the vagina and anus of the second victim. As to both victims, the physician testified that the penetrations could have occurred anytime between the child’s birth and one week prior to her examination.

Defendant attempted to introduce evidence concerning prior alleged molestations of the victims. The offer of proof could be viewed by a trier of fact as showing that the victims and their brother had been molested in 1987 and 1988 by two men. In connection with this incident, which occurred in North Carolina, the mother had taken the children to a doctor in that state and filed an incident report with authorities. This evidence was not admitted after the trial court granted the State’s motion in limine predicated on the rape shield statute, OCGA § 24-2-3.

Decided January 22, 1993.

Mine, Carroll & Niedrach, John F. McClellan, Jr., for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Leigh E. Patterson, Assistant District Attorneys, for appellee.

Defendant contends that the trial court erred in holding that OCGA § 24-2-3 prohibited the introduction of the evidence as to the North Carolina molestations to show that someone other than defendant caused the injuries to the two victims and to attack their credibility. OCGA § 24-2-3 (b) excludes “evidence relating to the past sexual behavior of the complaining witness. . . .” Contrary to the State’s argument, “behavior” is not synonymous with “experience.” The intent of the statute is to exclude evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. Martin v. State, 196 Ga. App. 145, 147 (3) (395 SE2d 391); Parks v. State, 147 Ga. App. 617 (249 SE2d 672). Compare Worth v. State, 183 Ga. App. 68, 72 (4) (358 SE2d 251). In Raines v. State, 191 Ga. App. 743, 745 (2) (382 SE2d 738), this court recognized that a “prior rape committed against the victim has nothing whatsoever to do with her past sexual behavior.” It is no reflection on character that one has been an unwilling victim of prior crimes. The evidence excluded in the case sub judice cannot be distinguished from that held to be admissible in Raines since both show a prior forcible sexual offense against the victims. The evidence excluded in the case sub judice is relevant to the determination of the guilt or innocence of the defendant and is not subject to the provisions of OCGA § 24-2-3. Therefore, the trial court erred in excluding the proffered evidence. Defendant’s remaining enumerations of error need not be addressed as they are unlikely to recur on the retrial of the case.

Judgment reversed. Beasley and Cooper, JJ., concur.


text:
    A92A2300.
    WURLITZER COMPANY v. WATSON.
    (427 SE2d 555)
   McMurray, Presiding Judge.

The Wurlitzer Company brought suit against Tom Watson, Inc., d/b/a Mid South Piano Company, Tom Watson and Judy Watson in the Superior Court of Floyd County. The complaint alleged that defendants were indebted to plaintiff, jointly and severally, pursuant to a contract, promissory note and written guaranty, in the principal amount of $35,829.23. Defendants answered the complaint, denying liability. Plaintiff moved for partial summary judgment against defendants Tom Watson, Inc. and Tom Watson and the superior court granted plaintiff’s motion. Thereafter, plaintiff moved for summary judgment against defendant Judy Watson.

In support of its summary judgment motion, plaintiff submitted the affidavit of Margie Hess, the plaintiff’s Regional Credit Correspondent. She deposed that on July 29, 1988, plaintiff sold musical instruments to Tom Watson, Inc., d/b/a Mid South Piano Company, Tom Watson and Judy Watson, pursuant to a dealer financing and security agreement; that, on July 29, 1988, Judy Watson executed an instrument of guaranty to induce plaintiff to extend credit to Tom Watson, Inc.; that, on August 31, 1988, plaintiff extended credit to Tom Watson, Inc. in the amount of $100,000, pursuant to a revolving note; that, on May 16, 1989, Tom Watson, Inc., executed an amendment to the dealer financing and security agreement and the revolving note; and that, on the same day, Judy Watson executed a document whereby she consented to the amendment to the dealer financing and security agreement and the revolving note. Hess also averred that Tom Watson, Inc. defaulted on its obligations to plaintiff and voluntarily returned the musical instruments to plaintiff; that defendants’ account was given a $55,803 credit for the returned musical instruments, leaving a $35,829.23 balance due and owing; that, on May 25, 1990, Tom Watson, Inc. executed a $35,829.23 promissory note payable to plaintiff; and that the principal amount due and owing on the account of Tom Watson, Inc. is $35,829.23. True and correct copies of the financing and security agreement, guaranty, revolving note, amendment to the agreement and note, consent of guarantors and promissory note were attached to and incorporated in Hess’s affidavit.

Pursuant to the dealer financing and security agreement, the secured party, identified as the Provident Bank, agreed to lend the debtor, identified as Mid-South Piano Company, “funds which shall be advanced on Debtor’s behalf to The Wurlitzer Company . . . which loans shall be in amounts equal to the total invoice price set forth in Wurlitzer invoices for merchandise purchased by Debtor.” The agreement provided: “Debtor’s obligations to repay such funds to Secured Party shall be evidenced by a Revolving Note. . . .” The agreement provided terms for the repayment of principal and interest. It was executed by Tom Watson and Judy Watson, as the debtor, and “The Provident Bank” and “The Wurlitzer Company — Its Agent” as the secured party.

The guaranty was addressed to the Provident Bank and was executed by Tom Watson and Judy Watson. It recited: “In order to induce you to enter into contracts with or extend credit or financing to Tom Watson, Inc., d/b/a Mid South Piano Co. (herein called DEBTOR) . . . the undersigned, jointly and severally . . . hereby absolutely guarantees the full and prompt payment of any and every indebtedness, liability or obligation . . . which may now or at any time and from time to time hereafter exist or be incurred by DEBTOR to you. ... In the event of default at any time by DEBTOR, we promise to pay such indebtedness, liability or obligation forthwith and without prior demand. ... We consent that you may, without in any manner affecting the undersigned’s liability and upon such conditions as you may deem advisable: (1) extend in whole or in part (by renewal or otherwise), modify, change or release any indebtedness, liability or obligation of DEBTOR ... (2) sell, release, surrender, modify, exchange, substitute or . . . extend the duration or the time for the performance of payment ... (3) settle, adjust, or compromise any of your claims against DEBTOR or any other person. The undersigned . . . hereby ratifies and confirms any such extension, renewal, modification . . . exchange, substitution, settlement, adjustment or compromise, and agrees that the same shall be binding upon the undersigned, and hereby waives any and all defenses . . . which the undersigned might or could have by reason thereof, it being understood that the undersigned, as guarantor hereunder, shall at all times be and remain liable to you.”

The revolving note was executed by Tom Watson, Inc., d/b/a Mid South Piano Company. Pursuant to the note, Tom Watson, Inc. promised to pay the Provident Bank the sum of $100,000, in accordance with terms set forth in the dealer financing and security agreement. The note provided that it “must be witnessed by an authorized representative of The Provident Bank or The Wurlitzer Company.”

The amendment to the note and security agreement changed the interest rate charged on the outstanding principal balance of the note and made various other changes. It was executed by Tom Watson, Inc. and by “The Provident Bank The Wurlitzer Company, Its Agent.”

A “Consent of Guarantors” was attached to the amendment. It was signed by Tom Watson and Judy Watson and provided that the guarantors consent to the amendment “and acknowledge that [their] obligations under the Guaranty shall continue as stated therein.”

The promissory note, in the amount of $35,829.23, called for three consecutive monthly payments of $11,943 (and change). It was signed by “Mid South Piano Company” by Tom Watson and guaranteed by Tom Watson.

Plaintiff served a request for admissions upon defendant Judy Watson. In one request, Judy Watson was asked to admit that she “is indebted to Plaintiff in the principal sum of $35,829.23, plus interest. . . .” She responded — “admitted.”

Judy Watson filed a cross-motion for summary judgment. In support of her motion, and in opposition to plaintiff’s motion, she submitted the affidavit of Tom Watson. He deposed that, on or about May 25, 1990, he met with a representative of plaintiff, “to discuss the renegotiation of a new debt to Wurlitzer”; that, as a representative of Tom Watson, Inc., he negotiated a “new unsecured (i.e. noncollateralized) debt amount owed from Tom Watson, Inc. to The Wurlitzer Company”; that Tom Watson, Inc. executed a new promissory note to evidence the indebtedness and that he guaranteed the new note personally; and that he was assured by the Wurlitzer representative that the new note would “just get [him]” and not Judy Watson.

The superior court denied plaintiff’s motion for summary judgment against Judy Watson and granted Judy Watson’s cross-motion for summary judgment. The superior court reasoned: “[T]he only guaranty that Mrs. Watson has a liability for is to the Provident Bank, the original secured party. The lawsuit does not purport to be one in which Wurlitzer was suing on behalf of Provident Bank and it does not purport to be one in which the Wurlitzer Company is suing as having an assignment of the obligation due to the Provident Bank.” In so ruling, the superior court acknowledged that the parties themselves did not question whether plaintiff was the proper party to bring this action. Plaintiff appeals, enumerating error on the grant of Judy Watson’s cross-motion for summary judgment and the denial of its motion for summary judgment against defendant Judy Watson. Held:

1. “Under OCGA § 9-11-17, ‘a real-party-in-interest objection is similar to the defense of failure to join an indispensable party under (OCGA § 9-11-19) and may be made at any time up to and including a trial on the merits. (Cits.) Such an objection is a matter in abatement and does not go to the merits of the action. (Cit.)’ Rigdon v. Walker Sales & Service, 161 Ga. App. 459, 462 (1 (f)) (288 SE2d 711) (1982). It has often been held that ‘(a) summary judgment contemplates a judgment on the merits and cannot be used as a matter in abatement.’ See, e.g., Walsey v. Lockhart, 136 Ga. App. 624, 625 (1) (222 SE2d 141) (1975), citing Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974). Cf. Chatham v. Royal-Globe Ins. Companies, 135 Ga. App. 59, 61 (217 SE2d 308) (1975). It follows that summary judgment cannot properly be granted to a defendant on the basis of a real-party-in-interest objection. See Walsey v. Lockhart, supra.” Warshaw Properties v. Lackey, 170 Ga. App. 101, 102 (316 SE2d 482). See also Hodgskin v. Markatron, Inc., 185 Ga. App. 750, 751 (3), 752 (365 SE2d 494). The trial court erred in granting defendant Judy Watson’s cross-motion for summary judgment.

2. “In form and substance an admission under [OCGA § 9-11-36] is comparable to an admission in pleadings or stipulation of facts and as such is generally regarded as a judicial admission rather than evidentiary admission of a party. See 8 Wright & Miller, Federal Practice & Procedure, Civil § 2264 (1970); see generally Agnor, Use of Discovery under Georgia Civil Practice Act, § 11-2 (2d ed. 1974). A judicial admission, unless allowed to be withdrawn by the court, is conclusive whereas an evidentiary admission is not conclusive but is always subject to be contradicted or explained. 4 Wigmore, Evidence, §§ 1058, 1059 (3rd ed. 1940); McCormick, Evidence, § 262 (2d ed. 1972). Thus, it is clear that answers to interrogatories and answers to requests for admission are not on the same footing in the eyes of the law.

Decided January 25, 1993.

Finestone, Morris & Wildstein, Robert D. Wildstein, for appellant.

Charles G. Price, for appellee.

“Past decisions of this court have recognized the binding effects of admissions under [OCGA § 9-11-36]. In ETI Corp. v. Hammett, 140 Ga. App. 618 (231 SE2d 545) (1976) it was held that evidence was not admissible to controvert matters deemed to have been admitted by failure to answer requests for admission even though the substance of the matter deemed admitted had been denied in the answer to the complaint. In National Bank of Ga. v. Great Southern Bus. Enterprises, 130 Ga. App. 221 (202 SE2d 848) (1973), this court held that where answers to requests for admission were in fact filed after expiration of the statutory time, but without permission for late filing and where there was no motion seeking permission to withdraw the admissions resulting from the failure to timely respond, the answers could not be considered by the trial court in ruling on a motion for summary judgment.” Albitus v. Farmers & Merchants Bank, 159 Ga. App. 406, 407-408 (283 SE2d 632).

In the case sub judice, defendant Judy Watson admitted, in her response to plaintiff’s request for admissions, that she was indebted to plaintiff, i.e., The Wurlitzer Company, in the amount of $35,829.23, plus interest. This admission is binding upon defendant Judy Watson and no evidence can be admitted or considered to contradict it. Albitus v. Farmers & Merchants Bank, 159 Ga. App. 406, supra. It follows that the superior court erred in failing to grant plaintiff’s motion for summary judgment.

Judgment reversed. Cooper and Blackburn, JJ., concur.


text:
    A92A2442.
    OSENI et al. v. HAMBRICK et al.
    (427 SE2d 559)
   McMurray, Presiding Judge.

Hakeem Oseni and Darrie Oseni (plaintiffs) sued Jeanette Ham-brick and John Thomas Hambrick (defendants) in the State Court of DeKalb County for damages which allegedly arose from an automobile collision. Daryl Von Yokely signed the complaint as “Attorney for Plaintiff” and Richard A. Coleman submitted an entry of appearance on plaintiffs’ behalf. Plaintiffs later filed a pretrial order listing attorney Von Yokely and attorney Coleman “as counsel who would conduct the trial for Plaintiffs.”

On August 14 and 15, 1991, attorney Coleman appeared for trial and, after a jury was empaneled and sworn, plaintiffs dismissed their complaint without prejudice. On August 21, 1991, the trial court entered an order, directing plaintiffs to pay all court costs plus a jury empaneling fee in the amount of $445 and warning that “[f]ailure to abide by the Court’s order shall result in a DISMISSAL of any later attempt by Plaintiff to refile this action.” On or about August 21, 1991, the trial judge’s calendar clerk mailed a copy of this order to attorney Richard A. Coleman.

On February 28, 1992, attorney Von Yokely filed a renewal action on plaintiffs’ behalf pursuant to OCGA § 9-2-61 (a). However, plaintiffs did not pay the $445 juror fee until May 21, 1992. Defendant Jeanette Hambrick thereafter filed a motion to dismiss based upon plaintiffs’ failure to pay the juror fee before filing the renewal action. In response, plaintiffs filed the affidavit of Stephanie Barrett, “the Office Administration Secretary for Daryl Von Yokely, Esquire.” Ms. Barrett deposed, in pertinent part, as follows: “[0]n or about February 28, 1992,1 telephoned the Office of the Clerk of the State Court of DeKalb County and informed them we had recently dismissed [the original action] and desired to refile the same and was informed that the only amount needed was $41.50 to refile. . . . Further, no correspondence was received by this office concerning any Order Taxing Court Costs. . . . Upon notification I forwarded said costs on behalf of the firm promptly.”

The trial court granted defendant Jeanette Hambrick’s motion to dismiss. This appeal followed. Held:

“It is well established that payment of the accrued costs is a condition precedent to the renewal of the action following a voluntary dismissal. Little v. Walker, 250 Ga. 854 (301 SE2d 639) (1983). However, ‘the costs which must be paid pursuant to OCGA § 9-11-41 (d), as a precondition to the filing of a new suit, do not include costs unknown to plaintiff after a good faith inquiry.’ Daugherty v. Norville Indus., 174 Ga. App. 89, 91 (329 SE2d 202) (1985).” Kroger Co. v. Michaels, 183 Ga. App. 626, 627 (359 SE2d 698).

Decided January 25, 1993.

Daryl Von Yokely, for appellants.

Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, for appellees.

In the case sub judice, plaintiffs argue that attorney Von Yokely’s inquiry with the Clerk of the State Court of DeKalb County regarding fees necessary for filing the renewal action sufficiently excused the failure to pay the $445 juror fee before the filing of the renewal action. This argument ignores unrefuted evidence that the trial judge’s calendar clerk mailed attorney Richard A. Coleman a copy of the August 21, 1991, order taxing plaintiffs with the $445 jury empaneling fee and warning plaintiffs of the consequences of their failure to pay costs of the original action.

“ ‘It is well settled that notice to an attorney is notice to the client employing him, and that knowledge of an attorney is knowledge of his client, when such notice and knowledge come to the attorney in and about the subject matter of his employment. Citizens Bank of Vidalia v. Citizens & So. Bank, 160 Ga. 109 (4) (127 SE 219), and cases there cited; Lewis v. Foy, 189 Ga. 596 (6 SE2d 788).’ Mathis v. Blanks, 212 Ga. 226 (91 SE2d 509) (1956).” Austin v. Austin, 245 Ga. 487, 490 (265 SE2d 788). In the case sub judice, there appears to be no dispute that attorney Coleman was aware of the $445 juror fee long before institution of the renewal action. Consequently, attorney Coleman’s knowledge of the unpaid juror fee is imputed to plaintiffs. Under these circumstances, we cannot say the trial court erred in dismissing plaintiffs’ renewal action for failure to pay all costs of the previous action. OCGA § 9-11-41 (d). Compare Daugherty v. Norville Indus., 174 Ga. App. 89, 91, supra.

Judgment affirmed. Cooper and Blackburn, JJ., concur.


author: Pope, Chief Judge.

text:
    A92A1765.
    CORRY v. ROBINSON et al.
    (427 SE2d 507)
   Pope, Chief Judge.

Plaintiff Alvin Corry filed suit against defendants Mary Jane Robinson and an unknown defendant seeking recovery for personal injuries allegedly sustained when the automobile in which he was riding, which was owned by Robinson, was struck by an automobile driven by an unknown driver. Based upon the allegation that a John Doe vehicle was involved in the accident, the plaintiff served State Farm Mutual Automobile Insurance Company (“State Farm”) as the alleged uninsured motorist carrier pursuant to OCGA § 33-7-11.

The undisputed facts show that on October 1, 1989, plaintiff Robinson, Thomas Chapman and Marie Chapman were all passengers in Robinson’s car traveling from Ft. Payne, Alabama. In Ft. Payne, they had picked up Marie Chapman, who had been living with Jimmy Ray Renfroe. Although they attempted to leave the Ft. Payne area without Renfroe realizing that Marie Chapman was leaving, Renfroe saw them leaving town and began following them. He hit Robinson’s car from the rear forcing it to leave the roadway and flip several times. The traffic accident report reveals that when a police officer arrived at the accident scene, Robinson told the officer she was driving the vehicle.

Both Robinson and State Farm filed motions for summary judgment. In support of her motion for summary judgment Robinson filed her affidavit and the affidavit of Thomas Chapman. Both stated that Thomas Chapman rather than Robinson was driving the vehicle at the time of the wreck. Both also averred it was Renfroe who hit Robinson’s car from the rear and no other vehicles other than the Robinson and Renfroe vehicles were involved in the collision. State Farm then filed its motion for summary judgment relying on the affidavits of Robinson and Thomas Chapman to establish conclusively that no John Doe vehicle was involved in the collision as alleged by the plaintiff.

Plaintiff filed two affidavits in response to each motion for summary judgment. In one, he stated he was asleep at the time of the collision and the allegations in his complaint were based upon Robinson’s statement to the police that she was driving at the time of the accident and an unknown vehicle had blinded her, struck her vehicle and forced it off the road. In that affidavit he further averred that Robinson was the owner of the car in which he was traveling and either was operating it personally or its operation was under her personal control and direction at the time of the wreck. In his second affidavit, plaintiff averred he could not respond properly to the motions for summary judgment filed by the defendants until discovery has been completed and depositions taken. Plaintiff moved to amend his complaint to add the allegation that even if Robinson was not operating the vehicle she was present in the vehicle and was exercising control over the vehicle at the time of the wreck. Plaintiff also moved to add Renfroe as a defendant and to amend the complaint to plead alternatively that either an unknown John Doe or Jimmy Ray Renfroe blinded the driver of the vehicle in which plaintiff was riding and struck said vehicle causing plaintiff’s injuries.

On January 7, 1992, Robinson filed another affidavit in which she averred she was not operating her vehicle at the time of the wreck and that she told the investigating officer she was driving at the time of the wreck because she was advised by Thomas Chapman and plaintiff “that if I admitted to the officer that Thomas Chapman was driving, it would cause me more problems than I already had.” She also averred she was not exercising any control over the vehicle at the time of the wreck and there was no reason for her to exercise control at that time.

On January 16, 1992, the trial court granted State Farm’s motion for summary judgment. On January 17, 1992, the trial court granted Robinson’s motion for summary judgment. Plaintiff appeals.

1. The trial court properly granted State Farm’s motion for summary judgment. Both Robinson and Chapman averred that Renfroe struck the Robinson vehicle causing the vehicle to leave the roadway. “When a motion for summary judgment is made and supported an adverse party may not rest upon the mere allegations or denials of [his] pleading, but [his] response, by affidavits or as otherwise provided . . . 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].” (Citations and punctuation omitted.) Dickey v. Harden, 202 Ga. App. 645, 648 (414 SE2d 924) (1992). Plaintiff admits he was asleep at the time of the wreck so he would have no personal knowledge of how the collision occurred and cannot controvert the evidence offered by Chapman and Robinson concerning how the collision occurred. The police report attached to plaintiff’s affidavits does not offer support for the assertion that an unknown driver caused the collision, because the only mention in the report of a second car is that the driver of the vehicle in which plaintiff was riding was blinded by the headlights of a vehicle following her car. The only other person who would have knowledge of whether an unknown motorist caused the wreck is Marie Chapman, the fourth occupant of the vehicle in which plaintiff was riding. Plaintiff knew Marie Chapman had knowledge of the wreck and did not submit any evidence that she believed an unknown driver caused the wreck. Because plaintiff was asleep at the time of the wreck and he submitted no evidence from anyone who would have knowledge that an unknown driver caused the wreck, the trial court properly granted State Farm’s motion for summary judgment.

2. It does not follow, however, that the trial court properly granted Robinson’s motion for summary judgment. It is clear from the trial court’s order granting Robinson’s motion for summary judgment that it considered the second affidavit of Robinson filed in support of her motion for summary judgment on January 7, 1992, only ten days before the trial court granted her motion for summary judgment. “OCGA § 9-11-56 (c)[,] which requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing, and OCGA § 9-11-6 (d)[,] which requires that ‘(w)hen a motion is supported by affidavit, the affidavit shall be served with the motion,’ have been construed together to mean that an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing.” Gunter v. Hamilton Bank &c., 201 Ga. App. 379, 381 (411 SE2d 115) (1991). Accord Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631 (278 SE2d 377) (1981). Although the strict requirements of the statutes may be “waived by the opposing party’s acquiescence in the use of the untimely materials, or if the movant seeks and obtains an order from the trial court under OCGA § 9-11-6 (b) extending the time for filing[,]” Gunter, 201 Ga. App. at 381, neither of these factors is present in this case. Nor do we accept the argument that Robinson’s second affidavit merely explained her first affidavit. Robinson’s second affidavit contained new averments concerning her lack of control over Chapman, the alleged driver of the vehicle, which were specifically relied upon by the trial court. Accordingly, we hold the trial court improperly relied upon Robinson’s second affidavit in granting her motion for summary judgment.

3. Plaintiff posits the trial court erred by failing to delay ruling on both motions for summary judgment until after defendants responded to discovery. OCGA § 9-11-56 (b) provides that “[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” Thus, it is not unusual for discovery to be ongoing at the time summary judgment motions are filed and/or ruled upon. Although the defendants failed to make a timely response to the interrogatories and request for production of documents filed by plaintiff with his complaint, plaintiff did not move to compel the defendants to respond to the discovery requests nor did plaintiff seek to schedule depositions to aid in discovery in this case. Furthermore, plaintiff did not file a proper request for the trial court to defer ruling on the pending motions for summary judgment since plaintiff’s only request was by a statement contained in an affidavit. A party cannot fail to exercise his legal remedies to compel discovery and/or to file a proper motion to request additional time to complete discovery and allege as error that the trial court failed to defer ruling on pending motions until either the other parties decide to respond to discovery or the party filing the discovery decides to utilize his legal remedies.

Judgment affirmed in part and reversed in part. Carley, P. J., and Johnson, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, plaintiff argues that this court should reconsider its prior opinion because the trial court erred by failing to rule on plaintiff’s motion to add Jimmy Ray Renfroe as a party before granting defendants’ motions for summary judgment. This argument is without merit. This court is a court for the correction of errors. This motion remains pending before the trial court for decision. Until the trial court rules upon the pending motion, there is nothing concerning that motion that is properly before this court for review. Glover v. First Nat. Bank of Paulding County, 207 Ga. App. 231 (427 SE2d 520) (1993).

Decided January 4, 1993

Reconsideration denied January 26, 1993

Richard Phillips, for appellant.

Zorn & Caldwell, William A. Zorn, Jerry W. Caldwell, Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, for appellees.

Furthermore, that argument was raised within the enumeration of error in which the plaintiff argued “[t]he trial court erred in failing to continue the consideration of the Defendants’ motions for summary judgment until Defendants responded to discovery.” This argument exceeds the scope of that enumeration of error since it does not concern a discovery response.


author: Cooper, Judge.

text:
    A92A1897.
    SIMMONS v. THE STATE.
    (427 SE2d 560)
   Cooper, Judge.

Appellant was convicted of aggravated assault and appeals from the entry of judgment on the conviction and sentence and the denial of his motion for new trial. In his sole enumeration of error, appellant contends the trial court’s charge on aggravated assault authorized the jury to find him guilty of aggravated assault by a method other than the method specifically alleged in the indictment.

OCGA § 16-5-21 (a) “authorizes conviction for aggravated assault ‘upon proof of one or more of several modes of assault, i.e., with a deadly weapon, or with intent to commit murder, rape, or robbery. [Cit.]’ [Cit.]” Ross v. State, 192 Ga. App. 65, 66 (2) (383 SE2d 627) (1989). The indictment alleged that appellant “did unlawfully commit an assault upon the person of Janice Smith, by cutting and stabbing her with a knife, a means likely to cause serious bodily injury when used offensively against a person.” Consistent with OCGA § 16-5-21 (a) (2), the trial court charged the jury as follows: “A person commits the offense of aggravated assault when he assaults with a deadly weapon or any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Relying on Walker v. State, 146 Ga. App. 237 (246 SE2d 206) (1978), appellant contends the trial court gave the jury three alternatives on which to convict which were not alleged in the indictment by including the phrase, “weapon or any object, device or instrument,” in its charge, rather than limiting the charge to the knife specifically referred to in the indictment. However, unlike Walker, this is not an instance in which the trial court has misled the jury by charging a Code section in its entirety without tailoring the instruction to fit the allegations in the indictment. “In Walker, supra, we emphasized that a charge can be misleading to a jury ‘where it gives several definitions of the offense for which (an) accused is being tried. . . .’ [Cit.] ‘It is reversible error for the court to submit a case to the jury upon a theory entirely different from that claimed in the (indictment or accusation). . . [Cits.]” (Emphasis supplied.) Gaines v. State, 177 Ga. App. 795, 797 (1) (341 SE2d 252) (1986). Appellant was charged in the indictment with aggravated assault with a deadly weapon, and the court specifically charged the jury on that offense. Thus, the court charged the jury properly with respect to the manner in which aggravated assault was allegedly committed by appellant, i.e., with a deadly weapon.

Decided January 26, 1993.

Anna Blitz, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, A. Thomas Jones, Assistant District Attorneys, for appellee.

Furthermore, the jury could not have been confused or misled by the court’s definition of aggravated assault with a deadly weapon, which followed the wording of the statute but did not instruct the jury that it must find appellant guilty specifically of a knife attack, as alleged in the indictment. First, the evidence adduced at trial only points to one “deadly weapon” or “object likely to cause serious bodily injury,” a knife. In addition, the court began the charge by reading the indictment, the jury was instructed that the indictment framed the issues for its deliberations, and the indictment went out with the jury during the deliberations. Viewing the charge in its entirety, it is not misleading. See generally Davis v. State, 184 Ga. App. 230 (2) (361 SE2d 229) (1987). Appellant’s argument to the contrary is without merit.

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


author: Johnson, Judge.

text:
    A92A1678.
    DENNARD v. THE STATE.
    (427 SE2d 511)
   Johnson, Judge.

James Milton Dennard was convicted of possession of cocaine with intent to distribute, and sentenced as a repeat offender, pursuant to OCGA § 17-10-7. He appeals from his conviction and the denial of his motion for new trial.

1. Dennard contends that there was insufficient evidence to support his conviction of possession of cocaine with intent to distribute. This enumeration is without merit.

A police officer testified that he observed Dennard, a co-defendant and Roger Caldwell standing on a street corner. Dennard helped direct Caldwell away from the street corner to a more secluded position near the side of a building. Caldwell testified that either Dennard or the co-defendant asked him if he was wired and had a badge. He stated that one of the men showed him a piece of what appeared to be “crack” cocaine and asked if he needed anything. When a signal was given that police officers had appeared on the scene, Dennard ran to an isolated area where he dropped a white object in the grass. This object was later determined to be a vial containing 25 pieces of “crack” cocaine. Viewing the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Dennard guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Dennard further contends that the court erred in admitting his 1989 conviction for possession of cocaine as similar transaction evidence. “While generally evidence of other criminal acts committed by an accused is inadmissible because it tends to put the accused’s character into evidence . . . exceptions allow independent crimes to be introduced on two conditions: 1) there must be evidence that the defendant was in fact the perpetrator of the independent crime, and 2) there must be sufficient similarity or connection between the independent crime and the charged crime that proof of the former tends to prove the latter. Thereafter, the independent crime may be introduced to prove identity, motive, plan, scheme, bent of mind and course of conduct.” (Citations and punctuation omitted.) Belcher v. State, 201 Ga. App. 139, 140 (1) (410 SE2d 344) (1991).

The facts surrounding Dennard’s prior conviction show that an officer from the sheriff’s department received a call from a “concerned citizen” that Dennard had placed a package containing cocaine in a row of hedges located approximately five blocks from the area in which the subject incident occurred. The officer recovered the package and observed the area for approximately 15 minutes. Soon thereafter, Dennard walked to the spot where the package had been hidden, sat on a nearby wall and “looked around” apparently to see if anyone was watching him. He then checked the area where the package had been, finding that it was gone. Dennard was subsequently indicted for possession of cocaine and entered a plea of guilty to the charge. We find that the facts surrounding the prior conviction are sufficiently similar to those in this case. Furthermore, the court’s charge on the law of similar transaction evidence was complete and accurate. The trial court did not err in admitting into evidence Dennard’s prior conviction.

Decided January 12, 1993

Reconsideration denied January 28, 1993.

J. Tracy Ward, for appellant.

Jack O. Partain III, District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


text:
    A91A1424, A91A1425.
    COHEN v. WILLIAM GOLDBERG & COMPANY, INC. et al. (two cases). COHEN et al. v. WILLIAM GOLDBERG & COMPANY, INC. et al. (two cases).
    A91A1426, A91A1427.
    (428 SE2d 117)
    Decided January 28, 1993.

      Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., William G. Leonard, James D. Meadows, for appellants.

      Bedford, Kirschner & Venker, Andrew R. Kirschner, Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellees.
   Blackburn, Judge.

In Cohen v. William Goldberg & Co., 262 Ga. 606 (423 SE2d 231) (1992), the Supreme Court affirmed in part and reversed as to Division 5 the decision of this court in the above-styled cases, 202 Ga. App. 172 (413 SE2d 759) (1991). The judgment rendered by this court is therefore vacated, and the judgment of the Supreme Court is made the judgment of this court; but insofar as Divisions 1, 2, 3, 4, 6 and 7 are unaffected by the decision of the Supreme Court, we reaffirm those holdings.

Judgment reversed and case remanded. McMurray, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A1816.
    CAMPBELL v. COZAD et al.
    (427 SE2d 515)
   Birdsong, Presiding Judge.

Appellant/plaintiff Jeffery Ray Campbell brought suit against appellees/defendants Margaret Elizabeth Cozad and John Warren Cozad for damages arising from an automobile collision at an intersection. This appeal is from the order of the trial court denying appellant’s motion for new trial and amended motion for new trial. Held:

1. Appellant asserts the trial court erred by denying his motion for new trial, because it erroneously failed to charge the general speed restrictions of OCGA § 40-6-180 notwithstanding appellant’s timely submission of a written proposed instruction at the commencement of trial and his subsequent timely exception to the failure to charge.

Appellant’s request to charge, after reciting a standard introductory clause, merely recited verbatim the provisions of OCGA § 40-6-180. Included within the requested charge were references to a non-existing railroad crossing, a winding road, and a hill crest; also reference was made to special hazards which may exist with respect to pedestrians.

There is some evidence that, although appellee Mrs. Cozad was not exceeding the speed limit, she did not reduce her speed as she approached the intersection. See generally Stein Enterprises v. Chat-ham County, 200 Ga. App. 385, 387 (4) (408 SE2d 173). However, pretermitting whether the evidence reasonably raised and addressed certain issues covered in the proposed charge is whether the proposed charge was adequately tailored to the admissible evidence of record.

The request to charge was partially inapt and not adequately adjusted to the evidence; as above noted, it referred to several situations or conditions the existence of which was not reasonably raised by the evidence. Reversible error will not be found in the refusal of the trial court to give a charge which, while constituting a correct statement of an abstract principle of law, was not adjusted to the evidence introduced at trial. Department of Transp. v. Freeman, 187 Ga. App. 883, 884 (1) (371 SE2d 887). “ ‘If any portion of the request is inapt, incorrect, or not authorized by the evidence, denial of the request is proper.’ ” Mattox v. MARTA, 200 Ga. App. 697, 698 (2) (409 SE2d 267); accord Continental &c. Corp. v. Reeves, 204 Ga. App. 120, 127 (3) (419 SE2d 48).

Additionally, the requested charge posed a fair risk of confusing or misleading the jury by referring to situations and conditions not in evidence. Cf. Anderson v. State, 262 Ga. 26 (1), (2) (413 SE2d 732). A trial court does not err in refusing to give an instruction which, although partially correct, could otherwise mislead or confuse the jury. See Jones v. State, 200 Ga. App. 519, 521 (2c) (408 SE2d 823).

Whether the trial court could have given the requested charge, as drafted, without injecting reversible error into the record (compare McCoy v. Alvista Care Home, 194 Ga. App. 599, 601 (391 SE2d 419) with Washington v. State, 194 Ga. App. 756, 759 (5) (391 SE2d 718)) is not the issue. Rather, the issue is whether the trial court committed reversible error in refusing to give the requested charge; the trial court did not commit such error.

2. The investigating officer was called as a witness for appellees/ defendants. Thereafter, appellant/plaintiff called his mother as a witness to testify as to a conversation she had with the officer wherein the officer purportedly stated that he had investigated the accident and found it to be appellee Mrs. Cozad’s fault. The trial court sustained appellees’ objection to this testimony.

Appellant asserts the trial court erred by denying his motion for new trial, because it erroneously excluded certain evidence by sustaining appellees’ objection and directing the jury to disregard the affirmative answer of appellant’s mother, Mrs. Johnson, to the following question: “Did Officer Purser make any statements to you at that time as to what his investigation revealed insofar as who was at fault or had caused the collision?”

Appellant made the following offer of proof a matter of record: “[Q] Mrs. Johnson, what did the officer tell you at that time? [A] He assured me that. . . the accident was not [appellant’s] fault. He said the lady ran the stop sign and hit [appellant] in the driver door. . . . [Q] Did he say that was what his investigation revealed? [A] That’s what his police report said. . . . [Q] The first investigation, then. [A] That’s what he had on his police report. He had . . . the police report with him. . . . [Q] Did he tell you that he had investigated the collision and found that it was Mrs. Cozad’s [appellee’s] fault? [A] Yes.”

Appellant contends on appeal, as he did before the trial court, that the questions and expected answers were admissible for the purpose of impeachment and rebuttal. Appellant does not contend that the excluded testimony in his appellate brief was admissible under OCGA § 24-9-68; accordingly, any such issue is deemed to have been abandoned. Court of Appeals Rule 15 (c) (2).

Appellees’ counsel objected timely to the admission of the testimony on the grounds, inter alia, that the officer had not been questioned previously regarding any prior conversations with appellant’s mother; this, in substance, was an objection based on lack of adequate foundation to admit a prior inconsistent statement, and constituted an adequate, albeit unartful statement, of what the proper foundation should be within the meaning of Sinkfield v. State, 201 Ga. App. 284 (411 SE2d 68). The record reveals appellant did not lay an adequate foundation for the admission of the conversation between the officer and appellant’s mother into evidence as a prior inconsistent or contradictory statement of the officer. Thus, the testimony was not admissible on this particular ground (OCGA § 24-9-83), as a witness may not be impeached by proof of contradictory statements without first laying the requisite statutory foundation. Downside Risk v. MARTA, 168 Ga. App. 202, 204 (2) (308 SE2d 547).

However, a witness may also be impeached by disproving material facts testified to by him (OCGA § 24-9-82), and no foundation is required for admission of evidence for this specific purpose (Cartin v. Boles, 155 Ga. App. 248, 256 (7) (270 SE2d 799)). Impeachment conducted solely in reliance on the plain language of this statute does not extend to an impeachment of the mere expression of an opinion by a witness (see OCGA § 24-9-82), although any facts testified to in support of that opinion would, of course, be subject to impeachment by disproof thereof (compare Eason v. State, 260 Ga. 445, 446 (396 SE2d 492)). The officer’s purported statement to appellant’s mother that he had found appellant not to be at fault would, if at all, serve only to rebut that portion of his own testimony wherein he tacitly opined the accident was due to appellant’s fault; such a purported statement would not rebut a fact to which the officer testified. Accordingly, evidence that the officer previously had voiced his opinion to the witness that appellant was not at fault was inadmissible under OCGA § 24-9-82.

There remains to consider, however, that portion of the offer of proof wherein the officer purportedly informed the mother of the fact that appellee Mrs. Cozad stated she had run a stop sign and hit appellant. First, we note that the offer of proof did not include any statement of fact, attributed to said appellee, regarding which particular street she was driving on at the time of the collision; however, it did include the statement that appellee ran a stop sign and hit appellant. The officer had been called as a defense witness, and testified that Mrs. Cozad had pointed and indicated she had been traveling north on Dixon Industrial Boulevard; that she must have run the stop sign, and that she did not realize they had put a stop sign there. He further testified on cross-examination that Mrs. Cozad had made a statement at the scene of the collision, which was summarized as follows: “She was north on Dixon Industrial Boulevard, south of Noah’s Ark Road. She didn’t realize the stop signs were in place at Noah’s Ark Road requiring her to stop. She drove through the stop signs and struck the vehicle which was west on Noah’s Ark Road.” (Emphasis supplied.) As the officer did not testify that Mrs. Cozad denied in her statement that she had driven through a stop sign and had struck appellant’s vehicle, the trial court did not err in refusing to permit appellant to cross-examine the officer in this regard, because such evidence, as established by the scope of the proffered testimony, would not disprove the facts as actually testified to by the officer. See Gresham v. State, 169 Ga. App. 525, 527 (2) (314 SE2d 111).

Decided January 13, 1993

Reconsideration denied January 29, 1993

William L. Skinner, for appellant.

Joe O’Connor, Albert B. Wallace, for appellees.

The officer further admitted on cross-examination that he had prepared a certain diagram of the collision in his initial police report, which was a pictorial representation of his narrative of the collision as he understood it on the day of the collision, but explained that his initial police report was incorrect. Moreover, the officer subsequently admitted that in the initial police report appellant was listed as having engaged in no contributing factors regarding the collision, but that Mrs. Cozad had failed to yield and disregarded a stop sign; and that on the initial supplemental report, the officer had indicated “Mrs. Cozad had said the accident was her fault” (Emphasis supplied.) As these matters were admitted by the witness, the excluded evidence would not have served to disprove them in any event. Gresham, supra. As the excluded evidence neither was admissible under OCGA §§ 24-9-82 or 24-9-83, it remained inadmissible hearsay testimony. Accordingly, we find that the trial court did not err in excluding the evidence at issue in this enumeration.

Additionally, assuming arguendo error had occurred as enumerated, we are satisfied that in view of the posture of the record such error would have been harmless. OCGA § 9-11-61; see Gaither v. State, 259 Ga. 200 (2) (378 SE2d 464).

Judgment affirmed. Beasley and Andrews, JJ., concur.


author: Carley, Presiding Judge.

text:
    A92A1857.
    In the Interest of R. E. M. et al., children.
    (427 SE2d 512)
   Carley, Presiding Judge.

The dismissal of a prior petition to terminate appellant’s parental rights in his three minor children was affirmed on appeal. In the Interest of R. M., 194 Ga. App. 888 (392 SE2d 13) (1990). Based upon subsequent events, however, another petition to terminate appellant’s parental rights was filed. After conducting a hearing, the juvenile court entered an order granting the petition and appellant appeals from that order.

1. Although appellant did not comply with the discretionary appeal procedures, the instant appeal does not come within the purview of OCGA § 5-6-35 (a) (2), and the termination order is directly appealable. In re S. N. S., 182 Ga. App. 803 (357 SE2d 127) (1987); In the Interest of R. L. Y., M. R. Y. & R. A. Y, 180 Ga. App. 559 (349 SE2d 800) (1986). Accordingly, the motion to dismiss is denied.

2. Appellant enumerates the general grounds.

“ ‘The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the [judgment or disposition], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights . . . were lost. . . . The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test. . ., is not met. . . .’ [Cit.]” In the Interest of S. T., 201 Ga. App. 37, 40 (4) (410 SE2d 312) (1991). The evidence in the instant case was in conflict. It was, however, sufficient to authorize a finding that appellant had sexually molested his youngest daughter in the presence of his eldest child. There was also expert testimony that appellant was not responding to therapy. These circumstances provided clear and convincing evidence that the children were deprived due to parental misconduct and that the cause of that deprivation was likely to continue and cause physical, mental, emotional, and moral harm to them. OCGA §§ 15-11-2 (8) (A) and 15-11-81 (b) (4) (A). Clearly, these circumstances also authorized the conclusion of the juvenile court that termination of appellant’s parental rights was in the best interest of the children. In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988). Compare Patty v. Dept. of Human Resources, 154 Ga. App. 455, 458 (1) (269 SE2d 30) (1980).

The prior opinion in In the Interest of R. M., supra, has no bearing whatsoever on the question of whether the children’s present deprivation as the result of appellant’s current conduct is likely to be continuing. The general grounds are without merit.

3. Appellant’s remaining enumeration of error is unsupported either by any reference to the transcript or record or by citations of authority or argument of counsel. Accordingly, it is deemed abandoned, pursuant to Court of Appeals Rule 15 (c) (2). Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109 (1) (316 SE2d 554) (1984).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.

Decided January 12, 1993

Reconsideration denied January 29, 1993.

Thomas H. Antonion, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Margot M. Cairnes, Staff Attorneys, Robert E. Hall, James W. Blount, Margie P. Hames, for appellee.


text:
    A92A1941.
    DEPARTMENT OF TRANSPORTATION v. FRU-CON CONSTRUCTION CORPORATION et al.
    (427 SE2d 513)
   Carley, Presiding Judge.

The facts, insofar as they are relevant to the resolution of the instant appeal, are as follows: Appellant-defendant Department of Transportation (DOT) undertook a highway construction project. DOT contracted with appellee-plaintiff Holloway Construction Company (Holloway) for the grading work and contracted with appelleethird-party-defendant Fru-Con Construction Corporation (Fru-Con) for the construction of some 15 bridges. The contract specified that Holloway would complete its grading work by certain specified dates and that, if it did not, it would be liable to DOT for liquidated damages. Holloway failed to complete its grading work within the times specified in its contract and, for this delay, DOT withheld liquidated damages from the amount of its final payment to Holloway. Holloway filed suit against DOT, seeking not only to recoup the liquidated damages which had been withheld from its payment, but also seeking to recover damages for DOT’S alleged breach of contract. DOT answered Holloway’s complaint and filed a third-party complaint against Fru-Con. Fru-Con answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of Fru-Con and DOT appeals.

If DOT is not liable to Holloway, then Fru-Con is not liable over to DOT. Insofar as Holloway seeks to recover for losses and expenses it incurred as the result of delay attributable to Fru-Con’s performance of its bridge construction work, Holloway cannot recover from DOT. Paragraph 105.07 of Holloway’s contract with DOT provides: “When separate contracts are let within the limits of any one project, each contractor shall conduct his work so as not to interfere with or hinder the progress or completion of the work being performed by other contractors. Contractors working on the same project shall assume all liability, financial or otherwise, in connection with his contract and shall protect and save harmless [DOT] from any and all damages or claims that may arise because of inconvenience, delay, or loss experienced by him because of the presence and operations of other contractors working within the limits of the same project.” This is a clear and unambiguous expression of the mutual intent that DOT was not to assume vicarious contractual liability for any losses and expenses incurred by Holloway as the result of delay in performance of the grading work which was attributable to Fru-Con’s bridge construction work. Department of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821 (1) (426 SE2d 905) (1992). Under the contract, Holloway’s remedy for delay attributable to Fru-Con’s bridge construction work was to seek an extension of time so as to excuse its untimely performance of the grading work and thereby avoid liability to DOT for liquidated damages. See Department of Transp. v. Fru-Con Constr. Corp., supra at 823 (2). DOT’s remedy for unexcused delay of the grading work beyond the dates for completion specified in the contract was the assessment of liquidated damages against Holloway.

Decided January 12, 1993

Reconsideration denied January 29, 1993

Michael J. Bowers, Attorney General, Hendrick, Spanos & Phillips, David R. Hendrick, William D. Flatt, Martin R. Salzman, for appellant.

Smith, Currie & Hancock, Joseph C. Staak, Wasson, Sours & Harris, W. Hensell Harris, Jr., David R. James, for appellees.

DOT would be liable to Holloway for any breach by DOT of its contract with Holloway. Department of Transp. v. Arapaho Constr., 180 Ga. App. 341, 342 (1) (349 SE2d 196) (1986), aff'd 257 Ga. 269 (357 SE2d 593) (1987). However, DOT suggests no reason why FruCon would be liable over to it for damages incurred by Holloway as the result of DOT’s own breach of its contract with Holloway. It follows that the trial court correctly granted summary judgment in favor of Fru-Con as to DOT’s third-party action.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1964.
    MANNING v. THE STATE.
    (427 SE2d 521)
   Johnson, Judge.

Randy Manning, Jr. was convicted of two counts of aggravated sodomy. He appeals his conviction and the denial of his motion for new trial, asserting six enumerations of error.

1. Manning first asserts that the evidence is insufficient to support his conviction. This enumeration is without merit. The victim, William Pirkle, is a mentally handicapped, 15-year-old boy. He testified that he was visiting with his grandparents when one of their frequent alcohol induced fights broke out. In order to prevent further injury to his grandmother, she and William fled to an area nearby referred to as “the woods.” The area, located behind an abandoned supermarket, is a gathering place where people socialize, share alcohol, and often sleep. William had accompanied his grandmother to the area on previous occasions. Manning was in the woods that day and offered to let William’s grandmother wrap up in his sleeping bag, as it was drizzling and she was cold. After she passed out, Manning began rubbing William, who asked him to stop. Manning pushed William’s head down and ordered him to perform oral sex. William tried to get away, but Manning held him. When William started choking, Manning pulled down William’s shorts and attempted anal intercourse. Several people approached, and William was able to extricate himself from the situation, having avoided actual penetration. Unable to rouse his grandmother, William ran back to his grandparent’s house and called his mother to come and get him. Reviewing the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Manning guilty beyond a reasonable doubt of two counts of aggravated sodomy. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Manning next asserts that the trial court erred in failing to charge, upon request on circumstantial evidence. The trial court defined direct and circumstantial evidence to the jury in its charge, but did not instruct them regarding the law of circumstantial evidence. Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) requires that a requested charge on the law of circumstantial evidence must be given where the state’s case relies in whole or in part on circumstantial evidence. We have reviewed all of the charges requested by Manning in the record, both initially and as supplemented, and do not find that a charge on the law of circumstantial evidence was requested. “Where there has been no written request to charge, failure to give the charge is not error.” (Citations and punctuation omitted.) Bartel v. State, 202 Ga. App. 458, 459 (3) (414 SE2d 689) (1992). We do not reach the issue of whether the state’s case relies in whole or in part upon circumstantial evidence.

3. In his third enumeration of error, Manning asserts that the trial court erred in not requiring the state to furnish him with the name and address of the victim in this case pursuant to his timely notice to produce in violation of OCGA § 17-7-110 and Uniform Superior Court Rule 30.3. “While the state, in most instances, should provide a defendant with the telephone numbers and addresses of its witnesses, this [is] not required.” Baxter v. State, 254 Ga. 538, 541 (4) (331 SE2d 561) (1985). The indictment, which was served on Manning contained the name of the victim. Further, Manning was given a copy of the transcript of the child’s taped statement. It is within the discretion of a minor’s guardian whether to allow Manning’s counsel to interview him and it was not error for the trial court to refuse to order William to submit to pre-trial interviews with Manning’s attorney. Perkins v. State, 260 Ga. 292, 295 (5) (392 SE2d 872) (1990). The state’s failure to produce William for a pre-trial interview was not error.

4. Manning next alleges that the trial court erred and violated due process by restricting the defense’s closing argument. During his closing argument, Manning’s counsel stated: “There’s been this long delay in coming to trial, and it’s not over yet. It’s another way the State can cause lapses in memory.” The state objected to this statement, as it was not argument which could be derived from any evidence presented at trial. The court agreed and, outside the presence of the jury, invited the defense to offer any evidence it might have of intentional delay. In finding an absence of evidence, the court instructed the jury: “Any remark or reference by any individual that any agent of the State or officer of the Court intentionally causes memory lapses of witnesses as a result of trial delays should not be considered by you, and I’m directing you to allow it to play no part in your deliberations whatsoever.” In the absence of abuse, discretion in determining the range of argument is vested in the trial judge. Towns v. State, 191 Ga. App. 229, 230 (2) (381 SE2d 405) (1989). The trial court did not abuse its discretion in ruling counsel’s argument improper.

5. Manning alleges that the trial court erred in admitting evidence of the victim’s pre-trial identification of Manning as the perpetrator of the crime. “The test for determining whether a due process violation occurred in cases such as this is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation.” (Citations and punctuation omitted.) Bonds v. State, 203 Ga. App. 51, 52 (1) (416 SE2d 329) (1992).

William was asked to identify his assailant in a lineup on the afternoon of the incident. The police brought in an array of five men. When the second man entered, William put his hands in front of his face and said “That’s him.” Specifically, Manning complains that there were five, not six, people in the lineup and that Manning was the only man with facial hair. Manning also argues that because a photograph was not taken of the array as viewed by the victim, the trial court could not make a finding regarding the validity of the lineup and should exclude evidence regarding the pre-trial identification made by the victim. While a picture of the array was not available, the state provided the court with individual pictures of the five people in the lineup. Applying the “totality of the circumstances” test adopted by Bonds, supra, we conclude that the procedures used were not so impermissibly suggestive as to cause substantial likelihood of misidentification, and the trial court did not err in allowing testimony regarding the pre-trial identification.

Decided January 19, 1993

Reconsideration denied January 29, 1993

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.

6. Finally, Manning asserts that the trial court erred and violated due process of law in basing its sentence on aggravating circumstances which were not timely disclosed. The state served timely notice that it intended to introduce prior convictions with respect to sentencing. It did not attach certified copies of the convictions to the notice, nor was it required to. See Day v. State, 188 Ga. App. 648, 650 (8) (374 SE2d 87) (1988). Counsel for Manning conceded that at least three of the prior felony convictions were proper and admissible, and only those convictions were offered to the court for consideration. Therefore, there is no merit to this complaint.

Judgment affirmed. Pope, C. J., concurs. Carley, P. J., concurs in Divisions 1, 3, 4, 5, 6, and in judgment.