author: Banke, Presiding Judge.

text:
    A90A1384.
    THE STATE v. MILLER.
    (397 SE2d 508)
   Banke, Presiding Judge.

This is an appeal by the state from the grant of a motion to suppress evidence in a prosecution for possession of cocaine with intent to distribute.

At approximately 2:45 p.m. on March 21, 1989, the Savannah police received a telephone tip from an anonymous caller to the effect that two black males were en route to Savannah from Frogmore, South Carolina, traveling in a gray Honda with a Georgia license plate ending in “323” and carrying a large amount of crack cocaine. This information was relayed to Officer Michael Hollis of the Savannah Police Department, who responded by setting up a surveillance of incoming motorists at the Talmadge Bridge. At approximately 4:15 p.m., he observed two black males cross the bridge into Savannah in a gray Honda bearing Georgia license plate number “NZW 323.” He then followed this vehicle through the city in his unmarked car until it pulled to the side of a street and stopped. Upon seeing the individual on the passenger side exit the vehicle and start to walk away, Officer Hollis confronted him, identified himself as a police officer, and instructed him to place his hands on the vehicle. The appellee, who was seated in the driver’s seat, was similarly instructed to get out and place his hands on the vehicle.

At this time a second Savannah police officer, who had arrived on the scene to assist Officer Hollis, asked the appellee for his driver’s license. The appellee responded that he did not have one and was thereupon placed under arrest for driving without a license. During a search of his person conducted incident to his arrest, 11 small, clear plastic coin envelopes were discovered inside one of his pockets. Officer Hollis testified that “[a]fter we found the coin envelopes . . ., which through my experience, is . . . commonly used to package crack cocaine and marijuana, we went in to inventory the vehicle at the time.” During their search of the vehicle, the officers found a partially burned marijuana cigarette inside a matchbox in the vehicle’s ashtray and then discovered a hidden compartment containing crack cocaine near the steering wheel. The trial court granted the appellee’s motion to suppress this contraband based on a determination that the anonymous caller’s tip was insufficient to establish probable cause to arrest the appellee or to search the automobile. Held:

While we agree with the trial court that the tip provided by the anonymous caller failed to establish probable cause for an arrest or search, we hold that, having verified all of the information provided by the caller which could be verified without effecting a seizure of the vehicle or its occupants, Officer Hollis did have reasonable and articulable grounds to detain the appellee and his companion briefly for the limited purpose of ascertaining their identity and conducting a driver’s license and vehicle registration check. See Mallarino v. State, 190 Ga. App. 398, 401 (379 SE2d 210) (1989). Accord Chumbley v. State, 180 Ga. App. 603 (349 SE2d 823) (1986); State v. Noble, 179 Ga. App. 785 (347 SE2d 722) (1986); Jackson v. State, 155 Ga. App. 386 (1) (271 SE2d 32) (1980). See also Brisbane v. State, 233 Ga. 339 (211 SE2d 294) (1974). Having lawfully detained the appellee, the officers acquired probable cause to arrest him based on his statement that he did not have a valid driver’s license. “In New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981), the United States Supreme Court held that a contemporaneous warrantless search of the interior of a motor vehicle conducted in connection with a custodial arrest of the vehicle’s driver may be considered a lawful search incident to arrest even though the vehicle is no longer occupied.” Maddox v. State, 188 Ga. App. 883, 884 (1) (374 SE2d 810) (1988). See also Coley v. State, 177 Ga. App. 669 (1) (341 SE2d 9) (1986). Therefore, we conclude that the search of the vehicle was authorized as a search incident to arrest and that the trial court consequently erred in granting the appellee’s motion to suppress the contraband seized from the vehicle.

Judgment reversed.

Birdsong and Cooper, JJ., concur.

Decided September 27, 1990.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellant.

Cail & Cail, Kenneth H. Cail, Jr., George T. Jackson, for appellee.


source: Caselaw Access Project

license: Public Domain

text:
    A90A1437.
    GREEN v. YOUNG.
    (397 SE2d 509)
   Banke, Presiding Judge.

On October 31, 1988, the appellant filed suit against the appellee to recover for injuries allegedly sustained in an automobile accident which had occurred on November 3, 1986. The service address furnished with the complaint was that of the appellee’s employer at the time of the collision. The appellee filed an answer on May 8, 1989, asserting, inter alia, that the court lacked jurisdiction due to insufficiency of service of process and that the claim was barred by the running of the statute of limitation. The trial court granted summary judgment to the appellee based on the statute of limitation defense, ruling that the appellant had failed to exercise due diligence in perfecting service; and this appeal followed.

In an affidavit submitted in support of his motion for summary judgment, the appellee averred that he had resided at the same address since August of 1988. In an effort to establish that she had exercised due diligence in attempting to perfect service, counsel for the appellant submitted an affidavit detailing her efforts to locate the appellee. She acknowledged in this affidavit that she had been aware that she did not have the defendant’s correct address at the time she filed the lawsuit and revealed that, after having made several inquiries to the sheriff’s office concerning the status of service, she had decided to seek “outside help” in finding him on February 1,1989, when she learned that the attorney representing his wife in a divorce action had also been unsuccessful in locating him. Nine days later she wrote to a local attorney seeking the name of an investigator, but nothing came of the inquiry. On February 24, 1989, she sent a similar letter to another attorney and again obtained no response. On March 28, 1989, she moved for and obtained an order authorizing service by publication. The appellee, who has never been personally served, filed his answer on May 8, 1989. Held:

“Where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. [Cit.] The plaintiff has the burden of showing that due diligence was exercised. [Cits.] Ordinarily, ‘(t)he determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.’ [Cit.]” Shears v. Harris, 196 Ga. App. 61 (396 SE2d 300) (1990).

Decided September 27, 1990.

Dozier, Akin & Lee, L. Z. Dozier, Jr., for appellant.

Jones, Cork & Miller, John T. Mitchell, Jr., Thomas W. Joyce, for appellee.

In its order awarding summary judgment to the appellee, the trial court expressly found that the appellant had failed to demonstrate reasonable diligence in attempting to effect timely service, even though prior to filing suit he had been “aware of the difficulties in determining the [appellee’s] whereabouts.” A plaintiff is under an obligation to ascertain the defendant’s address before filing suit. Walker v. Hoover, 191 Ga. App. 859 (383 SE2d 208) (1989); and “ ‘[o]ur statutes pertaining to torts . . . contain no provision for service by publication in any action for personal judgment for a tort against any person, resident or nonresident.’ ” Smith v. Commercial Union Assurance Co., 246 Ga. 50 (268 SE2d 632) (1980). Under the circumstances, we hold that the trial court did not err in granting summary judgment to the appellee based on the running of the statute of limitation. See Forsyth v. Brazil, 169 Ga. App. 438 (313 SE2d 138) (1984).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


author: Deen, Presiding Judge.

text:
    A90A1833.
    GRAHAM v. THE STATE.
    (397 SE2d 600)
   Deen, Presiding Judge.

The appellant, Dennis Graham, and a co-defendant were indicted for two counts of burglary. The co-defendant pleaded guilty and testified at Graham’s trial. Graham was convicted of one count of burglary and one count of accepting and disposing of stolen property. On appeal, he contends that the evidence did not support his convictions.

Before midnight on April 17 or 18, 1989, the co-defendant broke into an auto parts store and took a tape player. Later that night he encountered Graham, who had a car, and asked Graham where he could get rid of the tape player. Graham drove to a house and took the tape player inside, where he sold it to someone for $40. After-wards, Graham and the co-defendant bought and smoked some crack cocaine.

Decided September 27, 1990.

Straughan & Straughan, William T. Straughan, for appellant.

James L. Wiggins, District Attorney, for appellee.

Later on, the co-defendant indicated that he knew of another place he wanted to break into, and Graham drove him to the street where another auto parts store was located. Graham let him out and returned a few minutes later to pick him up, along with a boxed display of tape players. Thereafter, Graham took the co-defendant to a place where the co-defendant hid the stolen property. At trial, Graham denied knowing that the tape player he had sold was stolen, and that the co-defendant intended to commit the second burglary. Held:

The evidence authorized a rational trier of fact to find beyond a reasonable doubt that Graham was a party to the second burglary. OCGA § 16-2-20, generally; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). However, Graham’s conviction for accepting and disposing of stolen property must be reversed, because theft by receiving stolen property is not a lesser included offense of burglary. Holloman v. State, 168 Ga. App. 683 (310 SE2d 734) (1983). The trial court erred in instructing the jury on theft by receiving stolen property as a lesser included offense of burglary and giving it the option of finding Graham guilty of that offense.

Judgment affirmed in part and reversed in part.

Pope and Beasley, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A0984.
    ARNOLD v. ARNOLD.
    (397 SE2d 724)
   McMurray, Presiding Judge.

This marks the second appearance of this automobile negligence case in our appellate courts. Previously, in Arnold v. Arnold, 189 Ga. App. 101 (375 SE2d 225), aff’d 259 Ga. 150 (377 SE2d 856), we reversed the grant of defendant’s motion for summary judgment holding that defendant driver, an emancipated child having reached the age of majority before the trial court entered its order granting summary judgment, could be sued by plaintiff passenger, her unemancipated sister. This appeal follows the rendition of a verdict and judgment in defendant’s favor and the denial of plaintiff’s motion for a new trial.

At the time in question, plaintiff (who was 10-years-old) was a front seat passenger in an automobile driven by defendant (who was 16-years-old). The automobile was heading westbound on a two-lane road. Plaintiff was asleep at that time; she was not wearing a seat belt; defendant had not told her to wear one. Suddenly, the automobile crossed the centerline and struck another vehicle coming in the opposite direction. Plaintiff and defendant were seriously injured in the collision. Neither one was able to explain why the automobile crossed the centerline. Held:

1. The trial court charged the jury as follows: “Ladies and gentlemen, ordinary negligence means simply the absence of or the failure to exercise ordinary care or diligence. Ordinary care or diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.” Subsequently, the trial court added the following charge pertaining to a child of tender years: “[T]he term, due care, when used in reference to a child of tender years, is such care as the child’s mental and physical capabilities enable him to exercise in the actual circumstances of the occasion and situation under investigation.”

Later the court continued its charge in this manner: “[A]s to the claim of the plaintiff, the Georgia Law of Comparative Negligence is applicable. That rule of law is as follows: If you find that the negligence of the defendant, if any, was less than the negligence of the plaintiff, if any, then in that event, the plaintiff could not recover. If you find that the negligence of the defendant, if any, was equal to the negligence of the plaintiff, if any, then in that event, the plaintiff could not recover. If you find that the negligence of the defendant, if any, was greater than the negligence of the plaintiff, if any, then in that event, the plaintiff could recover, but the amount of the recovery would be reduced by the degree of negligence chargeable to the plaintiff. This rule of comparative negligence relates only to the issue of the plaintiff’s use of a seat belt at the time of the occurrence in question in this suit. This is explained in the following charge.”

The trial court went on: “I charge you, ladies and gentlemen, that under our law, the plaintiff has a duty to exercise ordinary care for for her own safety. If you find under the evidence that the plaintiff was not using her seat belt at the time of the occurrence involved in this lawsuit, you would be authorized to consider whether the plaintiff’s failure to wear her seat belt was [negligence] and that such failure to wear her seat belt contributed to the severity of her injuries. If you find that the plaintiff was negligent in this regard, you would be authorized to compare the plaintiff’s negligence, if any, with the defendant’s negligence, if any, and apply the rules of comparative negligence as given by this court. In this regard, I charge you that if you find that plaintiff was not using her seat belt at the time of the accident, such failure would not relate in any way to the issue of the liability of the defendant, but such failure to use a seat belt would be relevant only to the issue of damages. You are therefore authorized only to consider the extent to which the failure to use a seat belt may have contributed to the injuries sustained by the plaintiff and reduce the damages in accordance with the extent which you find that such failure contributed to the plaintiff’s injuries.” (Emphasis supplied.)

Relying upon Sturdivant v. Polk, 140 Ga. App. 152, 153 (3) (230 SE2d 115), plaintiff contends the trial court erred in giving conflicting charges with regard to plaintiff’s standard of care. In Sturdivant, the trial court instructed the jury that plaintiff, an 11-year-old child, was charged with a duty of ordinary care. Later, the trial court properly instructed the jury that a child of tender years is bound to exercise due care according to his or her age and capacity. Finding error, this court held: “An erroneous and injurious instruction is not cured by a correct statement of law in another part of the charge to the jury wherein the incorrect charge is not expressly withdrawn from the jury’s consideration and their attention directed thereto. [Cits.]” Sturdivant v. Polk, 140 Ga. App. 152, 153 (3), 154, supra.

We agree with plaintiff that (1) the trial court erred in charging the jury that plaintiff had a duty to exercise ordinary care for her own safety and (2) the error was not cured by the fact that the trial court previously charged the jury correctly regarding the standard of care for a child of tender years. Nevertheless, we find no merit in plaintiff’s first enumeration of error because it cannot be said that plaintiff was harmed by the erroneous charge. The erroneous charge was limited to a consideration of comparative negligence insofar as plaintiff was not using a seat belt. The jury was instructed that the failure to use a seat belt pertained only to the issue of damages. Thus, in view of the jury’s verdict in favor of defendant absolving defendant of liability, any error in the charge complained of regarding damages was harmless. Reese v. Lyons, 193 Ga. App. 548 (4) (388 SE2d 369); Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 154 (1), 155 (342 SE2d 352); Tittle v. McCombs, 129 Ga. App. 148, 150 (9) (199 SE2d 363).

Citing Sturdivant v. Polk, 140 Ga. App. 152, supra, and Kendrick v. High Shoals Mfg. Co., 21 Ga. App. 315 (94 SE 287), plaintiff asserts that on previous occasions we have not deemed a charge such as the charge given in this case to be harmless in spite of a defendant’s verdict. This assertion misses the mark. The erroneous charge in the case sub judice was clearly limited to issues of comparative negligence and damages.

2. At the outset of the trial, plaintiff filed a motion in limine to prevent defendant from making references to a number (16) of topics, including defendant’s employment status or enrollment in an institution of higher learning; the family or financial status of either plaintiff or defendant; the source of any payment of plaintiff’s medical bills; the extent of defendant’s injuries; and any medical treatment which defendant received. The trial court made no specific ruling with regard to the motion: “I’m not going down and rule on everyone of these sixteen items. He knows that you don’t go into family circumstances. The circumstances of the parties is totally irrelevant evidence. He knows that. How much money somebody has and how much money somebody doesn’t have. . . . I’m not going through that, one, two, three, four, five, six, seven, eight, nine, ten through sixteen. We’ve got to get on with the trial of this case. . . . The motion basically says you are not going to do something that’s improper and I’m not going to sit here and tell every lawyer before he tries a case, and say this is improper, don’t you do it. [Defense counsel] knows that’s improper and he knows he better not do it. I see no problem with that at all.”

Subsequently, during the course of the trial, defendant introduced evidence concerning the extent of her injuries, her college education and her plans to enter nursing school. In addition, evidence was elicited regarding the marital status of plaintiff’s mother and father (they are divorced), the fact that plaintiff lives with her mother and the fact that plaintiff’s medical bills were rendered in her father’s name.

Plaintiff contends the trial court erred in permitting defendant to introduce such evidence in the face of the motion in limine. In this regard, plaintiff acknowledges that no objections were made to the evidence. She insists, however, that, in light of the trial court’s ruling upon the motion in limine, any error pertaining to the admission of the evidence was preserved for appellate review. See Reno v. Reno, 249 Ga. 855 (295 SE2d 94). We disagree for the simple reason that the trial court did not clearly rule upon the 16 items raised in the motion in limine. On the contrary, the trial court expressly postponed any decision pertaining thereto. Thus, it was incumbent upon plaintiff to object to the introduction of evidence pertaining to the 16 items in order to preserve these issues for appeal. See Albea v. Jackson, 236 Ga. 690 (1), 691 (225 SE2d 46).

3. The evidence demonstrated unequivocally that the automobile driven by defendant crossed the centerline of the highway in violation of OCGA § 40-6-40 (a). “A violation of the Uniform Rules of the Road prima facie establishes negligence per se in the absence of a valid defense. Johnson v. McAfee, 151 Ga. App. 774 (2) (261 SE2d 708) (1979). ‘(T)he burden then shifts to the defendant to show that the violation was unintentional and in the exercise of ordinary care. (Cits.)’ Williams v. Calhoun, 175 Ga. App. 332, 333-34 (333 SE2d 408) (1985).” Cox v. Cantrell, 181 Ga. App. 722, 724 (5) (353 SE2d 582).

Decided September 28, 1990.

Rosenzweig, Kam, Jones & MacNabb, Joseph P. MacNabb, for appellant.

Frank E. Jenkins III, Sharon C. Barnes, for appellee.

Defendant offered no explanation as to why the automobile she was driving crossed the centerline. She did not contend that she crossed the centerline in the exercise of ordinary care. In fact, she could not remember a single detail about the collision. Thus, with regard to the proximate cause of plaintiff’s injuries, the evidence points only to the negligence of defendant. It follows that the evidence was insufficient to support the verdict and that the trial court erred in failing to grant plaintiff’s motion for a new trial upon the general grounds.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A1228.
    REEVES v. THE STATE.
    (397 SE2d 601)
   McMurray, Presiding Judge.

Defendant was charged via indictment with two counts of child molestation and one count of aggravated assault. Upon the trial of the case, the jury returned a verdict of not guilty as to Count 1 of the indictment, charging the offense of child molestation, and guilty of the remaining charges of child molestation (Count 2) and of aggravated assault (Count 3). Defendant appeals and enumerates as error the denial of his motion to suppress and the denial of his motion for directed verdict as to the offense charged in Count 1 of the indictment. Held:

1. The motion to suppress sought to exclude evidence found during a search of defendant’s home. Defendant concedes that the search warrant affidavit provides ample probable cause to believe that he molested the victim and that knives had been used to threaten the child. However, defendant contends that there was no basis upon which to believe the knives were on the premises sought to be searched. It is true that the affidavit, which was the sole basis for the search warrant since no further evidence was provided to the magistrate, does not mention the knives in connection with defendant’s home. Indeed, the affidavit does not reveal where the alleged acts of child molestation occurred.

Nonetheless, under appropriate circumstances it is reasonable to infer that items will be found in a specific place. Regardless of where the alleged acts of child molestation occurred it is reasonable to expect that defendant would thereafter go to his home taking the knives with him and that he would then leave the knives there. Such an inference is no more than a recognition of the continuing utility of the knives and of the fact that since possession of the knives was not illegal, there being no evidence showing possession being illegal, there would be no reluctance anticipated to holding them at the location where most personal items are stored, that is, at one’s home. There was probable cause for issuance of the warrant. Murphy v. State, 238 Ga. 725, 726 (1), 727, 728 (234 SE2d 911).

Defendant’s reliance upon Kelleher v. State, 185 Ga. App. 774, 777 (1) (365 SE2d 889), is unfounded. This two-judge case is not binding precedent and is also distinguishable on the facts since it involved contraband.

Nor was there any lack of probable cause due to staleness. While there had been an 11-month interval between the date of the alleged acts of child molestation and the affidavit, a consideration of all of the facts and circumstances supports the magistrate’s conclusion that there was probable cause to believe the knives remained at defendant’s home. The affidavit showed that the alleged crimes were a manifestation of a long term pattern of conduct on the part of defendant towards adolescent males. The knives were non-perishable, non-consumable items which were legally possessed and of continuing utility to defendant. The lapse of time did not prevent a conclusion that there was probable cause to believe that such permanent possessions would be found in defendant’s home. Tuzman v. State, 145 Ga. App. 761, 764 (2), 765 (244 SE2d 882).

The search warrant affidavit also related statements made by defendant’s adopted son and by a third young male, J. C. The adopted son’s statement accused defendant of prior acts of child molestation and the statement of J. C. related seeing defendant and his adopted son sleeping nude together. Defendant contends the affidavit omitted material statements and information which were needed by the magistrate to assess whether there was a probable cause basis for the issuance of a search warrant.

Defendant relies upon the affiant’s knowledge that the defendant’s adopted son had a substantial psychiatric history and had previously testified under oath that defendant had never abused him sexually. As to the related statement of J. C., the allegedly material omission was that the observation of defendant and his adopted son had occurred two or three years prior to the date of the affidavit. However, the affiant testified at the motion to suppress hearing that when he interviewed the adopted son, he was told that the earlier statement was made from fear of defendant, and testified that his observation of the demeanor of the young man suggested he was truthful. The affiant also testified that he did not intentionally leave out anything that he felt the magistrate should know about.

Decided September 28, 1990.

The Garland Firm, Donald F. Samuel, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

The trial court determined that there was no violation of the standard set out in Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667), that is, that defendant had failed to sustain his allegation of misconduct on the affiant’s part. As this finding was authorized by the evidence, the omitted material was not required to be included in the affidavit. Redding v. State, 192 Ga. App. 87, 88 (383 SE2d 640); Hayes v. State, 182 Ga. App. 319 (1) (355 SE2d 700). The trial court did not err in denying defendant’s motion to suppress.

2. Inasmuch as the jury determined that defendant was not guilty of the offense charged in Count 1 of the indictment, any error in the denial of defendant’s motion for directed verdict as to Count 1 was harmless. Jolley v. State, 189 Ga. App. 450 (2) (375 SE2d 903); Henderson v. State, 134 Ga. App. 898 (1) (216 SE2d 696).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur in Division 2 and in the judgment.


text:
    A90A1401.
    MT. VERNON MILLS, INC. v. GUNN.
    (397 SE2d 603)
   McMurray, Presiding Judge.

On October 7, 1987, claimant Gunn’s right dominant hand was caught in a machine and burned. She also sustained injury to her shoulder and elbow. Surgery, involving a skin graft, was performed to the hand by Dr. Noggle and the other injuries were dealt with by physical therapy and orthopedic consultation with Dr. McLean.

Claimant returned to work with employer Mt. Vernon Mills, Inc., on January 31, 1989, pursuant to Dr. Noggle’s determination that she could return to work with no restrictions. Four days after returning to work, claimant complained of shoulder pain and an appointment was scheduled with Dr. McLean, who told claimant she could continue working and ordered an “MRI” scan.

On February 28, 1989, Dr. McLean told the claimant that the “MRI” scan was negative and that she could continue working. Although claimant returned to work on that date, at lunch she told her supervisor that she was going home because her arm hurt. When the claimant stayed out of work for six days without calling her employer to explain her absence she was terminated pursuant to corporate policy.

After claimant stopped working she indicated that she would like to see another doctor for a second opinion. Claimant was sent to Dr. Dicks, a neurosurgeon, and to Dr. Richwine, a plastic surgeon. Neither of these physicians found that claimant could not work. Dr. Dicks found that “restrictions would have to be geared in regards to specific use of her hand . . .,” while Dr. Richwine observed a videotape depicting claimant’s new job and concluded that claimant had no impairment which would prevent her from performing the job.

Upon application of claimant, a hearing was scheduled to determine change in condition and, if appropriate, assess attorney fees pursuant to OCGA § 34-9-108. Claimant sought total disability income benefits from February 28, 1989, while employer denied liability on the theory that claimant was able to work.

The administrative law judge found that claimant had not reached maximum medical improvement, had a 25 percent impairment to her hand related to the compensable injury, and that additional surgical procedures were indicated for claimant. Based on these findings the administrative law judge awarded the reinstatement of benefits as of February 28, 1989. The administrative law judge also found that the employer had full knowledge of claimant’s injury and disability when it terminated claimant. The administrative law judge concluded that the employer had defended the claim without reasonable grounds and awarded claimant attorney fees pursuant to OCGA § 34-9-108. The full board adopted the award of the administrative law judge as its own and the superior court affirmed the award of the full board.

We granted the employer’s application for a discretionary appeal. On appeal, the employer’s sole enumeration of error complains of the finding that it unreasonably defended the claimant’s change in condition claim. Held:

OCGA § 34-9-108 (b) (1) provides that: “Upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney’s fee against the offending party.” Whether or not reasonable grounds for resisting an award of compensation exist is an issue of fact for board determination. Southwire Co. v. Crapse, 190 Ga. App. 383, 384 (378 SE2d 742); American Motorist Ins. Co. v. Corbett, 144 Ga. App. 845, 846 (3), 847 (242 SE2d 748).

Decided September 28, 1990.

Goldner, Sommers & Scrudder, Sandra G. Chase, for appellant.

James N. Butterworth, for appellee.

The physicians who examined claimant were aware collectively, if not individually, of claimant’s chronic pain, of the remaining disability from her injury, and of the possible need for further treatment including surgery. Nonetheless, each of these physicians was of the opinion that claimant was able to return to work. This is not a case such as DeSoto Falls, Inc. v. Brown, 187 Ga. App. 830, 832 (2) (371 SE2d 462), in which the physician’s opinion is explicitly predicated on incomplete data. In the case sub judice, the board, as trier of fact, rejected the expert opinion shared by each of the physicians, substituting its own interpretation of the underlying medical information. The award of compensation was not demanded by the evidence and the conclusions of the board do not amount to evidence of unreasonableness on the part of the employer in predicating its defense on the expert opinions of the physicians. The finding of the board that the employer’s defense was made without reasonable grounds is without evidence to support it and the superior court erred in affirming the award of the board. Brigmond v. Springhill Homes of Ga., 180 Ga. App. 875, 876 (350 SE2d 846).

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A1426.
    APPERSON v. THE STATE.
    (398 SE2d 33)
   McMurray, Presiding Judge.

Defendant was convicted of driving under the influence of alcohol and speeding. The sole issue on appeal is whether the trial court erred in permitting the arresting officer to testify about field sobriety tests administered to defendant. The field tests consisted of verbal and physical tasks; they did not involve a breath test. Nevertheless, defendant objected to the officer’s testimony on the ground that the officer failed to give him a breath test in compliance with Rule 92-3-.06 (3) of the Rules & Regulations of the State of Georgia. Held:

Although Rule 92-3-.06 (3) of the Rules & Regulations of the State of Georgia provides that an “initial alcohol screening test shall be a breath test” performed on a device of a design approved by the Director of the Division of Forensic Sciences, the rules do not require the giving of any such alcohol screening test by an arresting officer. On the contrary, Rules 92-3-.06 (1) and 92-3-.06 (2) plainly provide that alcohol screening tests may or may not be performed at the discretion of the arresting officer. Thus, it is only when a breath test is given by the arresting officer that it must be performed on an approved device. If no such breath test is given, Rule 92-3-.06 (3) does not come into play. It follows that the trial court did not err in permitting the arresting officer to testify about field sobriety tests administered to defendant.

Decided September 28, 1990.

T. Peter O’Callaghan, Jr., for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


text:
    A90A1465.
    FLETCHER v. THE STATE.
    (397 SE2d 605)
   McMurray, Presiding Judge.

Defendant was convicted of the offense of aggravated assault. The evidence showed that defendant fired a gun into the victim’s home at about 4:00 in the morning on April 22, 1987. Upon the denial of his motion for new trial, defendant appeals. Held:

1. Defendant first contends the trial court erred in limiting his cross-examination of a State’s witness.

An eyewitness testified that the victim’s daughter had been romantically involved with defendant “for about two years” before the shooting and that they had recently separated on bad terms. On cross-examination, defense counsel asked the eyewitness whether the victim’s daughter “had had a fight...” with another man during the “week” of the shooting incident. The State’s attorney objected, arguing that the victim’s daughter was not involved in the shooting incident and that her relationship with another man is not relevant to the crime charged. Defense counsel argued relevancy, “suggesting [that the State’s] theory of the case involves [the victim’s daughter] and her friends — or non-friends or people she has lived with or not lived with.” The trial court sustained the State’s objection, unable to “see the relevancy of [defendant’s line of inquiry] in connection with the testimony given to this point.”

Defendant “had the right to a thorough and sifting cross-examination of any witness called against him. OCGA § 24-9-64 (Code Ann. § 38-1705). However, the extent of cross-examination can be curtailed if the inquiry is not relevant or material, and such restriction lies within the discretion of the trial court which will not be disturbed on appeal unless manifestly abused. Page v. State, 159 Ga. App. 344 (283 SE2d 310) (1981); Hudson v. State, 137 Ga. App. 439 (224 SE2d 48) (1976).” Fitzgerald v. State, 166 Ga. App. 307, 310 (7) (304 SE2d 114). Under the circumstances of the case sub judice, we find no manifest abuse of discretion in the trial court’s limitation of defense counsel’s cross-examination of the State’s eyewitness. This enumeration is without merit.

2. Defendant contends in his second enumeration that the trial court “erred in failing to charge criminal trespass as a lesser included offense of aggravated assault.” This contention is without merit.

“ ‘The uncontradicted evidence showed completion of the greater offense ... so that the charge on [a] lesser offense was not required. (Cits.)’ Jordan v. State, 239 Ga. 526 (2) (238 SE2d 69) (1977). See also Mallory v. State, 166 Ga. App. 812 (2) (305 SE2d 656) (1983).” Howard v. State, 182 Ga. App. 403, 404 (2) (355 SE2d 772).

3. In his third enumeration, defendant challenges the emphasized portion of the following jury instruction: “Now, ladies and gentlemen, you will also be considering or will be authorized to consider what is termed a lesser included offense, that of reckless conduct, and I will get into the definition of that in just a second. But with regards to the offense of reckless conduct, as [the State’s attorney] has stated, this is a misdemeanor. It is different from an aggravated assault. Aggravated assault is a felony.” (Emphasis supplied.)

Defendant contends “[t]he trial court should not have made a distinction to the jury with regards to the indicted charge being a felony and the lesser included offense being a misdemeanor,” arguing that “such comment, involved the jury in sentencing decisions and thus tainted the verdict, in violation of [his] due process rights.” This argument is without merit. We find nothing in the emphasized language of the above charge which pertains to possible sentences for the crime charged. Compare, “Mayo v. State, 139 Ga. App. 520 (1) (229 SE2d 16), wherein it was held: ‘It is error to instruct the jury as to a possible sentence in a felony case before the jury has determined the question of guilt or innocence. Ford v. State, 232 Ga. 511, 518 (14) (207 SE2d 494); Moore v. State, 228 Ga. 662, 665 (5) (187 SE2d 277); Harris v. State, 234 Ga. 871, 873 (218 SE2d 583).’ Accord, Hill v. State, 144 Ga. App. 259 (2) (241 SE2d 44); Evans v. State, 146 Ga. App. 480 (2) (246 SE2d 482).” Lewis v. State, 158 Ga. App. 575 (281 SE2d 318).

Defendant further contends that, “[b]y quoting the prosecutor directly and approvingly, the Trial Court impermissibly prejudiced the jury and intimated its approval to the State’s view of the case and the State’s expertise, in violation of [OCGA § 17-8-57] and of [his] rights to due process. ...”

OCGA § 17-8-57 provides, in pertinent part, as follows: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” This Code section “is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be. Mitchell v. State, [190 Ga. 571, 572 (3) (9 SE2d 892)]; Buffington v. State, [171 Ga. App. 919, 923 (8) (321 SE2d 418)].” Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704).

Decided September 28, 1990.

Lindsey & Jacobs, Tamara Jacobs, for appellant.

W. Fletcher Sams, District Attorney, for appellee.

In the case sub judice, we find no violation of OCGA § 17-8-57. The trial court’s affirmative reference to the State’s attorney’s comment regarding reckless conduct as a misdemeanor in no way assumed certain things as facts or intimated what the trial court believed the facts to be. This enumeration is without merit.

4. Finally, defendant challenges the sufficiency of the evidence.

The victim’s son testified that he witnessed defendant shoot into the victim’s home. This evidence was sufficient to enable the jury to find beyond a reasonable doubt that defendant was guilty of aggravated assault. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), and Munoz v. State, 190 Ga. App. 806 (1) (380 SE2d 88).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.


author: Sognier, Judge.

text:
    A90A0806.
    McMANUS v. SAUERHOEFER et al.
    (397 SE2d 715)
   Sognier, Judge.

Brien McManus brought suit against Thomas James Sauerhoefer, Sr. and his son, Thomas James Sauerhoefer, Jr., to recover for damages allegedly sustained in a collision between a car in which Mc-Manus was a passenger and a car owned by Sauerhoefer, Sr. and driven by Sauerhoefer, Jr. McManus appeals from the dismissal of his complaint for failure to perfect service of process within the statute of limitation or a reasonable time thereafter.

The record reveals that the automobile collision out of which this action arose occurred on January 30,1987. Appellant filed suit against appellees in DeKalb County on January 25, 1989 and gave as the service address for both defendants the address listed in the police report. On February 1, appellant was notified by the DeKalb County Superior Court clerk that the sheriff’s office had determined that the service address was located in Gwinnett County, not DeKalb, and that Sauerhoefer, Jr. no longer resided at that address. Appellant then filed a motion to transfer the case to Gwinnett County on February 29, the motion was granted on March 13, and Sauerhoefer, Sr. was served at the Gwinnett address on April 3. Notorious service was effected as to Sauerhoefer, Jr. on that date at the same address.

Appellees filed a joint answer in which they asserted defenses of laches and expiration of the statute of limitation as to both, and insufficient service and lack of jurisdiction and venue as to Sauerhoefer, Jr. On August 21, in response to interrogatories served on May 3, 1989, appellees filed their responses in which they stated the factual bases for their affirmative defenses and disclosed Sauerhoefer, Jr.’s current address. Appellant also deposed appellees on October 10, 1989. On October 13, two days before the pretrial order was due, appellees filed their motion to dismiss. Sauerhoefer, Jr. was personally served by the Gwinnett County Sheriff’s Department on November 7. The record also reveals that at all times relevant to this action, Sauerhoefer, Sr. resided at the address listed in the police report, but Sauerhoefer, Jr. moved from that residence to DeKalb County four months after the accident.

On appeal, appellant concedes the trial court’s ruling was correct as to Sauerhoefer, Jr., who was not personally served until 283 days after expiration of the statute of limitation, but contends the dismissal of Sauerhoefer, Sr. constituted an abuse of the trial court’s discretion because the delay of 63 days was reasonable under the circumstances. We cannot agree. The statute of limitation in this action, which under OCGA § 9-3-33 expired on January 29, 1989, four days after the action was filed, could be tolled only if appellant exercised reasonable diligence to perfect service. E.g., Ingram v. Grose, 180 Ga. App. 647 (350 SE2d 289) (1986). In such circumstances the trial court must examine all the underlying facts to ascertain whether the plaintiff was guilty of laches, which would bar the action. This determination is a matter within the trial court’s discretion and will not be disturbed on appeal absent an abuse of that discretion. Id.

In the case at bar, appellant learned on February 1 that he had the correct address but the wrong county for Sauerhoefer, Sr., yet appellant did not perfect service on Sauerhoefer, Sr. for another two months. While appellant ultimately did move to transfer the action, that motion was not filed until four weeks after appellant learned the service address was in Gwinnett County, and appellant did not perfect service for 22 days after the motion to transfer was granted. Additionally, in the interim appellant made no attempt to serve Sauerhoefer, Sr. in Gwinnett County by second original (see OCGA § 9-11-4 (c)). Although appellant averred that he relied on an insurance adjuster’s statement that the service address was in DeKalb County, appellant bore the obligation of ascertaining the correct information before filing suit, Walker v. Hoover, 191 Ga. App. 859, 861 (383 SE2d 208) (1989), and “cannot excuse [his] lack of diligence by attempting to place responsibility on others. Further, assuming arguendo that [his] failure to bring this action in the proper county could be excused, the receipt of the sheriff’s first return of service advising that [appellees] could not be found within the court’s jurisdiction ‘should have put [him] on notice and inspired [him], through counsel, to exercise the greatest possible diligence to ensure proper and timely service.’ [Cit.]” Id.

Decided September 18, 1990

Rehearing denied October 1, 1990

John E. Sacker, Jr., Michael J. Trost, for appellant.

Rowe & McGarity, William P. Rowe III, for appellees.

Accordingly, we find the trial court did not err by concluding that appellant had not met the burden of showing diligent service, and we affirm the judgment rendered below.

Judgment affirmed.

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


text:
    A90A1032.
    BARNWELL v. THE STATE.
    (397 SE2d 717)
   Sognier, Judge.

Stanley Barnwell was convicted of trafficking in cocaine and he appeals.

The evidence adduced at trial showed that while traveling north on 1-95, appellant was stopped by Georgia State Patrol trooper Larry Bennett, who had observed the vehicle appellant was driving weaving on and off the road onto the shoulder. In response to Bennett’s request, appellant produced a valid Florida driver’s license and a rental car agreement showing that Curtis Straughter had rented the car. Appellant explained to Bennett that although Straughter was not in the car, he was a good friend who had rented the vehicle for appellant as a favor because appellant did not have sufficient credit to rent a car. Appellant further explained that he lived in a suburb of Miami, that his mother was terminally ill and had some property she wished to sell to appellant’s uncle who lived in Baltimore, and that he was driving to Baltimore to meet with his uncle to act on his mother’s wishes. Appellant testified that Straughter had delivered the car to him approximately an hour and a half prior to his departure from Miami that day. Bennett determined that the car had not been reported stolen, but because appellant was not listed on the contract as an additional driver Bennett was suspicious and asked appellant “if he minded me looking through his car.” Appellant did not mind, and in fact appellant testified that when Bennett “mentioned if he could search the car, ... I consented to that.” After appellant cooperated in a search of the interior of the car and the trunk and its contents, during which nothing was found, Bennett turned on the ignition and used the controls to lower the windows. Peering into the front passenger window well, he observed several wrapped parcels. At that point, Bennett secured appellant in the rear of the patrol car and called for assistance to remove the door panel. When the door panel was removed, the parcels were extracted and tested. They proved to contain more than 4 kilograms of cocaine.

1. Contrary to appellant’s contention, we find the evidence sufficient to support his conviction for the offense charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by denying his motion to suppress the cocaine found in the door panel, citing State v. Diaz, 191 Ga. App. 830 (383 SE2d 195) (1989) and Amato v. State, 193 Ga. App. 459 (388 SE2d 54) (1989) as support for his argument that the scope of the search exceeded his consent. However, unlike the situation in Diaz and Amato, in which permission was given only to “look in or inside” the car, and not to search the car or any containers found in the car, in the instant case appellant himself testified that he consented to a search of the automobile he was driving, and did not object when Bennett rolled down the windows and looked inside the door panels. Accordingly, we cannot agree that Bennett’s search exceeded any limits set by appellant’s consent, and the trial court did not err by denying appellant’s motion to suppress.

3. Appellant contends the trial court erred by failing to give his requested charge on equal access, because there was evidence that Straughter had rented the car and had access to it. However, “the equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver.” (Citations and punctuation omitted.) Lance v. State, 191 Ga. App. 701, 703 (2) (382 SE2d 726) (1989). “While the trial judge refused to give an equal access charge, he also elected not to give any charge pertaining to the presumption of possession of contraband flowing from vehicle ownership or operation.” Id. at 702-703. Accordingly, here, as in Lance, we find no error in the trial court’s refusal to charge the jury on equal access.

4. Appellant maintains he was prejudiced by the State’s sounding Curtis Straughter as a witness in the presence of the jury when it had not subpoenaed him and knew he was not present. The record reveals, however, that appellant failed to object or move for a mistrial after the State sounded the witness, and consequently cannot now complain, as error not raised at trial cannot be considered on appeal. See Brinson v. State, 191 Ga. App. 151, 152 (3) (381 SE2d 292) (1989).

• 5. Appellant contends it was error for the trial court to refuse to allow William Johnson, the owner of a local car rental agency subpoenaed by appellant, to testify. In an offer of proof outside the presence of the jury, Johnson testified that in his experience, contraband has been left inadvertently in rented vehicles by a previous renter and found by his personnel or by a subsequent renter. Johnson described finding drugs, guns, and other items in returned cars, and his testimony would have shown that sometimes his employees missed these items when cleaning a car, and in those cases the contraband went out with the next renter. Because Johnson’s rental agency was not the same agency that rented Straughter the car driven by appellant, the State objected to the proffered testimony on relevancy grounds, and the trial court sustained the State’s objection on that ground.

Although we cannot agree that Johnson’s testimony was rendered irrelevant merely because his agency was not the one from which the car driven by appellant was rented, we find that the exclusion of Johnson’s testimony was not reversible error. “[E]ven though our rule favors the admission of relevant evidence, the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985). According to the testimony given by Johnson in appellant’s offer of proof, most contraband found in his agency’s rental cars consisted of weapons, not drugs. On the one occasion drugs were discovered, they were found in a briefcase inadvertently left in the passenger compartment by an agent of the Drug Enforcement Administration. Moreover, Johnson testified that neither drugs nor weapons had ever been found outside the confines of the passenger compartment and trunk of a rental car, and no contraband had ever been found inside door panels.

Appellant sought the admission of Johnson’s testimony to show that the drugs hidden in the door panels could have been left there by a previous occupant of the car. However, the circumstances described by Johnson were so vastly dissimilar to those in the instant case that his offered testimony was not probative of the proposition for which it was offered. Accordingly, the trial court did not abuse its discretion by refusing to admit it. O’Neal, supra.

Judgment affirmed.

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

Decided September 19, 1990

Rehearing denied October 1, 1990

Lloyd E. Thompson, Jr., for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, .Assistant District Attorney, for appellee.


text:
    A90A1201.
    ALLEN v. MILTON MARTIN ENTERPRISES, INC.
    (397 SE2d 586)
   Banke, Presiding Judge.

Allen sued Milton Martin Enterprises, Inc., an automobile dealership, seeking to recover for injuries she sustained in a collision involving a car owned by the latter and driven by one of its employees, Jeffrey Jones. (Jones was also named as a defendant but has not been served.) The case is before us on appeal from the grant of the dealership’s motion for summary judgment.

The appellant’s claim against the dealership is based on the doctrine of respondeat superior. At the time the accident occurred, Jones was on his way to work in a demonstrator vehicle owned by the defendant. It was established without dispute that such vehicles wére provided by the defendant to its sales staff for their personal use as part of the total compensation for their services. However, during business hours, the salesmen were expected to have the vehicles available on the premises of the dealership for demonstration and sale. The dealership provided insurance for the vehicles, but the salesmen were required to pay for upkeep and to pay the insurance deductible in the event a claim was made against the collision coverage. Held: An employer is considered vicariously liable for injuries caused by a servant under the doctrine of respondeat superior if the latter “was at the time of the injury acting within the scope of his employment and on the business of. the [employer].” Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979). When an employee is driving an employer-owned vehicle at the time of a collision, a presumption arises that he was acting within the scope of his employment, but this presumption may be rebutted with “clear, positive and uncontradicted evidence” to the contrary. Id. See also Collins v. Everidge, 161 Ga. App. 708 (289 SE2d 804) (1982). Once the employer has successfully rebutted the presumption by presenting such evidence, “the plaintiff must show, in addition to the facts which give rise to the presumption that [the employee] was in the course of his employment, some other fact which indicates the employee was acting within the scope of his employment.” Allen Kane’s Major Dodge v. Barnes, supra, 243 Ga. at 780. (Emphasis supplied.)

Decided September 12, 1990

Rehearing denied October 1, 1990.

Hartness, Link & Hardeman, Frederick E. Link, William B. Puryear, for appellant.

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, Sally R. Cline, for appellee.

As a general rule, an employee is deemed to be acting only for his own purposes in going to and from work. See McCutchen v. Assoc. Cab. Co., 138 Ga. App. 848 (228 SE2d 12) (1976). The appellant contends that this case falls outside the general rule because the appellee required its sales staff to drive their company owned vehicles to work so that they would be available during the day for business purposes. The appellee, on the other hand, contends that this requirement served merely to accommodate the salesmen by providing them with transportation to their place of work. We disagree. Clearly, there was a business purpose involved in having the demonstrator vehicles on the premises during business hours. We accordingly hold that the defendant’s motion for summary judgment was improperly granted. Cf. Trollinger v. Bob & Carolyn Ford, Inc., 180 Ga. App. 252 (1) (349 SE2d 11) (1986).

Judgment reversed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1212.
    CLEMENTS v. BARNES et al.
    (397 SE2d 560)
   Banke, Presiding Judge.

The appellees sued the appellant to recover damages for certain alleged defects in a residence the latter had constructed and sold to them. The case was tried before a jury, which awarded the appellees damages in the amount of $3,360 and attorney fees in the amount of $1,120. This appeal followed.

During their first year of occupancy after purchasing the home, the appellees became aware of separation and cracking in the brickwork surrounding a bay window, cracks in the dining room ceiling, water leaks in the shower and bathroom, and an accumulation of rain water under the building. During the next several months, they repeatedly notified the appellant of the defects, both orally and in writing, and requested that they be corrected. The appellant acknowledged that the appellees’ complaints had been communicated to him and that he had not responded to them until after being served with the present lawsuit. He further acknowledged that, in accordance with the custom and practice of the building industry, he had warranted to repair any defects in the construction for a one-year period. The appellees ultimately expended approximately $3,000 to have the necessary repairs made. One of the contractors hired by them for this purpose testified during the trial that the cracks in the structure had resulted from the appellant’s failure to install concrete footings in front of the bay window. He stated that to correct the defects, he had to tear out and replace the bricks around the bay window, install concrete footings, waterproof and install concrete pillars under the house, and repair and shore-up portions of the interior structure. Held:

Decided September 4, 1990

Rehearing denied October 1, 1990.

Stephen N. Hollomon, for appellant.

1. “[A] builder expressly or impliedly promises that he has built the house in a fit and workmanlike manner. Thus, the law imposes upon the professional builder and others performing skilled services the obligation to exercise a reasonable degree of care, skill and ability, which certainly can be shown as that degree of care and skill which, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession. [Cit.]” Williams v. Runion, 173 Ga. App. 54, 57 (325 SE2d 441) (1984). See also Shaw v. Petersen, 180 Ga. App. 823, 824 (350 SE2d 831) (1986). The evidence in the present case was sufficient to establish a prima facie case that the appellant had failed to meet this standard of care and skill in constructing the house. Accordingly, the trial court did not err in denying his motion for a directed verdict on the issue of liability.

2. The trial court similarly did not err in denying the appellant’s motion for a directed verdict with respect to the appellees’ claim for attorney fees pursuant to OCGA § 13-6-11. “Where no defense exists, as in this case, forcing a plaintiff to resort to the courts in order to collect is plainly causing him ‘unnecessary trouble and expense.’ [Cits.]” Sawgrass Bldrs. v. Realty Cooperative, 172 Ga. App. 324, 326 (323 SE2d 243) (1984).

3. The appellant contends that the trial court erred in its charge to the jury concerning the proper method of calculating damages. “Generally, the proper measure of damages for defective workmanship would be the cost of repair of the defect.” Adamson Co. v. Owens-Ill. Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913) (1983). In this context the trial court’s charge that the proper measure of damages would be “the cost of restoration [of] the condition . . .” did not constitute reversible error.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.

Arthur L. Phillips, for appellees.


text:
    A90A1429.
    SHELNUTT v. THE STATE.
    (397 SE2d 607)
   Sognier, Judge.

Wayne Shelnutt was found guilty by a Troup County jury of aggravated sodomy (OCGA § 16-6-2 (a)) and fleeing and attempting to elude a police officer (OCGA § 40-6-395). He appeals from the denial of his motion for new trial.

1. Appellant contends the evidence showed only that the act of sodomy was consensual and was insufficient to support a conviction for aggravated sodomy. At trial, the victim, appellant’s estranged wife, testified that she and appellant separated in February 1989, she filed for divorce on March 26, and began living with Stacy Hassell in his mobile home in April. On the night of May 3,1989, she stated, she was alone in the home when appellant came there around 7:30 p.m. and banged on the door and yelled at her. He returned shortly after 10:00 p.m., and she testified that when she opened the door with the intention of asking him to stop disturbing the neighborhood, he forced his way inside, threatening to kill her and Hassell. She attempted to run from him, but he pulled her back inside and prevented her from completing a call to the police. She stated that appellant fondled her breasts and vagina, bit her on the neck, put his fingers inside her mouth and pulled her, and then after a struggle threw her on the bed and forced his penis into her mouth. When she pulled away from him and ran, he ripped her gown off, leaving her naked. She ran to the home of a neighbor, Lavell Thompson, who let her in and called police. Both Thompson and the victim testified that appellant pursued her, breaking into the Thompson home, and dragged the victim outside where he beat her, threw her on the gravel drive, and then drove away.

Thompson, the victim, and another witness to the beating all testified that the victim was bloody and hysterical, and that appellant was threatening to kill her. Photographs showing the victim’s cuts and abrasions were admitted into evidence, and the investigating officers also testified that the victim was bloody and bruised, and that they found blood on the walls and floor of the mobile home. In his testimony, appellant admitted struggling with the victim, and acknowledged that he bit her, pulled on her mouth, ripped her gown, chased her next door, and threw her naked onto the gravel drive, but asserted that she consented to perform fellatio.

We find this evidence sufficient to authorize a conviction for aggravated sodomy under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Evans v. State, 191 Ga. App. 364-365 (1) (381 SE2d 760) (1989).

Decided October 1, 1990.

Ellis C. Smith, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

2. Appellant’s other enumeration concerns the trial court’s failure to charge the jury on good character. He contends that, under Seymour v. State, 102 Ga. 803 (30 SE 263) (1898), such a charge was required even absent a request because the case involved exceptional circumstances and good character was his sole defense.

“The courts of this state have consistently recognized the validity of a good character defense, [cits.], and have held that good character should be considered by court and jury. [Cit.] Decisions of Georgia’s appellate courts subsequent to Seymour have distinguished the departure in that case from the general rule requiring a timely request, however, and have confined its application to ‘exceptional cases’ like Seymour, in which the good character defense was the sole defense against the necessarily uncorroborated allegations of the prosecuting witness, and the state’s case, apart from those allegations, was based solely on highly tenuous circumstances and was extremely weak. [Cits.] Moreover, Georgia courts have held that, other than in cases of the Seymour type, the court’s failure to give an instruction on good character, absent a timely request, does not warrant a new trial. [Cits.]” Riceman v. State, 166 Ga. App. 825, 826-827 (1) (305 SE2d 595) (1983).

We find neither of the Seymour factors present in the case at bar. While this case may be unusual in that the victim was appellant’s estranged wife, the facts presented by the State, unlike the proof in Seymour, set forth a strong case based on direct testimony of the victim and eyewitnesses. Further, as in Taylor v. State, 176 Ga. App. 567, 569 (2) (336 SE2d 832) (1985), here good character was not appellant’s sole defense. In addition to testifying that he had never been in trouble before and had been steadily employed for a number of years, appellant also stated that he did not force the victim to commit sodomy, but that she willingly performed oral sex. Accordingly, we find no reason to apply Seymour, and thus find no reversible error in the failure to charge on good character. See id.

Judgment affirmed.

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


author: Birdsong, Judge. Cooper, Judge,

text:
    A90A0924.
    McCARR v. THE STATE.
    (397 SE2d 711)
   Birdsong, Judge.

Willie McCarr appeals from his convictions of robbery, obstruction of a law enforcement officer and aggravated assault. Held:

1. Appellant contends that the State purposefully exercised its peremptory strikes to systematically exclude blacks from the jury and deny him equal protection of the law as proscribed by Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). Appellant showed that he was black and that of the panel of 45 prospective jurors, six were black and 39 were white. One black and two whites were struck for cause; thus twelve percent of the potential jurors were black. All of the remaining five black panelists were excluded by the State on peremptory strikes, so that appellant was tried by an all-white jury. The trial court ruled that appellant had made out a prima facie showing of discrimination which placed the burden on the State to put forth non-discriminatory bases for the use of its strikes. See Gamble v. State, 257 Ga. 325 (357 SE2d 792). The prosecutor explained that he struck four of the jurors because they had stated that they knew appellant or his family, and one because she “appeared to be of very extremely low intelligence, [bordering] on retarded. . . .”

“These explanations did not require a conclusion of unconstitutionality as to racial neutrality in the exercise of peremptory challenge. Gamble, [supra].Thompson v. State, 194 Ga. App. 163-164 (2) (390 SE2d 253). “Even assuming that the State’s racially neutral explanation was relatively ‘weak,’ the trial court was nevertheless authorized to find that appellant’s prima facie showing of discrimination had been rebutted. . . . ‘The trial court’s ruling cannot be found clearly erroneous when the challenge is not based upon racial grounds, but upon the racially-neutral grounds that prosecutors use every day in every court of this (S)tate. (Cits.)’ [Cit.]” Burgess v. State, 194 Ga. App. 179, 180-181 (390 SE2d 92).

2. Appellant complains that the trial court erred in refusing to charge the jury upon request that he had the right to resist an illegal arrest. The trial court declined to give this charge on the ground that the evidence did not establish that an unlawful arrest took place. Appellant argues that there was no warrant for his arrest and nothing to justify a warrantless arrest.

The trial transcript reveals that the officer who made the alleged illegal arrest was pursuing a vehicle driven by one Scott, a suspected automobile thief, in which appellant was a passenger. Scott drove into a ditch and the two men fled into some woods. While following Scott in the dark through the woods, the officer observed him talking to appellant and a third man in the light from a nearby residence. When another police car drove by all three men ran. Scott and appellant ran toward the officer, who stepped forward shining his flashlight on them, showing his gun and uniform and identifying himself as a police officer, and requested some identification. Appellant testified that he did not at that time realize that this person was a law enforcement officer and he tried to run away, but when the officer grabbed him they struggled until he knocked the officer down, beat him and took his gun with which he threatened to kill the officer. The officer was able to escape when a bystander warned appellant not to kill him. When the officer saw appellant running in the other direction he retrieved his portable radio and called for back-up assistance. The officer’s pistol was not recovered until two weeks later and he did not see appellant again prior to trial.

Under the circumstances, the trial court correctly refused to give the requested charge. Even if the officer’s actions could be considered more than a “Terry type” stop of the suspects he had been pursuing, there was no effective arrest and certainly no unlawful arrest within the contemplation of OCGA § 17-4-1. “The rationale of Terry v. Ohio, [392 U. S. 1 (88 SC 1868, 20 LE2d 889)] and its progeny allows investigating officers who possess articulable suspicion of criminal activity to detain a suspect for a limited period in order to identify the suspect, frisk him if necessary, and conduct limited questioning. [Cit.] Detention beyond that authorized by Terry is an arrest, and, to be constitutional, such an arrest must be supported by probable cause. [Cit.] Probable cause to arrest exists where, based on objective facts and circumstances, a man of reasonable caution would believe that a crime has been or is being committed. Brinegar v. United States, 338 U. S. 160, 175-76 (69 SC 1302, 93 LE 1879) (1949).” Williams v. State, 251 Ga. 749, 792 (8) (a) (ii) (312 SE2d 40). Absent evidence of an unlawful arrest, appellant’s defense became self-defense, which was fully charged by the trial court.

3. Appellant asserts error in the trial court’s compelling him to wear prison garb during the trial, thereby diminishing his presumption of innocence. Appellant was dressed in a pair of white, short-sleeved coveralls with the letter “H” stenciled on the breast pocket. The trial court found, and we agree, that there was nothing about this clothing to give the appearance of a prison uniform so as to prejudice appellant’s trial. This enumeration is likewise without merit. Kerr v. State, 194 Ga. App. 604 (3) (391 SE2d 449).

Judgment affirmed.

Banke, P. J., concurs. Cooper, J., concurs specially.

Cooper, Judge,

concurring specially.

I write only with respect to Division 1 because I believe that the reason proffered by the prosecutor — that the juror “appeared to be of very extremely low intelligence, [bordering] on retarded. ...” — seems to be the kind of “whimsical and fanciful” reason that runs afoul of Batson. The trial court asked all the jurors to stand and give their names and other general information such as where they lived and worked. In response to this question the juror in question answered: “My name’s Elizabeth Whitaker and stay in Guyton, Georgia and I don’t work.” The record contains no other evidence of words spoken by this juror and it is apparently on those words, together with whatever demeanor the juror had, that the prosecutor based his “observation” that the juror appeared to be of “extremely low intelligence.” “It is not obvious from the voir dire examination of this juror that [her] intelligence was extremely low.” See Gamble v. State, 257 Ga. 325 (6) (357 SE2d 792) (1987). Nor do I feel that appellant should have to show the existence of facts in the record that the juror was not of extremely low intelligence. See Bess v. State, 187 Ga. App. 185, 187 (369 SE2d 784) (1988). To place such a burden on defendants would give prosecutors virtually free reign to utilize the proffered explanation in striking jurors. However, because I am mindful of the fact that the trial court’s finding of fact must be given great deference and shall not be overturned unless clearly erroneous (Burgess v. State, 194 Ga. App. 179, 181 (390 SE2d 92) (1990)) and because the State had only one weak explanation (compare Gamble v. State, supra), which is not sufficient under Batson to show a systematic exclusion of black jurors, I concur in the majority opinion affirming the trial court.

Decided September 5, 1990

Rehearing denied October 2, 1990

Michael J. Classens, for appellant.

J. Lane Johnston, District Attorney, for appellee.


author: Birdsong, Judge.

text:
    A90A1243.
    BARBER v. H & H MULLER ENTERPRISES, INC.
    (397 SE2d 563)
   Birdsong, Judge.

Appellant/plaintiff, Donald R. Barber, appeals the order of the superior court granting summary judgment to appellee/defendant, H & H Muller Enterprises, Inc. (Muller), in this suit for malicious arrest and prosecution.

On November 24, 1987, a local McDonald’s, owned by Muller, was robbed when the assistant or opening manager, Ms. Spurling, and lobby hostess, Ms. Adkins, attempted to open the business. The robber, although apparently wearing sunglasses and a hat, was clearly visible to the two ladies and at times stood about one foot away from Spurling. The women each gave the police a statement that same day in which they individually identified the robber. Their descriptions were substantially consistent, and included inter alia the fact that the perpetrator was a black male, five feet nine inches tall, weighing about 180 to 190 pounds, muscular build, with a three-day growth of beard, in his late twenties or early thirties, medium-brown complexion, full lips, and carrying a small, silver, automatic pistol. They also gave substantially similar descriptions of the clothing the perpetrator was wearing. On November 24, 1987, appellant was 25 years of age, wore a beard, weighed between 205 and 215 pounds and was five feet and eleven inches in height.

Regarding the weapon, the ladies initially informed the police they were not certain whether it was a revolver or an automatic, but later stated they thought it was possibly an automatic. Ms. Spurling also stated that the perpetrator “has been a regular customer over the past few months.”

On May 2, 1988, Ms. Spurling saw a man, later identified as appellant, in McDonald’s whom she then believed to be the robber. Spurling apparently asked Ms. Adkins if she could identify the perpetrator, and Adkins independently identified the same man, appellant Barber. Ms. Spurling’s manager was notified and the police were called. Appellant was taken to the police station where once again both Spurling and Adkins made positive identifications of appellant as the perpetrator. At some point Ms. Spurling indicated that she desired appellant to be prosecuted, and was apparently thereafter asked to swear out an arrest warrant for appellant, which she did. Ms. Spur-ling’s main motivation for going to the police station to identify the perpetrator was “[t]o punish whoever it was that jeopardized [her] life,” and she “wasn’t trying to hurt anybody, or anything.” She “didn’t want to convict the wrong person.” Ms. Spurling believed she was doing her “civic duty” to sign the warrant. Spurling was taken before the magistrate who held a hearing to determine whether probable cause existed for appellant’s arrest. In addition to the testimony of Spurling, the magistrate also had in his possession “the information from the November 24, 1987 robbery available to him,” including the “description of the robber” given to the police. The magistrate issued the criminal warrant after finding the existence of “probable cause for arrest of the accused.” The police continued their investigation, and appellant made a statement wherein, although denying any complicity in the robbery, he admitted that he has been to McDonald’s five or ten times, he had a beard around last Thanksgiving (November 1987) but has since shaved it off, and that he owned a silver .32 caliber revolver, but it was stolen around November or December of 1987. It was subsequently determined that appellant had reported to the police that his silver revolver was stolen December 15, 1987. During his interview, appellant could not provide police with an alibi for the day of the robbery, due to the length of time that had elapsed. Appellant consented to a search of his domicile, which produced negative results.

On May 6, 1988, a preliminary hearing was held; however, Spur-ling and Adkins arrived late, and consequently, the arrest warrant against appellant was dismissed. After Spurling and Adkins arrived, Detective Burrows elected to explain the next procedure would be that “a package would be sent to the district attorney’s office for review, and that the case is not necessarily ended at this point because of the dismissal, and that the district attorney would be getting in touch with her for presentment to the grand jury.” Appellant’s attorney, Mr. Talansky, was present and asked the ladies how positive they were in their identifications and gave them reasons why he did not believe appellant was a robber. Appellant asserts uncontrovertedly that Adkins became upset and unsure whether appellant was the man who committed the robbery. Spurling, in response to a question from appellant’s counsel regarding how certain she was about her identification, remained adamant as to the accuracy of her identification of appellant and expressed her desire to the counsel that prosecution continue. Spurling apparently was upset at this meeting because the warrant was dismissed, as she had been lost in traffic. Spurling and Adkins said “nothing” to Detective Burrows during their conversations with appellant’s counsel and Detective Burrows asked them no questions. Although the women did not ask, Burrows informed them of the procedures which “would be transpiring” in the case. Neither Spurling nor Adkins had any further involvement concerning appellant’s arrest or prosecution after the May 6 hearing. Held:

1. Appellant asserts that the trial court erred in granting appellee/defendant’s motion to strike certain evidence.

Appellant argues that the trial court “without explanation struck Det. Burrows’ testimony at [appellant’s preliminary hearing of May 6, 1988. (R. 422).” Examination of page 422 of the record reflects that Burrows was not placed under oath, but was allowed to make a statement for the purpose of explaining why the State was not ready to proceed. The record does not reveal any express striking of only Burrows’ explanation.

However, the trial court granted defendant’s motion to strike the entire transcript of the DeKalb County Magistrate Court, dated May 6, 1988, together with striking selected paragraphs of the affidavit of Mr. Talansky. The order also reflects on its face that, in addition to considering the motion, the trial court “considered” the oral arguments presented by both parties on January 2, 1990. The record does not contain a transcript of this argument. Rather, appellant amended his notice of appeal to provide that no transcript will be filed. Without the benefit of the transcript of the hearing on the motion to suppress, we are unable to determine accurately the basis for the trial court’s rulings, the legal positions actually advanced by the parties, and whether appellant subsequently acquiesced to any ruling of the trial court as to these issues. “Where [appellant chooses] to omit the transcript, and it is necessary for a review of the claimed error, [he] has failed to meet [his] burden of showing error. In such case, this court will assume the evidence is sufficient [to support the trial court’s ruling] and affirm.” Hunnicutt v. Hunnicutt, 182 Ga. App. 578, 579 (356 SE2d 679); see Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282). “ ‘Clearly it is not the function of the appellate court to prosecute an appeal on appellant’s behalf.’ ” Acker v. Jenkins, 178 Ga. App. 393, 394 (1) (343 SE2d 160).

2. Appellant asserts that the trial court erred in granting appellee’s motion for summary judgment.

(a) The standards for review of motion for summary judgment where the movant is the defendant (Moore v. Goldome &c. Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843)) and has, as here, pierced the . opposing party plaintiff’s pleadings (Balke v. Red Roof &c. Co., 190 Ga. App. 779, 781 (380 SE2d 61); Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569 (1) (314 SE2d 241)) is well established and will be applied.

(b) A criminal prosecution carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action. OCGA § 51-7-40. The difference between malicious prosecution and malicious arrest is that the former contains the additional element of showing that a prosecution, whatever its extent, was carried on and terminated in favor of the plaintiff. Bennett v. Fine Jewelers &c., 194 Ga. App. 377, 378 (390 SE2d 625).

Pretermitting the question of whether appellee is liable for the acts of Spurling and Adkins is the issue of whether a genuine issue of material fact exists as to the elements of either the torts of malicious prosecution or malicious arrest.

The trial court concluded that “the facts presented demonstrate circumstances which amount to probable cause.” Generally, lack of probable cause shall be a question for the jury, under the direction of the court. OCGA § 51-7-43. But, ‘“[w]hat facts and circumstances amount to probable cause is a pure question of law.’ ” K Mart Corp. v. Griffin, 189 Ga. App. 225, 226 (375 SE2d 257); compare Abiodun v. C & S Nat. Bank, 192 Ga. App. 159 (384 SE2d 248) and Abernathy v. Dover, 139 Ga. App. 323 (228 SE2d 359). Yet, “[e]ven assuming ... a jury question was presented on the issue of probable cause . . . plaintiff was also required to present evidence of malice” (Brown v. Scott, 151 Ga. App. 366, 368 (3) (259 SE2d 642)). Although not expressly provided by statute, the malice “ ‘ “contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest.” ’ ” (Emphasis supplied.) Worn v. Warren, 191 Ga. App. 448, 449 (1) (382 SE2d 112); accord Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (c) (282 SE2d 393), citing Darnell v. Shirley, 31 Ga. App. 764 (2) (122 SE 252). Malice in an action for malicious prosecution or malicious arrest consists “in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” OCGA § 51-7-2; Worn v. Warren, supra at 449 (1). The trial court held that no such malice existed on the part of appellant’s employees. In the case sub judice, there is no direct evidence whatever of any type of fraudulent conduct or improper motive on the part of appellee or its employees, Spurling and Adkins. However, at least as to a malicious prosecution claim, “[a] total lack of probable cause is a circumstance from which malice may be inferred” (OCGA § 51-7-44; see also OCGA § 51-7-43), and we will assume but not decide that this general legal principle should also be applied to the “same” malice element found in malicious arrest. Compare American Plan Corp. v. Beckham, 125 Ga. App. 416 (4) (188 SE2d 151) (applying the codal principles now found in OCGA §§ 51-7-43 and 51-7-44 in determining the existence of malice in an action for malicious use of civil process). Nevertheless, while total want of probable cause is sometimes a circumstance from which malice may be inferred, “ ‘where there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for malicious prosecution [or malicious arrest] to recover.’ ” Brown, supra at 368-369. We are satisfied the trial court was correct. “Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” (Citations and punctuation omitted.) Peterson v. Liberty Mut. Ins. Co., 188 Ga. App. 420, 424 (373 SE2d 515). We are satisfied appellee has met the requisite tests required for the issuance of summary judgment to a movant defendant.

Judgment affirmed.

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

Decided September 7, 1990

Rehearing denied October 2, 1990.

King, Morriss, Talansky & Witcher, Joseph H. King, Jr., Gerald L. Talansky, for appellant.

Smith, Gambrell & Russell, David A. Handley, John D. Hipes, for appellee.

On Motion for Rehearing.

We have considered the record in its entirety, including those facts asserted by appellant in his motion for rehearing, and adhere to our judgment affirming the trial court’s grant of summary judgment to appellee/defendant.

Motion for rehearing is denied.


text:
    A90A1092.
    GULLEY v. THE STATE.
    (397 SE2d 609)
   McMurray, Presiding Judge.

Defendant Gulley appeals his convictions of the offenses of driving while under the influence of alcohol and leaving the scene of an accident. Held:

1. Defendant contends that his statement to police should have been excluded from evidence because it was given without his first receiving the warnings required under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694). The statement was given during an interview which defendant attended at a police station. The officer who took defendant’s statement testified that defendant attended the interview voluntarily, was not under arrest, was free to leave, and did leave after the interview. The trial court was authorized to conclude that defendant was not taken into custody, and that therefore Miranda did not apply. Leach v. State, 259 Ga. 33, 35 (4) (376 SE2d 667).

Defendant also contends that his statement was inadmissible because it was induced by a promise of leniency. However, defendant’s evidence in this regard was contradicted by that presented by the State, and as we conclude that the trial court’s resolution of the resulting factual issue is not clearly erroneous, we hold that the trial court did not err in admitting defendant’s statement. Mungin v. State, 183 Ga. App. 290 (1), 291 (358 SE2d 673).

2. Defendant enumerates as error the admission of evidence of similar crimes, two prior convictions of defendant for driving while under the influence of alcohol. “ ‘Evidence of similar crimes (or transactions) is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. “However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime (or transaction). Second, there must be sufficient similarity or connection between the independent crime (or transaction) and the offense charged.” (Cit.)’ Oller v. State, 187 Ga. App. 818, 819-820 (2) (371 SE2d 455) (1988). See also Barnes v. State, 191 Ga. App. 424, 425 (1) (382 SE2d 164) (1989).” Johnson v. State, 193 Ga. App. 618, 619 (388 SE2d 866). Defendant contends that the State has failed to satisfy the requirement of showing a similarity or connection between the independent crimes and the offense charged. This contention lacks merit. The evidence shows that in each of the similar transactions, driving while under the influence of alcohol offenses, as well as in the offense charged, defendant was driving while under the influence of alcohol, the vehicle involved was a sporty car (a Mustang or a Camaro), the time of the offense was past midnight, and that the offenses occurred on wet (foggy or raining) nights. The similar transaction evidence was properly admitted. Johnson v. State, 193 Ga. App. 618, supra; Williams v. State, 180 Ga. App. 227 (348 SE2d 747).

Decided October 2, 1990.

3. The evidence as to one of the challenged similar transactions was a certified copy of a portion of the uniform traffic citation charging defendant with that offense. Defendant contends that this evidence was not properly admitted since the person attesting to the certification was the clerk of the municipal court rather than the clerk of the city. This contention is without merit. Locklear v. State, 131 Ga. App. 536, 537 (6), 538 (206 SE2d 527).

4. Defendant’s final enumeration of error complains of the denial of his motion for mistrial made during the testimony of a police officer who related certain hearsay statements. The trial court sustained defendant’s objection to the evidence, overruled the motion for mistrial and promptly gave curative instructions to the jury. As defendant failed to renew his motion for mistrial or otherwise invoke a further ruling from the trial court following the trial court’s curative instructions, the defendant waived appellate review of the denial of his motion. Livingston v. State, 193 Ga. App. 502 (1), 503 (388 SE2d 406).

Judgment affirmed.

Sognier, J., concurs. Carley, C. J., concurs in Divisions 1, 2, 4, and in the judgment.

Fowler, Hein & Daum, Douglas R. Daum, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Assistant Solicitor, for appellee.