text:
    A95A2209.
    UNDERWOOD v. THE STATE.
    (462 SE2d 434)
   Birdsong, Presiding Judge.

Robert Underwood appeals his conviction of violation of Georgia Controlled Substances Act, OCGA § 16-13-30, by unlawful manufacture of and possession with intent to distribute marijuana. He enumerates four errors. Held:

1. The trial court did not err in denying appellant’s motion to suppress and in admitting the evidence seized at trial. The State contends the search of appellant’s home and the seizure of numerous marijuana plants being grown therein were lawful, as both were accomplished pursuant to a consent to search freely and voluntarily given by appellant.

In determining legality of a search, an appellate court can consider all relevant and admissible evidence of record, including that adduced at a suppression hearing before trial and that adduced during trial. Newsome v. State, 192 Ga. App. 846 (1) (386 SE2d 887). The State has the burden of proving that the necessary consent was freely and voluntarily given; this burden is not satisfied by showing a mere submission to a claim of lawful authority. Garcia v. State, 195 Ga. App. 635, 636 (1) (394 SE2d 542). Voluntariness of consent must be determined from all the attendant circumstances. Id. at 637 (1). Consent to search may be given after an item is seized, and once freely and voluntarily given, it eliminates the need for a search warrant or a showing of probable cause. State v. McBride, 261 Ga. 60, 62 (1) (401 SE2d 484); compare Caldwell v. State, 260 Ga. 278, 290 (2) (393 SE2d 436). Consent once given continues until it is unequivocally revoked or withdrawn. Mallarino v. State, 190 Ga. App. 398, 403 (379 SE2d 210).

The testimony of the State and the defense as to the circumstances surrounding the entry and search of appellant’s home and as to whether appellant consented to the search was in conflict. The trial court judged witness credibility and weighed the evidence presented and thereafter found: “The defendant was lawfully in custody under arrest and that any statements that he made to the officers were freely and voluntarily made without the slightest hope of benefit or reward and without the remotest fear of injury after having all of his rights as required under the Miranda decision explained to him and that he understood those rights. It is also the judgment of the court that the search of his premises was consented to by the defendant after he knew that he did not have to consent and understood that the officers would have to have a search warrant if he insisted and that he then consented to that and he voluntarily consented to that.” Inherent within this ruling denying the suppression motion is a finding that appellant’s arrest was lawful, that his voluntary consent to search was also freely given, and that his freely and voluntarily given statements were not obtained in violation of his Miranda rights. See Garcia, supra at 637 (1). “When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge ‘hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.’ [Cit.] Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. [Cit.] Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. [Cit.]” Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646). Applying these three principles, we conclude the trial court did not err in denying the motion to suppress as the arrest of appellant was lawful and appellant thereafter gave a free and voluntary consent to the search of his home.

Pretermitting whether a warrant of arrest was issued before the Secret Service agents arrested appellant is whether probable cause existed to justify his warrantless arrest. “A ‘warrantless arrest’ is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing an offense. [Cits.] Probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense.” Johnson v. State, 258 Ga. 506, 507 (2) (371 SE2d 396). Prior to appellant’s arrest the Secret Service agents were aware that several bleached, office machine-copied, counterfeit $100 bills were passed through Georgia, Alabama, and Louisiana. A positive ID had been made from a photo spread in Alabama that appellant’s son, Charles, had passed this type of counterfeit currency. Further, an agent had canvassed a Columbus, Georgia, supply house (which sells some office paraphernalia which can be used in counterfeiting). Persons at the supply house, in response to a description given to Secret Service agents of an individual passing the $100 bills stated appellant Robert Underwood fit that description. They also informed the inquiring agent that appellant had purchased a Canon CLC-200 and would buy parts for it at the supply house and, on such occasion, appellant would not give a telephone number or an address. The agency’s lab in Washington had indicated to the field agents that these particular $100 bills were being printed on a Canon CLC-200. Research of the agency’s files revealed that appellant had a prior record for counterfeiting and for producing OMC black and white counterfeit bills. As part of a photographic lineup, photographs of both appellant and his son were taken to establishments in Atlanta where the bleached $100 bills were passed, and some of the places “positively identified” appellant “as passing those bills.” Further, appellant’s description “met the description to a tee of the [person] who had been passing [the] note[s].” The primary case agent (who was not available to testify) subsequently filled out an arrest warrant; the record does not affirmatively establish whether the warrant was issued and, if so, when. Appellant was placed under surveillance about noon on the day of his arrest and was arrested for counterfeiting in the early evening after one of the surveillance agents concluded his cover had been compromised. The Secret Service agents had a verbal agreement from the United States Attorney to arrest appellant based on probable cause; the United States Attorney was notified, and he agreed with the arrest of appellant. Although it subsequently was determined that appellant had not passed the particular type bill in question, the record affirmatively establishes that the arresting Secret Service agent had probable cause for a warrantless arrest within the meaning of Johnson, supra.

It is the facts and circumstances existing within the knowledge of the arresting officer at the moment arrest occurs which are controlling. Barnett v. State, 204 Ga. App. 491, 493 (1) (a) (420 SE2d 43). The record further establishes that appellant initially gave a free and voluntary oral consent to the Secret Service agents to search his home and that he subsequently ratified this valid oral consent by executing a free and voluntary written consent to search after the agents had gained entry to his home; at no time did appellant withdraw either of these two freely and voluntarily given consents to the search of his premises. This enumeration of error is without merit.

2. Appellant’s second enumeration is that the trial court erred in denying his Jackson-Denno motions. This enumeration is without merit. See our holding in Division 1 above. Moreover, the record establishes that none of plaintiff’s statements admitted in evidence was obtained in violation of his privilege against self-incrimination under either the Constitution of Georgia or the Fifth Amendment of the United States Constitution. The statements made by appellant to the police were either spontaneous, voluntary and not the product of an interrogation, or such statements were made after appellant was given a valid Miranda warning and had waived his rights thereunder. Appellant contends certain of his statements made during the agent’s questioning were inadmissible because, after being advised of his Miranda rights, he handed the agent a business card of his attorney which contained on the back a preprinted statement purporting to assert a refusal to consent to search, a claim of exercise of the right to remain silent, and the exercise of the right to have his attorney present during questioning. Pretermitting whether such an ambiguous act places a burden on law enforcement officers to inquire whether any of the rights addressed on the preprinted business card are, in fact, being asserted (compare Byrd v. State, 261 Ga. 202 (2) (403 SE2d 38)) is the question whether the agent thereafter obtained a statement from appellant in violation of Miranda. The agent testified that when he was presented the card he immediately terminated the interview; however, as they were going back to the jail area, appellant “stated to [the agent] that there were some things we could talk about.” At this point, the agent read the Miranda warning to appellant, and appellant signed the Miranda form. Assuming appellant adequately asserted his right to counsel and to remain silent, the agents could subject him to a renewed interrogation if appellant initiated further communication with the agents within the meaning of Ashley v. State, 261 Ga. 488, 489 (1) (405 SE2d 657), citing Michigan v. Jackson, 475 U. S. 625 (106 SC 1404, 89 LE2d 631) and Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378). As stated in Ashley, supra, the ultimate question is whether there was a free and knowing waiver before further interrogation commenced. Construing the evidence most strongly to support the trial court’s denial of appellant’s Jackson-Denno motions (see Tate, supra), we conclude that appellant initiated further conversation with the agents after presenting the preprinted business card and, during the course of such initiated conversation, exercised a free and voluntary waiver of his rights.

Additionally, “factual and credibility determinations, whether express or implied, as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous.” (Punctuation omitted; emphasis supplied.) Rachell v. State, 210 Ga. App. 106, 107 (2) (b) (435 SE2d 480). The ruling of the trial court denying appellant’s Jackson-Denno motions was not clearly erroneous.

3. Appellant asserts the trial court erred in denying his motion for mistrial. During the course of examining a Secret Service agent as to how they determined that it was appellant who had been passing some counterfeit bills, which led to the arrest of appellant, the State asked a series of questions of the witness. During the course of attempting to answer the gist of the State’s questions, the agent revealed to the jury that research of the agency’s files determined that appellant previously had been arrested by the agency for counterfeiting. Appellant made an immediate motion for mistrial; the motion was denied; appellant elected not to request any form of curative instruction; and the trial court did not give such an instruction sua sponte.

Appellant’s failure to request a curative instruction constitutes a waiver of any appellate issues regarding the giving of such an instruction to the jury. See Carr v. State, 259 Ga. 318 (2) (380 SE2d 700). Reversible error would not flow from the failure to give an unrequested curative instruction, as in no case will a trial judge’s ruling or election be reversed for not going further than requested. Zellner v. State, 260 Ga. 749, 750 (3) (b) (399 SE2d 206).

The abuse of discretion standard applies to the review of the denial by the trial court of a motion for mistrial. Muzquiz v. State, 260 Ga. 547, 548 (5) (b) (397 SE2d 703). Pretermitting whether an abuse of discretion occurred in the denial of the mistrial motion is whether such error would have been harmless. Considering the totality of the circumstances surrounding the revelation that appellant previously had been convicted of counterfeiting and the overwhelming evidence of appellant’s guilt of the offenses of which he was convicted, we find that any error in denying the motion for mistrial was harmless beyond a reasonable doubt. Walker v. State, 197 Ga. App. 265, 266 (398 SE2d 217), citing Ellis v. State, 256 Ga. 751, 755 (2) (353 SE2d 19); accord Dorsey v. State, 192 Ga. App. 657, 659 (3) (386 SE2d 167) (physical precedent only).

4. Appellant’s enumeration that the trial court erred by engaging in “a conversation with the jury that consisted of a question and answer period” is without merit.

No objection was posed to the so-called question and answer period notwithstanding that this conversation occurred in open court and on the record. Appellant’s contention that this procedure deprived him of a reasonable opportunity to respond, make suggestions, or make objections is not affirmatively supported by the record; to the contrary, there appears to have been ample opportunity for counsel to have injected himself into the colloquy had he chosen, as a matter of sound trial tactics, to do so. The failure of appellant to object timely to the colloquy in open court preserves no issue thereto upon appellate review. See Brooks v. State, 258 Ga. 20, 22 (2) (365 SE2d 97).

Decided September 14, 1995.

John D. Rasnick, Richard L. Montgomery, for appellant.

Peter J. Skandalakis, District Attorney, David S. McLaughlin, Assistant District Attorney, for appellee.

Additionally, this is not a case involving an unauthorized communication between the court and the jury, which would give rise to a presumption of prejudice. Compare Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695). This is a situation where the trial court legitimately ascertained in open court whether the jury was raising a question as to fact or law, and upon determining that the jury had a question as to the law, the court proceeded to recharge the law applicable to the jury’s question in open court and ascertained that the jury was satisfied as to the recharge given. When the jury in essence requests a charge or recharge on a particular point, the trial court has discretion also to give or not to give additional instructions. See generally Patterson v. State, 264 Ga. 593, 594 (2) (449 SE2d 97). Inherent within the judicial exercise of this discretion is the right and obligation of the trial court to attempt to ascertain accurately the nature and scope of the question being raised by the jury to the court. The trial court did not abuse its discretion in this case.

Further, we note that appellant does not assert that the trial court erred as to the substance of its recharge and Allen charge to the jury following the court’s colloquy with the jury foreman to determine in open court the type and nature of the question which the jury wished to pose. The colloquy on its face poses no fair risk of prejudice to the fair trial rights of appellant. An appellant must show both error and harm affirmatively by the record to obtain case reversal when, as in this case, the trial court engages in open court in a legitimate colloquy with the jury. See Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901).

Judgment affirmed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A93A1996.
    SHELBY INSURANCE COMPANY v. FORD.
    (462 SE2d 183)
   Pope, Presiding Judge.

This Court having entered a judgment in this case at 212 Ga. App. 303 (441 SE2d 764) (1994) affirming the judgment of the trial court, and the judgment of this Court having been reversed on certiorari by the Supreme Court at 265 Ga. 232 (454 SE2d 464) (1995), judgment heretofore rendered by this Court is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Decided September 15, 1995.

T. Tucker Hobgood, for appellant.

Moore & Moore, W. Newton Moore, Barksdale, Irwin, Talley & Sharp, David B. Irwin, for appellee.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A2550.
    BLACK et al. v. FAYETTE COUNTY.
    (462 SE2d 183)
    Decided September 15, 1995.

      H. Edward Marks, Jr., for appellants.

      McNally, Fox & Cameron, Alison A. Bridges, Philip P. Grant, for appellee.
   Pope, Presiding Judge.

This Court having entered a judgment in this case at 212 Ga. App. 626 (442 SE2d 802) (1994) affirming the judgment of the trial court, and the judgment of this Court having been reversed on certiorari by the Supreme Court at 265 Ga. 175 (453 SE2d 692) (1995), judgment heretofore rendered by this Court is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


author: Johnson, Judge.

text:
    A95A1733.
    AMERICAN HOME ASSURANCE COMPANY v. SMITH et al.
    (462 SE2d 441)
   Johnson, Judge.

Denise Hatch Kennedy was referred to R. Douglas Smith, Ph.D., a psychologist, for diagnostic clarification and formulation of a treatment plan for a multiple personality disorder. Smith actually initiated treatment and identified at least four or five separate personalities, known as alters, living inside Kennedy. According to Smith’s deposition testimony, the goal of his treatment was to integrate the various alters into a single “host” personality. As part of the therapy, Smith assumed some of the characteristics of the perpetrators of past sexual abuse in order to elicit the “re-experiencing” of traumatic events so that the past trauma could be recognized and resolved. Kennedy suspected the therapy she was receiving from Smith was inappropriate, and she contacted the police. She was fitted with a concealed electronic transmitting device, and several sessions were recorded. During one session, Smith placed Kennedy under hypnosis and suggested that she felt very sensual. He then suggested that he lay beside her and hold her. In another session he asked one of Kennedy’s alters, “Sabrina,” to present herself. Smith then urged her to please him, and make him happy. He told her to lower her jeans and underclothes so that he could hold her closely and kiss her, ostensibly to create a scenario similar to an event she had previously described involving her father. At that point in the session, Kennedy gave a code word to police who interrupted the session.

Kennedy brought suit against Smith alleging malpractice. His insurance carrier, American Home Assurance Company, filed the underlying declaratory judgment action to determine the scope of coverage available. We granted American Home’s application for interlocutory appeal from the trial court’s denial of its motion for summary judgment. This appeal presents us with two issues for resolution: First, whether the trial court erred in holding that a special provision relating to sexual misconduct in the Psychologists Professional Liability Policy issued by American Home to Smith, which limits recovery to $25,000 for claims against its insureds arising out of “actual or alleged erotic physical contact,” contravenes public policy and is void; and second, whether the trial court erred in concluding that there was a jury question as to whether Smith’s acts constitute sexual misconduct as defined in the policy. The trial court concluded that the special provision in the policy relating to sexual misconduct violates public policy because it penalizes patients who report sexual misconduct of their psychologists, discouraging injured clients from taking action to stop sexual misconduct of psychologists. Because we believe that this conclusion unfairly presumes that an injured plaintiff decides whether to sue based upon the amount of insurance coverage available, and because we find that the freedom to contract for varying levels of coverage for various risks does not, in and of itself, violate public policy, we reverse.

1. While this is a case of first impression in Georgia, several other states have analyzed this provision in terms of whether it violates public policy. “It is well settled that contracts will not be avoided by the courts as against public policy, except where the case is free from doubt and where an injury to the public interest clearly appears. . . . Unless prohibited by statute or public policy, the parties are free to contract on any terms and about any subject matter in which they have an interest, and any impairment of that right must be specifically expressed or necessarily implied by the legislature in a statutory prohibition and not left to speculation.” (Citations and punctuation omitted.) City of Pembroke v. Hagin, 194 Ga. App. 642, 643 (1) (391 SE2d 465) (1990). Insurance policies are not excepted from the general principle of freedom to contract. “An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others. If the terms of the contract are clear and express, the courts cannot extend or enlarge the contract by implication or construction so as to embrace an object or limitation distinct from that originally contemplated and not included in the express provisions. In those cases where restrictions or limitations have been imposed by the courts on the right of an insurer to define and limit the risk or liability assumed under the terms of a policy, it has been on the basis of mandatory statutory provisions specifying the minimum coverage to be provided.” (Citations and punctuation omitted.) Hulstzman v. State Farm &c. Ins. Co., 188 Ga. App. 12, 13 (2) (372 SE2d 9) (1988).

Georgia has a policy of protecting psychotherapy patients from sexual exploitation by therapists, and a psychotherapist who engages in a sexual relationship with his or her patient is guilty of a criminal offense. OCGA § 16-6-5.1. A civil remedy may also be available, although Georgia’s criminal statute does not directly contemplate one. However, simply because the Georgia legislature has evinced an interest in protecting the public from sexual exploitation by therapists, it has not created a statutory obligation requiring psychologists to maintain malpractice liability insurance at all, much less insurance for claims of sexual misconduct. Therefore, it cannot be contrary to the public interest to allow insurers to limit their coverage for this specific risk, that is, their insured’s sexual misconduct. Of course, a victim-patient awarded damages in an amount over a coverage limit is not precluded from attempting to recover any deficiency from the therapist personally. Absent a more definitive pronouncement by the Georgia legislature, this court declines to hold that an insurer’s limitation of coverage in actions involving sexual misconduct violates public policy. This position is consistent with our recent decision in St. Paul &c. Ins. Co. v. Alderman, 216 Ga. App. 777 (455 SE2d 852) (1995), in which we found that no coverage was available under a professional liability policy for a claim of sexual misconduct against a physician. The provision in American Home’s malpractice liability insurance policy limiting its liability to $25,000 in lawsuits involving sexual misconduct by the insured is not void as against Georgia public policy, and the trial court’s denial of American Home’s motion for summary judgment must be reversed.

2. The second issue is whether Smith’s acts constituted “actual or alleged erotic physical contact” so as to trigger the special provision in the policy. Because “erotic physical contact” is not a defined term in the policy, we look to the applicable principles of contract construction. “The words used in policies of insurance, as in all other contracts, bear their usual and common significance, and policies of insurance are, as all other contracts, to be construed in their ordinary meaning.” (Citations and punctuation omitted.) American States Ins. Co. v. Zippro Constr. Co., 216 Ga. App. 499, 500-501 (1) (455 SE2d 133) (1995). Erotic is defined as “pertaining to or treating sexual love, pursuing or satisfying sexual desire; subject to or marked by strong sexual desire.” Random House Dictionary. The conduct contemplated by the policy exception is physical contact other than the simple hug or supportive pat a therapist might give a patient. By modifying physical contact with the word erotic, it is clear that the policy provision was intended to reach behavior which is sexual in nature or indicative of sexual intimacy, such as lying in a prone position together and suggestions of pleasing each other involving nudity. Even if there was no actual touching, as claimed by Smith, the special provision in the policy is triggered by alleged erotic physical contact. There is no question that the behavior engaged in by Smith must be characterized as inappropriate sexual conduct between a therapist and patient. Smith’s conduct was erotic physical contact, not mere physical contact, precisely the behavior the limitation in the special provision of the policy contemplated.

Decided September 15, 1995.

Duncan & Mangiafico, George E. Duncan, Jr., Leslie P. Becknell, for appellant.

Walbert & Mathis, David F. Walbert, Charles A. Mathis, Jr., Shelly Tice, 0. Hale Almand, Jr., Daniel E. Potter, for appellees.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

       The special provision appears in the policy as follows:
      “1. Sexual Misconduct — The total limit of the Company’s liability hereunder shall not exceed $25,000 in the aggregate for all damages with respect to the total of all claims against any Insured (s) involving any actual or alleged erotic physical contact, or attempt thereat (sic) or proposal thereof: a) by an Insured . . . b) with or to any former or current patient or client of any Insured, or with or to any relative of or members of the same household as any said patient or client ... In the event any of the foregoing are alleged at any time, either in a complaint, during discovery, at trial or otherwise, any and all causes of action alleged and arising out of the same or related courses of professional treatment and/or relationships shall be subject to the aforesaid $25,000 aggregate limit of liability and to all other provisions of this clause.”

       The trial court in this case has oversimplified the ruling in American Home Assur. Co. v. Cohen, 881 P2d 1001, 1005 (1) (124 Wash. 2d 865) (1994), which held that it is not against the public policy of the state for an insurer to provide lesser coverage for a psychologist’s sexual misconduct than it provides for the psychologist’s non-sexual misconduct but it is against public policy for an insurer to provide lesser coverage for a psychologist’s non-sexual misconduct, where sexual misconduct is also alleged as having occurred in the same or related course of professional treatment, than the coverage that is provided where only nonsexual misconduct is claimed. Id. at 1009 (4). See American Home Assur. Co. v. Stone, 1995 WL 459228 (7th Cir. Ill.) (decided August 4, 1995) [or 1995 U. S. App. LEXIS 20695]; American Home Assur. Co. v. Bell, unpublished opinion, Colorado Court of Appeals (Case No. 92CA0669, decided July 15, 1993); American Assur. Co. v. Bylund, No. 91-6091 (C.D. Cal. 1992); American Home Assur. Co. v. Oraker, No. 90CV6483 (Colo. Dist. Ct., March 5, 1992).


author: Ruffin, Judge.

text:
    A95A1211.
    DRAUGHN v. DELTA AIRLINES, INC.
    (462 SE2d 445)
   Ruffin, Judge.

On March 28, 1992, Douglas Draughn was injured while in the course of his employment with Dobbs International and received workers’ compensation benefits. On March 24, 1994, he filed the instant action against Delta Airlines, Inc. (“Delta”) alleging his injuries were caused by the negligence of Delta employees. The trial court granted Delta’s motion for summary judgment on the ground that Draughn’s lawsuit was not brought within the one year statute of limitation set forth in the former OCGA § 34-9-11.1 (c). For reasons which follow, we reverse.

Subsequent to the trial court’s ruling, the General Assembly amended OCGA § 34-9-11.1 and rewrote subsection (c) in its entirety. Subsection (c) no longer requires that an injured employee bring his claim against a third party within one year from the date of injury, but rather, provides that any such action “must be instituted in all cases within the applicable statute of limitations. If such action is not brought by the employee within one year after the date of injury, then the employer . . . may[,] but is not required to[,] assert the employee’s cause of action in tort. . . .” In the instant case, the applicable statute of limitation is two years. OCGA § 9-3-33.

The General Assembly also added subsection (e) which provides that “ [i]t is the express intent of the General Assembly that the provisions of subsection (c) of this Code section be applied not only prospectively but also retroactively to injuries occurring on or after July 1, 1992.” July 1, 1992 is the date former OCGA § 34-9-11.1 became effective. We find that the General Assembly’s decision not to extend the retroactive application of the amended statute in subsection (e) to claims arising before that date is an expression of its intention that the former statute was not applicable to injuries occurring prior to July 1, 1992. See, e.g., Dutton v. Ga. Associated &c. Fund, 215 Ga. App. 607 (451 SE2d 504) (1994) (employer’s rights under former OCGA § 34-9-11.1 not applicable because employee’s injury predated July 1, 1992).

Decided September 18, 1995.

Curtis A. Thurston, Jr., for appellant.

Carter & Ansley, Burke B. Johnson, for appellee.

“ ‘[A] reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right (in this State) under the prior law.’ [Cits.]” (Emphasis in original.) Powell v. Dougherty Christian Academy, 215 Ga. App. 551, 552 (451 SE2d 465) (1994). Consequently, we must apply the amended OCGA § 34-9-11.1 (c) in reviewing the trial court’s decision unless application of the amended statute will impair a vested right.

Draughn commenced his lawsuit within the statute of limitation set forth in OCGA § 9-3-33 as was his right under the amended statute. Thus, pretermitting the question of whether the trial court erred in ruling that the former statute barred Draughn’s lawsuit against Delta given that his alleged injury occurred prior to July 1, 1992, we find that the claim was timely commenced under the amended statute. Accordingly, we reverse the trial court’s grant of summary judgment.

Judgment reversed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A1034.
    DEPARTMENT OF PUBLIC SAFETY et al. v. WILLIS.
    (462 SE2d 386)
   Pope, Presiding Judge.

Petitioner David Willis, the Post Commander of a State Patrol station, was terminated for sexual harassment. An administrative hearing officer concluded that Willis’ behavior constituted a “neglect of duty” warranting dismissal under OCGA § 47-2-2 (d), and gratuitously noted in his report that because Willis was being discharged for neglect of duty, his retirement benefits would be lost under the last sentence of OCGA § 47-2-2 (d): “Any employee so discharged from employment shall not be entitled to and shall not receive a retirement benefit based on involuntary separation from employment without prejudice pursuant to Code Section 47-2-123.” Willis appealed his discharge to the Superior Court under OCGA § 47-2-3. But instead of focusing on the propriety of Willis’ discharge, the trial court issued an opinion declaring the last sentence of OCGA § 47-2-2 (d) unconstitutional as applied and ordering that Willis was entitled to involuntary separation retirement benefits. Because we conclude that the trial court exceeded its authority in issuing this order, and that this is not the appropriate proceeding in which to address the question of Willis’ entitlement to involuntary separation retirement benefits, we reverse the trial court’s order.

Under OCGA § 47-2-3 (a) and (b), an employee “who is discharged from employment pursuant to [OCGA § 47-2-2] and who is aggrieved by such discharge from employment . . . [has] the right to judicial review of the employee’s discharge from employment pursuant to the provisions of Code Section 47-2-2.” (Emphasis supplied.) Here, the trial court focused its review not on the propriety of the discharge or even on whether Willis’ conduct constituted “neglect of duty,” but instead on the collateral issue of the effect of the discharge on Willis’ benefits — an issue beyond the scope of review under OCGA § 47-2-3. While issues relating to the propriety of the discharge may be litigated in the context of a proceeding under OCGA § 47-2-3 — a proceeding between the employee and his employer — the employee’s right to benefits must be litigated in a separate action brought against the Employees’ Retirement System of Georgia (“ERS”) directly. See, e.g., Haggins v. Employees’ Retirement System, 255 Ga. 352 (2) (338 SE2d 1) (1986) (discharged employee brings petition for mandamus against ERS to determine his right to involuntary separation benefits). Cf. also Bryant v. Employees Retirement System, 216 Ga. App. 737 (455 SE2d 839) (1995) (trial court in divorce action does not have authority to order ERS, a non-party, to pay a portion of husband’s benefits to wife directly).

Our conclusion that an employee’s entitlement to involuntary separation retirement benefits should be determined in a separate action is based not only on the language of OCGA § 47-2-3 quoted above, but also on the nature of the pivotal question to be addressed: Was the employee’s discharge truly “involuntary”? In Haggins, the Georgia Supreme Court held that “a state employee who knowingly and intentionally causes or brings about his own dismissal from state employment, or engages in conduct which he knew or should have known would lead to his dismissal from employment, is not involuntarily separated from service within the meaning of that term in the Act governing the Employees’ Retirement System of Georgia.” 255 Ga. at 354 (2). Whether or not the employee knew or should have known his conduct would result in dismissal is a question of fact which the employee has a right to have a jury decide (see id. at 354 (1) and (2)) — and this right cannot be exercised in the context of a judicial review under OCGA § 47-2-3. See OCGA § 47-2-3 (e) (“The review shall be conducted by the court without a jury and shall be confined to the record.”)

Decided August 17, 1995

Reconsideration denied September 19, 1995

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Susan L. Rutherford, Assistant Attorneys General, for appellants.

Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellee.

The trial court ruled that the portion of OCGA § 47-2-2 (d) providing that employees discharged for certain reasons (including neglect of duty) not receive involuntary separation retirement benefits could not be constitutionally applied to employees who, like Willis, were hired prior to 1984, the year OCGA § 47-2-2 (d) was enacted. Moreover, the trial court deemed the applicability of OCGA § 47-2-2 (d) dispositive of the entitlement to benefits issue: If the Code section did not apply, Willis was entitled to benefits. We do not review this constitutional ruling on the merits, since it went beyond the scope of the trial court’s authority under OCGA § 47-2-3. We note, however, that the applicability of that portion of OCGA § 47-2-2 (d) is not necessarily dispositive; under the Haggins analysis, whether Willis will be entitled to involuntary separation retirement benefits will still depend on whether a jury finds his separation was truly involuntary.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A1167.
    KNIGHT v. DUKE et al.
    (462 SE2d 391)
   Pope, Presiding Judge.

On January 8, 1993, Carl Knight was injured in a car accident while riding as a passenger in a vehicle being driven by Mark Wallace. At the time of the accident, Wallace was test driving the vehicle with the permission of Murray Duke d/b/a Auto Mart. As a result of the accident, Knight filed a personal injury action against Wallace and obtained a default judgment of $100,000.

Knight then filed suit against Duke and Duke’s insurer, Auto Owners Insurance Company. Knight alleged that the permissive driver of Duke’s vehicle had negligently caused a collision and had caused him injury. Knight alleged that no primary coverage existed; that he had previously demanded policy limits from Auto Owners; that an Auto Owners adjustor had represented that settlement would be forthcoming; and that despite these representations the company had denied coverage.

Duke and Auto Owners answered the complaint and crossdaimed, seeking a declaration from the court regarding Auto Owners’ obligations to Duke and Knight. Auto Owners also filed a motion to dismiss the complaint, arguing that there was no unsatisfied judgment against Duke and that there was no provision of the liability policy on which Knight could rely in filing the suit. Knight then filed a motion to dismiss the declaratory judgment action. Knight argued that Wallace had assigned him his contractual rights and that he had a direct action against Auto Owners.

The court tried the insurance issues raised in the cross-claims for declaratory judgment without a jury and made the following findings of fact. The court determined that on the date of the automobile accident, Knight was working for Duke as a casual laborer and that he was not an independent contractor. The court further found that Knight was within the course and scope of his employment for Duke at the time of the collision. The Auto Owners garage liability policy stated that it did not apply to “bodily injury to or death of any employee of the insured arising out of and in the course of his employment by the insured other than domestic employment if benefits for such domestic employment are neither payable nor required to be provided under any workmen’s compensation law.” The court concluded that the policy did not apply to Knight’s suit because he was an employee of Duke who suffered an injury in the course of his employment. Knight appeals, raising three enumerations of error.

First, Knight argues the evidence does not support the finding that he was an employee, in the scope of his employment at the time of the accident. Citing Murphy v. Blue Bird Body Co., 207 Ga. App. 853 (429 SE2d 530) (1993), Knight argues that the record shows that he was an independent contractor. We agree and reverse.

The record establishes that Knight worked intermittently as a casual laborer for Duke. Knight performed odd jobs for Duke; he did not sell cars. When Knight needed work, he would ask Duke if he needed help. If Duke did not have a job for Knight, Knight would look for work elsewhere. Knight’s odd jobs for Duke had included roofing a house, covering a floor, detailing cars on the lot, painting, and yard work. Duke paid Knight in cash by the job, with no withholding for taxes or social security. Duke did not control the manner in which Knight performed the various tasks, and occasionally Knight brought his own tools for a task.

Knight was detailing cars for Duke on the day of the accident. He rode with Wallace after being asked to do so by one of Duke’s car salesmen. While Knight testified that he accompanied the driver as a favor to Duke, there was evidence that Knight would have been paid for his work.

Decided August 23, 1995

Reconsideration denied September 19, 1995

James G. Tunison, Jr., for appellant.

Cork & Cork, Patrick C. Cork, William A. Turner, Jr., for appellees.

The policy at issue here did not define “employee,” and we must turn to cases for guidance. “Generally, in determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work as distinguished from the right merely to require certain definite results in conformity to the contract. [Cits.] If one is employed generally to perform certain services it may be infer-able that the employer retained the right to control the manner, method and means for performance of the contract. However, where there is a specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the right of control was not retained and an independent contractor relation existed. [Cits.]” (Punctuation omitted.) N. S. Co. v. Cincinnati Ins. Co., 203 Ga. App. 347, 348 (416 SE2d 859) (1992).

Here, the evidence established that Knight was an independent contractor, not an employee of Duke. Duke did not control the time, method, or manner of Knight’s work. See generally Mason v. Gracey, 189 Ga. App. 150 (1) (375 SE2d 283) (1988). Our conclusion that the policy did not exclude Knight comports with the evident purpose of the subject provision which “was to prevent the overlapping of risk against which different types of insurance policies [particularly workers’ compensation] furnish coverage.” Johnson v. U. S. Fidelity &c. Co., 93 Ga. App. 336, 341-342 (91 SE2d 779) (1956). See generally Jenkins & Miller, Automobile Insurance Law (1994 ed.), § 12.5.

Accordingly, the court’s determination that Knight was excluded from coverage because of this provision is reversed. Because of this conclusion, we need not address Knight’s remaining enumerations of error.

Judgment reversed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A0920.
    MATTHEWS v. DORSEY.
    (462 SE2d 452)
   Ruffin, Judge.

John Matthews petitioned for 12 months support from the estate of Margaret Joyner Matthews. The parties were present and accompanied by their attorneys of record on the date set for trial. After the trial court called the parties to come forward and proceed, however, Matthews’ attorney informed the court that he could not proceed because his assistant had taken ill and therefore was not present in court with the documents he needed to try the case. One such document was executrix Charlotte Dorsey’s affidavit about which counsel stated he needed to cross-examine her. In response, Dorsey’s attorney indicated he was ready to proceed. The trial court indicated it could not grant a continuance based on Matthews’ “motion” and called the case for trial, noting that the individual who was not present in court was not counsel of record and that both attorneys of record were present. Matthews’ attorney again declared that he could not proceed, and Dorsey moved to dismiss Matthews’ petition. The court granted the motion to dismiss, and this appeal followed. In his sole enumeration of error, Matthews contends the trial court erred in failing to grant his motion for a continuance.

Decided September 19, 1995.

Ted H. Reed, for appellant.

Glen E. Stinson, for appellee.

“It is well established that all continuances for which express provision has not been made are granted or denied in the discretion of the trial court, and this court will not reverse such decisions absent a clear abuse of discretion. OCGA § 9-10-167 (a); [cit.]” Payton v. Green, 179 Ga. App. 438, 439 (2) (346 SE2d 884) (1986). In the instant case, the continuance was not sought due to the absence of a party, leading counsel or a witness as expressly provided in OCGA §§ 9-10-154; 9-10-155; 9-10-160, respectively. Thus, we must determine whether the trial court abused its discretion in refusing to grant a continuance.

To this end, we find the Georgia Supreme Court’s decision in Horshaw v. Cook, 16 Ga. 526 (1854) controlling. In that case, based on similar circumstances, the court affirmed the trial court’s denial of a continuance, finding that “[t]he law required the defendant to have [the] papers at Court, that he might be in readiness for trial. It was at his own risk, therefore, and manifested a want of proper diligence, when he permitted another, especially one who was not his leading Counsel, to keep them in his possession, and away from Court.” Id. at 527. See also OCGA § 9-10-166. Accordingly, we find no abuse of discretion in the trial court’s denial of Matthews’ motion.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A1028.
    SPEAD v. THE STATE.
    (462 SE2d 635)
   Ruffin, Judge.

Commie Lee Spead, Jr., was convicted by a jury of the sale of cocaine. He appeals from the judgment of conviction and sentence primarily challenging the admission of similar transaction evidence. For the reasons which follow, we affirm.

Viewed in a light to support the verdict, the evidence shows that in connection with his service on the Metro Drug Task Force, Officer Tom Jump wanted to make an undercover crack cocaine purchase at a trailer in which Spead and his brother lived. A confidential informant directed Officer Jump to the trailer. When they arrived, the informant went to the front door and had a brief conversation with the individual who opened the door. The informant then returned to the car, followed by Spead who got into the back seat. Spead allegedly told Officer Jump he did not have any cocaine there, but he directed the officer to drive down one block where Spead got out of the car. Spead then instructed Officer Jump to drive farther down the street, turn around and come back. When Officer Jump returned, Spead got back in the car with two pieces of crack cocaine for which Officer Jump paid him $40.

The car was equipped with a hidden video camera. In order for Officer Jump to get a picture of Spead, Spead needed to stand at the driver’s side window. Therefore, after Spead got out of the car, Officer Jump offered him a beer. When Spead reached for the beer, he was momentarily in camera range. The jury viewed the videotape at trial. Officer Jump testified that he got a good look at Spead at the time of the drug purchase. He identified Spead at trial, testifying that there was no doubt in his mind that Commie Lee Spead was the person who sold him two pieces of crack cocaine as described above, and he identified Spead on the videotape.

1. In his first enumeration of error, Spead contends the trial court erred in permitting the State to present similar transaction evidence because the circumstances surrounding his 1987 conviction for selling crack cocaine were not sufficiently similar to the transaction for which he was tried and the 1987 conviction was too remote in time.

Officer Willie McCoy testified that on November 13, 1986, as a part of an undercover investigation of street-level drug dealers, he was parked in a parking lot notorious for drug activity when Spead approached him and offered to sell him one rock of crack cocaine. After the two haggled over the price, Officer McCoy paid Spead $27. Due to the passage of time, Officer McCoy could not positively identify Spead at trial as the individual who sold him cocaine on November 13, 1986. He was certain, however, that he purchased the cocaine from a “Commie Lee Spead.” Spead later testified regarding his sale of cocaine to Officer McCoy on November 13, 1986, and his subsequent conviction and imprisonment. He stated that Officer McCoy’s informant approached him and said that McCoy wanted to purchase drugs but that he was McCoy’s cousin and did not want McCoy to know he was selling drugs. The informant purportedly then gave Spead the cocaine which he sold to McCoy.

The State also introduced into evidence a certified copy of a 1987 indictment which identified the defendant as “Commie Lee Spead” and showed his conviction of the sale of cocaine. Spead admitted that the document represented his conviction for selling cocaine to Officer McCoy on November 13, 1986. The State offered the evidence to prove identity and to show Spead’s propensity to sell cocaine.

“The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” (Citations and punctuation omitted.) Faison v. State, 199 Ga. App. 447, 448 (1) (405 SE2d 277) (1991). “[T]he requisite similarity between the two incidents depends on the purpose for which the evidence is being presented. If, for example, the evidence is being presented to prove the identity of the perpetrator of the offense charged, a long list of similarities between or among the crimes might be necessary to show that the crime on trial bears the defendant’s ‘criminal signature.’ ” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). Evidence of a perpetrator’s propensity to commit an offense in a particular manner “falls within the bent of mind exception to the inadmissibility rule.” (Citations and punctuation omitted.) Harris v. State, 201 Ga. App. 152, 153 (410 SE2d 351) (1991). The trial court’s findings on questions of similarity will not be disturbed on appeal unless clearly erroneous. Cantrell v. State, 210 Ga. App. 218 (2) (435 SE2d 737) (1993).

The State argues that the two incidents were sufficiently similar because both sales took place in automobiles in Camden County at approximately the same time of the day, and in both transactions, informants approached Spead and initiated the transaction. The State also contends that the eight-year lapse between the two offenses goes to the weight and credibility of such evidence. On the other hand, Spead contends the State identifies only superficial similarities between the two transactions and that there are substantial differences between the transactions which militate against the admission of the 1987 conviction.

While we agree with Spead that the circumstances underlying the transactions are somewhat different, we nonetheless find that the previous conviction was admissible for the purposes articulated by the State inasmuch as the evidence, including Officer Jump’s identification of Spead and Spead’s own admission of his previous sale to Officer McCoy, shows Spead to be a relatively low-level drug dealer selling small quantities of crack cocaine out of his hand. Furthermore, given Spead’s imprisonment during the period between the two incidents, the earlier incident was not too remote in time. See Gonzalez v. State, 213 Ga. App. 667 (1) (445 SE2d 769) (1994). In any event, “ ‘[t]he lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.’ [Cit.]” Snow v. State, 213 Ga. App. 571, 572-573 (2) (445 SE2d 353) (1994). Accordingly, the trial court’s admission of the previous conviction was not clearly erroneous.

We note that even if we had concluded that the admission of the 1987 conviction was erroneous because the transactions were not sufficiently similar, that error would not have mandated a reversal because there was overwhelming evidence of Spead’s guilt of the offense charged to enable a rational trier of fact to convict him beyond a reasonable doubt; hence, any error in the admission of the 1987 conviction could not have contributed to the verdict. See Faison, supra; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Spead contends the trial court erred in admitting the certified copy of his 1987 conviction because it was incorrectly certified by the superior court clerk. The indictment identified the defendant as “Commie Lee Spead.” However, the clerk’s certification indicated that the document was a true and correct copy of the indictment and sentence in the case against “Commie Lee Spead, Jr.” Spead contends the court erred in admitting the certified copy of the indictment and sentence absent any showing that the individual seated at the defense table was the same person characterized in the indictment. This enumeration is without merit inasmuch as Spead himself identified the document as his previous conviction of the sale of cocaine. Moreover, at the time the State introduced the document, Spead did not seek to bar its admission. Instead, he merely requested that the certification be redacted. The prosecutor then pointed out to the court that Spead signed the 1987 indictment and his current indictment as “Commie Lee Spead, Jr.,” and the trial court admitted the document, over Spead’s “objection,” as presented. Under these circumstances, we find no abuse of discretion in the admission of the 1987 indictment.

3. Spead enumerates as error the court’s charge on similar transaction evidence. Spead complains the court erred in instructing the jury that it could use the 1987 conviction to establish his identity since Officer McCoy could not identify him at trial; thus, the conviction could not have been admitted for that purpose. However, as we discussed above, there was ample evidence of Spead’s involvement in both crimes, independent of Officer McCoy’s inability to identify him at trial, to support the admission of the 1987 conviction and the court’s charge. Accordingly, this enumeration is without merit.

Decided September 19, 1995.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, Darrell E. Wilson, Carole E. Wall, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A1043.
    DIDIO v. CHESS.
    (462 SE2d 450)
   Pope, Presiding Judge.

Plaintiff Harold Chess filed a complaint against his former attorney, defendant Steve Didio, alleging that Didio had fraudulently withheld the proceeds of an insurance settlement from him. The trial court struck Didio’s answer to the complaint following his failure to comply with a discovery order the trial court had issued. In his sole enumeration of error, Didio contends that the trial court abused its discretion in striking his answer. We disagree and affirm.

On October 22, 1993, Chess served Didio with interrogatories. When Didio failed to respond to the interrogatories within the time set forth in OCGA § 9-11-33 (a) (2), Chess sent a letter to him requesting that he answer the interrogatories by December 6, 1993. Didio did not respond to the letter or comply with the request made therein. Consequently, on December 9, 1993, Chess filed a motion to compel. See OCGA § 9-11-37 (a). Again, Didio did not respond. Subsequently, the trial court granted the motion to compel, and by order dated February 1, 1994, directed Didio to fully and completely answer the interrogatories within 20 days of receipt of the order. A process server personally served Didio with the discovery order on March 11, 1994, and thus Didio had until March 31, 1994 to comply with its dictates. The record clearly demonstrates, however, that Didio did not meet this deadline. As a result, Chess filed a motion for contempt on April 1, 1994, wherein he requested that the trial court sanction Didio by striking his answer in accordance with OCGA § 9-11-37 (b) (2) (C). Didio did not respond to Chess’s motion for contempt, and the trial court issued an order finding Didio in contempt and striking his answer on July 7, 1994. We find no abuse of discretion on the trial court’s part.

“The drastic sanctions [found in OCGA § 9-11-37 (b) (2) (C)] cannot be invoked except in the most flagrant cases — where the failure is wilful, in bad faith or in conscious disregard of an order. There must be a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.” (Citation and punctuation omitted.) Johnson v. Lomas Mtg. USA, 201 Ga. App. 562, 564-565 (3) (411 SE2d 731) (1991). Didio argues that the trial court erred in striking his answer because there is no evidence of wilful noncompliance on his part. We cannot agree. “(W)here a motion for sanctions is brought under (OCGA § 9-11-37 (b) (2)) for a party’s failure to comply with an order compelling answers [to interrogatories], the existence or nonexistence of wilfulness should be considered not only in the context of the time period prescribed in the order compelling answers, but in the context of the entire period beginning with service of interrogatories and ending with service of answers. Events transpiring during this entire time period are probative of whether appellant acted with ‘conscious indifference to the consequences of failure to comply’ with the order compelling answers. Swindell v. Swindell, [233 Ga. 854, 857 (3) (213 SE2d 697) (1975)].” Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 183 (402 SE2d 723) (1991).

Applying the above criteria to the case at bar, we hold that the trial court was authorized to find that Didio wilfully and consciously disregarded the discovery order. We also reject the contention that the interrogatory answers Didio provided after Chess filed his motion for contempt precluded the trial court from striking Didio’s answer. See Bryant v. Nationwide Ins. Co., 183 Ga. App. 577, 578 (359 SE2d 441) (1987).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

Decided September 19, 1995.

Stefano A. Didio, pro se.

Edward J. Sullivan, for appellee.

       Contrary to Didio’s assertion otherwise, the time period in which he had to comply with the trial court’s February 1,1994 discovery order was not extended by three days pursuant to OCGA § 9-11-6 (e) because the order was not served on Didio by mail. Additionally, the rationale behind the three-day mailing extension found in that Code section is not applicable here because the response period in this case did not begin running until Didio actually received the trial court’s discovery order.


text:
    A95A1286, A95A1287.
    ALLSTATE INSURANCE COMPANY v. DUNCAN; and vice versa.
    (462 SE2d 638)
   Pope, Presiding Judge.

Plaintiff Douglas Duncan, a Georgia resident, was injured in an automobile accident caused by “John Doe,” an unknown uninsured motorist. The accident occurred in Missouri, and at the time of the accident Duncan was a passenger in a car insured by defendant Allstate Insurance Company under a policy (including uninsured motorist coverage) issued and delivered in Missouri. Duncan sued John Doe in Georgia and served Allstate as the uninsured motorist carrier. See OCGA § 33-7-11 (d). Allstate moved to dismiss, arguing that the court was without jurisdiction over John Doe, and that a judgment against John Doe was a prerequisite to an action against an uninsured motorist carrier under Georgia law. See Boles v. Hamrick, 194 Ga. App. 595 (391 SE2d 418) (1990). The trial court agreed that it had no jurisdiction over John Doe. It nonetheless ruled that the action could proceed against Allstate because Missouri law, which does not require a judgment against John Doe before a judgment against an uninsured motorist carrier is possible, would apply. We granted Allstate’s application for interlocutory appeal to review this choice-of-law ruling, and in Case No. A95A1286 we reverse. But in Duncan’s cross-appeal, Case No. A95A1287, we also reverse, concluding that the court does in fact have jurisdiction over John Doe under OCGA § 33-7-11 (d) (1). Thus, while we reverse the judgment in both cases, the bottom line — that Duncan’s action against Allstate may proceed — remains the same.

Case No. A95A1286

1. When a choice-of-law question arises in a contract action brought in Georgia, substantive matters such as the validity and construction of the contract are governed by the substantive law of the state where the contract was made (or is to be performed, if that is a different state); but procedural and remedial matters are governed by the law of Georgia, the forum state. Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765-766 (417 SE2d 671) (1992). The question presented here — what a party injured by an unknown driver must do to recover from his own uninsured motorist carrier — is a procedural and remedial matter, and thus is governed by Georgia law. See Houston v. Doe, 136 Ga. App. 583 (1) (222 SE2d 131) (1975). Duncan’s reliance on Amica Mut. Ins. Co. v. Bourgault, 263 Ga. 157 (429 SE2d 908) (1993) is misplaced, as Arnica involved the substantive question of the validity of a policy exclusion. Accordingly, the trial court erred in looking to Missouri rather than Georgia law.

Case No. A95A1287

2. Under Georgia law, a judgment against the uninsured motorist, whether known or unknown, is a condition precedent to recovery from the uninsured motorist carrier. See Boles v. Hamrick, supra. Thus, if the trial court were correct in its conclusion that it did not have jurisdiction over John Doe, Duncan’s action against Allstate would have to be dismissed, or we would have to create an exception to the general rule. See, e.g., Wilkinson v. Vigilant Ins. Co., 236 Ga. 456 (224 SE2d 167) (1976); Tinsley v. Worldwide Ins. Co., 212 Ga. App. 809 (442 SE2d 877) (1994). Fortunately, however, the legislature foresaw this problem and addressed it in OCGA § 33-7-11 (d) (1): “In cases where the owner or operator of a vehicle causing injury or damages is unknown and an action is instituted against the unknown defendant as ‘John Doe,’ the residence of such ‘John Doe’ defendant shall be presumed to be in the county in which the accident causing injury or damages occurred, or in the county of residence of the plaintiff, at the election of the plaintiff in the action.”

Allstate asserts that this statutory presumption addresses residency for purposes of venue but not for purposes of personal jurisdiction. It cites no support for this assertion, however, and the language of the statute makes no such distinction. Moreover, we have stated that where a trial court was unable to exercise in personam jurisdiction over a known nonresident uninsured motorist, the uninsured motorist should be considered unknown, and the action should proceed as if it were a John Doe action. See State Farm Mut. Auto. Ins. Co. v. Noble, 208 Ga. App. 518 (430 SE2d 804) (1993); Smith v. Phillips, 172 Ga. App. 459, 462-463 (1) (323 SE2d 669) (1984). This would not make sense, of course, if plaintiff had to show that the court had jurisdiction over an unknown John Doe.

Allstate further suggests that an exercise of jurisdiction under OCGA § 33-7-11 (d) (1) would be unconstitutional if the John Doe does not have sufficient minimum contacts with Georgia. But even if we assume Allstate has standing to raise the issue of John Doe’s due process rights, see South Ga. Nat. Gas Co. v. Ga. Pub. Svc. Comm., 214 Ga. 174 (1) (104 SE2d 97) (1958), those rights would not be violated because any judgment against John Doe would not be an in personam judgment. See Noble, 208 Ga. App. at 519-520 & n. 1 (John Doe action is simply a procedural device designed to allow the insured to fulfill the condition precedent; the judgment against John Doe is only nominal).

Decided September 19, 1995

Long, Weinberg, Ansley & Wheeler, Johnathan T. Krawcheck, Earl W. Gunn, Charles K. Reed, for appellant.

James A. Goldstein, for appellee.

Allstate cites State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 (1) (347 SE2d 281) (1986) for the proposition that the due process rights of even a John Doe defendant cannot be ignored. Kuharik actually supports our conclusion, however, as it states that the unknown driver’s rights are not violated by allowing the John Doe action to proceed since, if the identity of the unknown driver is later discovered, he will not be bound by the John Doe judgment. “The purpose of a John Doe action is merely to fix the liability of the uninsured motorist carrier to its policyholder for loss caused by an unknown tortfeasor. [Cit.] Such a proceeding obviously does not operate to defeat the unknown tortfeasor’s due process rights. ‘If the insurer, even after judgment and payment, should discover the identity of the tortfeasor, it is of course subrogated to the plaintiff’s rights, but the plaintiff has in no meaningful sense either served or obtained a judgment against the tortfeasor by his John Doe action.’ [Cit.]” Kuharik, 179 Ga. App. at 568-569.

In summary, we hold that Georgia law controls the procedural question of whether a judgment against the unknown tortfeasor is a prerequisite to recovery from the uninsured motorist carrier; and since Georgia law does require such a judgment, we reverse the judgment in Case No. A95A1286. We also hold that the court has jurisdiction over the John Doe defendant because the suit was brought in the county of plaintiff’s residence, and thus reverse the judgment in Case No. A95A1287. As a result of the two reversals, John Doe is reinstated as a defendant and Duncan’s action against Allstate may proceed.

Judgments reversed.

Beasley, C. J., and Ruffin, J., concur.

        Watts v. Allstate Ins. Co., 214 Ga. App. 462 (448 SE2d 55) (1994) is distinguishable, as it involved a known uninsured tortfeasor rather than a John Doe.


author: Beasley, Chief Judge.

text:
    A95A1292.
    McDANIEL v. THE STATE.
    (462 SE2d 446)
   Beasley, Chief Judge.

McDaniel was convicted of driving while having a blood alcohol concentration of more than 0.10 grams (DUI), OCGA § 40-6-391 (a) (4), weaving, OCGA § 40-6-48 (1), and obstruction of an officer, OCGA § 16-10-24 (a). She appeals from her conviction and sentence on the DUI charge.

McDaniel contends the court should have granted her motion to suppress the results of her breath test because she was not fully advised of her right to an independent chemical test as required by OCGA § 40-6-392 (a) (3). See State v. Peters, 211 Ga. App. 755, 756 (440 SE2d 515) (1994). The motion to suppress hearing was not reported, but the parties agree the court’s amended order reflects the evidence presented. The arresting officer advised McDaniel: “After submitting to the required testing, you are entitled to additional chemical test(s) at your own expense and from personnel of your own choosing.” She chose to receive an independent test, but did not indicate where or by whom she wished such a test to be administered. There was no evidence presented as to whether the officer asked her where she would like to be taken. The officer took her to nearby Southern Regional Medical Center, as is the police department’s policy when a suspect does not request any specific facility. McDaniel became combative at the hospital and no independent test was performed. The court found the officer’s act of taking McDaniel to Southern Regional to be justified in the circumstances. See OCGA § 40-6-392 (a) (3).

McDaniel contends the results of her state-administered test must be suppressed because the officer did not ask her where and by whom she wished the elective test performed. Even if the evidence showed the officer did not ask such a question, it was not required. The officer advised McDaniel of her right to an independent test by a person of her own choosing, as OCGA § 40-6-392 (a) (3) required him to do. See State v. Hassett, 216 Ga. App. 114 (453 SE2d 508) (1995); State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994). She chose an independent test but did not specify any choice of personnel. In the absence of such a choice, the officer’s action in taking McDaniel to the nearest hospital, and the departmental policy behind it, were reasonable. See Norfleet v. State, 196 Ga. App. 548, 550 (1) (396 SE2d 237) (1990); State v. Buffington, 189 Ga. App. 800, 801-802 (377 SE2d 548) (1989); State v. White, 188 Ga. App. 658, 659 (373 SE2d 840) (1988).

This is not a case in which the officer denied a suspect’s reasonable request to be taken to a chosen facility because departmental policy was to allow tests at only one, or a few, specific facilities; the officer never denied McDaniel the facility of her choice. Compare Akin v. State, 193 Ga. App. 194 (387 SE2d 351) (1989); State v. Hughes, 181 Ga. App. 464 (352 SE2d 643) (1987).

Decided September 19, 1995.

Emmett J. Arnold IV, for appellant.

Keith C. Martin, Solicitor, Elizabeth A. Baker-Cofer, Assistant Solicitor, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1511.
    POWELL v. THE STATE.
    (462 SE2d 447)
   Beasley, Chief Judge.

A jury convicted Powell of inciting to riot (OCGA § 16-11-31 (a)). He challenges the sufficiency of the evidence.

After 14-year-old Anderson rejected Powell’s request to have sex with him, Powell threatened to have his 18-year-old girl friend, Johnson, beat her. Powell then informed Johnson that Anderson had been talking about her and suggested that Johnson go up the street to meet Anderson. As Anderson and her friends Lattimore and Faust walked down the street, Johnson cursed them and ordered her three-year-old son to hit Anderson. When the child, whose father was Powell, began hitting Anderson with a switch, Lattimore told Anderson to hit him back.

Johnson then jumped on Lattimore’s back and began pulling Lattimore’s hair, punching and kneeing her at Powell’s direction. Faust ran for help and returned with Lattimore’s sister, who attempted to break up the fight until Powell drew his arm back as though he was about to strike her and said to let them keep fighting. At some point, Johnson and Lattimore stopped and then recommenced fighting. Powell shoved everyone away who tried to stop the fight, including Lattimore’s 11-year-old niece. By the time Lattimore’s mother and uncle arrived and ended it, between 25 and 60 onlookers had gathered.

Powell unsuccessfully moved for directed verdict at the close of the State’s case; he argued that there was insufficient evidence that he urged, counseled, or advised others to riot or of a clear and present danger of a riot. He presses this point.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994). The jury’s verdict must be upheld if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 19, 1995.

Randall IV. Burton, Theresa M. Clyne, for appellant.

Kenneth W. Mauldin, Solicitor, Verda M. Andrews, Assistant Solicitor, for appellee.

The essential elements of inciting to riot are: (1) engaging in conduct which urges, counsels, or advises others to riot; (2) with intent to riot; and (3) at a time and place and under circumstances which produce a clear and present danger of a riot. OCGA § 16-11-31 (a). Under Georgia law, “[a]ny two or more persons who shall do an unlawful act of violence or any other act in a violent and tumultuous manner commit the offense of riot.” OCGA § 16-11-30 (a).

Powell encouraged Johnson to confront Anderson. After Johnson attacked Lattimore, he directed Johnson’s moves and yelled “you ought to be beating this bitch” and “don’t stop the fight, the bitch got too much mouth.” He also shoved and bullied several people in the gathering crowd in order to prevent any interference with the fight. A reasonable jury could find that this evidence showed beyond a reasonable doubt that Powell intentionally urged, counseled, or advised others to riot. See O’Quinn v. State, 39 Ga. App. 829 (148 SE 618) (1929).

Powell argues that other cases such as Land v. State, 262 Ga. 898, 900 (2) (426 SE2d 370) (1993), cert. denied, _ U. S. __ (113 SC 3008, 125 LE2d 699) (1993), included proof that the crowd was agitated and no such evidence was admitted in this case. The evidence that the fight lulled and then recommenced supports a finding that Lattimore did not act solely in self-defense but rather participated in the riot with Johnson. In light of this fact, the failure to prove the crowd was agitated is not dispositive. OCGA § 16-11-30 (a). Sufficient evidence supports the verdict.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1524.
    In the Interest of J. J. H. IV, a child.
    (462 SE2d 449)
   Pope, Presiding Judge.

On November 25, 1994, a citation issued against J. J. H. charging him with reckless driving; a petition was subsequently filed in juvenile court charging him with the same offense. J. J. H. was found guilty and appeals.

Construing the evidence with all inferences and presumptions in favor of upholding the findings of the trier of fact, see In the Interest of M. J. F., 191 Ga. App. 792 (1) (383 SE2d 173) (1989), on November 25, 1994, Officer Holmes of the West Point Police Department stopped J. J. H. pursuant to a report from a Mr. Crook that J. J. H. was driving recklessly. Crook testified that J. J. H. passed him in a no-passing zone going about 65-70 mph. Crook observed J. J. H. driving around a blind curve at the top of a hill as another car was approaching and stated that J. J. H. was forced to swerve to avoid an accident. Accordingly, Crook called the police and reported his observations. Although Crook had worked for nine years in the West Point police department, on the incident date he was the city superintendent of streets and was not certified as an officer.

Officer Holmes testified that he drew up the citation, and later the petition against J. J. H., based on the facts Crook told him. There was no evidence that any officer observed J. J. H. driving recklessly.

At the hearing, J. J. H. admitted that he exceeded the speed limit to pass Crook’s vehicle. J. J. H. stated that by the time he pulled around Crook’s vehicle, there was “200, less than 300 feet, maybe about 257 [feet distance from the vehicle] coming from the opposite direction.”

In his sole enumeration of error, J. J. H. argues that because Holmes did not witness the traffic violation or have the relevant information related to him by a law enforcement officer observing the violation, Holmes did not have the authority under OCGA § 17-4-23 (a) to issue the traffic citation and that the citation was void ab initio.

OCGA § 17-4-23 (a) provides in pertinent part: “A law enforcement officer may arrest a person accused of violating any law or ordinance governing the operation ... of motor vehicles by the issuance of a citation, provided the offense is committed in his presence or information constituting a basis for arrest concerning the operation of a motor vehicle was received by the arresting officer from a law enforcement officer observing the offense being committed.” (Emphasis supplied.)

It is undisputed that no officer observed the offense, and therefore, this statute does not control the instant matter. The question becomes whether reversal is mandated, as J. J. H. argues, because the citation failed to conform to the statute.

Given the instant facts, the failure to follow the provisions of OCGA § 17-4-23 (a) does not mandate reversal. Here, a petition was filed against J. J. H. in juvenile court, and thus, the court proceeded on the petition and not on the citation. See generally Thompson v. State, 175 Ga. App. 645, 648 (3) (334 SE2d 312) (1985); State v. Doyal, 184 Ga. App. 126 (361 SE2d 17) (1987); compare OCGA § 40-13-1. Until the petition issued, the citation was “merely a means of . . . informing defendant of the charge, and advising him when and where to appear in court.” Thompson, 175 Ga. App. at 648.

Decided September 19, 1995.

W. Luther Jones, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Albert W. Holmes, Assistant District Attorneys, for appellee.

J. J. H. does not argue that he was illegally arrested. Nonetheless, we are mindful that “[e]ven if the arrest had been unlawfully accomplished, it would not here be grounds for quashing the [petition].” Thompson, 175 Ga. App. at 648; see also In the Interest of J. D. M., 187 Ga. App. 285 (2) (369 SE2d 920) (1988).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

       For a general discussion, see Brock v. State, 196 Ga. App. 605 (1) (396 SE2d 785) (1990).


author: Birdsong, Presiding Judge. Beasley, Chief Judge,

text:
    A95A1338.
    MMT ENTERPRISES, INC. v. CULLARS.
    (462 SE2d 771)
   Birdsong, Presiding Judge.

The appeal in this case was dismissed by non-published order on March 30, 1995 for failure to follow the discretionary appeals procedure. In its notice of appeal filed on January 12, 1995, appellant MMT Enterprises, Inc. states it is appealing from the original judgment (entered May 18, 1994), from the denial of its motion for j.n.o.v. or alternatively for new trial (entered October 5, 1994), and from the denial of its motion to set aside (entered December 16,1994). We dismissed this direct appeal because it was not timely filed from the only two orders which were directly appealable (the original judgment and the denial of appellant’s motion for j.n.o.v. or alternatively for new trial); and because appellant failed to comply with discretionary appeals procedure for appeal of motions to set aside a judgment. OCGA § 5-6-35 (a) (8).

On motion for reconsideration, appellant posits that this court erred in dismissing its appeal for two reasons: (1) a consent judgment allowed the parties 30 days to file a notice of direct appeal after the ruling on appellant’s motion to set aside; and (2) according to some case authority, the motion to set aside extended the time for filing a notice of appeal from the earlier orders because it was based on a nonamendable defect on the face of the record and lack of jurisdiction. Held:

1. OCGA § 5-6-39 governs extensions of time to file a notice of appeal. That statute allows only one extension of the time for filing a notice of appeal, and such an extension cannot exceed the time otherwise allowed for filing the notice initially. The consent judgment was timely entered on November 2, 1994, within 30 days of the denial of appellant’s motion for j.n.o.v. or new trial, but prior to the denial of appellant’s motion to set aside on December 16, 1994. While the consent judgment would have been effective to grant appellant a 30-day extension from the date on which it was entered, it was not effective to extend the filing date for a notice of appeal after the date of a future ruling, viz., the denial of appellant’s motion to set aside. OCGA § 5-6-39 does not authorize such indefinite extensions of time to file a notice of appeal. This argument is without merit.

2. OCGA § 5-6-38 (a) provides that a notice of appeal must be filed within 30 days after entry of the appealable decision or judgment, or within 30 days after entry of a ruling on a motion for new trial, motion for judgment notwithstanding the verdict or motion in arrest of judgment. Relying on Miller v. Bank of the South, 177 Ga. App. 42 (338 SE2d 436), Law Offices of Johnson & Robinson v. Fortson, 175 Ga. App. 706 (334 SE2d 33), Mathis v. Hegwood, 169 Ga. App. 547 (314 SE2d 122), Littlejohn v. Tower Assoc., 163 Ga. App. 37, 38 (293 SE2d 33), and see Perryman v. Ga. Power Co., 180 Ga. App. 259 (348 SE2d 762) and Bartlett v. Hembree, 177 Ga. App. 253 (339 SE2d 388), appellant contends that although a motion to set aside is not among those listed in OCGA § 5-6-38 (a) as extending the time for appeal, when a motion to set aside is based on a nonamendable defect and/or lack of jurisdiction, it extends the time for filing a notice of appeal.

In those cases, beginning with Littlejohn, supra, this court construed Johnson v. Barnes, 237 Ga. 502 (229 SE2d 70) to hold that “A motion to set aside will extend the time for filing [a] notice of appeal,” provided that the motion to set aside is “predicated upon some nonamendable defect. . . [on] the face of the record or . . . [on] lack of jurisdiction of the person or subject matter.” 163 Ga. App. at 38. In fact, however, in Johnson at 503-505, the Supreme Court merely held that the ruling on a timely-filed motion to set aside was itself an “appealableorder; Johnson did not hold that a motion to set aside will “extend the time” for filing a notice of appeal of the prior judgment. In point of fact, when Johnson was written, a motion to set aside was directly appealable, that is, it did not technically serve to “extend the time” for appealing the prior judgment but, rather, the ruling on motion to set aside was itself directly appealable.

The conclusion reached in Littlejohn that the filing of a motion to set aside could, under certain circumstances, “extend the time” in which to file a notice of appeal is therefore ill-founded. If Johnson v. Barnes ever could be construed as authority for such a conclusion, the General Assembly superseded it in 1984 when it amended the discretionary appeals procedure to add denials of motions to set aside as orders or judgments that require an application for authority to appeal. Ga. Laws 1984, p. 599. Under that law, codified at OCGA- § 5-6-35 (a) (8), appeals from orders under OCGA § 9-11-60 (d) denying a motion to set aside a judgment may be taken only upon grant of an application for discretionary appeal. Thus, by statutory law, there is no longer a right of direct appeal from a ruling on a motion to set aside filed under OCGA § 9-11-60 (d). Littlejohn, supra, and Mathis, supra, were decided before that 1984 amendment; to the extent those cases and others following them hold that a motion to set aside can extend the time for filing a notice of appeal or that a direct appeal may be taken from the denial of a motion to set aside, those cases were superseded by OCGA § 5-6-35 (a) (8).

We note that in OCGA §§ 9-11-60 (d) and 5-6-35 (a) (8), considered together, our legislature has unequivocally specified that denial of all motions to set aside a judgment, including those predicated on a nonamendable defect or lack of jurisdiction, may be appealed only by discretionary grant unless the motion to set aside was combined with a motion for new trial or a motion for j.n.o.v. See Martin v. Williams, 263 Ga. 707, 710 (438 SE2d 353); OCGA § 5-6-34 (d).

Accordingly, Littlejohn and other cases relied upon by appellant are overruled to the extent they may be construed to hold that the filing of a motion to set aside can extend the time for filing a notice of appeal.

Appellant’s request to present oral argument on its motion for reconsideration is denied.

Motion for reconsideration denied and appeal dismissed.

McMurray, P. J., Pope, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I agree that the appeal must be dismissed for failure to follow the discretionary appeal procedure. OCGA § 5-6-35 (a) (8) requires that permission be obtained to appeal from the denial of a motion to set aside a judgment brought pursuant to OCGA § 9-11-60 (d). See, e.g., Manley v. Jones, 203 Ga. App. 173 (416 SE2d 744) (1992). Compare Leventhal v. Moseley, 264 Ga. 891 (453 SE2d 455) (1995), which recognizes that a direct appeal lay from an order on what was in effect a motion to correct a clerical error pursuant to OCGA § 9-11-60 (g) and not, as denominated by defendants, a motion to set aside; that would have required an application.

MMT Enterprises’ motion was brought on the grounds that venue was improper at the outset or became lost as to the losing defendant when the jury returned a verdict in favor of the venue-providing defendant. OCGA § 9-11-60 (d) (1) allows a motion to set aside a judgment based on lack of jurisdiction over the person.

I do not agree with that portion of the majority opinion devoted to the question of the timeliness of the appeal. In Johnson v. Barnes, 237 Ga. 502 (229 SE2d 70) (1976), the Supreme Court ruled that the notice of appeal, filed within 30 days of the denial of plaintiffs motion to set aside (denominated by plaintiff as a motion to vacate), was timely. It was timely because such a motion, when overruled, is itself appealable even though it is not listed in what is now OCGA § 5-6-38. It is not a matter of “extending” the time to appeal from an earlier judgment; the ruling on the motion is appealable itself regardless of the distance timewise between the filing of the motion and the judgment it seeks to set aside. It is not infrequent that a motion to set aside will be made for lack of jurisdiction over the person, for instance, long after the judgment is rendered; it may be prompted by the judgment creditor’s efforts to enforce the judgment by levy or garnishment or some other device. It cannot accurately be said that the filing of the motion “extends” the 30-day period for filing an appeal from the judgment.

Now that an application is required, which was not the case when Johnson was decided, it is not a matter of filing a notice of appeal within 30 days but rather one of filing an application within 30 days. OCGA § 5-6-35 (d). The express provision in subsection (d) for applications from the OCGA § 5-6-38 (a) extension-creating motions does not affect the time requirement for seeking to appeal the ruling on a motion to set aside; it is listed in subsection (a) (8). MMT Enterprises acted timely in pursuing its appeal, as it filed on January 12, 1995, from an order entered December 16, 1994. The fatal error was that it filed a notice of appeal in the trial court instead of an application in this court.

The cases which follow Johnson should not be overruled, once it is taken into account that the method for appealing has changed since Johnson was decided. The court in Littlejohn v. Tower Assoc., 163 Ga. App. 37 (293 SE2d 33) (1982), however, misstated that Johnson, supra, stands for the proposition that “[a] motion to set aside will extend the time for filing notice of appeal.” Id. at 38. As indicated above, it does not extend time but rather stands alone, as an appealable ruling; the 30-day period is measured from it, unconnected with its temporal relationship to the judgment it seeks to set aside. The same statement and mischaracterization is made in Mathis v. Hegwood, 169 Ga. App. 547 (314 SE2d 122) (1984), but again the dismissal was proper. Likewise in the cases of Law Offices of Johnson & Robinson v. Fortson, 175 Ga. App. 706 (334 SE2d 33) (1985) and Miller v. Bank of the South, 177 Ga. App. 42 (338 SE2d 436) (1985). On the other hand, Perryman v. Ga. Power Co., 180 Ga. App. 259 (348 SE2d 762) (1986), and Bartlett v. Hembree, 177 Ga. App. 253 (339 SE2d 388) (1985), do not fail in this regard.

Decided September 20, 1995

Michael 0. Horgan, Jeffrey C. McLellan, for appellant.

Charles E. Legette, Jr., for appellee.


author: Andrews, Judge.

text:
    A95A1672.
    WOOD v. THE STATE.
    (462 SE2d 625)
   Andrews, Judge.

Wood appeals from the judgment entered on a jury verdict finding him guilty of driving under the influence of alcohol to the extent it was less safe to drive, driving without a license in his possession, and speeding.

The arresting officer testified he observed Wood driving his car at a high rate of speed on Interstate 85 in Gwinnett County, and he clocked Wood’s speed by radar at 87 mph in a 55 mph zone. When the officer stopped Wood, he noticed an odor of alcohol about Wood’s person, and Wood admitted he had recently consumed alcoholic beverages. He did not have a driver’s license in his possession. After Wood was unable to successfully complete several field sobriety tests, he was arrested on the subject charges. The officer testified that, based on his observations of Wood, including his performance of the field sobriety tests, it was his opinion Wood was under the influence of alcohol to the extent it was less safe for him to drive.

Wood claims the State improperly injected his character into evidence and erroneously failed either to grant his motion for a mistrial or give curative instructions to the jury.

The defense’s sole witness was Taylor, a passenger in Wood’s car at the time of the arrest, who testified he had known Wood for about ten years. On direct examination by defense counsel, Taylor testified that, prior to the arrest, he and Wood stopped at a bar and drank two glasses of beer apiece. When asked whether he had an opinion as to whether Wood was under the influence of alcohol, Taylor responded: “It wasn’t apparent at all. Like I said, I have known Tony [Wood] for quite awhile.”

On cross-examination, the prosecutor asked Taylor if he had ever seen Wood under the influence of alcohol to the extent that he thought it would not be safe for Wood to drive a car. Defense counsel objected on the basis that the question put Wood’s character into issue and moved for a mistrial stating that no instructions to the jury would be adequate to cure the harm. The trial court ruled the question was proper cross-examination by the State on an issue raised by the defense on direct and denied the motion. Thereafter, Taylor responded he had previously observed Wood on occasions when he was under the influence of alcohol to the point where it would have been unsafe for him to drive a car. When asked how much beer Wood would have to consume in his opinion to reach that point, Taylor testified it would take a couple of six packs.

Decided September 6, 1995

Reconsideration denied September 21, 1995.

Spruell & Dubuc, Billy L. Spruell, Melinda D. Taylor, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Gary S. Vey, Assistant Solicitors, for appellee.

The gist of Taylor’s direct testimony was that, having observed Wood during the years he had known him and on the day at issue, he was qualified to render an accurate opinion that Wood was not under the influence of alcohol to the extent testified by the arresting officer. Based on his opportunities to observe Wood, Taylor was entitled to give this opinion. Lawrence v. State, 157 Ga. App. 264 (277 SE2d 60) (1981); Eidson v. State, 167 Ga. App. 184, 185 (305 SE2d 787) (1983); Durham v. State, 166 Ga. 561, 562 (144 SE 109) (1928). But having done so, the State was entitled to cross-examine Taylor to determine the facts upon which his opinion was based, including his observations of Wood’s consumption of alcohol on previous occasions. Choice v. State, 31 Ga. 424, 467 (1860); Smith v. State, 174 Ga. App. 744, 746-747 (331 SE2d 91) (1985); Weston v. State, 216 Ga. App. 806 (456 SE2d 214) (1995). Having introduced the topic on direct examination of Taylor, Wood cannot complain that the prosecutor followed up on cross-examination, even if the evidence may have incidentally placed Wood’s character in issue. Pless v. State, 260 Ga. 96, 97-98 (390 SE2d 40) (1990); Mulkey v. State, 250 Ga. 444, 446 (298 SE2d 487) (1983); Lockett v. State, 188 Ga. App. 645, 646 (373 SE2d 768) (1988). There was no error in the trial court’s rulings.

The evidence was sufficient for a rational trier of fact to conclude Wood was guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A95A1177.
    DOLPHUS v. THE STATE.
    (462 SE2d 453)
   McMurray, Presiding Judge.

In a jury trial, the defendant was found guilty of a single count of robbery by force. The evidence adduced at his jury trial showed that the victim was in his car, stopped at a traffic signal, “when some [person dressed as a] woman just opened the car . . . and jumped in the car and demanded money.” The victim at first refused and started to drive away after the light changed. He drove to what he thought was a convenience store, where some people were gathered, “and pulled up to about ten feet of the assailant, and . . . hollered to him, . . . ‘Sir can you help me?’ And he walked over and leaned in — put his hands up on the car and leaned into the window.” The victim asked this man to call the police. Instead, however, this man stated: “ ‘Well, we’ll straighten this out,’ ” and then wrote something on a piece of paper which he held outside the car window. As the victim looked at it, the assailant “started to punch me, . . . and he said, ‘Give me $100.’ ” The victim started to give the assailant his wallet but withdrew it to get his credit card and driver’s license. The assailant “started punching [the victim] again” and grabbed the wallet which contained $35 or $40.

The victim did not know the assailant, had never seen him before, and was unable to identify the assailant. However, an eyewitness did so. Gregory Allen identified defendant, “that young man there [, as the man who] came up, and he went to the car where they was [sic], and he started reaching inside the car.” The victim “kept trying to fight [defendant] off, but after a few minutes, that young man there hauled off and hit him about two or three times and snatched his wallet and took the money out, throwed [sic] the wallet back in.” Lewis A. Quindae III, a forensic latent print examiner for the Georgia Bureau of Investigation, identified State’s Exhibit 2 as the latent palm print “coming from a driver’s side door of [the victim’s] Toyota Corolla, tag number WVK 234.” He compared that latent print to State’s Exhibit 1, a standard fingerprint card containing defendant’s finger impressions and palm impressions. In his opinion, the latent print, State’s Exhibit 2, “was identified as the right palm prints of [defendant].”

Defendant’s motion for new trial was denied, and this appeal followed. Held:

In his sole enumeration of error, defendant urges the “trial court erred in failing to grant [his] motion for new trial on the general grounds,” in that the identification of the perpetrator is inadequate. He argues that the jury might “not have believed the testimony of [the eyewitness].” He then argues that the State failed to establish that defendant’s palm “prints could only have been placed on the car door at the time of the crime[.]”

Decided September 21, 1995.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381).

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. In the case sub judice, evidence that defendant’s palm print was on the victim’s car, even though the victim did not know defendant and had never seen him, is sufficient to exclude every reasonable hypothesis except that those prints could only have been impressed at the time the crime was committed. Baxter v. State, 211 Ga. App. 650 (1) (440 SE2d 72). The eyewitness testimony and forensic opinion evidence adduced at trial were sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of robbery by force as alleged in the indictment. Brown v. State, 214 Ga. App. 733 (1) (449 SE2d 136).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1226.
    HUEWITT v. THE STATE.
    (462 SE2d 463)
   McMurray, Presiding Judge.

Defendant was indicted for committing forgery in the first degree in violation of OCGA § 16-9-1 (a). The State presented evidence at a jury trial showing that defendant presented a check for payment at a grocery store that had recently been stolen from the victims’ place of business, Stracener Construction Company. The State also proved that the stolen check was made out to defendant for $125.40, is inscribed with the name of the victims’ business and bears the forged endorsement of the victim, Bobby Stracener. Defendant testified that “Mackie Lee Lewis” gave him the check, and he admitted (on cross-examination) that he witnessed “Mackie Lee Lewis” endorse the check with the name “Bobby Stracener.”

The jury found defendant guilty of the crime charged. This appeal followed entry of judgment of conviction and sentence. Held:

Decided September 21, 1995.

M. E. Thompson, Jr., for appellant.

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

In his sole enumeration of error, defendant contends the evidence is insufficient to authorize a finding that he intended to defraud anybody when he attempted to “pass a forged check. . . .” This contention is without merit. “[S]ince ‘knowingly passing as genuine a forged instrument is conclusive of the intent to defraud,’ Jordan v. State, 127 Ga. 278 (56 SE 422) (1906), the jury was authorized to find that [defendant presented] the [victims’ check] with the intent to defraud.” Matulo v. State, 264 Ga. 673, 674 (2), 675 (449 SE2d 850). The evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of committing forgery in the first degree in violation of OCGA § 16-9-1 (a). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Howard v. State, 215 Ga. App. 342, 343 (1) (450 SE2d 824).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.