text:
    A89A0653.
    OTONICAR v. SHORELINE TOWERS PHASE I CONDOMINIUM ASSOCIATION, INC.
    (382 SE2d 418)
    Decided May 22, 1989.

      Jerome C. Ware, for appellant.

      Charles L. Dunn, for appellee.
   Banke, Presiding Judge.

The appellee sued the appellant to recover unpaid assessments allegedly owed under a condominium declaration. The case proceeded to trial, and at the close of the appellee’s evidence the trial court denied a motion by the appellant for directed verdict. Immediately thereafter, however, the appellee moved for leave to voluntarily dismiss the action pursuant to OCGA § 9-11-41 (a). Such permission was granted, and a voluntary dismissal was thereafter filed by the appellee over the appellant’s objection. This appeal followed. Held:

All of the appellant’s enumerations of error address the denial of his motion for directed verdict, and he has presented no argument or citation of authority challenging the validity of the dismissal order. Since the effect of a voluntary dismissal is to render the case “completely lifeless for all purposes from the date of the dismissal . . . ,” Fulton County v. Corp. &c. of Latter Day Saints, 133 Ga. App. 847 (3) (212 SE2d 451) (1975), any error resulting from the denial of the motion for directed verdict is now moot.

Appeal dismissed.

Sognier and Pope, JJ., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A89A0702.
    AGERTON v. THE STATE.
    (382 SE2d 417)
   Sognier, Judge.

Hughie P. Agerton pled guilty to charges of driving with a suspended driver’s license, possession of marijuana, giving a false name to a police officer, failing to maintain no-fault insurance, and displaying an improper license plate. The trial court sentenced him to 12 months in prison, 4 months to be served, and fined him $1,930. He filed this timely appeal from the trial court’s judgment on his plea alleging that the trial court erred by accepting his plea and entering judgment thereon because the guilty plea was not an informed, knowledgeable, and voluntary decision and he was not aware of the relevant circumstances and likely consequences of his decision. We agree and reverse.

There is no affirmative showing in the record that appellant voluntarily and understanding^ entered pleas of guilty to the five charges. Indeed, the transcript of the guilty plea hearing reveals that none of the substantive requirements of Fed. R. Grim. P. 11, as interpreted in Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), was followed by the trial court in this case. See Rules 33.7, 33.8, and 33.9 of the Uniform Rules for the Superior Courts, as applicable in state courts, and Uniform State Court Rule 33.11. Although the State makes reference to matters raised at the initial arraignment, inquiry made to the State Court of Decatur County revealed no transcript was made of that hearing. The State has the burden of showing that appellant’s plea was intelligently and voluntarily entered. Dean v. State, 177 Ga. App. 123, 125 (2) (338 SE2d 711) (1985). Since the entire record, as designated by appellant to be included on appeal, fails to show that appellant was cognizant of all the rights he was waiving and the possible consequences of his plea, and since the State failed to take any action pursuant to OCGA § 5-6-41 (f) to correct the alleged omission or to fill a silent record by use of extrinsic evidence affirmatively showing the guilty plea was knowing and voluntary, see id., the State failed to carry its burden. We will not consider factual representations raised in the State’s brief which did not appear in the record. See generally Rogers v. State, 182 Ga. App. 599, 600 (1) (356 SE2d 546) (1987).

The State’s sole argument is that this appeal must be dismissed because appellant’s failure to file a motion to withdraw his guilty plea under OCGA § 17-7-93 (b) leaves a habeas corpus proceeding as his sole remedy. It is well established law that a timely filed appeal from a judgment entered on a guilty plea, such as the appeal brought by appellant, is a prescribed means to challenge that guilty plea. Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984). We note that the passage from Staley v. State, 184 Ga. App. 402 (361 SE2d 702) (1987), cited by the State in support of its argument, provides: “OCGA § 17-7-93 (b) permits a defendant to withdraw a guilty plea as a matter of right before sentence is pronounced. Even after sentencing, the trial court has the discretion to allow the withdrawal of the plea prior to the expiration of the term of court in which the sentence was entered. [Cit.] However, after the expiration of that term and of the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings. [Cit.]” (Emphasis supplied.) Id. The emphasized language controls the State’s argument adversely to it. We further note that the emphasized language is also the language elided by the State in its citation to this passage in its brief.

Decided May 22, 1989.

Ronnie J. Lane, for appellant.

Rikard L. Bridges, Solicitor, for appellee.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0232, A89A0233.
    METTER BANKING COMPANY v. MILLEN LUMBER & SUPPLY COMPANY, INC. et al.; and vice versa.
    (382 SE2d 624)
   Sognier, Judge.

Metter Banking Company (the Bank) brought suit against Millen Lumber & Supply Company, Inc. (Millen) and W. T. Wasden on a promissory note executed by Wasden in his capacity as president of Millen and guaranteed by Wasden individually. Millen and Wasden answered and counterclaimed in seven counts. Cross-motions for summary judgment were made, and the trial court granted each in part and denied each in part. Each party appeals from the grant of partial summary judgment to the opposing party.

The record reveals that on July 19, 1983, two notes at issue in this case were executed at the offices of the Bank. One was a note from Millen to the Bank for $300,000, secured by 60,000 shares of Millen stock which previously had been assigned to the Bank. That note was executed by Wasden pursuant to a corporate resolution authorizing him to do so, and also was personally guaranteed by Was-den. The second was a note from M. J. (Jack) Bowen, Jr. to the Bank for $300,000, which was secured by collateral already pledged to the Bank. The third instrument germane to this case executed at the Bank that day was a participation agreement between the Bank and Millen, giving Millen 100 percent participation in the note from Bowen to the Bank.

It is uncontroverted that Bowen and Wasden knew each other, that both Bowen and Millen had been dealing with the Bank for many years, and that Dan Parrish, then president of the Bank, had been dealing with Bowen and his finances and making loans to Bowen privately as well as on behalf of the Bank. It is further undisputed that Bowen’s farm account at the Bank was overdrawn almost $300,000 (which overdrafts had necessarily been approved by Parrish), and that the cashier’s check issued by the Bank for $300,000 on Millen’s note was endorsed by Wasden and deposited in Bowen’s account to cover the overdraft. However, the parties’ contentions as to the purpose and characterization of the three documents, the manner in which they came to be executed, and the extent of Wasden’s knowledge about Bowen’s financial condition conflict sharply. The record also does not reveal exactly when Millen became aware of Bowen’s true financial situation. The Bank contends the $300,000 note executed by Millen was unrelated to the other two documents, and the participation agreement was executed as a favor to Millen, allowing it to share in Bowen’s collateral previously pledged to the Bank on other loans, thus enabling Millen to feel more secure about a separate $300,000 loan from Millen to Bowen. Millen, on the other hand, contends the Bank sought its help in clearing the Bowen overdraft from its books, and that the proceeds of the $300,000 note signed by Millen were used to purchase 100 percent participation in Bowen’s note to the Bank for $300,000.

Interest on Millen’s July 1983 note was paid and the principal amount renewed at maturity in December 1983, with the note being signed in the same manner as the original. In May 1984, prior to the maturity date of the renewal note, Wasden suffered a heart attack and/or stroke which left him severely incapacitated. Nevertheless, the interest was paid and the note again renewed in July 1984. In February 1985 the Millen renewal note was in arrears, and a $10,000 payment was made toward the interest, with separate notes being signed for the remaining interest and for the principal balance. Both notes were executed in the same fashion as the original note and prior renewal notes. Wasden was declared incompetent and his wife named as his guardian on June 8, 1987, after the filing of this action.

Both the Millen renewal notes of February 1985 and the Bowen indebtedness to the Bank became seriously in arrears. Bowen’s collateral was foreclosed upon by the Bank and sold for a total of $159,661.79. After deducting taxes owed and expenses, the Bank credited the Millen notes with half the remainder of the proceeds, amounting to $73,299.27, purportedly pursuant to the participation agreement. The Bank then made demand on Millen and Wasden pursuant to the February 1985 renewal notes, on indebtedness totalling $416,234.65 as of February 1, 1988, including principal, interest and attorney fees. The Wasden family, acting in Wasden’s behalf, refused payment, and this action ensued.

1. In Case No. A89A0232, the Bank contends the trial court erred by granting partial summary judgment in favor of Millen and Wasden on the issue of breach of the participation agreement as alleged in their counterclaims. We do not agree.

The trial court’s grant of partial summary judgment to Millen and Wasden on this issue was based on its finding that the participation agreement had been breached. The agreement clearly and unambiguously obligated the Bank to notify Millen of any default by. Bowen on his note. It is uncontroverted that Bowen defaulted on his note in September of 1984, and that the Bank did not notify Millen and Wasden of that default. In fact, .the Bank itself did not begin foreclosure proceedings until one and one-half years later. This was a clear breach of the provision in the participation agreement requiring the Bank to “notify participant [Millen] immediately upon default by Borrower [Bowen] in any payment of principal or interest under Note.” Although the Bank argues that there is evidence of record that Millen was notified of the foreclosure proceedings on the Bowen real estate, even assuming that notice was given it is irrelevant to this issue, because it is not notice of the foreclosure on the collateral that is at issue here but notice of Bowen’s default. Similarly, we find the Bank’s argument that no evidence was introduced to show that the collateral foreclosed on was the same as that which secured the note in which Millen participated irrelevant to the issue of breach of the participation agreement, because it is not the foreclosure which is questioned but lack of notice of the default.

The Bank not only failed to notify Millen of Bowen’s default, as required by the agreement, it contributed to the impairment of that collateral by advancing additional monies to Bowen after the date of the participation agreement without requiring additional collateral, thereby lessening the ability of the collateral to cover the portion of Bowen’s debt in which Millen was participating. Consequently, we agree with the trial court that no issue of fact remained as to breach of the agreement, and the trial court properly granted partial summary judgment to Millen and Wasden on the issue of breach of the participation agreement. See generally Bowers v. Safeco Ins. Co. of America, 187 Ga. App. 229, 231 (2) (369 SE2d 547) (1988).

Moreover, although the trial court did not base its grant of partial summary judgment to Millen as to breach of the participation agreement on this ground, the language in the participation agreement gives Millen a participation of $300,000 in Bowen’s note to the Bank, which was for $300,000 — i.e., a 100 percent share in the note and accordingly a 100 percent share in Bowen’s collateral. Although the parties do not agree about the interpretation of this language, the language itself is clear, and “no construction is ‘required or even permissible when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.’ [Cits.]” Hopkins v. Hopkins, 186 Ga. App. 530, 531 (367 SE2d 825) (1988). Accordingly, the Bank’s crediting Millen with only half the proceeds of the sale was a breach of the participation agreement as well.

2. In Case No. A89A0233, the cross-appeal, Millen appeals from the trial court’s grant of partial summary judgment to the Bank on the issue of Millen’s liability for the principal amount of its note, and as to Millen’s defense and counterclaim seeking to block the Bank from pursuing an action for a deficiency judgment. Millen contends the trial court’s grant of partial summary judgment to the Bank on the issue of Millen’s liability for the principal amount of its note was erroneous, as it had the right to rescind the transaction because the Bank fraudulently induced Wasden to enter into this transaction by concealing its knowledge of Bowen’s true financial condition, or, alternatively, because Wasden was incompetent to enter into the transaction. Although the trial court found that issues of fact remained regarding these two allegations, both of which bear on Millen’s right to rescind the transaction, it reasoned that those fact questions did not prevent the grant of partial summary judgment to the Bank on its claim for recovery of the principal amount of the loan to Millen, because even should fraud in the inducement or incompetency be found, rescission of the transaction would require tender of the original consideration, necessitating repayment of the principal amount.

We agree with the trial court that issues of fact remain, but do not agree that Millen would be liable for the principal regardless of their resolution.

(a) It is true that the general rule is that “[a] contract may be rescinded at the instance of the party defrauded; but, in order to rescind, the defrauded party must promptly, upon discovery of the fraud, restore or offer to restore to the other party whatever he has received by virtue of the contract if it is of any value.” OCGA § 13-4-60. “To effect a complete rescission, all the parties must be returned as nearly as possible to the status quo ante; there is no room for one party to have its cake and eat it, too. Ordinarily, then, one cannot in equity seek to rescind a contract [here the note from Millen to the Bank] on the ground of fraud, and at the same time retain the benefits derived from that contract [here the $300,000 cashier’s check received by Millen from the Bank]. [Cits.]” Corbitt v. Harris, 182 Ga. App. 81, 82 (354 SE2d 637) (1987). However, no tender is required under two circumstances which Millen argues are applicable here: where nothing of any value is received by the party seeking to rescind (see Thomson v. Walter, 160 Ga. App. 542, 544 (3) (287 SE2d 562) (1981)); and where the amount received under the contract sought to be rescinded may be less than the amount actually due the party seeking to rescind. See Corbitt, supra at 83.

Millen argues that it received nothing of value because it is undisputed that the $300,000 cashier’s check, the proceeds of its note, was deposited in Bowen’s account to cover the overdraft, thus making Bowen and the Bank, rather than Millen, the beneficiaries of the transaction. Millen further alleges that was the only $300,000 which changed hands that day — that the Bowen note to the Bank was for the $300,000 deposited in Bowen’s account by Millen. We need not consider Millen’s second argument on this question (that the Bank’s potential exposure to Millen might exceed the principal amount of the note) because we find that the parties’ characterization of the tránsactions involved are so disparate that fact questions necessarily exist for jury determination as to whether Millen actually received anything of value which should have been tendered to the Bank before rescinding the transaction. Therefore, the trial court erred by deciding as a matter of law that Millen would be liable for the principal amount even if rescission was appropriate. See generally Virgil v. Kapplin, 187 Ga. App. 206, 207-208 (1) (369 SE2d 808) (1988).

In Scott v. Citizens Bank of Americus, 188 Ga. App. 618 (373 SE2d 633) (1988), (cert. granted), cited by the Bank, this court held that in a suit on a promissory note the defense of failure of consideration was not available to the appellant despite the undisputed fact that he received none of the proceeds of the note, because he was an accommodation party, to whom the defense of failure of consideration is unavailable. Id. at 620 (1). However, unlike the appellant in Scott, Millen does not assert the defense of failure of consideration, but rather claims rescission is permissible without tender. Accordingly, Scott is not applicable here.

(b) It is also true that contracts of a mentally incompetent person who has not been adjudicated incompetent are voidable at the option of a guardian or representative, OCGA § 13-3-24, and generally in such cases where the contract is voided restitution is required. However, if the other party was aware that it was contracting with an incompetent, no tender is required. Dean v. Goings, 184 Ga. 698 (2) (192 SE 826) (1937); Cheves-Green & Co. v. Horton, 177 Ga. 525 (2) (170 SE 491) (1933). A fact question remains in the case sub judice not only as to whether Wasden was incompetent at the time of making or renewing the note, as conceded by the trial court, but also as to whether the Bank knew of the alleged incompetency so as to make tender of the principal amount of the note unnecessary to effect rescission. “Where [fact] issues are present, the statutory requirements for summary judgment are not fulfilled. [Cit.] ‘Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.’ [Cits.]” Bragg v. Missroon, 186 Ga. App. 803, 805-806 (368 SE2d 564) (1988).

3. In the cross-appeal, Millen also contends the trial court erred by granting partial summary judgment to the Bank on Millen’s technical defense that the Bank was seeking to collect a deficiency judgment from which it was barred by its conduct in disposing of the collateral, both real and personal. We find no merit in this contention, as we agree with the trial court that the Bank’s actions in seeking repayment of these notes did not amount to the collection of a deficiency. A deficiency judgment is so called because it recovers the difference (deficiency) between the price for which collateral is sold and the unpaid balance remaining on the debt for which the collateral was pledged. See OCGA § 11-9-504 (2); Granite Equip. Leasing Corp. v. Marine Dev. Corp., 139 Ga. App. 778 (1) (230 SE2d 43) (1976). Although Millen may eventually be successful in persuading a jury that, for one or more of various reasons, it is not liable for repayment of the notes it executed in favor of the Bank, and may also have a claim against the Bank for impairing Bowen’s collateral by failing to make a prompt disposition after default, it may not incorporate such claims into the statutory remedies created by OCGA § 11-9-507 for violations of the technical requirements of OCGA § 11-9-504, thereby disregarding completely the fact that its own collateral, the 60,000 shares of stock it pledged to secure its notes, has not been foreclosed on or sold. As a matter of law, the Bank is not here seeking a deficiency judgment. Accordingly, the provisions of OCGA §§ 11-9-504 and 44-14-161 have no application here, and the trial court did not err by granting partial summary judgment to the Bank on this issue. See generally Riddle v. MARTA, 180 Ga. App. 33, 35-36 (2) (348 SE2d 483) (1986).

Judgment affirmed in Case No. A89A0232; judgment affirmed in part and reversed in part in Case No. A89A0233.

Banke, P. J., and Pope, J., concur.

On Motion for Rehearing.

On Motion For Rehearing, the Bank contends this court has overlooked the fact that Wasden was not a party to the participation agreement, but signed it only in his representative capacity on behalf of Millen Lumber Company, and therefore may not assert breach of the participation agreement as a defense to his personal liability as guarantor of the Millen note to the Bank.

Recognizing that Wasden was not a party to the participation agreement, we do not agree that he is barred from asserting the breach as a defense. “[A] guarantor may assert all defenses to a contract which would be available to his principal, with the exception of personal defenses, such as infancy, bankruptcy and incapacity. [Cit.]” Jones v. Dixie O’Brien &c. Corp., 174 Ga. App. 67, 68 (1) (329 SE2d 256) (1985). Thus, if breach of the participation agreement may be asserted as a defense by Millen, it may be asserted by Wasden as well, unless by the terms of the guaranty signed by him he agreed to waive it. See id. at 69 (2).

Decided May 5, 1989

Rehearing denied May 23, 1989.

Doremus, Jones, Reynolds & Smith, C. Van Reynolds, Bobby T. Jones, for appellant.

Gerald M. Edenfield, Susan W. Cox, for appellees.

Turning to the language of the guaranty, we find that Wasden agreed to waive only his right to require the Bank to take action against the principal as required by OCGA § 10-7-24 “or any other statutory provision of similar import.” Breach of the participation agreement is clearly not a “statutory provision of similar import.” Accordingly, there was no express waiver of the defense of the Bank’s breach of the participation agreement, and Wasden is entitled to assert that breach even though he was not a party to the agreement, because it is a defense that is available to Millen Lumber.


author: Deen, Presiding Judge.

text:
    A89A0190.
    DOUGLAS v. STANDARD.
    (382 SE2d 419)
   Deen, Presiding Judge.

The appellant, Roscoe Douglas, leased from the appellee two spaces for fast food establishments in a privately-undertaken urban development project called the Cherry Street Galleria in Macon, Georgia. The first lease agreement was entered on October 25, 1985, and provided for a three-year term commencing December 1, 1985. Douglas entered the second lease agreement on October 3, 1986, also for a three-year term beginning June 15, 1986. Both spaces were located in an area designated as a food court. Douglas also executed two promissory notes for money he borrowed from the appellee to cover construction costs for the two food establishments.

Douglas became delinquent on payments due under the promissory notes in August 1986, and abandoned the premises on December 25,1986. In separate actions, the appellee sued Douglas to recover on the promissory notes and to recover rentals due under the two leases; the cases were consolidated for trial, and the appellee won a directed verdict on each claim. The trial court also directed verdict for the appellee on Douglas’s counterclaim, which asserted fraud by the appellee in inducing him to enter the lease agreements.

It was stipulated at trial that the appellee had a prima facie case against Douglas on both claims. The evidence adduced at trial addressed Douglas’s affirmative defenses and counterclaim alleging fraud in the inducement, specifically the alleged representations made by the appellee prior to the initial lease agreement that (1) adequate parking would be available; (2) sufficient seating for customers would be provided; (3) the galleria would have full tenancy by early 1986; and (4) a sign identifying the food court establishments would be installed outside the building. Held:

1. “ ‘Fraud which constitutes a ground for voiding a contract under OCGA § 13-5-5 must be fraud which induced a party to enter into the contract. [Cit.] The elements of fraud are “(1) a false representation made by (a party); (2) scienter; (3) an intention to induce (the) (other party) to act or (to) refrain from acting in reliance thereon; (4) justifiable reliance by the (other party); (5) damage to the (other party). (Cit.) Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to (sustain a finding) of its existence. (Cit.) It is peculiarly the province of the jury to pass on these circumstances. (Cits.)” (Cits.)’ ” Turner Outdoor Advertising v. Fidelity Eastern Fin., 185 Ga. App. 815, 816 (366 SE2d 201) (1988). However, when the evidence of fraud is so subtle as to be non-existent, as in the instant case, direction of a verdict is appropriate. See Batchelor v. Tucker, 184 Ga. App. 761 (2) (362 SE2d 493) (1987).

Behind the galleria was a parking deck which was expanded to two levels primarily to accommodate the galleria tenants and the occupants of another building, although patrons of the galleria could park there if so desired. After Douglas vacated the premises, in response to the request of the merchants association (comprised of food court tenants) at the time of a city festival, the appellee did affix a small sign indicating that parking was available in the deck behind the galleria. Douglas’s contention that the appellee misrepresented that adequate parking would be available was based on the appellee’s failure to make it known that patrons could use this deck. Under the plans of the development, the parking deck was never intended and was not convenient for patron use, although patrons could use it; also, by arrangement with the city, 450 nearby spaces were to be available for the galleria patrons. There was no actionable misrepresentation regarding the availability of adequate parking space.

Douglas testified that 107 seats around movable tables were provided for the eight food vendors (one of which was a cookie shop, another of which was Douglas’s yogurt shop, and another of which had its own seating). The head of the property management company for the galleria testified that in July 1986 there were 100 seats, plus 14 in one of the vendor’s spaces; in August 1986, 18 seats were added, and in September 1986 an additional 28 seats were added when two vacant spaces were completed. In her opinion, this amount of seating adhered to the development plan for an open setting and was adequate for the food vendors. The facts thus demonstrate a difference of opinion as to what constituted adequate seating, but no actionable misrepresentation regarding the seating.

Decided May 23, 1989.

Arthur L. Phillips, for appellant.

Douglas claimed that the actual leasing agent assured him that a sign would be erected outside the building that listed the individual food establishments. He further claimed that when he complained about the appellee’s failure to do so, the leasing agent agreed that such a sign was needed, but that the head of the management company (who was the wife and partner of the developer) absolutely refused to allow a sign. At the trial, however, she testified that she thought such a sign was a good idea; she also produced the minutes of the merchants association dated January 13, 1987, which indicated that the association discussed bids for a sign but did not reach a decision. The appellee also had in fact installed a large banner as a temporary measure advertising the individual food court vendors that remained up until Christmas decorations took its place. Because it appears from Douglas’s own testimony that the leasing agent who actually made the alleged representation about the installation of the sign had no intent to deceive, and because there was no real failure or refusal by the appellee to hang a sign, Douglas’s evidence on this issue did not support his claim of fraud. OCGA § 51-6-2, generally; see Batchelor v. Tucker, supra.

The appellee’s development plan had a goal of full tenancy within three years of the scheduled opening in May 1986. Neither before nor after Douglas vacated the premises did the appellee come close to reaching that goal. Nevertheless, the appellee’s stated expectations of full tenancy by early 1986 did not support a claim for fraud, as it was a representation as to a future event. Gross v. Ideal Pool Corp., 181 Ga. App. 483 (352 SE2d 806) (1987).

2. Even had Douglas shown fraud in the inducement with regard to the lease agreements, that type of fraud would have no bearing on his liability under the promissory notes. Wagner v. Howell Enterprises, 184 Ga. App. 394 (1) (361 SE2d 698) (1987).

Judgments affirmed.

Birdsong and Benham, JJ., concur.

Hall, Bloch, Garland & Meyer, Philip T. Raymond III, for appellee.


text:
    A89A0667.
    SCOGGINS v. THE STATE.
    (382 SE2d 695)
   Deen, Presiding Judge.

Appellant Scoggins was tried and convicted on three counts of possession of controlled substances, in violation of the Georgia Controlled Substances Act. The substances were found during a search, conducted pursuant to a valid search warrant, of appellant’s residence and garage. While the search was in progress, appellant and one of the investigating officers were standing in the yard chatting, and appellant made a casual remark indicating ownership of the vintage automobile housed in the garage. A quantity of marijuana was later found in the garage, after a search of the house had yielded quantities of two other controlled substances. When the contraband substances were brought into the yard, Scoggins stated that the contraband belonged to him alone and not to his wife. On appeal Scoggins enumerates as error the trial court’s admission of the cited statements because he had not received Miranda warnings when they were made. Held:

Examination of the record reveals that appellant’s enumeration is without merit. The trial court held a Jackson-Denno hearing and expressly found that the statements “were made freely and voluntarily . . . and without any solicitation by the officer.” In Hobgood v. State, 146 Ga. App. 737 (247 SE2d 517) (1978), this court held in a similar factual situation: “The trial court’s factual determination out of the hearing of the jury that [defendant’s] statements were freely and voluntarily made must be accepted by this court unless its findings are shown to be clearly erroneous, and no such showing has been made. [Cit.]” Id. at 738. Accord Chester v. State, 157 Ga. App. 191 (276 SE2d 684) (1981). At the time the statement regarding ownership of the vintage Chevrolet was made, Scoggins was clearly not in custody, even though, as in Chester, supra, “the focus of the investigation was upon the appellant.” Id. See also Jackson v. State, 143 Ga. App. 734, 735 (240 SE2d 180) (1977), wherein this court held that appellant’s initial statement, made after evidence more conclusive than that initially found in the instant case had been obtained, “was spontaneous and made when she was not in custody, even though under strong suspicion.”

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided May 23, 1989.

Edward F. Hurley, for appellant.

Ralph Van Pelt, District Attorney, James Franklin, Assistant District Attorney, for appellee.


text:
    A89A0672.
    BEDGOOD v. WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY.
    (382 SE2d 421)
   Sognier, Judge.

Alfred Bedgood brought suit against Woodmen of the World Life Insurance Society (Woodmen) alleging that he, as beneficiary, was entitled to the proceeds of a life insurance policy Woodmen had issued to Connie Mae Bedgood, his wife, prior to her death. The trial court granted Woodmen’s motion for summary judgment and Bedgood appeals.

The basic facts are not disputed. Appellant’s decedent applied for a $25,000 life insurance policy with appellee on October 31, 1986. Clinton Collins, appellee’s field representative, filled out the application; appellant’s decedent then signed it and paid the initial month’s premium of $24. Construing the evidence in appellant’s behalf, as respondent on motion for summary judgment, Collins informed appellant and his decedent that the life insurance policy was in effect when the premium was paid, i.e., October 31st. The application in question, which states it is an “application for membership to the Woodmen of the World Life Insurance Society . . . Omaha, Nebraska,” refers throughout to appellant’s decedent as the “proposed insured” and provides in Section D that “[e]xcept for coverage which may be provided in the CONDITIONAL INSURANCE AGREEMENT, no insurance will be in force because of this application until it has been approved and at least one monthly premium has been paid to the Society.” Appellant’s decedent died on December 2,1986, prior to any action by appellee accepting or approving the contract of insurance.

We find no error in the trial court’s grant of summary judgment in favor of appellee. Appellant does not assert that any action by appellee rendered the contract of insurance effective, but rather argues that appellee is bound under the policy as a result of Collins’ statements. However, as the trial court correctly noted, Collins’ statement to appellant’s decedent cannot constitute an effective binder since it is uncontroverted that no written document reflecting Collins’ statement was received by appellant’s decedent and the statutory exception providing that binders may be oral or written does not apply to life insurance. OCGA § 33-24-33 (d). “Further, we note that ‘(n)o verbal assurance of the agent to the applicant or to the proposed beneficiary that the applicant was insured from the date of the application could bind the (insurance) company or constitute a contract of insurance. [Cit.]’ [Cits.]” Thomas v. Union Fidelity &c. Ins. Co., 168 Ga. App. 267, 268 (1) (308 SE2d 609) (1983). Appellant’s arguments regarding estoppel and fraud are controlled adversely to him by Thomas, supra at 269 (3 and 4). Nor do we find any error in the trial court’s interpretation of the contract language to the effect that the “approval” referenced in Section D is approval by appellee, not by appellee’s field representative. See generally Maddox v. Life & Cas. Ins. Co., 79 Ga. App. 164, 174 (53 SE2d 235) (1949); see also Woodmen of the World Life Ins. Soc. v. Etheridge, 223 Ga. 231 (154 SE2d 369) (1967) (revg. s.c. 114 Ga. App. 807 (152 SE2d 773) (1966), which had overruled Maddox, supra).

Decided May 23, 1989.

Rountree & Cadle, Richard M. McNeely, for appellant.

Millard B. Shepherd, Jr., for appellee.

Judgment affirmed.

Banke, P. J,, and Pope, J., concur.


text:
    A89A0682.
    McCUEN v. THE STATE.
    (382 SE2d 422)
   Sognier, Judge.

Victoria Mell McCuen was tried on four charges concerning vehicular offenses and driving under the influence of alcohol. After the jury found McCuen not guilty on two of the charges but was unable to reach a verdict on the remaining charges, the trial court declared a mistrial, and McCuen filed this appeal.

The record reveals that the jury initially rendered a verdict on all four charges, but after the jury was polled several jurors receded from their verdicts as to the charged violations of OCGA § 40-6-391 (a) (1) and (4). When the jury could not reach a verdict on these remaining charges, the trial judge announced that he was compelled to declare a mistrial as to those charges. During this process, appellant’s counsel orally made what he characterized as a motion for directed verdict of acquittal notwithstanding the findings of the jury, which the trial judge rejected before declaring a mistrial. No written order or judgment was entered. Appellant’s counsel also argued at trial that granting a mistrial placed the appellant in double jeopardy, but appellant has not subsequently filed a plea of double jeopardy.

In the case at bar appellant enumerates as error the declaration of a mistrial, the denial of her motions for directed verdict of acquittal and directed verdict of acquittal notwithstanding the verdict, and also contends a retrial would constitute double jeopardy. However, a mistrial is not a final judgment or decision from which appeal will lie, as the cause of action is still pending in the trial court. Nickles v. State, 86 Ga. App. 284 (1, 3) (71 SE2d 574) (1952). Even if appellant’s motion made at trial could be characterized as a motion for directed verdict of acquittal notwithstanding mistrial, denial of such a motion is not a final judgment reviewable on direct appeal. Phillips v. State, 153 Ga. App. 410-411 (265 SE2d 293) (1980). Further, appellant’s plea of double jeopardy will not be ripe for review by this court until the State announces its intention to retry appellant and her ensuing plea of double jeopardy is rejected by the trial court. See Bishop v. State, 176 Ga. App. 357, 358 (335 SE2d 742) (1985). There being no jurisdictional basis for this appeal, it is hereby dismissed. See generally State v. Thomas, 176 Ga. App. 106 (335 SE2d 697) (1985).

Decided May 23, 1989.

Joseph B. Bergen, for appellant.

Spencer Lawton, Jr., District Attorney, Jon C. Hope, Assistant District Attorney, for appellee.

Appeal dismissed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0786.
    BRYAN v. McCLELLAN ENTERPRISES, INC.
    (382 SE2d 423)
   Deen, Presiding Judge.

David Bryan was driving a Honda Cl 10 motorcycle when he struck a flatbed tractor-trailer truck which was carrying a prefabricated metal building. The truck driver had turned into a circular driveway to turn his vehicle around after he had been instructed to stop by a resident who did not want the truck turning on his lawn. The rear of the trailer was jutting out into the roadway when Bryan collided with it after he topped a hill on his motorbike. Bryan claims that his line of vision was obstructed by the grading, the roadway, the guardrail on the side of the road, and the dusky lighting conditions present at the predawn hour when the collision occurred.

The evidence, however, showed that Bryan, who was twenty-nine years old at the time of the accident, has been afflicted with severe vision problems since birth. He has glaucoma, opacities in his lenses (cataract changes), bilateral aniridia (color part of the eyes missing), and bilateral astinmias (eyes constantly wandering). As a result, he has very limited blurred vision. Bryan’s ophthalmologist, Dr. Brisno, testified that these conditions are not correctable with glasses or contact lenses. Two years prior to the accident his vision was tested at 20/400 (ability to see the legs on the big “E” on the eye chart at 20 feet), and one year after the accident it was worse. (He could discern fingers on one hand in one eye and motion in the other.) His decreased vision was caused, in part, by his failure to use his medicine for glaucoma as directed. Once he resumed use of his eye drops, his vision returned to 20/400, and Dr. Brisno was of the opinion that Bryan could distinguish large objects. Dr. Brisno was also of the opinion that it is not safe for a person to drive with less than 20/60 vision, which is the minimum vision required to obtain a Georgia driver’s license. Bryan admitted that he is “legally blind,” and that he was driving without a driver’s license because he did not believe that he could pass the vision test.

The police officer who investigated the accident testified that he gave Bryan a citation for driving without a license, and that if Bryan was travelling at 30 m.p.h., as he claimed, and saw the vehicle from a distance of 100 yards, he would have been able to stop. He found there were no skid-marks at the scene to indicate that Bryan saw the truck and attempted to stop.

Bryan brought suit against McClellan Enterprises for injuries that he sustained in the accident and appeals following the trial court’s grant of summary judgment in favor of the defendant. Held:

Appellant was fully aware of his severe visual defect and the risk of injury involved in driving upon the highway. The fact that he never attempted to obtain a driver’s permit, because he knew that his vision was so poor that he would be unable to obtain one, also shows his awareness of the danger involved. He describes himself as “legally blind” and is aware that he has been this way all of his life. Indeed, he was involved in a similar accident when he was twenty-one years old. While such evidence is not admissible to show that a driver was negligent at the time of the accident in question, it would be permissible for the court to consider it for the purpose of his notice of the existence of a dangerous condition. See Wright v. Dilbeck, 122 Ga. App. 214, 216 (176 SE2d 715) (1970).

OCGA § 40-5-20 forbids a person to drive a vehicle on a state highway without a valid driver’s license for the type or class of vehicle being driven. The record shows that appellant entered a guilty plea to the charge of driving without a license. OCGA § 40-5-22 (b) (6) forbids the Department of Motor Vehicles to issue a driver’s license to a person who could not, because of physical or mental disability, be able to operate safely a motor vehicle upon the highway. Bryan was aware that he could not obtain a license.

We find that Bryan assumed the risk of personal injury when he chose to drive his motorcycle upon a public highway. He knowingly and deliberately took a risk of danger which was plain and obvious to any prudent person. Roberts v. King, 102 Ga. App. 518, 522 (116 SE2d 885) (1960). The trial court did not err in granting summary judgment against him.

Decided May 23, 1989.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Charles B. Tanksley, Jerry A. Landers, Jr., for appellant.

Long, Weinberg, Ansley & Wheeler, W. Mead Burns, Jr., for appellee.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Pope, Judge.

text:
    A89A0795.
    TUCKER v. THE STATE.
    (382 SE2d 425)
   Pope, Judge.

Defendant John Tucker appeals from his conviction and sentence for the offense of child molestation. On appeal his sole enumeration of error concerns the admission of testimony concerning a similar transaction which occurred approximately one month prior to the offense in the case at bar.

“Evidence of other similar crimes by a defendant is admissible if there is sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Such evidence may be admitted to show state of mind or intent of a defendant. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the act charged.” (Citations and punctuation omitted.) Sparks v. State, 172 Ga. App. 891, 892-893 (324 SE2d 824) (1984).

Relying on Bloodworth v. State, 173 Ga. App. 688 (1) (327 SE2d 756) (1985), defendant challenges the similarity of the incidents based on the fact that the prior incident involved a twenty-four-year-old woman whereas the victim in the case at bar was a twelve-year-old child. However, unlike defendant, we decline to read Bloodworth as enunciating a per se rule whereby evidence of a sexual offense involving an adult victim is always inadmissible in cases in which the sexual offense was perpetrated on a minor. In the case at bar, notwithstanding the difference in the victims’ ages, the similarities between the earlier incident and the present offense were both numerous and obvious. In both cases the defendant gained entry to the victims’ homes by identifying himself as an employee of a local gas company; in both cases he told the victims, who were at home alone at the time of the incidents, that he was there to check a stove recently purchased by their households. In both cases defendant began fondling the victims while he purported to explain how the stove was operated. In the earlier incident the victim testified that the defendant touched her on her thighs and buttocks but that she was able to move away from the defendant when the telephone rang. However, when she completed her call, defendant began fondling her face and the victim knocked his hands away and told the defendant to leave, which he did. In the present case the defendant had pinned the victim up against the stove and had pulled her blouse around her neck and her pants and underpants down to her knees when the victim’s stepfather arrived and rescued the victim.

Decided May 23, 1989.

Charles G. Haldi, Jr., for appellant.

Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, William Hawthorne, Joseph J. Drolet, Assistant District Attorneys, for appellee.

“ ‘The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.’ Johnson v. State, 242 Ga. 649, 653 (250 SE2d 394) (1978). In the case before us, we have no hesitancy whatever in holding that the two transactions were sufficiently similar to render evidence of the earlier transaction admissible for the purpose of illustrating the [defendant’s] motive, plan, scheme, bent of mind, and course of conduct. [Cits.]” McGuire v. State, 188 Ga. App. 891 (1) (374 SE2d 816) (1988). “Moreover, ‘[the evidence was also] admissible to show the lustful disposition of the defendant and to corroborate the testimony of the victim as to the acts charged.’ [Cits.]” Gaskin v. State, 166 Ga. App. 331, 333-334 (303 SE2d 778) (1983). See also Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455) (1988); Milner v. State, 180 Ga. App. 97 (2 b & c) (348 SE2d 509) (1986); Stevens v. State, 167 Ga. App. 744 (2) (307 SE2d 535) (1983). Consequently, this enumeration affords no basis for reversal.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1081.
    ZORN & SON INSURANCE AGENCY, INC. v. JIM ALTMAN INSURANCE, INC.
    (382 SE2d 696)
   Deen, Presiding Judge.

Zorn appeals from a jury verdict and judgment awarding damages to Altman in its suit on a contract between the parties. The action was previously before this court when Altman appealed the grant of Zorn’s motion to dismiss on the ground that the claim asserted in Altman’s complaint should have been raised as a compulsory counterclaim in a pending action in which Altman was the defendant and Zorn the plaintiff. Jim Altman Ins. v. Zorn & Son Ins., 184 Ga. App. 575 (362 SE2d 142) (1987). This court found that the trial court had considered matters outside the pleadings, thereby converting the motion to dismiss into a motion for summary judgment, and remanded the case to allow for proper notice and hearing as required by OCGA § 9-11-56 (c). Following further proceedings on remand, summary judgment was denied, as was Zorn’s application for interlocutory review, and the case was tried before a jury. On this appeal Zorn’s sole enumeration of error is that the trial court erred in allowing Altman’s suit to proceed to tried because its claim should have been raised as a compulsory counterclaim in the prior suit on the same contract brought by Zorn against Altman.

Decided May 23, 1989.

D. Duston Tapley, Jr., for appellant.

Malcolm F. Bryant, Jr., for appellee.

1. This issue was ruled on adversely to Zorn in the denial of the motion for summary judgment. The trial court there determined that “Altman’s claims could have been made a part of Zorn’s original suit by permission of the court; however, this right of action, if such existed, was not lost by the court’s refusal to permit him to plead them in the original law suit. Likewise, the action, if appropriate, may be brought in a separate suit.” See Jenkins v. Martin, 142 Ga. App. 573 (236 SE2d 542) (1977); Ostroff v. Coyner, 187 Ga. App. 109 (3) (a) (369 SE2d 298) (1988). The trial court further concluded that questions of fact existed as to rescission, breach, and performance of the contract, and that Altman was therefore not entitled to judgment as a matter of law. Upon consideration of the entire record, we find no error.

2. While Zorn’s appeal is not meritorious, “it is not ‘so palpably without merit as to admit of no other conclusion than that it was filed for purposes of delay.’ [Cit.]” Getz Svcs. v. Perloe, 173 Ga. App. 532, 538 (6) (327 SE2d 761) (1985). Therefore, Altman’s motion for damages pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Birdsong, Judge.

text:
    A89A0184.
    YOUNG v. THE STATE.
    (382 SE2d 642)
   Birdsong, Judge.

John Michael Young was convicted of robbery by intimidation and sentenced to twelve years, eight to serve followed by four years on probation. He brings this appeal enumerating four alleged errors.

The evidence pertinent to this appeal shows that at about 4:30 p.m., September 7, 1987, a convenience store in Savannah was robbed. The clerk was alone in the store, in the process of making a phone call. A black male entered the store wearing a blue checkered shirt and other appropriate clothes as well as a pair of dark sunglasses. The man walked up to the counter and told the clerk to hang up, that a “stick up” was in progress. At first, the clerk did not consider the comment as a serious one, but the man repeated the statement, pulled up his shirt and showed the clerk a wooden handle that she concluded was the butt of a gun. He demanded the money from the cash register. The particular store’s cash register had been rigged to trigger a hidden surveillance camera if particular bills were removed from the register. The clerk did remove those bills and placed all the bills in the register in a brown paper bag. A series of pictures was taken of a black male wearing a checkered blue shirt, having sunglasses over his eyes, and receiving a brown paper bag from the clerk. It was established as a fact that the pictures were of the appellant Young. Young admitted that he was in the store, but earlier in the afternoon, had received a brown paper bag from the clerk (but with an innocent explanation) and had left the store and entered his brother’s auto and driven away from the store. Four days later, after being identified from the photos taken in the store, appellant Young was apprehended and his brother’s car was observed outside the apartment where appellant was living with his brother. Prior to an impound of the car, the brother sought to remove items from the car. Upon opening the glove compartment, the officers observed in plain view an old pistol with a brown wooden handle and a pair of dark sunglasses. Upon being shown pictures taken of appellant Young by the surveillance camera, the clerk identified that person as being the robber and also identified the pistol as having a wooden handle similar to the wooden object she had seen in the robber’s waistband. The clerk also identified appellant Young in court as the person who had demanded and accepted all the currency taken from the cash register. Held:

1. In his first enumeration of error, appellant contends the clerk was not one hundred percent certain of her identification. In view of his testimony that he was in the store earlier for an innocent purpose and was not involved in a robbery, he argues the evidence does not sustain the verdict of guilt.

On appeal from findings of guilt, the presumption of innocence no longer prevails, the jury has determined the credibility of witnesses, resolved issues of fact in dispute, and has been convinced of guilt beyond reasonable doubt; the appellate courts review the evidence only to determine if there is such credible evidence as to satisfy the test imposed upon the jury and whether it was authorized to return the finding of guilty. Ridley v. State, 236 Ga. 147, 149 (223 SE2d 131); Blackwell v. State, 139 Ga. App. 477, 478 (228 SE2d 612). Although the evidence was in dispute as to the identity of the robber, it was for the jury to resolve such conflicts in the testimony. The jury resolved the dispute in favor of the State, and this court will not substitute its judgment for that of the jury. Glover v. State, 237 Ga. 859, 860 (230 SE2d 293). Our review of the evidence in the light most favorable to the jury’s verdict satisfies us that there was ample credible evidence before the jury from which any rational trier of fact could conclude beyond reasonable doubt that appellant Young was guilty of the crime of robbery by intimidation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

2. In his second enumeration of error, appellant complains he was denied the effective assistance of counsel because his trial defense counsel declined to present character evidence even though Young had desired such evidence and given his counsel the names of several witnesses for that purpose. The same enumeration was presented to the trial court on a motion for new trial. At a hearing held on the motion for new trial, it was developed that trial defense counsel did interview the witnesses whose names were given to him by his client, Young. All but one of these persons declined to offer evidence as to the character of the appellant. The one cooperative witness was present in court. However, when the defense became aware that Young’s sister was present in court and willing to testify in rebuttal as to his bad character, after consultation with Young, the defense decided tactically to withhold the character evidence and withdrew its request for a charge on character. This decision was announced in open court (though not in the presence of the jury) and in the presence of the appellant who offered no oral objection or comment. Appellant now contends that contrary to his counsel’s contentions, counsel did not confer with him about the waiver of character evidence nor obtain his consent thereto.

It is clear that the decision to call character witnesses, the conduct of the trial defense in general, the making of motions and objections, and similar trial strategies and tactics are the exclusive province of the lawyer after consultation with the client. Reid v. State, 235 Ga. 378, 379 (219 SE2d 740). See further argument on waiver in Division 3 of this opinion hereunder.

In his argument on inadequacy of representation, appellant also contends that the State was allowed to produce before the jury a blue checkered shirt which was ultimately ruled by the trial court not to be admissible in evidence. It is contended that the failure to cause the trial court to strike the victim’s testimony that the shirt was similar to the one worn by the robber reflects the degree of incompetency and harm resulting. We find this argument to be of no avail. There was no question that the person in the store wearing a blue checkered shirt and a pair of sunglasses was the appellant Young. The only question was whether the clerk’s identification was based upon a film taken before or at the time of the robbery. We will not grant a new trial or reverse a case for error unless it is also shown to be harmful, and evidence is harmless where admissible evidence of the same fact is before the jury. Glass v. State, 235 Ga. 17, 19 (218 SE2d 776).

In an amended enumeration of error appellant asserts that he also was denied effective assistance of counsel because his defense counsel failed to object to the introduction of the testimony of Detective Hood regarding the search of the automobile of appellant’s brother until after it was heard by the jury, and that counsel thereafter failed to have that portion of the testimony stricken from the record. The record reflects that Detective Hood testified that he found a handgun and certain other items during the search of the car. When the State attempted to introduce these items, defense counsel objected and his objection was sustained. “To prove he has received ineffective assistance of counsel, ‘(t)he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense.’ ” Williams v. State, 257 Ga. 311 (2) (357 SE2d 578). “In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies.” Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257). Pretermitting the issue of counsel’s deficiency, we find, based on the posture of the record, that appellant has failed to show any prejudice resulting from the asserted acts and omissions of counsel.

3. Appellant also argues that it was error for the trial court to allow him to be tried by a jury composed only of eleven members. The transcript shows that before the trial started, but after a jury of twelve had been selected and seated, one of the jurors became ill. Both the State and defense agreed to proceed with the jury of eleven members. Young now complains that his consent was not obtained and the trial transcript does not affirmatively show his consent. However, the transcript does reflect that the discussion concerning the ex-cusal of the twelfth juror and the election to proceed with only eleven all occurred in open court and apparently in Young’s presence. Even though the record in this case does not show affirmatively that Young agreed either to the waiver of character evidence or to a charge thereon (see Division 2) nor to the eleven-person jury, we find that Young acquiesced in both of these waivers by not objecting thereto. While it may be better practice to inquire directly of a defendant if he agrees with these tactical decisions, we conclude counsel for the accused validly may waive these rights for him if (1) the waiver is made, without objection, in the accused’s presence; or, (2) the accused otherwise acquiesces in the waiver, for example, by proceeding without voicing an express objection after waiver has been effected by word or conduct of counsel. See Hudson v. State, 250 Ga. 479, 484 (3) (299 SE2d 531). We find no merit in these contentions.

Decided May 9, 1989.

Rehearing denied May 24, 1989

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., As sistant District Attorney, for appellee.

4. Appellant also urges the trial court erred in failing, sua sponte, to charge on the lesser included offense of theft by taking. Appellant was tried upon the offense of armed robbery. Because he never removed the weapon from his waistband, but only exposed an object which appeared to the victim to be the butt of a pistol, the trial court also charged the jury (at the specific request of the defense) on the lesser charge of robbery by intimidation. The jury elected to return the finding of guilt of the lesser degree of robbery.

Appellant’s defense was that he was present in the store for an innocent purpose and that he did not commit a robbery nor ever take any money from the clerk or the cash register. Moreover, there was no request for a charge upon the crime of theft by taking and at the conclusion of the charge, the defense indicated it was satisfied and voiced no objection.

Where the record does not disclose a request for a charge upon a particular lesser included offense, the failure to give such a charge sua sponte, is not error. State v. Stonaker, 236 Ga. 1, 2 (2) (222 SE2d 354). Furthermore, where there is no evidence giving rise to a lesser included offense, the trial court does not err in failing to give such a charge. Hill v. State, 229 Ga. 307 (191 SE2d 58); Nuckles v. State, 137 Ga. App. 200, 204 (223 SE2d 245). Finally when asked if defense had objections to the charge, no objections were made nor were objections reserved. Thus any complaint against the failure to charge on theft by taking was waived. Wright v. State, 182 Ga. App. 570 (1) (356 SE2d 531).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Benham, Judge.

text:
    A89A0259.
    ROCCO v. THE STATE.
    (382 SE2d 391)
    Decided May 11, 1989
    Rehearing denied May 24, 1989

      Daniel L. Dean, Fred J. Stokes, for appellant.

      Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., R. Andrew Fernandez, Assistant Solicitors, for appellee.
   Benham, Judge.

All three of the enumerations of error in this appeal from a conviction for driving under the influence of alcohol involve the State’s use of a previous conviction entered on a nolo contendere plea. We reverse.

The State seeks to justify the use of the nolo contendere plea because it was offered for the purpose of impeachment. Even assuming that appellant’s present tense statement, “I don’t drive drunk,” would be contradicted by evidence that appellant had driven drunk in the past, the nolo contendere plea was not admissible for impeachment.

OCGA § 17-7-95 (c) “expressly prohibits the use of a nolo contendere plea against a defendant in any court proceeding as ‘an admission of guilt or otherwise or for any other purpose.’ This case does not fit the previous exceptions provided by law. While we have permitted the admission of such a plea in a civil case for impeachment purposes [cit.], we have not done so in a criminal case. ... As in Beal v. Braunecker, 185 Ga. App. 429, 432 (2) (364 SE2d 308) (1987), we are not persuaded ‘that we should ignore the plain language’ of the code.” Corbitt v. State, 190 Ga. App. 509 (1) (379 SE2d 535) (1989). Appellant is entitled to a new trial because of the admission of the nolo contendere plea. Id.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0080.
    BRIGHT v. THE STATE.
    (382 SE2d 426)
   Benham, Judge.

Appellant was indicted for and convicted of the murder of his wife. That conviction was affirmed by the Supreme Court in Bright v. State, 251 Ga. 440 (306 SE2d 293) (1983), but appellant’s petition for a writ of habeas corpus was granted by the United States District Court for the Northern District of Georgia, and that judgment was affirmed by the 11th Circuit Court of Appeals. Bright v. Williams, 817 F2d 1562 (11th Cir. 1987). On retrial, appellant was convicted of voluntary manslaughter and brings this appeal.

The evidence showed that appellant’s wife died from a gunshot wound in the back. Appellant testified that he and his wife had been fighting, that he had taken the gun from her and thrown it, and that as he tried to retrieve it while they wrestled on top of it, it went off and killed her. Appellant was arrested at the hospital to which he attempted to take his wife, having been prevented from doing so by wrecking his car on the hospital grounds.

1. In his first enumeration of error, appellant contends that the court erred in admitting into evidence statements he made in response to police interrogation. Appellant arrived at the hospital at approximately 5:00 a.m. The first interrogation occurred at 6:15 a.m. and was conducted by Detective Sisson. He testified that he explained to appellant his rights against self-incrimination; that appellant did not indicate any desire for an attorney; that appellant answered background questions; that appellant said he was transporting his wife to the hospital because she was shot; that when he was asked how she came to be shot, appellant stated that he did not wish to answer any more questions at that time; and that no further questions were asked. Appellant’s complaint on appeal is that further interrogation occurred, violating his constitutional rights, and that the statements made subsequent to his statement to Detective Sisson that he did not wish to answer any more questions at that time should have been excluded from evidence.

The record shows that the further interrogations of which appellant complains occurred at 8:00 a.m. and at 10:30 a.m. The 8:00 a.m. questioning was by Officer Cook who testified that his inquiries were made with regard to the traffic mishap in which appellant was involved as he got to the hospital. According to Cook, appellant stated, after again being informed of his rights, that he was willing to discuss the accident, and did so, telling Cook that he had found his wife unconscious, dragged her to the car, and attempted to take her to the hospital, where he lost control of the car in a turn. At that point, however, appellant told Cook he did not wish to answer any more questions, and Cook discontinued the interrogation.

The last questioning occurred more than two hours later, at 10:30 a.m. On that occasion, Detective Sisson once again Mirandized appellant and asked if he would answer questions. Appellant indicated that he would, and did answer questions until they began to involve the events surrounding his wife’s death; he then indicated that he wished to terminate the interrogation. The detective testified that once appellant made that request, questioning concerning the case ceased.

We find this issue to be controlled by the same principles by which it was decided on appeal from the murder conviction. There, the Supreme Court held that the applicable authority was Michigan v. Mosley, 423 U. S. 96 (96 SC 321, 46 LE2d 313) (1975), where the U. S. Supreme Court “rejected the position that one who has invoked his right to remain silent under Miranda ‘can never again be subjected to custodial interrogation by any police officer at any time or place on any subject.’ [Cit.] In negating this argument the court held that ‘a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.’ [Cit.] Rather, the test for ‘admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.” ’ [Cit.]” Bright, supra at 445. We note, as did the Supreme Court, that the questioning does not show an effort to wear appellant down, and that the officers allowed a significant time to elapse between questionings and provided, on each occasion, fresh warnings. It was not “unreasonable ... to inquire whether the defendant had changed his mind during this period and wished to make a statement.” Id. at 446. Applying those principles, we find no error in the admission of appellant’s statements.

2. Appellant’s second and third enumerations of error complain of the admission into evidence of four photographs of the victim’s body. His argument is that there were enough other pictures and that these four were redundant and were introduced solely for their inflammatory effect. The record reveals, however, that a witness used these photographs to illustrate particular points in his testimony. We hold here, as the Supreme Court did in Kettman v. State, 257 Ga. 603 (2) (362 SE2d 342) (1987), that since the photographs were relevant to show the wounds of the victim and were not unduly repetitious, their admission into evidence was not error.

3. The physician who conducted the autopsy testified concerning his medical education, his experience as a medical examiner, and his training and experience as an emergency room physician. Contrary to appellant’s argument, that testimony was sufficient to permit the trial court to exercise its discretion in qualifying the physician as an expert witness. Evans v. State, 176 Ga. App. 818 (3) (338 SE2d 48) (1985). In light of the witness’ testimony concerning his experience with patients using cocaine and with gunshot wounds, appellant’s specific complaint that the physician was not qualified to testify concerning the effect on the victim of cocaine found in her system or concerning the path of the bullet in her body is without merit. An expert’s “special knowledge may be derived from experience as well as study. [Cit.]” Id. at 822.

Decided May 24, 1989.

Jimmy D. Berry, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assis tant District Attorney, for appellee.

4. In a related enumeration of error, appellant complains that the trial court expressed an opinion and commented on the evidence by charging the jury that “testimony in this case has been given by certain witnesses who in law are termed experts. . . .” It is apparent from the record that appellant’s complaint is without foundation. The language to which appellant takes exception was no more than a recognition of the trial court’s previous ruling that the witness was qualified to testify as an expert, and a preface to instructions regarding how the jury should consider the testimony of expert witnesses. This enumeration of error is wholly without merit.

5. Appellant’s complaint that the trial court admitted evidence of a statement by appellant which had not been provided to the defense is without merit for several reasons. First, assuming without deciding that the statement was made while appellant was in custody, since appellant made no written request for the statement, the State had no duty under OCGA § 17-7-210 to provide it. Carter v. State, 181 Ga. App. 117 (351 SE2d 516) (1986). Second, appellant is not entitled to discover his own statements by means of a Brady motion. Gilreath v. State, 247 Ga. 814 (6) (279 SE2d 650). Finally, contrary to appellant’s contention in his brief, there was no objection at trial to the admission of the testimony; the issue cannot, therefore, be raised on appeal. Prothro v. State, 186 Ga. App. 836 (4) (368 SE2d 793) (1988).

6. In a pre-evidentiary charge, the trial court quoted from OCGA § 16-5-1 (b): “Malice shall be implied where no considerable provocation appears. ...” Appellant enumerates that charge as error, contending that it was impermissibly burden-shifting. That contention is controlled adversely to him by the Supreme Court’s holding to the contrary in Flynn v. State, 255 Ga. 415 (2a) (339 SE2d 259) (1986).

7. Appellant’s testimony that the gun discharged during a struggle did not require a charge on involuntary manslaughter. Buie v. State, 254 Ga. 167 (1) (326 SE2d 458) (1985).

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur.


text:
    A89A0135. A89A0136.
    MILLWOOD v. THE STATE. LANDERS v. THE STATE.
    (382 SE2d 430)
   Pope, Judge.

Appellants Millwood and Landers were tried jointly for the offense of burglary. Each was convicted and now appeals. The evidence at trial authorized the jury to find that appellants were passengers in a car stopped by the Locust Grove police for a suspected DUI violation between midnight and 12:15 a.m. the morning of August 22,1987. The driver of the car was placed under arrest for DUI and the car was impounded. Neither of the appellants was charged and the arresting officer offered to call someone to come pick them up. They declined the offer and set out on foot on the road to Jackson. Appellant Millwood was dressed in jogging shorts and a T-shirt. Appellant Landers wore jogging shorts with no shirt.

At approximately 1:00 a.m. the same morning, police answered a trouble call at the residence of Twain Zachary. Zachary’s cousins and great-aunt lived next door and had noticed some men leaving Zachary’s residence with what appeared to be his stereo equipment. The men were described by one of the cousins as having dark hair, wearing shorts and flip-flops, and as they ran from the scene, the boy threw apples at them. Police found Zachary’s stereo equipment in the ditch across the road. Two days later, the cousins found a wallet containing documents, including a birth certificate, in the name of Randall D. Millwood, a boot, a pair of flip-flops and a can of snuff in the ditch near where police had recovered the stereo equipment. That same day, the great-aunt and one of the cousins saw two men in a pick-up truck, and the men went into the ditch where the items were found. The cousin identified the men as the ones he saw the night of the burglary. He also identified Landers as the man he saw coming out of the ditch. They reported this to police, who posted a lookout for the truck. Later that day, police stopped a truck fitting the description and arrested Millwood, who made a statement and implicated Landers.

I. Case No. A89A0135

1. The evidence was sufficient to enable a rational trier of fact to find appellant guilty of burglary beyond a reasonable doubt. Adams v. State, 255 Ga. 356, 356-357 (338 SE2d 860) (1986).

2. Appellant argues that the trial court erred in failing to grant a mistrial. Appellant’s counsel objected to that portion of the prosecutor’s opening statement in which he told the jury that he did not know if there would be any explanation from appellant for his wallet being found in the ditch, that appellant did not have to testify and that he could just sit and look at the jury if he wished. The trial court offered to give curative instructions, but this offer was declined and no new motion was made. Appellant later testified in his own behalf. Appellant argues that this is irrelevant in that the State should not be permitted to dictate trial tactics to the defense.

In Ranger v. State, 249 Ga. 315 (3) (290 SE2d 63) (1982), the Supreme Court adopted a two-prong test to determine if a prosecutor’s remarks warrant reversal: (1) either the prosecutor’s manifest intent was to comment upon the defendant’s failure to testify or (2) the remark was such that the jury would naturally and necessarily take it as comment on the defendant’s failure to testify. The record shows that at the time the motion for mistrial was made outside the presence of the jury, the prosecutor stated that his intent was to convey to the jurors that the State had the burden to prove its case beyond a reasonable doubt no matter how the defense chose to conduct the trial. In denying the motion, the trial court said that the prosecutor’s remark had not registered with him and that he doubted it made an impression on the jury either.

We find no “manifest intent” by the prosecutor to comment on the defendant’s failure to testify. Nor do we find that the comment would naturally and necessarily prejudice the jury. Prosecutors should avoid such comments, however, especially in opening statements. While explaining that the State has the burden of proof no matter what the defense does is an admirable goal, prosecutors can and should find ways to express the concept that avoid references to the defendant’s right to testify or not. In the context of this trial, where the trial court felt the comments had such a slight effect on the jury, and where curative instructions were offered but declined by the defense, we find no harmful error.

3. We have reviewed the trial court’s ruling allowing defendant’s confession to be read into evidence and find no error.

4. The trial court did not err in charging the jury on flight. Mincey v. State, 257 Ga. 500 (12) (360 SE2d 578) (1987).

II. Case No. A89A0136

5. We find that the evidence adduced at trial, though in conflict, was sufficient to enable a rational trier of fact to find Landers guilty of the offense charged beyond a reasonable doubt. Adams v. State, 255 Ga. 356, 356-357 (338 SE2d 860) (1986).

6. Landers’ second enumeration of error is without merit. See Division 2 above.

Decided May 24, 1989.

James P. Brown, Jr., for appellant (case no. A89A0135).

Wade M. Crumbley, for appellant (case no. A89A0136).

E. Byron Smith, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

7. The admission into evidence of appellant Millwood’s statement was not error because Millwood testified and was available for cross-examination. Akins v. State, 173 Ga. App. 797 (2) (328 SE2d 413) (1985).

8. The court did not err in charging on flight. See Division 4 above.

Judgments affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A0449.
    SIDWELL v. THE STATE.
    (382 SE2d 703)
   Sognier, Judge.

Jimmy Louis Sidwell was convicted of possession of marijuana and possession of cocaine and he appeals.

1. Appellant contends the trial court erred by denying his motion to suppress because the affidavit used to support the issuance of the search warrant failed to set forth the necessary indicia of reliability of the informant and the discrepancy between the affiant’s cursory statements in the affidavit and the information actually possessed by the affiant was so great as to constitute a reckless disregard for the truth.

In the affidavit dated December 10, 1986, Detective Octavia Holborough of the DeKalb County Narcotics Department averred that a confidential informant contacted her about drug trafficking at an address confirmed to be the residence of appellant. The informant had been inside the residence within the last seventy-two hours before the filing of the affidavit and had observed cocaine therein. Holborough averred that the informant had given information in the past which led to the seizure of contraband drugs. Also contained in the affidavit was the statement that the informant had told Holborough that appellant was armed with a gun and had previously shot someone two months earlier, and that a check of this information confirmed that appellant indeed had been arrested two months earlier for aggravated assault in the shooting of another.

The trial court did not err by denying appellant’s motion to suppress. “ ‘In Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the Supreme Court discarded the strict two-pronged, Aguilar-Spinelli [Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964); Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637) (1969)] requirement of (a) demonstrating an informant’s reliability and (b) providing the source of the informant’s tip in an affidavit to support issuance of a search warrant, and adopted the “totality of the circumstances” test. “The task of the issuing magistrate is simply to make a practical, common-sense decision, whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud(ing)’ that probable cause existed.” [Cits.]’ [Cit.]” Carr v. State, 185 Ga. App. 504 (364 SE2d 633) (1988).

Our review of the affidavit leads us to conclude that, using a “practical, common-sense” approach, the issuing magistrate had sufficient reason to determine that probable cause was present. The affidavit demonstrated the basis of the informant’s knowledge, and the veracity of the information was established not only by the reliable information previously provided by the informant but also by the information, corroborated by Holborough, as to appellant’s ownership . of the residence and his earlier armed assault on another person. It cannot be said, therefore, that the affidavit was insufficient. See id.; see also Bradford v. State, 184 Ga. App. 459, 460-461 (3) (361 SE2d 838) (1987).

Contrary to appellant’s assertions, there is no evidence that material misrepresentations were knowingly or recklessly included in the affidavit. At the hearing on the motion on September 25, 1987, Holborough testified that she went with the informant who pointed out appellant’s residence, ownership of which she confirmed by running a real estate check on the property, and that she drove the informant to the house and provided the informant with county funds to purchase contraband. The informant went inside, observed cocaine being sold there, purchased a gram of cocaine for $100, then returned and told the detective about it. Based on this information, Holborough drew up a search warrant. The detective further testified she first came into contact with the informant some six months prior to the search in issue and had dealings with the informant within two to three months prior to the incident involving appellant. Holborough could not remember whether the information she had received from the informer had led to any arrests or warrants being issued, but testified that the information she had received from the source had led to the seizure of contraband in more than one instance.

Decided May 24, 1989.

Price & Conoscienti, Teddy Ray Price, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert E. Statham III, Assistant District Attorneys, for appellee.

Appellant contends discrepancies and knowing misrepresentations in Holborough’s testimony should invalidate the affidavit. The discrepancy to which appellant refers is the detective’s failure to include in the affidavit the additional evidence about her trip to appellant’s residence with the informer and the informer’s purchase of cocaine there. The detective explained that the information was omitted to protect the identity of the informant. The knowing misrepresentations asserted by appellant consist of the detective’s inability to remember the precise dates she was in contact with the informant prior to the instant matter or the nature of the contraband that had earlier been seized based on information received from that source, and her refusal to guess in the absence of her notes as to precisely how many times the informant’s information had led to seizure of contraband. We disagree with appellant that these matters in Holborough’s testimony constitute material misrepresentations knowingly or recklessly included in the affidavit and in the absence of any showing of misconduct on the part of Holborough, we hold that the trial court did not err by denying appellant’s motion to suppress the evidence obtained pursuant to the search warrant. See Mize v. State, 173 Ga. App. 327, 329 (1) (326 SE2d 782) (1985).

2. Appellant also contends the trial court erred by denying appellant’s motion to reveal the identity of the informant and by failing to conduct an in camera conversation with the informant. “The trial court was not required to grant appellant’s motion to reveal the identity of the informant. Disclosure is not required where an informant acts as a mere tipster. [Cit.] As the evidence showed that the informant merely supplied information upon which the warrant was obtained and was not involved in nor witnessed the crime, the court correctly held the informant’s identity was privileged. [Cit.]” Bradford, supra at 460 (2). As to the issue of an in camera inspection of the informant by the trial court, “[w]hether or not an informer really exists is a question of evidence to be decided by the trial court after the officers have been thoroughly questioned and cross examined.” Keith v. State, 238 Ga. 157, 159 (231 SE2d 727) (1977). In view of the testimony by Holborough and the trial court’s review of the record kept by the police of the cocaine purchase made by the informant, as referenced in the detective’s testimony, we find no error in the trial court’s denial of appellant’s request for an in camera conversation with the informant.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0487.
    NEWTON v. THE STATE.
    (382 SE2d 432)
    Decided May 24, 1989.

      Albert C. Palmour, Jr., for appellant.

      Ralph Van Pelt, District Attorney, Susan R. Sarratt, Assistant District Attorney, for appellee.
   Pope, Judge.

Defendant Aubrey Gene Newton was convicted of the offenses of trafficking in cocaine and possession of marijuana. The statutory definition of trafficking in cocaine requires the defendant to be in possession of 28 grams or more of cocaine. OCGA § 16-13-31 (a). At tried, the State’s expert witness testified that the cocaine seized from the defendant’s possession weighed 28.0 grams. On cross-examination the expert witness stated that the electronic balance scales on which the cocaine was weighed has a margin of error of less than one percent. Defendant’s sole enumeration of error is that the trial court erred in denying his motion for directed verdict as to the trafficking in cocaine charge because the State failed to prove the offense beyond a reasonable doubt.

A directed verdict is authorized in a criminal case only “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” OCGA § 17-9-1 (a). The evidence that the scale on which the cocaine was weighed was subject to a margin of error of less than one percent does not demand a verdict of acquittal. Even if the jury could reasonably find from this evidence that the cocaine seized from defendant was slightly less than the requisite 28 grams, it could just have reasonably have found that the weight measurement was accurate or that the amount of cocaine seized slightly exceeded 28 grams. Thus, the trial court did not err in denying defendant’s motion for directed verdict.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    76508.
    BOATWRIGHT v. MAYOR & COUNCIL OF FLEMINGTON.
    (383 SE2d 908)
    Decided May 18, 1989.

      John E. Pirkle, for appellant.

      James W. Smith, for appellees.
   Sognier, Judge.

In Mayor & Council of Flemington v. Boatwright, 259 Ga. 175 (377 SE2d 843) (1989), the Supreme Court reversed the judgment of this court in Boatwright v. Mayor & Council of Flemington, 189 Ga. App. 676 (377 SE2d 1) (1988). Accordingly, our judgment in that case is vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is affirmed.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur.


text:
    A89A0563.
    STAR MANUFACTURING, INC. v. EDENFIELD et al.
    (382 SE2d 706)
   Birdsong, Judge.

This is an appeal from the trial court’s grant of appellees/defendants’ motion for directed verdict. The trial court’s order directed verdict against appellant Star Manufacturing Company (hereinafter Star) and dissolved a materialman’s lien held by Star against the appellees.

Appellees contracted with E.W.W. Machinery Erectors, Inc. (hereinafter E.W.W.) for the erection of a prefabricated steel warehouse built by Star. E.W.W. erected the Star manufactured warehouse on appellees’ property. Subsequently, Star asserted that it had not been paid for this account and filed a materialman’s lien. The appellees made final payment to E.W.W. for the warehouse, and E.W.W. executed an affidavit, dated and sworn to on December 20, 1982, the date appellees tendered final payment to E.W.W.

Appellant has filed two enumerations of error, and we limit our review to those issues therein asserted and duly addressed in appellant’s brief. See generally OCGA § 5-6-40 Judicial Decisions; Court of Appeals Rule 15 (c) (2). Held:

1. Appellees’ motion for sanction of appellant, pursuant to Court of Appeals Rule 26 (b), is denied.

2. Appellant asserts that the trial court erred “when it directed a verdict for [appellees] on the basis that the [appellees] procured an affidavit from the contractor to the effect that all materialmen had been paid, because [appellees] admitted in their pleadings that they did not obtain the affidavit prior to making their final payment to the contractor.”

OCGA § 44-14-361.2 pertinently provides that a special lien under the provisions of OCGA § 44-14-361 shall be dissolved if the owner of the property shows that: “(2) (A) They or any of them have obtained the sworn written statement of the contractor or person other than the owner at whose instance the labor, services, or materials were furnished . . . that the agreed price . . . [has] been paid . . . and (B) When the sworn . . . statement was obtained or given as a part of a transaction'. . . . (iii) Where final disbursement of the contract price is made by the owner to the contractor. . . .” (Emphasis supplied.)

OCGA § 44-14-361.2 was promulgated under Ga. L. 1983, p. 1450, § 1, and “substantially altered” its predecessor statutes, OCGA § 44-14-361 (b) and Code Ann. § 67-2001.2. Amafra Enterprises v. All-Steel Bldgs., 169 Ga. App. 388, 389, n. 1 (313 SE2d 110). One important distinction is that OCGA § 44-14-361.2 speaks in terms of dissolution of an existing lien by production of a contractor’s sworn written statement while OCGA § 44-14-361 (b) and Code Ann. § 67-2001.2 also provide that the lien shall attach unless the owner produces the contractor’s sworn statement. Thus, the predecessor statutes clearly contemplated that the contractor’s sworn statement would be procured in time to prevent the lien from attaching, while OCGA § 44-14-361.2 on its face addresses only the subsequent dissolution of a special lien. Accordingly, we do not find Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499 (2) (83 SE 210) and its progeny dispositive of the issue of when OCGA § 44-14-361.2 requires the contractor’s sworn statement to be obtained by the owner.

In interpreting the requirements of OCGA § 44-14-361.2, we recognize that “ ‘as our lien laws and procedures are in derogation of the common law, they must be construed strictly against the creditor and in favor of the debtor.’ ” Dixie Concrete Svcs. v. Life Ins. Co. &c., 174 Ga. App. 866 (331 SE2d 889). Further, while a danger exists in construing a lien dissolution statute too broadly, see Massachusetts Bonding, supra at 503, too narrow a statutory construction may well work a “hardship” on an innocent owner “ ‘who would then be forced to pay twice for improvements to his property.’ ” C. E. Self &c. v. Jerome, 161 Ga. App. 456, 458 (288 SE2d 359).

OCGA § 44-14-361.2 does not on its face require that the contractor’s sworn statement be obtained before final disbursement of the contract price is made by the owner. Rather, this statute, in pertinent part, only requires that the sworn written statement be obtained or given “as a part of a transaction” where such final disbursement is made. OCGA § 44-14-361.2 (B). We find this language unambiguous and the legislative intent clear. OCGA § 1-3-1 (a). Thus, this particular statutory provision tacitly appears to require only that the sworn statement will be obtained or given both in conjunction with the final disbursement and within such a reasonable time thereof so as to constitute “a part of’ the final disbursement transaction. Whether a contractor’s sworn statement has been timely obtained or given, thus will depend on the circumstances of each case. Nothing found in Bishop v. Forsyth Paving Contractors, 181 Ga. App. 345 (352 SE2d 198) justifies a different statutory construction.

In this case, the contractor’s sworn statement reflects on its face that it was executed on December 20, 1982, by the president of E.W.W. The president of E.W.W. testified that the contractor’s sworn statement was executed by him on the date the final payment was made on the warehouse by the appellees; and, he would not have signed the sworn statement if he had not sent the money due on the project to Star. He also testified that although he could not recall if he delivered the affidavit to appellees at the time he made final payment, it seems like he “delivered it to their . . . plant at Warner Robins.” In reviewing these pertinent facts of record, we have appropriately applied the principle that “ ‘[a] brief cannot be used in lieu of the record or transcript for adding evidence to the record. [Cits.] We must take our evidence from the record and not from the brief of either party.’ ” Williamson v. Sunshine Oil Co., 176 Ga. App. 661 (2) (337 SE2d 441).

Considering the operative facts of this case, we are satisfied that appellees substantially complied with the requirements of OCGA § 44-14-361.2. OCGA § 1-3-1 (c); cf. Dixie Concrete, supra. Moreover, we find that such substantial compliance would exist even if OCGA § 44-14-361.2 had required the contractor to give to the owner, or that the owner otherwise obtain, the contractor’s sworn statement before final disbursement of the contract price. Accordingly, we find this enumeration of error to be without merit.

3. Appellant asserts that the trial court erred by supplementing the record and adding additional grounds for directed verdict; and that contrary to the additional grounds asserted appellant did not fail to prove a prima facie case.

At the onset we note that this enumeration of error contains assertions of at least two separate errors in contravention of OCGA § 5-6-40.

Review of the record in toto reveals that after appellees renewed their motion for directed verdict, the trial court directed a verdict in their favor. At that time, the trial court asserted that the grounds for this ruling “is that the law provides that when material is furnished for a job such as this that a lien attaches unless the true owner . . . produce[s] a sworn statement of the contractor . . . which . . . dedares that the agreed price or reasonable value thereof has been paid. Since the [appellees] have produced such a sworn statement and it is in evidence, in the opinion of the Court that constitutes a complete defense to the charge, and, therefore, I’m going to direct a verdict in favor of the [appellees].” We further note that appellant in its brief wisely concedes the power of the trial judge to sua sponte direct a verdict when the statutory requirements therefor have been otherwise fulfilled. See generally OCGA §§ 15-6-8 (6) and 15-6-9 (8); see Cannon v. Heard, 204 Ga. 891, 893 (52 SE2d 459); Spivey v. Barwick, 157 Ga. 853 (1) (122 SE 594) (judgment reversed on other grounds). After the directed verdict was published and before the transcript was completed, the trial court attempted to supplement the record by adding additional grounds for its ruling therein.

Decided May 24, 1989.

Paul Carnes, for appellant.

Bentley C. Adams III, for appellees.

Although we have certain reservations regarding the manner in which the additional material ultimately was inserted into the record (compare OCGA § 5-6-41 to OCGA § 15-1-3 (6)), in view of our disposition of the enumeration of error in Division 2, we find that any error arising from this procedure is harmless. OCGA § 9-11-61. Moreover, “[i]f a judgment excepted to [the grant of a directed verdict] is right for any reason, it will be affirmed by the appellate courts.” Gleaton v. Atlanta, 131 Ga. App. 399 (3) (206 SE2d 46).

Appellant’s other assertions of error likewise are without merit.

Judgment affirmed.

Been, P. J., and Benham, J., concur.