author: Beasley, Judge.

text:
    A92A1153.
    STEPHENSON v. THE STATE.
    (424 SE2d 816)
   Beasley, Judge.

Stephenson’s sole challenge to his conviction for trafficking in cocaine, OCGA § 16-13-31, is that court-appointed trial counsel was constitutionally deficient under state and federal standards.

Only the Sixth Amendment right was invoked and ruled on below, so the benefit of counsel guaranteed by the state constitution, 1983 Ga. Const., Art. I, Sec. I, Par. XIV, is not before us. White v. State, 174 Ga. App. 699, 701 (3) (331 SE2d 72) (1985). In addition, appellant makes no independent argument regarding the state constitution and cites no state authority. He relies exclusively on federal cases’ construction and application of the Sixth Amendment. We will not undertake an independent review of state standards sua sponte.

Stephenson asserts ineffectiveness in that counsel did not permit him to testify, depriving him of his Fourteenth Amendment federal constitutional right to do so. His assertion lacks validity under the facts. The constitution does not require counsel to call a criminal defendant to testify when counsel knows defendant will commit perjury. Nix v. Whiteside, 475 U. S. 157 (106 SC 988, 89 LE2d 123) (1986). The right to testify on one’s own behalf does not include the right to lie. Harris v. New York, 401 U. S. 222, 225 (91 SC 643, 28 LE2d 1) (1971).

On November 7, 1990, at approximately 1:30 a.m., a car driven by Mitchell was stopped for a traffic violation on 1-75 in Bibb County. Stephenson appeared to be asleep in the back seat. Mitchell stated they were driving to Alaska and had no drugs or weapons, and he gave consent to search. Stephenson stated that he owned the car and also consented to its search. Two plastic baggies of cocaine were found inside a pair of cowboy boots in the car’s trunk.

Mitchell, for the State, testified at trial that Stephenson had obtained $20,000 in Seattle and purchased the cocaine in Miami. Mitchell had pled guilty to possession with intent to distribute. Stephenson did not testify.

At the hearing on the amended motion for a new trial, Stephenson’s trial counsel testified that Stephenson had told her that he had “big connections” and that the cocaine was his. Nevertheless, he told her he wanted to testify so he could call Mitchell a liar and say that the cocaine belonged to Mitchell. She could not dissuade him. There was other incriminating evidence against him besides Mitchell’s testimony, and she advised Stephenson not to go to trial. He agreed to enter a plea of guilty but changed his mind just before trial and wanted different counsel. His counsel sought a continuance for this purpose, but the court denied it as well as new counsel, when it was explained that the reason was that Stephenson wanted to testify falsely. Counsel did not call Stephenson at trial, because she believed he would commit perjury.

Stephenson, on the other hand, denied any confession of guilt to trial counsel. When asked if he had testified and if he had wanted to testify, Stephenson responded, “I did not testify and I thought I was going to testify; therefore, I must have wanted to testify.” He stated that his lawyer “advised” him not to testify, and that she told him he “shouldn’t” testify. He related that had he testified, he would have stated that the cocaine was Mitchell’s and that he knew nothing about it.

“ ‘Under the Strickland [v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)] formula, defendants seeking to show that their counsel was ineffective must show: 1) their counsel’s performance was deficient and 2) that the deficient performance prejudiced the defense. (Id.) at 687.’ [Cit.]” Griffin v. State, 199 Ga. App. 646, 647 (2) (405 SE2d 877) (1991). As did the U. S. Supreme Court in Nix, supra at 166, “[w]e must determine whether . . . [counsel’s] conduct fell within the wide range of professional responses to threatened client perjury acceptable under the Sixth Amendment.”

In Nix, supra, the defendant related to his attorney that he thought the murder victim was reaching for a gun, but he had not actually seen one. Later, he told the attorney he planned to state that he had seen one, or at least “something metallic.” The attorney convinced the defendant to testify without saying that he actually saw a gun in the murder victim’s hand. After conviction, the defendant claimed these “admonitions” about his testimony constituted ineffective assistance of counsel.

The court concluded that, under Strickland, assistance was not ineffective because the attorney’s conduct “fell within the wide range of professional responses to threatened client perjury acceptable under the Sixth Amendment.” Nix, supra at 166. In explaining what would be acceptable, the Court set the boundaries: “Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.” Id.

In this instance the attorney attempted to, and temporarily did, dissuade her client from his intended unlawful course of conduct, offered to withdraw by seeking a continuance and new counsel when the client again persisted, was candid with the court about the problem, and prevented him not only from being subject to impeachment but more importantly, from committing perjury.

Decided October 29, 1992 —

Reconsideration denied November 17, 1992

Buford & Buford, Floyd M. Buford, Jr., for appellant.

Willis B. Sparks III, District Attorney, Howard Z. Simms, Assistant District Attorney, for appellee.

Her conduct falls well within “the range of ‘reasonable professional’ responses . . . acceptable under the Sixth Amendment.” Id. at 166. “[T]here is no right whatever — constitutional or otherwise — for a defendant to use false evidence,” so it follows that “the right to counsel includes no right to have a lawyer who will cooperate with planned perjury” in a system of justice “dedicated to a search for truth.” Id. at 173-174.

The first prong of Strickland not having been satisfied, it is unnecessary for us to address the second prong.

Appellant is not entitled to a new trial at which he can have counsel who will permit him to testify falsely.

Judgment affirmed.

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

       Stephenson’s suggestion that he should have been permitted to testify in narrative form would constitute the attorney’s participation in fraud, and thus is no answer. See Whiteside, supra, 475 U. S. 170, fn. 6.

       See Georgia Code of Professional Responsibility EC 7-26 (Rule 3-107); Standard 45 (d); DR 7-102 (A) (2); DR 7-102 (B) (1); EC 7-26; DR 7-102 (A) (4).


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A1244.
    METHENY v. THE STATE.
    (424 SE2d 857)
   Birdsong, Presiding Judge.

Willis Metheny was indicted for eight counts of burglary and possession of burglary tools. Appellant was arrested in January 1991, for the crimes comprising the first three counts; while in jail he cooperated with police and was released to assist police in investigations of other crimes. But, five burglary offenses were committed after he fulfilled his obligations to police. He was convicted of six counts. Held:

1. Appellant contends the trial court erred in admitting copies of prior convictions when he did not place his character in evidence. We find no error. On cross-examination as to what he meant by saying he had probably overstepped the bounds of his agreement with police, appellant volunteered: “Too closely affiliating myself with some of the individuals involved in things. But ... I had some degree of pressure on me . . . I’m sure you’re going to make my record a part of this, okay. Whether or not I committed [burglary] had very little bearing on anything when you’ve got a record like mine . . . but I don’t feel as though I directly or deliberately committed any acts of crime.”

Jones v. State, 257 Ga. 753, 759 (1) (b) (363 SE2d 529), held: “Where the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination.” See also Hurston v. State, 189 Ga. App. 748, 750 (377 SE2d 519). But according to Johnson v. State, 261 Ga. 419, 420 (405 SE2d 686), character is put in issue when it is “placed in evidence as an affirmative defense.” Appellant put his character “in issue” in this case by asserting that some of these charges arose out of the fact that he was under “pressure” by police because of his record and that he did not commit the crimes. In holding that a defendant who admits prior criminal conduct has not placed his character “ ‘in issue,’ ” Jones, supra, did not speak to the situation where the defendant uses his criminal record as a defense. Appellant’s election to use his record as a defense was not “inadvertent” (id. at 758) but was made with the purpose of exonerating himself. Nor was the State restricted to “rebuttal” by cross-examination (see Jones at 759); there was nothing to rebut. Since appellant elected to put his character “in issue” so as to benefit from his criminal record, he abandoned any right to object to the admission of the best evidence of it. Moret v. State, 246 Ga. 5, 6 (268 SE2d 635).

Moreover, since he relied upon his criminal record as a defense to the present charges, he cannot have been harmed by the admission of it in evidence. As to the requirement to show harm, see Frost v. State, 200 Ga. App. 267, 271 (407 SE2d 765).

2. The trial court did not err in allowing the State to impeach a defense witness by his first offender plea. Appellant contends the rule allowing a defendant to impeach a State’s witness by a first offender record (see Gilstrap v. State, 250 Ga. 814 (301 SE2d 277)) is not available to allow the State to impeach a defense witness in that way, because the right of a criminal defendant to impeach witnesses outweighs a first offender’s right to be protected from the stigma of having committed a crime, and the State faces none of the risks faced by a criminal defendant.

In a civil case an adverse party’s first offender plea is admissible for impeachment to disprove or contradict his testimony (Hightower v. General Motors Corp., 255 Ga. 349 (338 SE2d 426); see Witcher v. Pender, 260 Ga. 248 (392 SE2d 6)); so it is not true that the only exception to the rule forbidding use of a first offender’s conviction against him exists to benefit persons being prosecuted for a crime. We do not think the State’s rights and risks are less important than the defendant’s. Assuredly the State’s interests in a criminal prosecution are not outweighed by a defense witness’ right to be shielded from the “stigma” of having committed a crime.

Decided November 5, 1992 —

Reconsideration denied November 17, 1992

David L. Whitman, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

3. Appellant contends the evidence was insufficient to support convictions on Counts 1 and 5. The evidence shows that on January 30, 1991, police arrived two-and-one-half minutes after a silent alarm went off at the UWL Landfill, which was closed at the time. They found appellant about 100 yards from the landfill. Appellant indicated he had been parking with his girl friend but that she had driven away. When officers escorted appellant to the alarm box, they recovered a flashlight such as was found in another UWL Landfill burglary (as to which the trial court granted appellant a directed verdict of acquittal), and appellant’s shoe matched a shoe print taken from the landfill during the investigation of a third burglary (as to which the trial court granted appellant a directed verdict). As to the count involving burglary of St. Louis Enterprises on September 18, 1991, the night security guard, who lived on the premises, testified that at about 4:30 a.m. he was awakened by a loud noise. He turned on the lights, grabbed an axe, and saw appellant. Appellant told the guard his car broke down and he was looking for a screwdriver to fix it, but in fact his car was backed up to the building with the bumper five or six feet from the building. We find the evidence, including evidence of similar crimes in the additional counts, sufficient to enable a reasonable trier of fact to find appellant guilty of the elements of the crimes charged, including that he was not authorized to enter the premises, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs in Divisions 2 and 3 and in the judgment.


text:
    A92A1368.
    EMPLOYEE BENEFIT COORDINATORS, INC. v. SMITH.
    (424 SE2d 815)
    Decided October 28, 1992 —
    Reconsideration denied November 17, 1992

      Dunstan, Dunstan & Cleary, J. Richard Dunstan, Long, Aldridge & Norman, Gordon D. Giffin, Phillip A. Bradley, for appellant.

      Dye, Tucker, Everitt, Wheale & Long, Duncan D. Wheale, for appellee.
   Beasley, Judge.

This is an appeal from a judgment entered by the state court in favor of plaintiff/appellee following a bench trial in a contract action. At issue was plaintiff’s claim for sales commissions accrued for contract renewals following the termination of a written insurance sales agreement between the parties. The trial court awarded appellee sales commissions plus interest totalling $55,273.94, which included commissions on contracts to be renewed in the future, and $20,500 as expenses of litigation.

In his complaint, plaintiff asked for judgment as to “future sales commissions earned by the Defendant on all policy renewals of clients enrolled” by him. The parties stipulated to the venue of the state court and application of Georgia law. Appellant now contends that the award of future commissions, not yet accrued, is in the nature of a declaration of rights, which is within the exclusive domain of the superior court, OCGA § 9-4-2.

Without reaching that issue, we hold that the state court had no authority to order the payments in the future of sums not yet due under the contract. See Nicholes v. Swift, 118 Ga. 922 (2) (45 SE 708) (1903); Williamson v. C & S Realty Co., 130 Ga. App. 592, 593 (203 SE2d 906) (1974). If such payments to which plaintiff claims entitlement are not made when due, his recourse will be to bring another suit, rather than to seek enforcement of the provision in the court’s order and judgment purporting to award future commissions. It must be stricken as null and void.

In all other respects raised by the enumerations of error, the judgment of the court below is affirmed because no other reversible error of law appears.

Judgment affirmed on condition that the judgment as to future sums is vacated upon remittitur; otherwise reversed.

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


text:
    A92A1526.
    BENNING CONSTRUCTION COMPANY et al. v. ALL-PHASE ELECTRIC SUPPLY COMPANY.
    (424 SE2d 830)
   Beasley, Judge.

Defendants Benning Construction Company and St. Paul Fire & Marine Insurance Company were granted interlocutory appeal from two separate orders of the trial court, which denied judgment to defendants in two suits by All-Phase Electric Supply Company to collect on bonds which had discharged materialman’s liens. No notice of appeal was filed in the second suit (No. 91-A-46172-1), so it is not a part of this appeal. The issue is whether or not All-Phase’s execution of a document entitled “Waiver and Release of Lien” precludes its suit against St. Paul. It does not.

In late 1990, Benning acted as general contractor for construction of a shopping center. One general contract, between Benning and the developer, Horne Properties, Inc., provided for the construction of a K-Mart and several smaller retail shops. A second general contract, between Benning and Horne’s tenant, Ingles Markets, Inc., was for construction of a grocery store.

Beginning in January 1991, All-Phase provided Benning’s subcontractor, Harp Electric Company, Inc. with materials and supplies for use in construction of the shopping center and each portion of the project. Harp failed to pay All-Phase for the supplies and ceased work in April. A. C. Henderson Electric Company replaced Harp as electrical subcontractor about May 1. It likewise purchased materials for the project from All-Phase.

On May 6, All-Phase filed a materialman’s lien on each portion of the project for the alleged unpaid balances of $181,413.20 (K-Mart) and $88,632.85 (Ingles). See OCGA §§ 44-14-361; 44-14-361.1. On May 13, Benning filed a bond to discharge these liens in the principal sum of $540,091.74 with St. Paul as surety. See OCGA § 44-14-364.

Henderson paid for certain of the materials it purchased from All-Phase on June 25 and July 31. At the time of each payment, All-Phase, via its district credit manager McMillin, executed a “Waiver and Release of Lien.” Each such document provided that All-Phase “does hereby waiver and release any and all liens, claims of rights to liens and demands of every kind whatsoever which said Corporation may now or hereafter have against the above-described real property for labor and materials furnished for the making of improvements upon said real property. . . . That this Waiver and Release of Lien is effective for labor and materials furnished through [May 31, 1991/ June 30,1991] and the consideration received by the undersigned represents payment in full of all amounts due [All-Phase] in connection with said improvements to the date hereof.”

Decided October 30, 1992 —

Reconsideration denied November 17, 1992

Kilpatrick & Cody, H. Quigg Fletcher III, for appellants.

Davis, Kirsch & Wolfe, Dock H. Davis, for appellee.

This appeal involves All-Phase’s suit against Benning as principal and St. Paul as surety on the bond associated with the K-Mart portion of the project.

^ Benning and St. Paul contend that the unambiguous language of the lien waivers operated to dissolve the two liens in question and all previously filed liens, for OCGA § 44-14-361.2 (a) (1) provides “[t]he special lien specified in subsection (a) of Code Section 44-14-361 shall be dissolved if the owner, purchaser from owner, or lender providing construction or purchase money or any other loan secured by real estate shows that: (1) the lien has been waived in writing by lien claimant; . . .” We need not address whether Benning and/or St. Paul have status under such provision or whether parol evidence could affect the meaning of the waiver, because the answer lies elsewhere.

When Benning and St. Paul posted the bond on May 13, 1991, to discharge All-Phase’s liens, “the real property [was] discharged from the lien[s].” OCGA § 44-14-364 (a). The bond served as a replacement for the lien, and there was no longer any lien against the property to be foreclosed. All-Phase’s claims were then predicated on the bond, which is subject to contract law. See Linco Constr. Co. v. Tri-City Concrete, 161 Ga. App. 174, 176 (1) (288 SE2d 125) (1982). Thus, when All-Phase executed the waivers of lien against the real property several months later, there was no lien against the property upon which the waiver might act. A lien which may be dissolved by a waiver pursuant to OCGA § 44-14-361.2 (a) (1) is a special lien specified in OCGA § 44-14-361 (a); no such lien remained after the bond was posted.

All-Phase’s contract claims against Benning and St. Paul were not affected by the subsequent waiver and release of liens. The superior court correctly denied summary judgment for Benning and St. Paul.

Judgment affirmed.

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


text:
    A92A1560.
    MANLEY v. THE STATE.
    (424 SE2d 818)
   Beasley, Judge.

A jury convicted Manley of driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1), and having a blood alcohol concentration of .12 grams of alcohol or more within three hours after being in actual physical control of a moving vehicle, former OCGA § 40-6-391 (a) (4). Both charges stemmed from the same incident. The court merged the second count into the first and sentenced only on count one (“less safe”). Manley’s motion for new trial was denied.

The sole challenge is that the trial court erred in allowing evidence of the Horizontal Gaze Nystagmus Test (HGN) to be presented to the jury “when the test did not reach a level of verifiable certainty and acceptance by the scientific community for the purposes used in this case.” The HGN is a test manifesting an involuntary rapid and then slow jerk of the eye. It is one of the field sobriety tests used as an indicator of alcohol or other drug use. See Mendoza v. State, 196 Ga. App. 627, 628 (1) (396 SE2d 576) (1990). It was administered to Manley along with several other field sobriety tests. Via a motion in limine and objections at trial, Manley sought to exclude all evidence pertaining to the HGN test on the ground that the test is not generally accepted by the scientific community as a reasonable means of determining sobriety or the lack thereof.

“In determining whether a given scientific principle or technique is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law, trial courts have frequently looked to see whether the technique has gained general acceptance in the scientific community which recognizes it. Frye v. United States, 293 F 1013 (D. C. Cir. 1923); Salisbury v. State, 221 Ga. 718 (146 SE2d 776) (1966). An evaluation of whether the principle has gained acceptance will often be transmitted to the trial court by members of the appropriate scientific community testifying as expert witnesses at trial. . . . [T]he Frye rule of ‘counting heads’ in the scientific community is not an appropriate way to determine the admissibility of a scientific procedure in evidence. . . . [I]t is proper for the trial judge to decide whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure ‘rests upon the laws of nature.’ The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. [Cits.] The significant point is that the trial court makes this determination based on the evidence available to [it] rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.” Harper v. State, 249 Ga. 519, 524 (1) (292 SE2d 389) (1982).

In this case, the trial court denied Manley’s motion in limine after concluding that the HGN test had been used like any of the other accepted field sobriety tests and was valid for the purpose of indicating the presence of alcohol, especially in light of the fact that the officer did not rely solely on the HGN test but used it instead in conjunction with other tests and observations.

The court’s decision to allow the HGN evidence as a valid field sobriety test followed, inter alia, detailed expert testimony at the motion in limine hearing to the effect that the HGN test had reached a stage of verifiable certainty in the medical community as being an indicator of something wrong with the central nervous system or the vestibular apparatus or the eye; that one of the factors that might create horizontal gaze nystagmus was the presence of alcohol or drugs; and that although the test originated in the medical community, it was a scientifically reliable field sobriety evaluation — a tool and reliable indicator along with others of the influence of alcohol.

Based on the evidence, the court did not err in ruling the HGN test admissible as valid to show a symptom indicative of, though not determinative of, the presence of alcohol.

Had it been error to admit the HGN evidence, it would have been harmless in light of the other overwhelming evidence of Manley’s guilt. Foster v. State, 204 Ga. App. 632 (420 SE2d 78) (1992); Ross v. State, 192 Ga. App. 850 (1) (386 SE2d 721) (1989). Radar detected Manley traveling at an excessive rate of speed and he was pulled over. While the police officer was talking with Manley beside the roadway, he noticed the odor of alcohol on Manley’s breath, that he was unsteady on his feet, that his eyes were bloodshot, and that his speech was slurred. The officer performed several field sobriety tests on Manley prior to the HGN test. He conversed with Manley to determine, inter alia, his attitude. Manley was cooperative though quiet and nervous. He admitted to the officer that he had had a couple of drinks at a trade show. The officer than asked Manley to recite the alphabet from “D” through “P.” Manley recited from “A” to “R.” He was then instructed to take nine steps, touching heel to toe with each step and counting out loud. Manley stepped off the straight line, used his arms to balance, and did an incorrect number of steps. An alco-sensor test was positive for blood alcohol. A later-administered Intoximeter 3000 test revealed a blood alcohol level of .13.

Decided October 29, 1992 —

Reconsideration denied November 17, 1992

Moore & Davidson, W. Keith Davidson, for appellant.

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Allison L. Thatcher, Assistant Solicitors, for appellee.

Judgment affirmed.

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


text:
    A92A1649.
    ERIE INDEMNITY COMPANY v. LASCALA.
    (424 SE2d 820)
   Birdsong, Presiding Judge.

Erie Indemnity Company appeals from the grant of summary judgment to plaintiff Lisa Lascala on the issue of insurance coverage. Erie is the insurer for the vehicle in which Lascala was injured while riding as a passenger and which was driven by Joan Lingrell, who was also injured. Erie’s policy provides uninsured/underinsured motorist coverage limits of $250,000 per person and $500,000 per accident. The policy provides that an “underinsured” motor vehicle is “a motor vehicle [as to which] the sum of the applicable limits of liability under all . . . policies . . . applicable at the time of the accident is less than the applicable limits [of this policy].” (Emphasis supplied.)

The tortfeasor was John Hart. His insurer, Westfield Insurance Company, provides liability coverage with single limits of $300,000 per occurrence for personal injury and property damage. After deducting property damage paid, Westfield paid the remaining $296,963 of its per-occurrence limits to Lingrell and to appellee Lascala, so that each received half, or $148,481.50. Appellee Lascala’s damages exceeded $285,000, which fact gave rise to the question whether she is entitled to coverage under Erie’s underinsured motorist provision. Erie contends it owes no underinsured coverage to Lascala because Hart’s vehicle is not “underinsured” according to Erie’s policy language. Erie says that under Maryland law, which controls the operation of Erie’s contract, the “applicable limits” of the tortfeasor’s Westfield policy is the single limit of $300,000 per occurrence, which exceeds Erie’s limits of $250,000 per person. Erie also contends it is entitled to a set-off of $35,000 which Lascala received from her own uninsured motorist coverage. Held:

1. Insurance contracts are governed by the ordinary rules of construction of contracts; where the language and meaning of the contract terms are plain and unambiguous, the court must treat it literally; and the court may resolve any ambiguities by application of the rules of construction of contract. Southeast Atlantic Cargo Operators v. First State Ins. Co., 197 Ga. App. 371, 372 (398 SE2d 264). Where an insurance contract is ambiguous or is capable of being construed variously, it must be construed against the insurer and in favor of the insured. Claussen v. Aetna &c. Co., 259 Ga. 333 (380 SE2d 686); American Protection Ins. Co. v. Parker, 150 Ga. App. 732 (258 SE2d 540).

The omission by Erie of language specifically defining “applicable limits” does not deprive the underinsured provision of its reasonable meaning. The plain language is that underinsured status is determined by the “applicable” limits of all liability policies “at the time of the accident” in the particular instance to the particular insured. In this instance, the liability coverage “applicable” to appellee Lascala was one-half of Westfield’s single limit coverage of $300,000 per occurrence.

The conceded effect of Westfield’s single limit of $300,000 per occurrence is that Lascala got $150,000 (less property damage). It would be sophistic and uncertain to hold that the limits “applicable” to Lascala in this case were those theoretically “applicable” to both Lascala and Lingrell ($300,000) or to Lascala alone if she had been the only person injured ($300,000), when in fact she was entitled to, and got, only half that amount from Westfield. Nothing else is “applicable” to her in this instance, and it is unreasonable to base coverage on a theorization as to what might have been “applicable” to her in some other instance.

As the liability limits “applicable” to Lascala were less than $150,000 and the “applicable limits” of Erie’s underinsured coverage with regard to Lascala were $250,000, we find this contract capable of only one reasonable construction, which is that Westfield’s liability coverage “applicable” to Lascala is exceeded by Erie’s underinsured coverage, and she is therefore entitled to coverage undér Erie’s under-insured provision. See Technology Distrib. v. American Computer Tech., 199 Ga. App. 785, 786 (405 SE2d 907). Erie has not persuaded us that any pertinent Maryland precedent requires a different result. The trial court’s ruling on this issue is affirmed.

2. Under these same authorities as to construction of contracts, we find the trial court likewise did not err in ruling that Erie was not entitled to set off the $35,000 paid by her own uninsured coverage. Erie’s policy entitles her to a set-off only of the amounts “paid by or for those liable.” This coverage was not paid “by” the tortfeasor Hart or “for” him. It was paid by Lascala’s insurer for her, she is the one who paid for this coverage and she is the one who contracted for it. The fact that her insurer paid this amount in the event Hart had insufficient liability coverage does not alter the fact that this is coverage obtained by her, for her. Compare Georgia Farm &c. Co. v. State Farm &c. Co., 255 Ga. 166 (336 SE2d 237).

Decided October 29, 1992 —

Reconsideration denied November 17, 1992

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, for appellant.

Jewett & Solomon, C. Lawrence Jewett, Jr., Jay I. Solomon, for appellee.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs in judgment only.


text:
    A92A1659.
    BENTON v. CHATHAM COUNTY.
    (425 SE2d 317)
   Birdsong, Presiding Judge.

This is an appeal from the judgment of the superior court entered pursuant to a jury verdict in favor of appellant/condemnee, and from the order denying appellant’s motion for new trial.

This case involves a partial taking of .544 acres (or 1,744.36 linear feet) of the front strip of certain property abutting a highway for public road purposes. Although in conflict, the evidence reflects that the remainder of the property is a large parcel of land of either 112 or 123 acres. It is undisputed that, before taking, the highest and best use of the property was commercial. Appellant argues that after acquisition, because of an alleged substantial taking of the right of access to the remainder of the property, the highest and best use of the remainder was changed from commercial to use of the house and certain of the land for a rural residence and the rest thereof for limited agricultural purposes. Appellee/condemnor offered expert evidence that the value of the remainder was not damaged by the mere taking of the approximate 10-foot wide and 1,744-foot long strip, and that the right of access had not been impaired as, before taking, appellant had three driveways of one-car capacity and that, after the taking, they were left with three driveways of equal capacity, although perhaps not as wide. Assuming the original property consisted of 112 acres, the property taken was “forty-nine hundredths of one percent” of that land. Appellee’s expert valued the property taken at $14,500, and that except for the cost of $1,589.60 to replace a water line, there were no consequential damages to the remainder. The jury awarded appellant $17,000. Held:

1. Appellant asserts the trial court erred in failing to exclude the testimony of George Lyons and in failing to grant appellant’s motion to void the entire proceedings. As these issues are not reasonably contained within any enumeration of error, they are not before us on appeal. Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (2) (367 SE2d 272); see West v. Nodvin, 196 Ga. App. 825, 830 (4b) (397 SE2d 567).

2. Appellant asserts the trial court erred in allowing the condemnor to conceal that access rights were taken causing irreparable injury to the condemnee. Pretermitting whether access rights were in fact taken and whether appellant adequately preserved this issue for appellate review by timely and specific objection, we find nothing in this record to affirmatively establish that condemnor or its witnesses engaged in conduct concealing whether access rights had been taken. However, certain testimony was offered by condemnor to establish that it had not taken any access rights. Moreover, the appraiser testified, as an expert, that in his opinion appellant was left with the same or substantially the same right of access after taking as was enjoyed before taking. “Matters he may have omitted from consideration were appropriate matters for cross examination and rebuttal, which condemnee’s counsel artfully executed, and ultimately for the weight to be given the opinion by the jury.” Brookhaven Supply Co. v. DeKalb County, 134 Ga. App. 878, 879 (2) (216 SE2d 694); accord Skipper v. Dept. of Transp., 197 Ga. App. 634, 637 (399 SE2d 538). The expert was subjected to vigorous cross-examination regarding the validity of his opinion, and appellant’s contrary position was clearly and forcefully presented to the jury. Likewise, appellee’s other witnesses were subjected to searching cross-examination. Further, the jury heard the difference in the opinions of appellant’s and appellee’s expert appraisers regarding the effect the planned ditch would have on appellant’s access to his property. The jury was not misled by any form of concealment regarding the issue of taking of access rights or of the related issue of consequential damages arising from an alleged physical impairment of access. The party asserting error has the burden of establishing it affirmatively by the record. Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (1) (386 SE2d 709). Appellant has failed to carry his burden to establish error as crafted in this enumeration.

Whipple v. County of Houston, 214 Ga. 532 (105 SE2d 898) is factually distinguishable from this case.

3. Appellant asserts the trial court erred in allowing the jury to decide whether access rights were taken, as this was a question for trial court determination.

In support of this enumeration, appellant neither argues nor provides any citation of authority tending to establish that any particular instruction given by the trial judge was erroneous. Therefore, assuming without deciding that this enumeration of error could include the appellate issue whether any particular charge given to the jury was in error, such issue has been abandoned on appeal. Court of Appeals Rule 15 (c) (2).

Following the trial court’s charge to the jury, appellant’s counsel did object because the trial court failed to “tell [the jury] which property was in issue. . . . If it is clear what was taken, it’s a question of law and I think the correct charge on what was taken — which you usually would do in describing the property taken.” Appellant’s counsel also broadly argued that “I don’t think [the jury has] a right to make a determination as to what was taken. I mean, that’s . , . total error.” Thereafter, appellant’s counsel stated, “we would like a corrective charge”; however, the type of corrective charge desired was never presented orally or in writing on the record. And except perhaps for opining that the court’s charge on zoning was not a fact at issue in the case, appellant’s counsel did not identify any specific charge given to the jury as being error. Objections to the giving of or failure to give charges must state distinctly the matter to which objection is made and the grounds of the objection. OCGA § 5-5-24 (a). The general nature of the objections posed by appellant to the failure to charge and the most oblique objection, if any, posed to the charges actually given are inadequate to preserve these issues for appellate review. Compare Hilliard v. Canton Wholesale Co., 151 Ga. App. 184, 186 (3) (259 SE2d 182). “The rationale underlying the requirement that the objection be sufficiently specific is to insure that the trial judge is afforded an opportunity to [determine if a charging error in fact has occurred and to] correct any error in the instructions prior to verdict so that the necessity of an appeal will be obviated.” Id. Additionally, assuming without deciding a charging error occurred that was adequately preserved on appeal, appellant, by failure to articulate clearly and distinctly any error in the charges given or to request any specific corrective instructions thereto, aided in any failure to charge the jury adequately as to the property and interest therein taken. “One cannot complain of a failure to charge that is aided by his own trial tactics, procedures, and conduct.” Taylor v. State, 195 Ga. App. 314, 316 (4) (393 SE2d 690).

Appellant further asserts that appellee’s counsel in closing argument introduced the right of access issue “as an issue to the jury.” The record establishes, however, that appellant did not object to this argument when it occurred or even immediately upon conclusion of the argument. Only after the jury left the courtroom and the trial judge entertained objections and exceptions to the charge did appellant finally state, “And I want to put on the record, I object to her arguing the jury has a right to make a fact issue of what was taken.” The trial court sustained the belated objection. Thereafter, appellant made no motion for mistrial, but did tender an oral request for an unspecified corrective charge as above discussed. Notwithstanding the trial court’s election to rule on the untimely objection to appellee’s closing argument, “ ‘[t]he time to object to improper closing argument is when the impropriety occurs at trial. . . . When[, as here,] no timely objection is interposed, the test for reversible error ... is whether the improper argument in reasonable probability changed the result of the trial.’ ” Tharpe v. State, 262 Ga. 110, 114 (16) (416 SE2d 78). Applying this test we find that appellee’s comments during closing argument did not result in reversible error.

In view of our various holdings, we conclude this particular enumeration of error is without merit.

4. Appellant asserts the trial court erred in failing to strike the expert opinion and appraisal of condemnor’s sole appraiser, because his opinion was formulated contrary to the ruling expressed in Department of Transp. v. Gunnels, 175 Ga. App. 632 (334 SE2d 197).

(a) In support of this enumeration, appellant first asserts that the trial court erred in failing to strike the part of the appraisal which separated out certain landscaping from the raw land, as the appraiser erroneously added the value of the raw land and the value of the landscaping together to arrive at the total value of the property taken. See, e.g., Department of Transp. v. Willis, 165 Ga. App. 271 (299 SE2d 82). Pretermitting whether this particular assertion is reasonably included within the scope of the enumeration of error is the question of whether reversible error occurred by such procedure. Appellee’s appraiser testified that the highest and best use of the property was commercial and that the purchaser would have very little if any use of the shrubbery or the improvements concerned; however, he included the value of some landscaping, as he believed a person who had worked very hard on these items for many years should receive some compensation for the labor expended. “[T]he expert’s opinion testimony as to value [of these items] was, in fact, beneficial to [c]ondemnee and it was, therefore, not reversible error to have admitted that testimony.” Electrical Workers &c. v. Dept. of Transp., 198 Ga. App. 345, 346 (1) (401 SE2d 347).

Additionally, the trial court charged the jury that “all elements of the land, such as trees, may be taken into consideration to determine the value of the land taken and the consequential damages to the land not taken, but evidence of the value of each element may not be considered.” (Emphasis supplied.) Thus, we are confident that any such error regarding this matter would be harmless, within the meaning of OCGA § 9-11-61, as there exists no reasonable likelihood in light of the totality of the testimony of the expert, coupled with the pertinent charge of the trial court, that the opinion as to the separate value of the landscaping affected the substantial rights of appellant.

(b) The proper measure of consequential damages to the remainder (property not taken) is the diminution, if any, in the market value of the remainder in its circumstances just prior to the time of the taking compared with its market value in its new circumstances just after the time of the taking. Department of Transp. v. Gunnels, 255 Ga. 495, 496 (1) (340 SE2d 12).

Appellee’s expert performed two appraisals, the second of which was an update of the first. It is the second appraisal upon which the expert relied in arriving at his opinion that there was no diminution in value as to the remainder of the property. Although the expert failed to make a separate mathematical calculation regarding the value of the remainder before the take, it was his conclusion, after determining a unit value per acre for the land, that the difference then existing between the value of the remainder and the entire tract was, under the operative circumstances, just the reduction of the value of the part taken. Likewise, having concluded there was no damage (except for replacement of a certain water line) to the remainder caused by the take, he found no necessity to reduce his entire mental process to mathematical calculation.

In both his first and updated appraisals, the expert considered whether there had been any damages to the remainder. The updated appraisal pertained to the property as of the date of taking. In the updated appraisal, the expert estimated the value of the remainder before the take on a unit value basis, that is, on a certain dollar per acre value; and, although he “did not state it out,” the expert testified he went through the thought process to estimate the value of the remainder after the take. As there was no value diminution or reduction caused by the take, he omitted the mathematical calculation for this process. In view of all the factors considered, the expert concluded that the value of the remainder after the take was “essentially the same as the value before.”

Appellant has failed to cite any persuasive authority which would compel the trial court to strike the testimony of the condemnor’s expert. Nothing in either of the Gunnels decisions, supra, mandates that an expert arrive at his property appraisal only by means of one inflexible procedural process. As a general statutory rule, “[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” OCGA § 24-9-67. We find no basis for departing from the general statutory rule in this case, particularly as Georgia law favors the admission of any relevant evidence no matter how slight its probative value. West v. Nodvin, supra at 828 (3b). The weight and value to be given admissible expert testimony is a matter for jury determination under proper instruction. Buckhanon v. State, 151 Ga. 827, 833 (8) (108 SE 209). And appellant did not take any specific exception to the instructions given the jury either regarding consideration of expert testimony or as to the procedure to be followed in determining consequential damages. In view of the above, we find this enumeration to be without merit.

5. Appellant asserts the trial court erred in denying condemnee’s motion in limine to prevent the introduction of evidence whether condemnor might or might not give back property rights after the date of the take.

Condemnor’s expert appraiser testified that appellant was not deprived of any right of access; before the taking he had three existing single-car driveways and after the taking he was left with three, 14-foot, single-car driveways to the public road. The jury also heard testimony that even though the existing driveways may have been wider than 14 feet at the time of taking, there was no substantial impairment of these driveway access routes because the driveways after taking likewise would accommodate single-car traffic. Moreover, on cross-examination, condemnor’s expert appraiser testified that he had not claimed condemnee could “get some property back,” and “if I said she got it back, I was in error.” However, testimony was admitted inter alia to the effect that a procedure existed whereby a landowner could tender a subsequent request, submit a completed development plan, and obtain additional access to a public road. An engineering expert testified, however, that the Department of Transportation would not normally grant additional driveway access to undeveloped property, and that the maximum driveway width feasible for purposes of commercial development, under DOT regulations, is normally 35 feet and in certain instances 40 feet. There also was unrefuted testimony that a request, for example, for a building permit for a “7/11” store with only a 14-foot driveway would not be approved due to safety considerations.

The jury was instructed, regarding the pertinent provisions of OCGA §§ 32-6-131 and 32-6-133, including respectively, the requirement to obtain a permit to construct a new commercial driveway or to alter an existing one and that in promulgating reasonable regulations in implementation of the applicable statutes, such regulations shall not deprive the landowner of reasonable access to a public road on the state highway system. Appellant has not filed an enumeration of error regarding these instructions, nor has she enumerated as error the trial court’s charge that a landowner is not entitled to access at all points on the boundary between his property and the public right-of-way, but is entitled to convenient access, and the existing means of ingress and egress may not be substantially interfered with without compensation.

Although DOT is given authority to promulgate uniform and reasonable regulations in implementation of the provisions of Article 5, Part 1, Title 32, OCGA, and in making the same is required to specify inter alia the circumstances under which commercial driveway permits may be issued or revoked, nevertheless, OCGA § 32-6-133 in effeet precludes promulgation of implementing regulations which would deprive “the landowner of reasonable access to the public road on the state highway system” concerned. (Emphasis supplied.) That is, DOT cannot refuse to issue a commercial driveway permit when the landowner would be obtaining thereby a reasonable access from his property to the public roadway concerned. (Note: We do not here address the question of denial of access to a landowner to a limited access highway, as that question is not at issue on appeal.) Thus, it appears that evidence concerning the procedure available for the landowner to apply for additional and reasonable access by means of new commercial driveways would have some relevancy, albeit minimal, regarding whether, at the time of taking, appellant’s right of access had been substantially impaired or reduced in scope. Any such impairment or reduction would appear likely to result in some type of diminution in the value of the remainder, applying the test of Department of Transp. v. Gunnels, supra, 255 Ga. at 496. “Admissibility of evidence rests in the trial court’s sound discretion. [Cit.] [And even] ‘evidence of doubtful relevancy or competency should be admitted and its weight left to the jury.’ ” Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (2) (377 SE2d 15). Evidence of the procedures available at the time of taking to request and subsequently receive reasonable access to property for commercial purposes has at least minimal relevance to the ultimate question of the diminution, if any, in the market value of the remainder in its new circumstance just after the time of the taking; therefore, the trial court did not abuse its discretion in allowing such testimony to be presented to the jury in this instance. Moreover, “ ‘[w]here evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.’ ” West v. Nodvin, supra at 828 (3) (b).

Decided October 29, 1992 —

Reconsideration denied November 17, 1992.

Rebecca C. Benton, for appellant.

Emily E. Garrard, for appellee.

We have considered the authority cited by appellant and find it is not controlling.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs in judgment only.


author: Cooper, Judge.

text:
    A92A1125.
    COOPER v. THE STATE.
    (424 SE2d 896)
   Cooper, Judge.

Appellant was charged with violations of the Georgia Controlled Substances Act. Following his conviction by a jury, he appeals from the judgment of conviction entered on the verdict and the denial of his motion for new trial.

Appellant was first arrested in September 1990 when an officer with the Atlanta Police Department observed appellant sitting in the parking lot of a housing project holding a clear plastic bag in his hand. As the officer approached appellant, appellant attempted to conceal the plastic bag. However, the officer retrieved the bag which contained four pieces of crack cocaine. Appellant was arrested and charged with possession of cocaine and released on bond. Approximately two months later, while appellant was released on bond, the same officer saw appellant in the housing project and observed several persons approach appellant and exchange money for small packages which appeared to contain drugs. The officer saw appellant enter one of the apartments and obtained a no-knock search warrant for that apartment. Approximately three days later, the police executed the search warrant and found appellant sitting at a table with over 100 pieces of crack cocaine, bags and other utensils used to cut and package the cocaine, a gun and money. The officers also found numerous weapons, as well as ammunition, and expensive clothes and 20 to 30 pairs of new tennis shoes. Appellant’s girl friend was present in the apartment and was also arrested and charged with possession of cocaine with intent to distribute. After appellant was read his Miranda rights, he stated that the cocaine belonged to him and not to his girl friend.

1. Appellant contends in two enumerations of error that the trial court erred in allowing the prosecutor to elicit testimony concerning the expensive clothes and shoes and the types of weapons and ammunition found during the search of the apartment. One of the officers testified that it was customary during a drug raid to find excessive amounts of clothes and tennis shoes. The prosecutor stated that the testimony regarding the guns and ammunition was relevant to refute appellant’s contention in his opening statement that he had the weapons because he was a security guard. It is axiomatic that “[articles found in a defendant’s possession at the time of his arrest ‘are admissible as circumstances connected with the arrest. [Cit.]’ [Cit.]” Burdette v. State, 197 Ga. App. 881, 882 (3) (399 SE2d 745) (1990). Consequently we find no merit to appellant’s first and third enumerations of error.

2. In his second enumeration of error, appellant contends that the trial court erred in instructing the prosecutor on how to introduce certain evidence. Appellant’s contention is without merit. The record reflects that the prosecutor disagreed with the trial judge’s ruling requiring the prosecutor to lay a foundation before introducing testimony regarding items found at the time of appellant’s arrest. The disagreement developed into a short discourse, outside the presence of the jury, between the trial judge and the prosecutor and did not prejudice appellant’s case.

3. Appellant contends in two enumerations that the prosecutor improperly commented on appellant’s silence at the time of his arrest. The prosecutor asked one of the arresting officers whether appellant at any time denied ownership of the cocaine and the officer responded that no denial was made in his presence. The trial court sustained the objection and instructed the jury to disregard the question. Appellant made no further objection and did not request any other curative instruction or move for a mistrial. “[A]n instruction to the jury to disregard improper remarks amounts to a rebuke of counsel. [Cit.]” Martin v. State, 196 Ga. App. 145, 147 (2) (395 SE2d 391) (1990). Furthermore, “ ‘[i]f [appellant’s] counsel deemed the instruction or admonition of the jury inadequate to remove the harmful effect, it was incumbent upon him to request further instructions or [move] for mistrial after the corrective action, which he did not do. (Cit.) . . .’ [Cit.]” Barksdale v. State, 161 Ga. App. 155, 158 (4) (291 SE2d 18) (1982). Accordingly, we find no merit to appellant’s fourth and fifth enumerations of error.

4. Appellant argues that the trial judge erred in denying his written request for a charge on good character. Appellant elected to put his character in issue by testifying that he had previously been arrested on an assault charge that was subsequently reduced to a misdemeanor charge for which he was sentenced to 12 months on probation. Appellant stated that other than the misdemeanor, he had not been convicted of any crime. “The good character of an accused person is a substantive fact, and evidence of such good character should be weighed and considered by the jury in connection with all of the other evidence in the case. [Cit.] When there is an appropriate request, a proper instruction should be given in every case where the accused person puts his character in issue. [Cit.]” Braddy v. State, 172 Ga. App. 386, 389 (2) (323 SE2d 219) (1984), aff'd State v. Braddy, 254 Ga. 366 (330 SE2d 338) (1985). Even if we deem appellant’s testimony sufficient to raise the character issue, we cannot conclude that the trial court’s failure to charge on good character constitutes reversible error. Viewing appellant’s defense, including his testimony, as a whole, it does not appear that the issue of character played a significant role during the trial. Compare Chastain v. State, 177 Ga. App. 236 (2) (339 SE2d 298) (1985). Moreover, in light of the overwhelming evidence against appellant, specifically the fact that he was arrested twice in a two-month period with drugs either on his person or in his immediate vicinity, we find it highly probable that any error did not contribute to the verdict. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

Decided November 17, 1992.

Marc H. Hodge, for appellant.

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

5. In his final enumeration of error, appellant contends that the trial judge erred in charging the jury as follows: “There is no requirement under the law that the state either allege or prove that the defendant had an intent to distribute cocaine.” Appellant was charged with possession of cocaine with intent to distribute, and there is no dispute that this charge was erroneous. The State argues that since appellant neither objected to the charge nor reserved objections to the charge, we may only reverse if the erroneous charge was harmful, as a matter of law. See OCGA § 5-5-24 (c); Lavender v. State, 234 Ga. 608 (2) (216 SE2d 855) (1975). However, because the record in this case does not reflect that the trial judge inquired of appellant’s counsel whether he had any objections to the charge, we cannot conclude that appellant waived his right to raise this error on appeal. See Brady v. State, 169 Ga. App. 316 (5) (312 SE2d 632) (1983). Nor can we determine, as appellee asserts, that the erroneous charge was “a mere verbal inaccuracy” which resulted from a “palpable ‘slip of the tongue.’ ” (Compare Nobles v. State, 201 Ga. App. 483, 491 (21) (411 SE2d 294) (1991).) The error in the charge was directly related to the offense for which appellant was on trial and was almost certain to confuse and mislead the jury. Furthermore, we have examined the trial court’s charge in its entirety and do not find that the trial court anywhere instructed the jury that intent to distribute is an element of the crime which must be shown by the State. Consequently, we hold that the charge as given constitutes reversible error.

Judgment reversed.

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


author: Carley, Presiding Judge.

text:
    A92A1154.
    A92A1353.
    JENKINS v. HOGAN et al. HOGAN v. JENKINS.
    (424 SE2d 898)
   Carley, Presiding Judge.

While an at-will employee of appellee-defendant, appellant-plaintiff was provided medical insurance coverage pursuant to a group policy. When appellant was terminated from her employment, she was removed from the group insurance coverage. Alleging that appellee had wrongfully failed to notify her of the expiration of her medical coverage, appellant initiated the instant action to recover the costs of medical expenses incurred by her. The jury returned a verdict in favor of appellee and, in Case No. A92A1154, appellant appeals from the judgment entered by the trial court on the jury’s verdict. In Case No. A92A1353, appellee cross-appeals.

Case No. A92A1154

1. The denial of appellant’s motion for summary judgment is obviously moot, since the case already has been submitted to a jury. White v. Lance H. Herndon, Inc., 203 Ga. App. 580 (1) (417 SE2d 383) (1992).

2. It is undisputed that appellee provided appellant with a policy booklet, which contained the relevant provisions regarding the expiration of her group coverage upon the termination of her employment and the right to covert, in that event, to a private policy. Compare Woodman Co. v. Adair, 164 Ga. App. 603 (294 SE2d 579) (1982). It is further undisputed that appellant could and did read the booklet, including those provisions regarding expiration and conversion. Compare Dawes Mining Co. v. Callahan, 246 Ga. 531, 535 (272 SE2d 267) (1980) (wherein the employee could not read and, “pursuant to instruction, signed the application for insurance without reading the new master policy”); Calhoun v. Kut-Kwick Corp., 172 Ga. App. 511 (323 SE2d 699) (1984) (wherein the employee could not read).

Thereafter, appellee did not secure a new group policy providing different coverages. Compare Dawes Mining Co. v. Callahan, supra; City of Brunswick v. Carney, 187 Ga. App. 634, 635 (1) (371 SE2d 201) (1988). Accordingly, no duty on the part of appellee ever arose to apprise appellant of any change in coverage under the provisions of a new policy. Thereafter, appellee also did not misrepresent the terms and conditions of the existing group policy and erroneously inform her that her coverage hereunder would extend beyond the termination of her employment. Compare Dawes Mining Co. v. Callahan, supra; Calhoun v. Kut-Kwick Corp., supra; Woodman Co. v. Adair, supra. Accordingly, appellee breached no duty to provide appellant with truthful information regarding the extent of her coverage under the group policy.

Predicated upon the above cited cases, however, appellant requested several charges relative to the duties owed by an employer to his employees with regard to group coverage. It was clearly not error to refuse to give these requested charges, since there was no evidence that appellee had ever breached any duty recognized in those cases. Under the evidence, if appellee breached any duty, it was in misrepresenting the date of the termination of appellant’s employment, which was the event that triggered the expiration of her group coverage and her right to convert to a private policy. There is no enumeration of error addressing the sufficiency or accuracy of the trial court’s instructions as to this duty. .

Decided November 17, 1992.

Bonnie K. Cole, Cedric T. Leslie, for Jenkins.

Lovett & Hicks, L. Robert Lovett, for Hogan.

Kirkland A. McGhee, for Blue Cross/Blue Shield.

Case No. A92A1353

3. Appellee’s cross-appeal is dismissed as moot. Henderson v. County Bd. of Reg. & Elections, 126 Ga. App. 280 (5) (190 SE2d 633) (1972).

Judgment affirmed in Case No. A92A1154. Appeal dismissed in Case No. A92A1353.

Pope and Johnson, JJ., concur.


author: Andrews, Judge.

text:
    A92A1189.
    WORLEY v. CHUCK CLANCY FORD OF MARIETTA, INC.
    (425 SE2d 376)
   Andrews, Judge.

Worley purchased a car from Chuck Clancy Ford of Marietta, Inc. (Clancy Ford), financed under the terms of a retail installment contract which created a security interest in the car in favor of the seller or holder of the contract. About five days after the purchase, the car was severely damaged in a collision, and Worley ceased making any payment under the contract. Pursuant to the contract, Clancy Ford took possession of the car, sold it for salvage value, and sued Worley for the deficiency owed under the contract. The trial court granted Clancy Ford summary judgment, and Worley appeals.

Worley claims factual issues remain which preclude summary judgment. Clancy Ford filed no affidavit in support of its motion for summary judgment, conducted no discovery, and relied upon allegations in its unverified complaint. Worley admitted that a few days after she purchased the car from Clancy Ford, it was damaged in a collision, that she had no insurance coverage on the car, and she stopped making payments under the contract. She admitted that the contract attached to Clancy Ford’s complaint was a portion of the sales agreement; that she signed an additional form reciting her contractual obligation to keep insurance coverage on the car; and that she had arranged for the required insurance. Worley denied allegations related to the amount of damage to the car and salvage value, and claims the car was not disposed of in a commercially reasonable manner as required where a deficiency judgment is sought. See Gilbert v. Farmers & Merchants Bank, 192 Ga. App. 700 (385 SE2d 782) (1989). “Unsworn allegations in pleadings that have not been admitted by the opposing party are not evidence for purposes of summary judgment resolution.” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). Factual questions remain as to the commercial reasonableness of the sale.

Decided November 17, 1992.

Jon A. Green, for appellant.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, Linda J. Pollock, for appellee.

Worley also alleged as a defense that Clancy Ford was not the real party in interest because the claim was assigned to its insurance carrier. The retail installment contract recites that it was assigned to First Union National Bank of Georgia. As the record stands, a factual question exists as to Clancy Ford’s interest in the action. See OCGA § 9-H-17.

On the present record, we find no merit in Worley’s additional allegations that Clancy Ford or the holder of the contract is estopped to collect a deficiency judgment because Clancy Ford promised it would maintain insurance to cover damage to the car for 30 days after the purchase, and failed to do so. The contract clearly provides that it was Worley’s responsibility to “maintain property insurance protecting the Seller or Holder for loss or damage to the property. . . .” “One not prevented from reading the contract, and having the capacity and opportunity to do so, cannot after signing it claim he was fraudulently induced to sign by promises which contradict the express terms of the contract.” Campbell v. C & S Nat. Bank, 202 Ga. App. 639, 640 (415 SE2d 193) (1992). Based on the record as it stands, Worley has failed to demonstrate a factual issue regarding her contention that a $20 fee she paid under the contract was intended to procure property insurance on the car.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A92A1203.
    CHARO v. THE STATE.
    (424 SE2d 900)
   Cooper, Judge.

Appellant was indicted on two counts of child molestation (Counts I and II) and one count of cruelty to children (Count III). The jury found appellant guilty on Counts II and III and not guilty on Count I. The trial court granted appellant’s motion for new trial on Count III and denied the motion on Count II. Appellant appeals from the denial of his motion for new trial on Count II, raising as his sole enumeration of error the admission of similar transaction evidence.

Appellant was charged in Count II of the indictment with placing his hand inside the pants of the victim, a nine-year-old girl. Prior to trial, the State gave notice pursuant to Uniform Superior Court Rule 31.3 of its intent to present evidence of a similar transaction. The similar transaction was alleged to have occurred between January 1, 1986 and December 31, 1988 and was allegedly committed by appellant touching the breasts, vaginal area and buttocks of his stepdaughter, a child under the age of 14. The trial court conducted a hearing prior to trial and ruled that the similar transaction would be admitted. The State then called, as its first witness, the similar transaction victim, who testified that when she was ten or eleven years old, appellant came into the room where she slept and touched her vagina and her breast with his fingers and mouth. Following the testimony, the trial judge instructed the jury that appellant was not charged with molesting his stepdaughter and that the similar transaction evidence was admitted only for the purpose of illustrating appellant’s bent of mind as to the charged offense.

1. Appellant, relying on Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991), argues that the similar transaction evidence should not have been admitted prior to the State introducing evidence regarding the offense with which appellant was charged. In Gilstrap, the trial court allowed the State to introduce evidence of nine similar transactions before it offered any evidence about the indicted offense. The Supreme Court indicated that the procedure raised a substantial possibility that the jury could have settled upon the guilt of the defendant before it even heard the evidence as to the indicted offense. However, the Supreme Court expressly declined to determine the limits on the trial court’s discretion as to the order of the admission of evidence. Unlike Gilstrap, in the case sub judice, the State presented only one similar transaction, and we conclude that the trial court did not abuse its discretion in allowing the State to present the similar transaction evidence before introducing evidence as to the charged offense.

2. Appellant’s arguments that the similar transaction should not have been admitted because the State did not provide a definite date on which the offense was alleged to have occurred and because the offense involved a different victim is also without merit. See Eidson v. State, 182 Ga. App. 321 (2) (355 SE2d 691) (1987).

Decided November 17, 1992.

Wood, Odom & Edge, Arthur B. Edge, for appellant.

Peter J. Skandalakis, District Attorney, Lisa R. Roberts, Assistant District Attorney, for appellee.

3. Similarly, we find no merit to appellant’s argument that the similar transaction was too remote in time. The similar transaction occurred only four or five years before the charged offense and was almost identical to the charged offense. See McLendon v. State, 184 Ga. App. 332 (2) (361 SE2d 534) (1987).

4. Finally, appellant argues that the evidence should not have been admitted because the similar transaction victim subsequently recanted her allegation of child molestation. The evidence reflects that approximately two months after reporting the child molestation to the sheriff’s department, the similar transaction victim signed an affidavit stating that the allegations she made against appellant were false and that appellant had not molested her. The victim testified that she recanted her allegations because she wanted to return to live with her mother, but that appellant had in fact molested her. Appellant’s objection to the victim’s recantation goes to the weight and credibility of her testimony, see, e.g., Young v. State, 194 Ga. App. 335 (1a) (390 SE2d 305) (1990), and provides no basis for appellant’s argument that the similar transaction evidence should not have been admitted.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A92A1059.
    In the Interest of M. A. V., a child.
    (425 SE2d 377)
   Sognier, Chief Judge.

This court granted the application for discretionary appeal filed by the mother of M. A. V. from the order of the Juvenile Court of DeKalb County finding her six-year-old son to be deprived and transferring temporary custody of the child to the DeKalb County Department of Family & Children Services (“DFCS”).

1. Appellant contends the evidence was insufficient to support the juvenile court’s order because the only evidence of M. A. V.’s deprivation adduced by the State involved M. A. V.’s younger brother. “When contemplating taking custody of a minor child from his parent or parents and awarding it to a third party, the court mjust initially face the presumption, firmly embedded in our law, that;it is in the child’s best interest to be with his natural parent or parerlts. In order for this presumption to be overcome, there must be a clear and convincing showing that the child is abandoned, deprived, or abused, or that the parent is unfit to receive or retain custody. Thus, in order to take custody from the natural parent or parents and award it to a third party, the court must consider not simply the ‘best interest of the child,’ which is the appropriate standard when the contest is between the parents, but the narrower criterion of parental fitness to have the child in his or her custody. ... A parent may lose [her] right to custody of [her] child or children if [she] is found to be unfit or if there is found to exist one of the conditions specified in OCGA § 19-7-1. . . . Custody may also be lost if the child is found to be . . . deprived and likely to be harmed thereby.” (Citations omitted.) In re M. M. A., 166 Ga. App. 620, 622-623 (305 SE2d 139) (1983).

The record reflects that M. A. V., appellant’s first child, is illegitimate and has been cared for since his birth by appellant’s parents. M. A. V. remained with his grandparents after appellant remarried, moved away with her husband, and gave birth to a second child, B. C. C. The juvenile court’s order and the transcript of the hearing on the deprivation petition regarding M. A. V. support appellant’s assertion that the juvenile court judge relied exclusively on the evidence adduced at the hearing on the deprivation petition regarding B. C. C. to supply the clear and convincing evidence of deprivation required to authorize the taking of the child’s custody from the natural parent and the awarding of it to a third party. See id.

The juvenile court in the hearing on B. C. C. found that child deprived and transferred custody of the child to DFCS on the basis of its finding that the child was a victim of Munchausen’s Syndrome by Proxy (“MSP”). Medical experts testified at the deprivation hearing for B. C. C. that MSP, first recognized in 1977, is an illness in which the caretaker of a child either induces the appearance of an illness in the child or actually inflicts harm on the child, then seeks medical care for the child. In regard to B. C. C., there was testimony that on two separate occasions, appellant had induced B. C. C.’s respiratory arrest (once by suffocation, the other time by drowning), then called for emergency help and resuscitated the child. At the different hospitals to which B. C. C. was taken, appellant gave hospital authorities different names for herself and the child, proffered improbable explanations for the respiratory arrest, failed to continue the recommended treatment for the child’s “illness,” and did not inform the second hospital of the child’s first incident of respiratory arrest. The two doctors who had treated B. C. C. on these occasions testified that after investigation by the second hospital uncovered the earlier incident, the doctors conferred and concluded, based upon the extensive medical examination and testing of the child that had eliminated all other reasonable explanations for the two incidents, that the proper diagnosis by exclusion was MSP.

In the deprivation hearing for B. C. C., Dr. Bernard Kahan, a child psychiatrist who had encountered nearly 20 cases of MSP and published numerous articles for scientific literature on the subject of MSP, testified that there was no evidence that therapy for the parent was helpful based on reports of “serial Munchausen[’s Syndrome] by Proxy where one child after another is victimized despite” the parent receiving therapy. In response to questions by the attorney for B. C. C., Dr. Kahan testified that while older children “can well be” targeted by parents with MSP, the younger, non-verbal child is the more likely target. Dr. Kahan testified that “[medical literature suggests” that an older child would be at risk if the younger child was removed from the home and that even if the abuse had not happened to the older child, “that does not mean that it won’t happen” upon the removal of the younger child. When asked by appellant’s attorney specifically about the risk to a five-year-old, Dr. Kahan replied, “[f]ive year olds are verbal, so they are able to talk to some degree about what is being done to them, but if you think about other types of abuse than [MSP], you have to have a five year old who is being extensively abused. These children only sometimes tell about the abuse, and when you have a child who is verbal and can sort of tell what is going on, just as in some other types of abuse where they sometimes don’t. And so you still may not have any clear way of getting information from the child about the abuse one would hope that the child will be able to tell somebody. I would hope that.” Although Dr. Kahan testified it might indicate the older child was a victim of MSP if the parent had reported a history of seizure disorder in the older child, no evidence was adduced that appellant had. ever reported that M. A. V. had such a history. The transcript reveals that Dr. Kahan’s opinions were based upon his examination of the medical records of B. C. C., and it is uncontroverted the doctor did not examine B. C. C., review M. A. V.’s medical records, or speak with M. A. V. or appellant.

“Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.” Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981). We fail to find such circumstances in the case sub judice. Accordingly, we reverse.

M. A. V. was found to be deprived and appellant’s custody of her child severed solely on the basis of the risk that the child might become the next victim of appellant’s MSP. There was absolutely no evidence that M. A. V. is now or has ever been a victim of appellant’s MSP, and the only evidence of the possible risk to the child adduced by the State consisted of Dr. Kahan’s responses to hypothetical questions posed during the hearing on B. C. C. We do not agree with the trial court or the State that the evidence in this case is comparable to the situations present in In the Interest of D. S., 176 Ga. App. 482, 483 (1) (336 SE2d 358) (1985) and Madray v. Dept. of Human Resources, 146 Ga. App. 762 (247 SE2d 579) (1978), cited by the State, in which the courts found that conditions in the parents’ homes strongly indicated that the abuse or deprivation inflicted on one child in the past would be inflicted on another child in the future. Rather, the evidence before the court is that M. A. V. is in the care of his grandparents, that M. A. V. has never been victimized by appellant, and that appellant uncontrovertedly does not intend to replace her parents as the child’s caretaker in the future.

Decided November 17, 1992.

Linda A. Pace, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney,

Applying the correct substantive and evidentiary standards to the facts of this case, we must conclude that the trial court erred by finding M. A. V. to be a deprived child and transferring custody of him to DFCS. We do not find upon appellate review that the State carried its burden of proof with clear and convincing evidence that would support a finding of parental unfitness sufficient to sever appellant’s custody of the child. See generally In re J. C. P., 167 Ga. App. 572 (307 SE2d 1) (1983).

2. We further agree with appellant that the judgment must be reversed because appellant was not provided sufficient opportunity to cross-examine Dr. Kahan. At the time appellant cross-examined Dr. Kahan her custodial rights in M. A. V. were not in issue. We do not agree with the State that the few hypothetical questions regarding the risk of victimization of an older sibling that were posed to Dr. Kahan during the hearing on B. C. C. accorded appellant the “thorough and sifting cross-examination” of the witness to which appellant was entitled under OCGA § 24-9-64.

3. Our holding in Division 1, supra, renders it unnecessary for us to address appellant’s remaining enumerations of error.

Judgment reversed.

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

Jonath A. Morrow, Solicitor, Dorothy V. Murphy, for appellee.

       We note that the primary case relied upon by the trial court, Roberts v. State of Ga., 141 Ga. App. 268 (233 SE2d 224) (1977) overruled by Chancey v. Dept. of Human Resources, 156 Ga. App. 338 (274 SE2d 728) (1980), predates the holdings in Santosky v. Kramer, 455 U. S. 745 (102 SC 1388, 71 LE2d 599) (1982) and In re Suggs, 249 Ga. 365 (291 SE2d 233) (1982), which rejected the “any evidence” or “sufficiency of the evidence” standard apparently applied by the court in Roberts.


author: Johnson, Judge.

text:
    A92A1285.
    COLONIAL PIPELINE COMPANY v. WILLIAMS.
    (425 SE2d 380)
   Johnson, Judge.

Colonial Pipeline Company acquired an easement under land owned by James Williams pursuant to its power of eminent domain (OCGA § 22-3-80). The easement was obtained so that Colonial could install an underground cathodic protection device, a mechanism which protects the integrity of an existing underground petroleum pipeline system. Ultimately the case was tried by a jury, which returned a verdict in favor of Williams in the amount of $15,000. Colonial appeals from the judgment entered upon that verdict.

In its only enumeration of error, Colonial contends that the trial court erred in admitting testimony concerning a hypothetical division of Williams’ undivided, unimproved 12-acre parcel of land into individual lots suitable for immediate residential development, and testimony as to the damages purportedly arising from the total loss of the value of one of those lots as a result of the condemnation. Colonial argues that this evidence was speculative, and therefore was improperly admitted.

Colonial’s appeal relates only to the consequential damages portion of the jury’s verdict. That portion of Williams’ land under which the easement was actually taken consisted of .09 acres. Upon the testimony presented to the jury, the market value of the land taken for the temporary and permanent easements could not be greater than $1,500. Therefore the portion of the verdict in excess of $1,500 represents the award of consequential damages.

At trial, an expert witness described a method for subdividing Williams’ 12-acre parcel of land into separate, identified lots suitable for immediate residential development. There was also expert testimony regarding the potential effect an underground cathodic device on a portion of one lot might have on the value of the remainder of that lot, as well as on the value of the other lots. This expert opined that under the hypothetical facts the owner would suffer a $20,000 consequential loss, and based his opinion upon the assumption that the full lot through which the easement ran would effectively be lost and therefore rendered valueless as a result of the condemnation. Further evidence was presented indicating that the condemnation would result in the complete devaluation of Williams’ “best lot,” causing consequential damages between $20,000 and $24,000.

Williams testified that he had considered surveying his land for subdivision use and had discussed this idea with a land surveyor, who had told him that “it wouldn’t be any big deal to [subdivide the property].” Three expert witnesses testified that the highest and best use of Williams’ property was to subdivide it for residential development.

In condemnation proceedings, it is within the trial court’s discretion to determine whether the evidence shows that the subject property is reasonably suited for a use different from its existing use, and it may admit or exclude evidence of value for such other use. Its rulings admitting or excluding such evidence will not be reversed unless there was a manifest abuse of its discretion. Dept. of Transp. v. Great Southern Enterprises, 137 Ga. App. 710, 713 (2) (225 SE2d 80) (1976). Consequential damages are recoverable in condemnation to compensate the property owner for loss incurred to the remainder of the property as a direct result of the taking. See Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980). The proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder just prior to the taking compared with its market value just after the taking. Dept. of Transp. v. Pilgrim, 175 Ga. App. 576, 579 (3) (333 SE2d 866) (1985).

In Pilgrim, we specifically relied upon the trial court’s cautionary instructions that the evidence was admitted only because it was illustrative of the possible future use to which the property could be put. Thus, in the instant case, it would have been proper for the condemnee to submit evidence that, as a result of the taking, the market value of his remaining tract of land, considering the potential subdivision use, had been diminished as of the date of the taking. See Housing Auth. of Decatur v. Schroeder, 222 Ga. 417 (151 SE2d 226) (1966). The expert’s testimony that the condemnee’s property would be worth $20,000 to $24,000 less as a result of and after the taking was based solely upon that witness’ opinion that the taking would deprive the condemnee of almost the full value of one of the hypothetically divided subdivision “lots.” The problem with this testimony is that it values the remaining property as if the land were already subdivided. Thus, the $20,000-$24,000 figure placed on the “lot” by the expert was the retail value which would be paid by a purchaser of such a subdivision lot. “[T]he fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation. It must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land. [Cit.]” (Emphasis supplied.) Dept. of Transp. v. Great Southern Enterprises, supra, 713. “Even where a different use is probable, . . . the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can only consider the new use to the extent that it affects the market value on the date of taking.” (Emphasis supplied.) Pursley, Ga. Eminent Domain, § 6-5.

Decided November 17, 1992.

Smith, Gambrell & Russell, E. Kendrick Smith, Matthew S. Coles, for appellant.

Webb, Tanner & Powell, William G. Tanner, for appellee.

Although the condemnee’s expert could have testified to his opinion of the value of the remaining land as of the date of taking based upon its enhanced value because of its adaptability as a residential subdivision, he could not testify as to the value before and after the taking based upon his assumption of the value as if the property had already been subdivided. “Although an expert value witness may state his opinion of value without giving reasons therefor [cit.] where he does give reasons and those reasons appear to be wholly speculative or conjectural, his opinion is without foundation and without probative value. [Cit.]” Merritt v. Dept. of Transp., 147 Ga. App. 316, 320 (248 SE2d 689) (1978), rev’d on other grounds, Dept. of Transp. v. Merritt, 243 Ga. 52 (252 SE2d 508) (1979).

We conclude that the trial court erred in admitting the challenged testimony, and a new trial is required.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


text:
    A92A1286.
    WILLIAMS v. THE STATE.
    (425 SE2d 382)
   Cooper, Judge.

Appellant was convicted by a jury of cruelty to children (OCGA § 16-5-70). In his only enumeration of error, appellant contends the trial court erred in its jury charge on the lesser included offense of simple battery (OCGA § 16-5-23).

The victim and appellant both testified that the victim, a 16-year-old boy, was walking with a friend at approximately 2:00 a.m. when another friend and appellant stopped to give them a ride. After dropping the victim’s friends off, appellant drove on with the victim, stopping at a nearby cemetery. At this point the stories of the victim and appellant diverge. The victim testified that appellant told him they were waiting for the two friends to get what they wanted and catch up. Appellant suggested they get out of the truck and offered the victim some whiskey. When the victim started to enter the woods to urinate, appellant grabbed him by the hair and hit him several times. Appellant then demanded that the victim perform oral sex on him and threatened to beat him to death if he did not. The victim refused, and appellant hit him, struck his head against tombstones, threw him to the ground and kicked him repeatedly. Appellant then performed oral sex on the victim and was attempting to engage in anal sex when the headlights of another car containing the victim’s friends appeared. Appellant, on the other hand, testified that the victim had requested that appellant pull over at the cemetery so he could urinate. As appellant waited for the victim to return he dozed off and awoke to find the victim’s hand in his back pocket where appellant kept his wallet. The victim struck appellant with a stick, and it was only then that appellant hit him back and a struggle ensued until the victim’s friends arrived.

Appellant was indicted and tried for aggravated sodomy, attempted aggravated sodomy and cruelty to children. Immediately after charging the jury on the elements of these three crimes, the trial court also instructed the jury on simple battery, a lesser included offense of cruelty to children. The instruction on simple battery consisted solely of the statutory definition of that offense, however, and did not explain to the jury how or when to apply the charge on the lesser included offense. The jury found appellant guilty of cruelty to children but not guilty of aggravated sodomy or attempted aggravated sodomy. Appellant moved for a new trial and appeals from the denial of that motion.

Appellant contends that the trial court’s instruction defining simple battery without further explanation created ambiguity and confused the jury. Appellant cannot and does not contend that the statutory definition is an incorrect instruction, however, and “ ‘ “[a] correct instruction to the jury is not subject to exception for failure, in absence of an appropriate request, to embody an additional definitive or explanatory charge.” ’ [Cits.]” Phillips v. State, 142 Ga. App. 581, 582 (3) (236 SE2d 519) (1977). Appellant did not file a request to charge on the lesser included offense. Accordingly, he cannot now complain of the trial court’s failure to provide the jury with a better explanation of it. See Lamb v. State, 196 Ga. App. 665 (3) (396 SE2d 497) (1990). Moreover, a more thorough explanation of the lesser included offense would have properly contained an instruction to the jury to consider the lesser included offense only after it found the accused not guilty of the charged offense. See, e.g., Brownlee v. State, 155 Ga. App. 875 (5) (273 SE2d 636) (1980). The jury in this case found appellant was guilty of the charged offense beyond a reasonable doubt. Consequently, the trial court’s failure to provide a better explanation regarding the lesser included offense, even if error, could not have been harmful and thus could not constitute reversible error. See State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976).

Judgment affirmed.

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

Decided November 17, 1992.

Clements & Clements, Patrick R. Clements, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Melodie B. Swartzbaugh, David L. Whitman, Assistant District Attorneys, for appellee.


text:
    A92A1476.
    JONES v. THE STATE.
    (425 SE2d 384)
   Cooper, Judge.

Appellant was convicted by a jury of possession of cocaine with intent to distribute. His sole enumeration of error is the trial court’s admission of the State’s similar transaction evidence.

The evidence presented at trial showed that on April 30, 1991, while executing a search warrant at a house, two police officers found appellant in a back bedroom standing at the foot of the bed with his hands inside of a drawer. Inside the drawer was a bottle which contained 28 individually packaged pieces of crack cocaine.

“Before evidence of prior crimes is admissible, the State must show at a pretrial hearing held pursuant to Uniform Superior Court Rule 31.3 that (1) it intends to introduce evidence of the prior crime for an appropriate purpose; (2) there is sufficient evidence to establish the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.] ” Spinks v. State, 204 Ga. App. 249, 250 (1) (419 SE2d 108) (1992). At the Rule 31.3 (B) hearing, the State presented testimony from several police officers relating to two prior convictions and introduced certified copies of the convictions.

As to the first conviction, the evidence reflected that on February 13, 1990, two officers observed appellant in an area where drug sales frequently occur and that when appellant saw the officers, he started to walk away. Although one of the officers told him to stop, appellant continued to walk down into a drainage ditch. The officer saw appellant drop something into the ditch and place another object inside a concrete block. The second officer retrieved a pill bottle from the concrete block which contained 23 pieces of crack cocaine. The officer also found a pill bottle in the drainage ditch which contained 19 pieces of crack cocaine.

The second conviction arose from a tip received on July 10, 1989, from a reliable confidential informant, who stated that appellant was at a housing complex in possession of crack cocaine. The officers went to the housing complex and found appellant with a crack cocaine pipe in his pocket and upon a further search, found a pill bottle containing 24 pieces of crack cocaine.

Decided November 17, 1992.

Harrison & Willis, Bennett T. Willis, Jr., for appellant.

Willis B. Sparks III, District Attorney, Howard Z. Simms, Assistant District Attorney, for appellee.

Appellant objected to the admission of the similar transaction evidence on the ground that there was insufficient similarity between the prior offenses and the charged offense. Concluding that the State demonstrated sufficient similarity, the trial court ruled that the similar transaction evidence was admissible for the purpose of showing motive and bent of mind. At trial, the State introduced certified copies of the convictions as well as the testimony presented during the Rule 31.3 (B) hearing. We find no error with the trial court’s ruling. In all three of the crimes, appellant was in possession of between 18 and 28 individual pieces of crack cocaine which he concealed in a small bottle. Thus, the State demonstrated sufficient similarity between the crimes. Accordingly, we hold that the trial court did not err in admitting evidence of the prior offenses. Spinks, supra.

Judgment affirmed.

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


text:
    A92A1588.
    RAMEY v. THE STATE.
    (425 SE2d 385)
   Andrews, Judge.

Ramey was convicted by a jury of armed robbery, to wit: taking a car by the use of a knife. He claims the trial court erred in denying his motion for a directed verdict because, although there was evidence he used a knife in assaulting the victim immediately prior to the robbery, there was no evidence he used the knife when he took the car.

Evidence showed that Ramey attacked the victim with a knife, tied her up, sexually assaulted her, then took the keys to the car from her jacket and stole the car. The victim testified she saw the knife when Ramey brandished it as he first attacked her. There was no evidence that the knife was visible during the continuing assault which followed, or when Ramey took the keys to the car.

“A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a). Section 16-8-41 (a) “clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person. This accords with the general rule in the United States that the force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking.” (Citations and punctuation omitted.) Young v. State, 251 Ga. 153, 157 (303 SE2d 431) (1983); Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974).

Decided November 17, 1992.

Nancy K. Peterson, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Robert M. Coker, Elisabeth G. MacNamara, Assistant District Attorneys, for appellee.

Here, there was ample evidence that, prior to the taking, Ramey attacked the victim with a knife. It makes no difference that Ramey did not thereafter hold the victim at knifepoint, or otherwise display the knife when he took the car. A concealed weapon, rather than one used directly upon the victim, may be used in a taking as an instrument of constructive force to intimidate the victim by placing her in fear of personal injury. Pope v. State, 201 Ga. App. 537, 538 (411 SE2d 557) (1991). “The statute [OCGA § 16-8-41 (a)] includes concealed offensive weapons provided there is either a physical manifestation of the weapon or some evidence from which the presence of a weapon may be inferred. The question is whether the defendant’s acts created a reasonable apprehension on the part of the victim that an offensive weapon was being used, regardless of whether the victim actually saw the weapon.” (Citations and punctuation omitted.) Johnson v. State, 195 Ga. App. 56, 57 (392 SE2d 280) (1990).

Applying these principles, even if there was no evidence that Ramey used the knife directly upon the victim when he took the car, the evidence was sufficient to show the presence of a concealed weapon used prior to or contemporaneously with the taking to apply constructive force to intimidate the victim. This satisfies the statutory requirement that the taking be by use of an offensive weapon. Since the evidence as a whole was sufficient to enable a rational trier of fact to conclude that the defendant was guilty of armed robbery beyond a reasonable doubt, the trial court did not err in denying the defendant’s motion for a directed verdict.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.